Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8749

Dated: February 21, 1997.

LaVerne Y. Stringfield,

Committee Management Officer, NIH.

[FR Doc. 97–4739 Filed 2–25–97; 8:45 am]

BILLING CODE 4140–01–M

National Institute of General Medical

Sciences; Notice of Closed Meeting

Pursuant to Section 10(d) of the

Federal Advisory Committee Act, as

amended (5 U.S.C. Appendix 2), notice

is hereby given of the following

advisory committee meeting of the

National Institute of General Medical

Sciences Special Emphasis Panel:

Committee Name: Determinants of

Individual Responsiveness to Drugs.

Dates: March 25, 1997.

Time: 8:00 a.m.–until conclusion.

Place: Union Station Hotel, 1001

Broadway, Nashville, Tennessee 37203.

Contact Person: Irene Eskstrand, Ph.D.,

Scientific Review Administrator, NIGMS,

Office of Scientific Review, 45 Center Drive,

Room 2AS–25K, Bethesda, MD 20892–6200,

301–594–0943.

Purpose: To review and evaluate program

project applications.

This meeting will be closed in accordance

with the provisions set forth in sections

552b(c)(4) and 552b(c)(6), Title 5 U.S.C.

Applications and the discussions of these

could reveal confidential trade secrets or

commercial property such as patentable

material and personal information

concerning individuals associated with the

applications, the disclosure of which would

constitute a clearly unwarranted invasion of

personal privacy.

(Catalog of Federal Domestic Assistance

Program Nos. 93.821, Biophysics and

Physiological Sciences: 93.859,

Pharmacological Sciences; 93.862, Genetics

Research; 93.863, Cellular and Molecular

Basis of Disease Research; 93.880, Minority

Access Research Careers [MARC]; and

93.375, Minority Biomedical Research

Support [MBRS].)

Dated: February 20, 1997.

LaVerne Y. Stringfield,

Committee Management Officer, NIH.

[FR Doc. 97–4740 Filed 2–25–97; 8:45 am]

BILLING CODE 4140–01–M

National Institute of Diabetes and

Digestive and Kidney Diseases; Notice

of Closed Meetings

Pursuant to Section 10(d) of the

Federal Advisory Committee Act, as

amended (5 U.S.C. Appendix 2), notice

is hereby given of the following

meetings of the National Institutes of

Diabetes and Digestive and Kidney

Diseases:

Name of Committee: National Diabetes and

Digestive and Kidney Diseases Special Grant

Review Committee, Subcommittee D.

Date: March 7, 1997.

Time: 8 a.m.–Adjournment.

Place: Hyatt Regency Bethesda Hotel, One

Bethesda Metro Center, Bethesda, Maryland

20814.

Contact Person: Ann A. Hagan, Ph.D.,

Scientific Review Administrator, Natcher

Building, Room 6AS–37F, National Institutes

of Health, Bethesda, Maryland 20892–6600,

Phone: 301–594–8886.

Purpose/Agenda: To review and evaluate

research grant applications.

Name of Committee: National Diabetes and

Digestive and Kidney Diseases Special Grant

Review Committee, Subcommittee B.

Date: March 10, 1997.

Time: 8 a.m.–Adjournment.

Place: Hyatt Regency Bethesda Hotel, One

Bethesda Metro Center, Bethesda, Maryland

20814.

Contact Person: Ned Feder, M.D., Scientific

Review Administrator, Natcher Building,

Room 6AS–25S, National Institutes of Health,

Bethesda, Maryland 20892–6600, Phone:

301–594–8890.

Purpose/Agenda: To review and evaluate

research grant applications.

This notice is being published less than 15

days prior to the above meetings due to the

urgent need to meet timing limitations

imposed by the review and funding cycle.

Name of Committee: National Diabetes and

Digestive and Kidney Diseases Special Grant

Review Committee, Subcommittee C.

Date: March 21, 1997.

Time: 8:30 a.m.—Adjournment.

Place: Doubletree Hotel—Pentagon City,

300 Army Navy Drive, Arlington, Virginia

22202.

Contact Person: Daniel Matsumoto, Ph.D.,

Scientific Review Administrator, Natcher

Building, Room 6AS–37B, National Institutes

of Health, Bethesda, Maryland 20892–6600,

Phone: 301–594–8894.

Purpose/Agenda: To review and evaluate

research grant applications.

These meetings will be closed in

accordance with the provisions set forth in

sections 552b(c)(4) and 552b(c)(6), Title 5,

U.S.C. Applications and/or proposals and the

discussions could reveal confidential trade

secrets or commercial property such as

patentable material and personal information

concerning individuals associated with the

applications and/or proposals, the disclosure

of which would constitute a clearly

unwarranted invasion of personal privacy.

(Catalog of Federal Domestic Assistance

Program No. 93.847–849, Diabetes, Endocrine

and Metabolic Diseases; Digestive Diseases

and Nutrition; and Kidney Diseases, Urology

and Hematology Research, National Institutes

of Health.)

Dated: February 20, 1997.

LaVerne Y. Stringfield,

Committee Management Officer, NIH.

[FR Doc. 97–4741 Filed 2–25–97; 8:45 am]

BILLING CODE 4140–01–M

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

[Docket No. FR–4200–N–30]

Notice of Submission of Renewal of

Information Collection Requirement to

OMB

AGENCY: Office of the General Counsel,

HUD.

ACTION: Notice.

SUMMARY: The proposed renewal/

reinstatement of the existing

information collection requirement

described below is being submitted to

the Office of Management and Budget

(OMB) for review, as required by the

Paperwork Reduction Act (44 U.S.C.

chapter 35). The Department is

soliciting public comments on the

subject renewal.

DATES: Comment due date: April 28,

1997.

ADDRESSES: Interested persons are

invited to submit comments regarding

this renewal. Comments should refer to

the proposal by name and should be

sent to:

Joseph F. Lackey, Jr., OMB Desk, Office

of Management and Budget, New

Executive Office Building,

Washington, DC 20503.

John J. Daly, Associate General Counsel

for Insured Housing, GI, HUD

Building, Room 9236, 451 7th St.,

SW., Washington, DC 20410.

FOR FURTHER INFORMATION CONTACT: Kay

Weaver, Reports Management Officer,

Department of Housing and Urban

Development, 451 7th Street Southwest,

Washington, DC 20410, telephone (202)

708–0050. This is not a toll-free number.

Copies of the existing forms showing

clarifications and minor changes

necessary to effect the renewal and

other available documents submitted to

OMB may be obtained from Ms. Weaver.

SUPPLEMENTARY INFORMATION: This

Notice informs the public that the

Department of Housing and Urban

Development is submitting to OMB an

information collection renewal package

with respect to two guide formats

(hereinafter, ‘‘the Guide’’) which specify

the components of a legal opinion

required by the Department in

connection with the insurance of

mortgage loans upon multifamily rental

projects and health care facilities under

Titles II and XI of the National Housing

Act, 12 USC 1702, et seq., and 12 USC

1749aaa, or in connection with the

making of a capital advance under

section 202 of the Housing Act of 1959,

as amended. (Please note that references

to section 811 of the Cranston-Gonzalez

National Affordable Housing Act, as
8750 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

amended, have been deleted because the

Guide is no longer required in

connection with that program.)

The Guide articulates those matters

upon which HUD requires an opinion

from private counsel as well as those

matters upon which confirmations are

required. The Guide also contains

detailed instructions pertaining to the

form as well as a format for

certifications by the mortgagor as to

matters particularly within the

knowledge of the mortgagor upon which

its legal counsel relies in rendering the

opinion. The section 202 Guide format

is essentially the same as the insured

loan format except for some differences

in terminology and program

requirements.

To the extent that the Guide

represents any ‘‘collection of

information,’’ the process is necessary to

ensure the Department that the attorney

representing the mortgagor or owner has

followed the otherwise specified

requirements of the Department and to

ensure the Department that the attorney

has exercised an acceptable degree of

due diligence in representing the client

and in rendering the opinion to the

mortgagee and HUD. Although certain

aspects of the process have been

clarified in the Instructions to the

Guide, the process has not changed and

no substantive changes have been made

the Guide itself. Further, the program

coverage has been clarified, but the

actual coverage has not been expanded.

The extent of due diligence expected to

be performed under the Guide is no

different than that which HUD has

required under the Guide since its

approval by OMB on March 11, 1994

(OMB Number 2510–0010). Based upon

the experience of HUD in using the

Guide for almost three years, HUD has

determined that there have been no

major problems in using the Guide and

that it has been received positively by

virtually all of the attorneys utilizing the

format. However, there are several

places in the Guide and the Instructions

thereto where technical corrections are

necessary and where expanded

Instructions are necessary to facilitate

use of the Guide by private attorneys

and HUD field counsel.

The Notice is soliciting comments

from members of the public and affected

agencies concerning the proposed

renewal of the collection of information

to: (1) Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility; (2) Evaluate the

accuracy of the agency’s estimate of the

burden of the proposed collection of

information; (3) Enhance the quality,

utility, and clarity of the information to

be collected; and (4) Minimize the

burden of the collection of information

on those who are to respond; including

through the use of appropriate

automated collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

responses.

This Notice also lists the following

information:

(1) The title of the information

collection proposal;

(2) The office of the agency to collect

the information;

(3) The description of the need for the

information and its proposed use;

(4) The agency form number, if

applicable;

(5) What members of the public will

be affected by the proposal;

(6) How frequently information

submission will be required;

(7) An estimate of the total number of

hours needed to prepare the information

submission including number of

respondents, frequency of response, and

hours of response;

(8) Whether the proposal is new or an

extension, reinstatement, or revision of

an information collection requirement;

and

(9) The names and telephone numbers

of an agency official familiar with the

proposal and of the OMB Desk Officer

for the Department.

Authority: Section 3506 of the Paperwork

Reduction Act, 44 U.S.C. 3506, Section 7(d)

of the Department of Housing and Urban

Development Act, 42 U.S.C. 3535(d).

Dated: February 19, 1997.

George L. Weidenfeller,

Acting General Counsel.

Proposal: Renewal or reinstatement of

HUD Guide for Counsel to the

Mortgagor and Renewal or reinstatement

of HUD Guide for Counsel to Owner.

Office: Office of the General Counsel.

Description of the need for the

information and its proposed use:

Although it is questionable whether a

legal opinion upon which HUD and the

mortgagee rely constitutes ‘‘the

collection of information,’’ HUD is

taking a conservative approach and

continuing to treat its use of the Guide

formats as if they are information

collection to eliminate the issue at the

outset. The opinion is required to

provide comfort to HUD and the

mortgage in multifamily rental and

health care facility mortgage insurance

transactions and similarly to HUD and

owners in the capital advance

transactions.

Form Number: None (Guide).

Respondents: Counsel to mortgagors

of multifamily rental projects and health

care facilities upon which the mortgage

loans are insured by HUD and counsel

to owners of section 202 projects which

receive capital advances from HUD.

Frequency of Submission: Variable.

Submitted by counsel to the mortgagor

or borrower in connection with the

closings of insured and direct loans.

Reporting Burden:

Number of respondents X Frequency of response = Hours per response = Burden hours

700 1 1 700

Total Estimated Burden Hours: 700

(Please note that this estimate is based

upon an attorney preparing and

completing the opinion in one hour;

however, the attorney would typically

perform in excess of 100 hours in

representing the mortgagor or owner

and performing those actions necessary

to render the opinion. These numbers

do not represent any significant change

from the previous Guide formats which

are being renewed or reinstated with

certain technical corrections and

clarifications which should result in

slight decreases in some cases in the

time required to prepare and complete

the opinion.) Even though the Guide

format is no longer required in

connection with the 811 program, the

slight decrease in activity thereunder is

expected to be off-set by increases in

FHA mortgage insurance activity.

Status: Renewal or reinstatement with

technical corrections and clarifications

(mainly to the Instructions to the

Guide). (The previous Guide was

approved by OMB on March 11, 1994

(OMB Number 2510–0010)).

Contact: Joseph F. Lackey, Jr. OMB,

(202) 395–6880; John J. Daly, HUD,

(202) 708–1274.

Dated: February 19, 1997.

For use in FHA Insured Transactions.

January 30, 1997.
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8751

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT FEDERAL

HOUSING ADMINISTRATOR

GUIDE FOR OPINION OF

MORTGAGOR’S COUNSEL

(TO BE TYPED ON FIRM

LETTERHEAD)

(INSERT DATE OF ENDORSEMENT)

Re: Project Name llllllllllll

FHA Project No. llllllllllll

Location lllllllllllllll

Mortgagor lllllllllllllll

[MORTGAGEE]

[ADDRESS]

[MORTGAGEE’S ATTORNEY]

[ADDRESS]

FEDERAL HOUSING COMMISSIONER

{INSERT APPROPRIATE FIELD OFFICE

ADDRESS}

Ladies and Gentlemen: We are [I am]

[general/special] counsel to

llllll {INSERT NAME OF

MORTGAGOR} (the ‘‘Mortgagor’’), a

llllll {INSERT TYPE OF

ENTITY} organized under the laws of

the State of llllll {INSERT

STATE} (the ‘‘Organizational

Jurisdiction), in connection with a

mortgage loan (the ‘‘Loan’’) in the

[original/increased] principal amount of

llllll Dollars ($llllll)

from llllll {INSERT NAME

AND TYPE OF MORGAGEE} (the

‘‘Mortgagee’’) to the Mortgagor. The

proceeds of the Loan will be used to

[construct/rehabilitate/purchase/

refinance] that certain [multifamily

housing/hospital/extended care facility/

nursing home/board and care] project

(the ‘‘Project’’), commonly known as

llllll and located in

llllll {INSERT COUNTY AND

STATE} (said State to be referred to

hereinafter as the ‘‘Property

Jurisdiction’’) on the property described

in Exhibit B {ATTACH LEGAL

DESCRIPTION} (together with all

improvements and fixtures thereon) (the

‘‘Property’’). The Loan is being insured

by the Federal Housing Administration

(FHA), an organizational unit of the

United States Department of Housing

and Urban Development (‘‘HUD’’),

pursuant to a commitment for insurance

[of advances OR upon completion OR

for refinancing] issued to Mortgagee by

llllll, Agent of the Federal

Housing Commissioner, dated

llllll [as amended by that

certain letter from llllll to

llllll, dated llllll]

(‘‘FHA Commitment’’). The Loan is

being funded from llllll

{DESCRIBE FINANCING SOURCE, e.g.,

tax-exempt bonds/mortgage backed

securities guaranteed by GNMA/

participation certificates, etc.} The

Mortgagor has requested that we [I]

deliver this opinion and has consented

to reliance by Mortgagee’s counsel in

rendering its opinion to Mortgagee and

to reliance by Mortgagee and HUD in

making and insuring, respectively, the

Loan and has waived any privity

between Mortgagor and us [me] in order

to permit said reliance by Mortgagee,

counsel to Mortgagee and HUD. We [I]

consent to reliance on this opinion by

Mortgagee, counsel to Mortgagee, and

HUD.

In our [my] capacity as [general/

special] counsel to the Mortgagor, we [I]

have prepared or reviewed the

following:

A. The [{DESCRIBE

ORGANIZATIONAL DOCUMENTS, e.g.

for corporations: State certified copies of

the articles of incorporation, the bylaws, the borrowing resolution, the

incumbency certificate and the good

standing certificate(s), fictitious Name

Registration, Foreign Corporation

Registration; for partnerships: certified

copies of the partnership agreement and

any amendments thereto, the certificate

of limited partnership, and any

amendments thereto, the good standing

certificate (or its equivalent) if provided

in the Organizational Jurisdiction, etc.}]

of the Mortgagor (collectively, the

‘‘Organizational Documents’’);

B. The FHA Commitment [extensions

and assignment(s) thereof, if any];

C. The Commitment issued by the

Mortgagee and accepted by the

Mortgagor, dated llllll, (the

‘‘Loan Commitment’’);

D. The Regulatory Agreement

(llllll) {INSERT APPROPRIATE

FORM NO.} by and between HUD and

the Mortgagor, dated llllll, (the

‘‘Regulatory Agreement’’);

E. The Note (llllll) {INSERT

APPROPRIATE FORM NO.} [in the

original principal amount of

llllll Dollars ($llllll)

OR in the increased principal amount of

llllll Dollars ($llllll) by

Mortgagor in favor of Mortgagee, dated

llllll, (the ‘‘Note’’);

F. [The Mortgage OR Deed of Trust]

(lll {INSERT APPROPRIATE FORM

NO.}), executed by Mortgagor for the

benefit of Mortgagee, granting a security

interest in the Property, dated lll,

(the ‘‘Mortgage’’);

G. {INSERT THE NUMBER OF UCC’s

TO BE FILED} Uniform Commercial

Code Financing Statements executed by

the Mortgagor as debtor and naming the

Mortgagee and HUD as secured parties

or as their interests may appear, to be

filed in lll, {INSERT

LOCATION(S)} (the Filing Offices),

upon the {DESCRIBE EVENTS} (the

‘‘Financing Statements’’);

H. The Security Agreement by and

between Mortgagor and the Mortgagee,

granting a security interest under the

Uniform Commercial Code, in those

items of personality described therein,

dated lll, (the ‘‘Security

Agreement’’);

[I. {TO BE INSERTED IF THE

MORTGAGE IS ON A LEASEHOLD

ESTATE} The Ground Lease executed

by lll {INSERT LESSOR} as lessor

and Mortgagor as lessee recorded in the

land records of lll, dated lll,

(the ‘‘Ground Lease’’).]

[J. {TO BE INSERTED FOR

CONSTRUCTION/REHABILITATION

LOANS} The Building Loan Agreement

(2441) executed by Mortgagee and

Mortgagor, dated lll, (the Building

Loan Agreement’’).]

[K. {TO BE INSERTED FOR

CONSTRUCTION/REHABILITATION

LOANS} The Construction Contract

[Lump Sum (2442) or Cost Plus (2442–

A)] executed by lll (the ‘‘General

Contractor’’) and Mortgagor, dated

lll (the ‘‘Construction Contract’’).]

L. The Mortgagee’s Certificate (2434),

executed by the Mortgagee, dated

lll.

M. The Mortgagor’s Certificate (2433),

executed by the Mortgagor, dated

lll.

N. The Agreement and Certification

(3305 or 3305A or 3306 or 3306A),

executed by the Mortgagor, dated

lll.

O. The Mortgagor’s Oath (2478),

executed by the Mortgagor, dated

lll.

P. The Mortgagor’s Opinion

Certification, pertaining to factual

matters relied on by us [me] in

rendering this opinion, executed by the

Mortgagor, dated lll, a copy of

which is attached hereto as Exhibit—

(the ‘‘Certification of Mortgagor’’).

Q. A search conducted by lll

dated lll {no earlier than 30 days

before this opinion} of the financing

records of the county and Property

Jurisdiction [and Organizational

Jurisdiction] (the ‘‘UCC Search’’).

[R. A receipt from the insurance

company providing flood insurance

evidencing payment for the premium,

date lll (the ‘‘Flood Insurance

Receipt’’).]

S. The Title Insurance Policy [or datedown if appropriate in a refinancing, for

example] issued by lll {acceptable

company under HUD’s regulations},

together with all endorsements, and

naming HUD and the Mortgagee as

insureds as their interests may appear,

dated lll, (the ‘‘Title Policy’’).
8752 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

[T. The following documents

evidencing zoning compliance, lll,

{DESCRIBE ALL DOCUMENTS FULLY}

(the ‘‘Zoning Certificate’’).]

[U. The building permit(s) issued on

lll by] lll (the ‘‘Building

Permit’’).

[V. The following permits, lll,

{DESCRIBE PERMITS} which are

required for the operation of the project,

issued by lll on lll (‘‘Other

Permits’’).]

[W. The Surveyor’s Plat OR Survey

showing completed project, prepared by

lll, dated lll, (the ‘‘Survey’’).]

X. The Surveyor’s Report (2457),

executed by lll dated lll, (the

‘‘Surveyor’s Report’’).

[Y. The deferred note (1710, 1712 or

2223) executed by Mortgagor in favor of

lll, dated lll, (the ‘‘Deferred

Note’’).]

[Z. The Performance Bond (2452) and

the Payment Bond (2452–A) issued by

lll (Surety) to secure payment and

performance of lll (General

Contractor) and running to lll OR

the Completion Assurance Agreement

(2450) executed by the General

Contractor, dated lll, (the

‘‘Assurance of Completion’’).]

[AA. The Owner-Architect Agreement

(AIA B181 with HUD Supplement)

executed by lll {INSERT DESIGN

AND/OR CONSTRUCTION

ARCHITECT} and Mortgagor, dated

lll, (the ‘‘Owner-Architect

Agreement’’).]

[BB. The Off-Site Bond (2479) issued

by lll (Surety) to secure the

completion of off-site work by lll

(General Contractor) and running to the

Mortgagee and HUD OR Escrow

Agreement for Off-Site Facilities (2446)

with Schedule ‘‘A’’ executed by lll

dated lll (the ‘‘Assurance of

Completion of Off-Site Facilitate’’).]

[CC. The following documents

assuring water, electricity, sewer, gas,

heat or other utility services (the

‘‘Assurance of Utility Services’’): lll

{DESCRIBE FULLY}.]

[DD. The Contrator’s and/or

Mortgagor’s Cost Breakdown (2328)

executed by the General Contractor,

dated lll, (the ‘‘Cost Breakdown’’).]

[EE. The Latent Defects Bond (3259)

issued by lll and securing the

performance of the General Contractor

and running to the Mortgagee and HUD

OR Escrow executed by lll, dated

lll (the ‘‘Guarantee against Latent

Defects’’).]

[FF. The Escrow Deposit Agreement

for Incomplete On-Site Improvements

(2456) with Schedule A executed by the

General Contractor, dated lll, (the

‘‘On-Site Deposit Escrow’’).]

[GG. The Contractor’s Prevailing Wage

Certificate (2403–A) executed by lll,

dated lll, (the ‘‘Contractor’s

Prevailing Wage Certificate’’).]

HH. The Request for Endorsement of

Credit Instrument (2023) and/or

Certificate of Mortgagor and Mortgagee

(2455) executed by the Mortgagor and

the Mortgagee, dated lll, (the

‘‘Request for Endorsement’’). {MODIFY

AS APPROPRIATE FOR INSURANCE

UPON COMPLETION, REFINACINGS,

ETC.}

[II. The Operating Deficit Escrow

(2476a) executed by lll, dated

lll, (the ‘‘Operating Deficit

Escrow’’).]

[JJ. The Repair Escrow executed by

lll, dated lll, (the ‘‘Repair

Escrow’’).]

[KK. All documents executed by

Mortgagor and any State or local

government entity pertaining to

development of the Property (the

‘‘Public Entity Agreement’’).]

[LL. The following documents

executed or delivered in connection

with the financing of the loan with the

proceeds of bonds exempt from federal

taxation: llllll {LIST

DOCUMENTS IN ACCORDANCE WITH

INSTRUCTIONS} (the ‘‘Bond

Documents’’).]

MM. The Good Standing Certificate(s)

{SEE ‘‘A’’ ABOVE} issued by

[Organizational Jurisdiction OR

Property Jurisdiction, if different], dated

llllll {DATE INSERTED MUST

BE WITHIN 30 DAYS OF THE DATE OF

ENDORSEMENT}, (the ‘‘Good Standing

Certificate’’).

[NN. The certificate executed by

llllll {INSERT ARCHITECT OR

OTHER PROFESSIONAL}, dated

llllll, (the ‘‘Certificate’’).]

OO. A search conducted by

llllll dated [no earlier than 30

days before this opinion] of the public

records of the federal District Court and

State and local courts in: (i) the

jurisdiction where the Property is

located; (ii) the jurisdiction(s) where the

Mortgagor is located and does business;

and (iii) the jurisdiction where the

general partner of the Mortgagor is

organized (the ‘‘Docket Search’’).

Note: Numerical references in parentheses

above are to FHA and HUD form numbers.

The documents listed in B through I

above are referred to collectively as the

‘‘Loan Documents.’’ The documents

listed in J through OO are referred to

collectively as the ‘‘Supporting

Documents.’’ The documents listed in A

through OO are referred to collectively

as the ‘‘Documents.’’

In basing the several opinions set

forth in this document on ‘‘our [my]

knowledge,’’ the words ‘‘our [my]

knowledge’’ signify that, in the course of

our [my] representation of the

Mortgagor, no facts have come to our

[my] attention that would give us [me]

actual knowledge or actual notice that

any such opinions or other matters are

not accurate. Except as otherwise stated

in this opinion, we [I] have undertaken

no investigation or verification of such

matters. Further, the words ‘‘our [my]

knowledge’’ as used in this opinion are

intended to be limited to the actual

knowledge of the attorneys within our

[my] firm who have been involved in

representing the Mortgagor in any

capacity including, but not limited to, in

connection with this Loan. We [I] have

no reason to believe that any of the

documents on which we [I] have relied

contain matters which, or the

assumptions contained herein, are

untrue, contrary to known facts, or

unreasonable.

In reaching the opinions set forth

below, we [I] have assumed, and to our

[my] knowledge there are no facts

inconsistent with, the following:

(a) Each of the parties to the

Documents, other than the Mortgagor

(and any person executing any of the

Documents on behalf of the Mortgagor),

has duly and validly executed and

delivered each such instrument,

document, and agreement to be

executed in connection with the Loan to

which such party is a signatory, and

such party’s obligations set forth in the

Documents are its legal, valid, and

binding obligations, enforceable in

accordance with their respective terms.

(b) Each person executing any of the

Documents, other than the Mortgagor

(and any person executing any of the

Documents on behalf of the Mortgagor),

whether individually or on behalf of an

entity, is duly authorized to do so.

(c) Each natural person executing any

of the Documents is legally competent

to do so.

(d) All signatures of parties other than

the Mortgagor (and any person

executing any of the Documents on

behalf of Mortgagor) are genuine.

(e) All Documents which were

submitted to us [me] as originals are

authentic; all Documents which were

submitted to us [me] as certified or

photostatic copies conform to the

original document, and all public

records reviewed are accurate and

complete.

(f) All applicable Documents have

been duly filed, indexed, and recorded

among the appropriate official records

and all fees, charges, and taxes due and

owing as of this date have been paid.

(g) The parties to the Documents and

their successors and/or assigns will: (i)
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8753

act in good faith and in a commercially

reasonable manner in the exercise of

any rights or enforcement of any

remedies under the Documents; (ii) not

engage in any conduct in the exercise of

such rights or enforcement of such

remedies that would constitute other

than fair and impartial dealing; and (iii)

comply with all requirements of

applicable procedural and substantive

law in exercising any rights or enforcing

any remedies under the Documents.

(h) The exercise of any rights or

enforcement of any remedies under the

Documents would not be

unconscionable, result in a breach of the

peace, or otherwise be contrary to

public policy.

(i) The Mortgagor has title or other

interest in each item of (i) real and (ii)

tangible and intangible personal

property (‘‘Personalty’’) comprising the

Property in which a security interest is

purported to be granted under the Loan

Documents [and, where Personalty is to

be acquired after the date hereof, a

security interest is created under the

after-acquired property clause of the

Security Agreement].

In rendering this opinion we [I] also

have assumed that the Documents

accurately reflect the complete

understanding of the parties with

respect to the transactions contemplated

thereby and the rights and the

obligations of the parties thereunder.

We [I] also have assumed that the terms

and the conditions of the Loan as stated

in the Documents have not been

amended, modified or supplemented,

directly or indirectly, by any other

agreement or understanding of the

parties or waiver of any of the material

provisions of the Documents. After

reasonable inquiry of the Mortgagor, we

[I] have no knowledge of any facts or

information that would lead us [me] to

believe that the assumptions in this

paragraph are not justified.

In rendering our [my] opinion in

paragraph 13, we [I] also have assumed

that: (i) all Personalty in which a

security interest is created under the

Documents (other than accounts or

goods of a type normally used in more

than one jurisdiction) is located at the

Property and (ii) Mortgagor’s [Chief

Executive Office] [only place of

business] [residence] is located in

lllllllllllllll.

After reasonable inquiry of the

Mortgagor, we [I] have no knowledge of

any facts or information that would lead

us [me] to believe that the assumptions

in this paragraph are not justified.

In rendering this opinion, we [I] have,

with your approval, relied as to certain

matters of fact set forth in the

Certification of Mortgagor, the Good

Standing Certificate(s) [and certain other

specified Documents,] as set forth

herein. After reasonable inquiry of the

Mortgagor as to the accuracy and

completeness of the Certification of

Mortgagor, the Good Standing

Certificate(s), [and such other

Documents], we [I] have no knowledge

of any facts or information that would

lead us [me] to believe that such

reliance is not justified.

Based on the foregoing and subject to

the assumptions and qualifications set

forth in this letter, it is our [my] opinion

that:

{TO BE USED IN CASES WHERE

ORGANIZATIONAL DOCUMENTS

WERE PREPARED BY MORTGAGOR’S

ATTORNEY}

1. The Mortgagor is a llllll

{INSERT TYPE OF ENTITY} duly

organized and validly existing under the

laws of the Organizational Jurisdiction.

The Mortgagor is duly qualified to do

business and, based solely on the

Certificate(s) of Good Standing, copy

attached hereto as Exhibit [ll], is in

good standing under the laws of the

Organizational Jurisdiction, [and is

qualified to do business as a foreign

llllll entity in the Property

Jurisdiction based on a review of

llllll.]

{OR, IF THE MORTGAGOR IS A

TRUST}

The Mortgagor is llllll

{INSERT NAME OF THE TYPE OF

TRUST} duly formed and validly

existing under the laws of the

Organizational Jurisdiction [, and is

qualified to do business as a foreign

llllll entity in the Property

Jurisdiction].

{AND, IF THE GENERAL PARTNER OF

A PARTNERSHIP MORTGAGOR IS AN

ENTITY}

The general partner of the Mortgagor

is a llllll {INSERT TYPE OF

ENTITY}, duly organized, validly

existing and, based solely on the

Certificate(s) of Good Standing, copy

attached hereto as Exhibit [ll], in

good standing under the laws of the

Organizational Jurisdiction [and is

qualified to do business as a foreign

llllll {INSERT TYPE OF

ENTITY} in the Property Jurisdiction].

{TO BE USED IN CASES,

PRINCIPALLY REFINANCINGS,

WHERE ORGANIZATIONAL

DOCUMENTS WERE NOT PREPARED

BY MORTGAGOR’S ATTORNEY}

1. Based solely on the Certificate(s) of

Good Standing, copy attached hereto as

Exhibit [ll], the Mortgagor is a

llllll {INSERT TYPE OF

ENTITY} validly existing under the

laws of the Organizational Jurisdiction

and in good standing under the laws of

the Organizational Jurisdiction [and is

qualified to do business as a foreign

llllll entity in the Property

Jurisdiction.

{OR, IF THE MORTGAGOR IS A

TRUST}

The Mortgagor is llllllll

{INSERT NAME OF THE TYPE OF

TRUST} validly existing under the laws

of the Organizational Jurisdiction [and

is duly qualified to do business as a

foreign llllll entity in the

Property Jurisdiction].

{AND, IF THE GENERAL PARTNER OF

A PARTNERSHIP MORTGAGOR IS AN

ENTITY}

Based solely on the Good Standing

Certificate(s), copy attached hereto as

Exhibit [ll], the general partner of the

Mortgagor is a llllll{INSERT

TYPE OF ENTITY}, validly existing and

in good standing under the laws of

llllll {INSERT STATE} [and is

qualified to do business as a foreign

llllll {INSERT TYPE OF

ENTITY} in the Property Jurisdiction].

2. The Mortgagor has the [corporate/

partnership/trust] power and authority

and possesses all necessary

governmental certificates, permits,

licenses, qualifications and approvals to

own and operate the Property and to

carry out all of the transactions required

by the Loan Documents and to comply

with applicable federal statutes and

regulations of HUD in effect on the date

of the FHA Commitment.

3. The execution and delivery of the

Loan Documents by or on behalf of the

Mortgagor, and the consummation by

the Mortgagor of the transactions

contemplated thereby, and the

performance by the Mortgagor of its

obligations thereunder, have been duly

and validly authorized by all necessary

[corporate/partnership/trust] action by,

or on behalf of, the Mortgagor.

4. All authorizations, consents,

approvals, and permits have been

obtained from, appropriate actions have

been taken by, and necessary filings

have been made with all necessary

Organizational and Property

Jurisdictions or federal courts or

governmental authorities, all as

disclosed on Exhibit ll, attached

hereto, and as listed and set forth in

Paragraph(s) 2 and ll of this opinion

[i.e. good standing certificate]. To the

best of our knowledge, these represent

all such authorizations, consents,

approvals, permits, actions and filings

that are required in connection with the

execution and delivery by the Mortgagor
8754 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

of the Loan Documents and the

ownership [and operation] of the

Property.

5. Each of the Loan Documents has

been duly executed and delivered by the

Mortgagor and constitute the valid and

legally binding promises or obligations

of the Mortgagor, enforceable against the

Mortgagor in accordance with its terms,

subject to the following qualifications:

(i) The effect of applicable

bankruptcy, insolvency, reorganization,

moratorium and other similar laws

affecting the rights of creditors

generally; and

(ii) The effect of the exercise of

judicial discretion in accordance with

general principles of equity (whether

applied by a court of law or of equity);

and

(iii) Certain remedies, waivers, and

other provisions of the Loan Documents

may not be enforceable, but, subject to

the qualifications set forth in this

paragraph at (i) and (ii) above, such

unenforceability will not preclude (a)

the enforcement of the obligation of the

Mortgagor to make the payments as

provided in the Mortgage and Note (and

HUD’s regulations), and (b) the

foreclosure of the Mortgage upon the

event of a breach thereunder.

[6. {TO BE INSERTED WHEN ANY

OR ALL OF THE LOAN DOCUMENTS

ARE NOT HUD APPROVED FORMS OR

WHEN HUD APPROVED FORMS HAVE

BEEN REVISED OR MODIFIED IN

CONNECTION WITH THE LOAN} The

execution and delivery of, and the

performance of the obligations under,

the Loan Documents will not violate the

Organizational Documents of the

Mortgagor or any applicable provisions

of local or State law.

[7. {INSERT FOR LOANS

INVOLVING CONSTRUCTION OR

REHABILITATION} To our [my]

knowledge there are no proposed

change(s) of law, ordinance, or

governmental regulation (proposed in a

formal manner by elected or appointed

officials) which, if enacted or

promulgated after the commencement of

construction/rehabilitation, would

require a modification to the Project,

and/or prevent the Project from being

completed in accordance with the plans

and specifications, dated llllll,

executed by llllll {INSERT

MORTGAGOR} and llllll

{INSERT GENERAL CONTRACTOR},

and referred to in the Construction

Contract (the ‘‘Plans and

Specifications’’).]

[8. {INSERT IF THERE IS NO

ZONING ENDORSEMENT

INCORPORATED INTO THE TITLE

POLICY} The attached Zoning

Certificate states that the Property

appears on the zoning maps of [Property

jurisdiction] as being located in a

llllll zone. According to the

zoning ordinance of the Property

Jurisdiction, the use of the Property as

a llllll is a permitted use in

such zone.

OR

Based solely on the Zoning

Certificate, the Property may be used for

llllll as a permitted use.]

[9. {USE FOR NEW CONSTRUCTION

OR SUBSTANTIAL REHABILITATION

IN CASES WHERE THE DEPARTMENT

DOES NOT RECEIVE A CERTIFICATE

DIRECTLY FROM THE

PROFESSIONAL} Based solely on the

Certificate, construction/rehabilitation

of the Project in accordance with the

Plans and Specifications will comply

with all applicable land use and zoning

requirements.

{USE FOR REFINANCINGS} Based

solely on the Certificate, the Project

complies with all applicable land use

and zoning requirements.]

10. Based solely on (a) our [my]

knowledge and (b) the Certification of

Mortgagor, the execution and delivery of

the Loan Documents will not: (i) Cause

the Mortgagor to be in violation of, or

constitute a default under the provisions

of, any agreement to which the

Mortgagor is a party or by which the

Mortgagor is bound, (ii) conflict with, or

result in the breach of, any court

judgment, decree or order of any

governmental body to which the

Mortgagor is subject, or (iii) result in the

creation or imposition of any lien,

charge, or encumbrance of any nature

whatsoever on any of the property or

assets of the Mortgagor, except as

specifically contemplated by the Loan

Documents.

11. Based solely on (a) our [my]

knowledge, (b) the Certification of

Mortgagor and (c) the Docket Search;

there is no litigation or other claim

pending before any court or

administrative or other governmental

body or threatened in writing against

the Mortgagor, or the Property, [{TO BE

INSERTED WHEN MORTGAGOR IS

NOT A SOLE-ASSET MORTGAGOR} or

any other properties of the Mortgagor] [,

except as identified on Exhibit

llllll].

12. The Mortgagor is in appropriate

form for recordation in llllll

{INSERT PROPER NAME OF LOCAL

LAND RECORDS OFFICE} llllll

{INSERT COUNTY OR CITY} of the

Property Jurisdiction, and is sufficient,

as to form, to create the encumbrance

and security interest it purports to

create in the Property.

13. Filing of the Financing Statements

in the Filing Offices will perfect the

security interest in the Personality of the

Mortgagor located in the Project

Jurisdiction, but only to the extent that,

under the Uniform Commercial Code in

effect in the Project Jurisdiction, a

security interest in each described item

or Personality can be perfected by filing.

The Filing Offices are the only offices in

which the Financing Statements are

required to be filed in order to perfect

the Mortgagee’s security interest in the

Personality.

14. The Loan does not violate the

usury laws or laws regulating the use or

forbearance of money of the Property

Jurisdiction.

[15. {FOR USE ONLY IF

MORTGAGOR IS A TRUST} The

Mortgagor is an irrevocable trust that

has a term consistent with HUD’s

requirements and the term of the

irrevocable trust is not affected by the

terms of any of the beneficiaries’

interests.] [The laws of the Property

Jurisdiction govern the interpretation

and the enforcement of the Loan

Documents notwithstanding that the

Mortgagor may be formed in a

jurisdiction other than the Property

Jurisdiction. The Mortgagor can sue and

be sued in the Property Jurisdiction

without the necessity of joining any of

the beneficiaries of the Mortgagor,

including without limitation, a suit on

the Note or a foreclosure proceeding

arising under the Mortgage. Venue for

any foreclosure proceeding under the

Mortgage may be had in [Property

jurisdiction].

[16. {USE IN CASES INVOLVING

BOND FINANCING} Based solely on the

opinion of llllll {INSERT

BOND COUNSEL}, dated as of the date

hereof and attached hereto as Exhibit

llllll, to the extent that any of

the provisions of the Bond Documents

are inconsistent with any of the

provisions of the Loan Documents or

Supporting Documents, the provisions

of the Loan Documents or Supporting

Documents shall govern.]

[17. {USE IN CASES WHERE THE

DEVELOPMENT OF THE PROPERTY IS

GOVERNED BY AN AGREEMENT

WITH A PUBLIC ENTITY} Based upon

our knowledge and the Certification of

Mortgagor, there is no default under the

Public Entity Agreement, and

construction in accordance with the

Plans and Specifications and within the

time frame specified in the Construction

Contract will not lead to a default under

the Public Entity Agreement.]

In addition to the assumptions set

forth above, the opinions set forth above

are also subject to the following

qualifications:

(i) The Uniform Commercial Code of

the Property Jurisdiction requires the
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8755

periodic filing of continuation

statements with llllll [and

llllll] not more than

llllll prior to and not later than

the expiration of the llllll year

period from the date of filing of the

Financing Statements and the expiration

of each subsequent llllllyear

period after the original filing, in order

to maintain the perfection and priority

of security interests and to keep the

Financing Statements in effect.

(ii) We express no opinion as to the

laws of any jurisdiction other than the

laws of the Property jurisdiction [and

the Organizational Jurisdiction, if it is

different,] and the laws of the United

States of America. The opinions

expressed above concern only the effect

of the laws (excluding the principles of

conflict of laws) of the Property

Jurisdiction [and the Organizational

Jurisdiction, if it is different] and the

United States of America as currently in

effect. We assume no obligation to

supplement this opinion if any

applicable laws change after the date of

this opinion, or if we become aware of

any facts that might change the opinions

expressed above after the date of this

opinion.

We [I] confirm that:

(a) based on the Organizational

Documents, the name of the Mortgagor

in each of the Documents and the Title

Policy and FHA Commitment is the

correct legal name of the Mortgagor;

(b) the legal description of the

Property is consistent in the Documents

wherein it appears and in Exhibit B

hereto;

(c) we [I] do not have any financial

interest in the Project, the Property, or

the Loan, other than fees for legal

services performed by us, arrangements

for the payment of which has been

made; and we [I] agree not to assert a

claim or lien against the Project, the

Property, the Mortgagor, the Loan

proceeds or income of the Project;

(d) other than as counsel for the

Mortgagor, we have no interest in the

Mortgagor (or any principal thereof) or

the Mortgagor or any other party

involved in the Loan transaction and do

not serve as [a director, officer or] [an]

employee of the Mortgagor or the

Mortgagee. We have no undisclosed

interest in the subject matters of this

opinion. We do not represent the

mortgagee-of-record, any investing

lender or investor in the loan

transaction, any bridge lender involved

in the loan transaction, any lender with

a commitment to purchase the loan or

any interest therein or any other party

involved in the Project or the loan

transaction;

(e) based solely on the Surveyor’s

Report and the Surveyor’s Plat, flood

insurance [is OR is not] required

pursuant to 42 U.S.C. 4012a(a);

[{INSERT IF FLOOD INSURANCE IS

REQUIRED} Based solely on the Flood

Insurance Receipt, flood insurance is in

effect which satisfies the requirements

of 42 U.S.C. 4012a(a);] and

(f) to our knowledge, there are no

liens or encumbrances against the

Property which are not reflected as

exceptions to coverage in the Title

Policy.

The foregoing opinions are for the

exclusive reliance of [Mortgagee, its

counsel] and HUD; however, they may

be made available for informational

purposes to, but not for the reliance of,

the assigns or transferees of Mortgagee,

or prospective purchasers of the Loan.

We [I] acknowledge that the making, or

causing to be made, of a false statement

of fact in this opinion letter and

accompanying materials may lead to

criminal prosecution or civil liability as

provided pursuant to applicable law,

which may include 18 U.S.C. 1001,

1010, 1012; 31 U.S.C. 3729, 3802.

Sincerely,

lllllllllllllllllllll

[Authorized Signature]

For use in HUD-Insured Transactions.

January 30, 1997.

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT FEDERAL

HOUSING ADMINISTRATION

INSTRUCTIONS TO GUIDE FOR

OPINION OF MORTGAGOR’S

COUNSEL

EXPLANATORY COMMENTS

The Guide for this opinion was

originally prepared in 1994 in view of

changes in opinion practice as reflected

by the ABA Accord and various State

law bar reports on opinion letters and

has been revised to reflect

approximately three years experience in

using the Guide. The principal purpose

of this Guide remains to achieve a

uniform format which can be utilized

throughout the Nation and which will

be familiar to HUD counsel in all

jurisdictions. Such a standardized

format is crucial in an era when less

resources are available to the

Department; however, it should be

emphasized that certain limited changes

can be authorized by HUD field counsel

as required by local law or by the

unique nature of the transaction. An

effort has been made in these revised

instructions to specify examples in more

(but not all) of those areas where such

changes can be authorized. Otherwise,

the format of the Guide must be

followed and is not open to negotiation.

In this regard, revisions cannot be

justified because of a particular Opinion

having been approved by another HUD

field office. The exercise of discretion

by one HUD field counsel in unique

circumstances cannot become the basis

for any modification to the Opinion.

Any requested modification must be

analyzed on its own merit and in a

particular context. In these explanatory

comments, the document may be

referred to as the ‘‘Guide’’ or the

‘‘Opinion,’’ depending upon the

context.

The Department regards the counsel

to the Mortgagor as the crucial, central

figure in the process of preparing and

executing the legal and administrative

documents necessary to achieve a

closing where the mortgage note is

endorsed for mortgage insurance by the

Department. Pursuant to 24 CFR Part 24,

§ 24.105(p), attorneys or others in a

business relationship with the

Mortgagor are defined as ‘‘principals.’’

Even though the Guide is quite different

in form from its predecessor (FHA Form

No. 1725), the substance is not intended

to be substantially different and the

revision does not in any fashion relieve

the counsel to the Mortgagor of its

obligations to its client, the Mortgagee

and the Department. In part, these

responsibilities entail the exercise of

due diligence to assure the accurate and

timely preparation, completion and

submission of the forms required by the

Department in connection with the

transaction. Further, the counsel to the

Mortgagor and any other attorneys

involved in the transaction should be

thoroughly familiar with the

regulations, procedures and directives

of the Department pertaining to each

mortgage insurance transaction in

which counsel participates. The

Department takes seriously the

preparation and completion of the

various documents involved in the

mortgage insurance process (most of

which are HUD form documents) and

cannot overemphasize the importance of

the following:

‘‘Warning: HUD will prosecute false

claims and statements. Conviction may

result in criminal and/or civil penalties.

(18 U.S.C. 1001, 1010, 1012; 31 U.S.C.

3729, 3802)’’

With limited State law related

exceptions, we expect that Mortgagor’s

counsel will be able to follow the Guide

in rendering an Opinion and HUD field

counsel should not accept Opinions that

otherwise substantially or materially

deviate from the Guide. Although we

understand that attorneys and law firms

may have evolved particular styles and

forms of opinion, HUD field counsel do
8756 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

not have time to negotiate each and

every Opinion for stylistic changes and

it is essential that the Guide be followed

in both style and substance in order to

ensure a timely closing. The counsel to

the Mortgagor is expected to complete a

draft Opinion for submission to HUD

field counsel at least ten days prior to

the closing along with the other closing

documents. Any deviations should be

specifically identified (redlined or

highlighted) and discussed with field

counsel at that time. Any material

deviation not required by State or local

law or otherwise authorized by these

instructions must be brought to the

attention of the Assistant General

Counsel, Multifamily Mortgage

Division, by field counsel along with an

explanation as to the necessity for the

deviation.

It was anticipated that the Guide

could be utilized in connection with all

types of closings: insured advances or

insurance upon completion (for new

construction or substantial

rehabilitation); final closings (for

refinancings, etc.). This has proved to be

the case and, furthermore, the Guide

format has been adapted and used in

Transfers of Physical Assets (TPAs).

However, numerous questions have

been raised—particularly in cases

involving Section 241 supplemental and

equity loans and the various refinancing

transactions under Section 223.

Therefore, it is important that the

correct options be selected in instances

where choices are provided and that

appropriate deletions or modifications

be made to accommodate unique

circumstances or programs. On the other

hand, it should be emphasized that this

does not authorize field counsel to

approve changes to the Guide in cases

other than where the Guide is being

adapted for a special use, e.g.

refinancing or equity loan transaction,

TPA, etc. Furthermore, HUD has made

an administrative policy decision to not

require an opinion by counsel to the

mortgagor for projects within the ‘‘Small

Projects Mortgage Insurance Pilot

Program (SPP).’’ A Notice will be issued

defining small project and clarifying the

parameters of the SMPP. The mortgagee

will have the option of requiring an

opinion by counsel to the mortgagor if

the mortgagee so elects. It is anticipated

that the Certification of the Owner will

be expanded slightly for use in the

SMPP to provide assurances and

comfort to HUD in such cases.

Otherwise, the Guide or a variation

thereof should be utilized in all FHAinsured multifamily rental project and

health care facility closings.

The Guide is not intended to serve as

a closing checklist; therefore, HUD field

counsel may update or modify existing

closing checklists as necessary to meet

constantly changing program needs and

handbook instructions and directives.

For example, many deletions from the

list of Guide documents are appropriate

for various types of refinancings,

operating loans, equity loans, etc.

whereas several additions are necessary

in the case of loans for health care

facilities (e.g. certificate of need),

supplemental loans, and certain

complex refinancings.

Brackets continue to be used in the

Guide to indicate alternate language,

insertions, documents, or instructions

depending on the applicable facts and

underlining is used to indicate blanks

that must be completed.

The Guide contains some instructions

and definitions and is largely selfexplanatory; however, the following

expanded instructions and clarifications

should provide additional assistance to

both private counsel and HUD counsel.

The numbers and letters used below

relate to the paragraph numbers and

letters in the Guide unless page

numbers are specifically designated.

Page 1 and Introductory Paragraph

• Letterhead and date: The Opinion

must be typed on the firm letterhead

and dated the date of endorsement of

the mortgage note by HUD.

• Reference: Data regarding the

project (name, HUD project number, and

location and the name or title of the

Mortgagor must be accurate and inserted

in the appropriate blanks.

• Addressees: The Opinion must be

delivered to HUD as well as the

Mortgagee making the loan to establish

the explicit right of each to rely on the

Opinion. The Mortgagee’s counsel may

be relying on the Opinion for certain

aspects of its opinion. If so, the Opinion

must also be addressed to counsel to the

Mortgagee. HUD is aware that recent

case law has raised issues about the

extent to which a mortgagee can rely

upon such an opinion; therefore, this

matter of reliance by the mortgagee

could be clarified by the parties at the

outset in jurisdictions where the issue

has been raised. Regardless of case law,

HUD continues to believe that this is a

unique transaction where the federal

interest as insurer of the mortgagee is

clear from the outset and that it is as a

result of the unique federal

requirements that counsel to the

mortgagor is retained to represent the

mortgagor in such a fashion that the

Opinion rendered by counsel to the

mortgagor necessarily must be

addressed to, and relied upon by, HUD

as the insurer of the mortgagee and the

mortgagee in order for the loan

transaction to go forward. In cases

where counsel to the mortgagee elects

not to rely upon the Opinion or counsel

to the Mortgagor does not wish to

permit reliance by counsel to the

mortgagee, the Opinion should not be

addressed to and/or delivered to the

mortgagee’s counsel.

• Description of the Loan: The loan

amount is the original principal amount

of the loan being insured unless a

modification is necessitated in

connection with the closing.

• Source of funds for the Loan: In the

second full sentence on page 2 the

source of funds must be accurately

identified.

List of Documents

• In General: If there are no brackets

around a particular document, the

document is one which is commonly

used for initial endorsements for

insured advances completion cases;

however, it should be emphasized that

it is impossible to list every document

for every insured loan. Further, no

attempt has been made to list all

documents utilized in all types of

refinancings and certain specialized

programs, e.g., certificates of need and

licenses for health care programs.

Conversely, some documents may not

be utilized in a particular transaction

and should be deleted from the list in

the actual Opinion. Brackets around the

name of the document indicate that the

document may or may not be used for

every loan. If bracketed documents are

not used in a particular loan transaction,

then delete such documents from the

list in the actual Opinion. Each

document executed in connection with

the loan must be listed by its correct

title, showing each party executing it

and its date. If documents are dated ‘‘as

of’’ a particular date, then such phrase

should be included in the description in

the text. It is imperative that care must

be taken to compile a list that accurately

and completely reflects the transaction

in the submission to HUD of the initial

draft. After HUD review of the initial

draft, the Opinion may have to be

modified, as necessary, to satisfy HUD.

All documents executed in

connection with the loan transaction

must be listed regardless of whether the

document is required by HUD or

whether the Mortgagor is a party to the

document. It should be emphasized that

counsel to the Mortgagor is not

assuming resuming responsibility for

the content of documents that counsel

does not prepare and that the Mortgagor

does not execute. The review is

necessary to provide assurance of

consistency from document to

document. The appropriate HUD or
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8757

FHA form number, if applicable, must

be indicated in parenthesis after each

document. Please note that the Guide

lists a four digit number after virtually

all of the standard HUD documents. In

many instances as these forms have

been updated, the four digit numbers

have been changed so that they are now

preceded by a ‘‘9.’’ The ultimate plan is

to standardize a four digit number for

each form; therefore, the four digit

number has been used to avoid any

need for future change.

A. Organizational Documents: All of

the Organizational Documents must be

reviewed and care should be taken to

ensure adherence to the HUD guidelines

and directives pertaining to such

documents as set forth in:

1. The Instructions to HUD Form

92466 which pertains to corporate,

partnership and trust mortgagors;

2. HUD Form 1732 which pertains to

nonprofit corporations; and

3. HUD Notice H–95–66 which

pertains to partnerships and limited

liability companies (LLCs).

G. In the original version of the Guide,

the requirement that HUD be named in

the Financing Statements as a secured

party or as its interests may appear was

standardized through requiring the

insertion of appropriate language in the

Security Agreement. The purpose was to

clarify that, under certain

circumstances, HUD may assert some

rights in the personalty arising under

the Regulatory Agreement which would

precede an assignment of the mortgage.

Based upon experience to date, a

decision has been made that HUD need

not be so named in the Financing

Statements and Security Agreement.

This decision makes it more imperative

that there be specificity in the UCC

documentation with respect to the

securitization of items such as

receivables (particularly in the case of

hospitals and nursing homes for

example) in order to protect the interest

of HUD in the securitization of

personalty.

J. Building Loan Agreement: This

document is a ‘‘bracketed document’’

which should only be used in cases

involving new construction or

substantial rehabilitation. Hence, the

document is not required in equity loan

transactions and most refinancing

transactions and many supplemental

loan transactions.

K. Construction Contract. See J. above.

L. Mortgagee’s Certificate: It has been

argued that this document is

unnecessary in the context of certain

insured secondary loan transactions

because the form is used to document

the first mortgagee’s consent to the

second loan. The first mortgagee would

not be involved in such situations. In

cases where the consent of the first

lender is obtained for a second mortgage

insured by HUD, a separate document

(for which there is no specified format)

is utilized.

The Mortgagee’s Certificate is

executed by the lender making the loan

being insured, which in the cases at

issue would be the lender making the

second loan, and is one of the most

significant closing documents. HUD

places great reliance upon the

mortgagee’s certificate and considers it

necessary to reveal all fees, side

transactions, etc. Counsel to the

Mortgagor is not responsible for the

execution of the document and only

needs to review the document in the

capacity as counsel to the mortgagor.

M. Mortgagor’s Certificate: This

document may overlap somewhat with

other documents as several private

attorneys have indicated; nonetheless,

the mortgagor’s certificate is a

significant document upon which HUD

relies. This document and the Opinion

should be dated the date of the closing.

P. Certification of Owner: Several

persons have questioned whether the

references in Paragraph 6 to the Public

Entity Agreement and the Regulatory

Agreement should be changed so that

both refer instead to the Public Entity

Agreement. The references should not

be changed because HUD wants

assurance that there will be no

violations of the Regulatory Agreement

as a result of events that have occurred

with the passage of time.

Q. UCC searches: The UCC Search

must be conducted within thirty days of

closing and can be conducted by either

the title insurance company, a reputable

document search firm, the counsel to

the Mortgagor or any other attorney

licensed in the jurisdiction.

R. Flood insurance receipt:

Arguments have been made that this

document is not necessary in equity

loan, supplemental loan and refinancing

transactions. Flood plain maps change.

In insuring a first or a second mortgage,

it is just as significant that HUD know

whether the property is located in an

area where flood insurance is required

and, if so, whether the insurance is in

effect regardless of whether a prior

HUD-insured first mortgage is in effect.

HUD would not necessarily have the

data on file, and it was determined that

this is a matter which counsel to the

mortgagor could confirm under item (e)

near the end of the Guide. Note that no

opinion is required, and the factual

determinations necessitated by the

Guide are considered within the usual

duties of counsel to the mortgagor.

S. Title Insurance Policy: Currently

the 1992 ALTA Format (with

appropriate endorsements) is required

by HUD in most jurisdictions.

T. Evidence of zoning compliance:

The evidence of zoning compliance will

vary depending on the circumstances.

The evidence should establish that the

building, if constructed according to

plans and circumstances, will comply

with all zoning requirements. The

evidence may be in the form of a letter

or certificate from the appropriate local

official stating that, if the building is

constructed according to the plans and

specifications submitted for review, the

building will comply with all zoning

requirements. In refinancing cases

where no construction is involved, the

evidence may be in the form of a letter

certifying that the existing building(s) is

(are) in compliance with outstanding

zoning requirements or, if not, the

nonconforming variance, etc., is

acceptable. If the locality has no zoning

ordinance, a letter should be submitted

from the chief executive stating such. In

those circumstances, it may be

necessary to obtain a letter from the

local planning body of the county in

which the project is located, that the

proposed development is compatible

with the county’s comprehensive plan.

If the zoning approval is based upon a

variance or other special action, the

closing may have to be delayed until the

time for appeals has run. In extremely

complex cases, an opinion may need to

be obtained from legal counsel

specializing in local zoning matters.

Such letter must be attached as an

exhibit and referenced in the

appropriate paragraphs of the Opinion.

In cases involving refinancings, it has

been suggested by some attorneys that

HUD should have zoning information

on hand either as a result of the closing

of the first HUD-insured loan or due to

periodic site reviews. HUD would not

normally maintain data pertaining to

local zoning law and the data with

respect to the first loan would only be

valid with respect to the closing date of

that loan. Paragraphs 7, 8 and 9 of the

Opinion contain several options with

respect to local zoning law. It has also

been suggested that evidence of zoning

compliance should not be required in

Section 241(f) equity loans. The only

language applicable to Section 241(f)

equity loans is the wording at the end

of 9 which pertains to refinancings, viz.

‘‘Based solely on the Certificate, the

Project complies with all applicable

land use and zoning requirements.’’

After considering the issue, it has been

determined that a zoning certificate is

not essential in Section 241(f) equity

loan cases; however, the attorney for the
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mortgagor will have to state: ‘‘The

project complies with all applicable

land use and zoning requirements.’’ It is

important that HUD be assured that

there have been no changes in the land

use or zoning which would adversely

affect the continued use of the property

as a rental housing project. In this

context, we reemphasize that the

attorney responsible for this matter must

be licensed in the property jurisdiction.

U. Building permit(s): If no building

permit is required (as would normally

be the case in a pure Section 241(f)

equity loan), this document is not

applicable and should be deleted from

the Opinion. (This would also be true

with respect to occupancy permits

(under V.) unless new permits are

required under local law in connection

with ‘‘pure’’ refinancing transactions.)

V. Permits required for the operation

of the project: Several practitioners have

argued that the documentation is

unnecessary in equity loan and

refinancing transactions; however, they

have not indicated whether such a

position would affect their wording of

Paragraph 4 of the Guide. In all cases

(including Section 241(f) equity loans),

HUD is concerned that any permits

required for the continued operation of

the project be proper and in place such

that an opinion can be rendered with

respect to Paragraph 4. It is crucial in

existing projects that HUD be assured

that no new requirements have been

imposed which would thwart continued

operation of the project. If no such

permits are required, Paragraph 4

should be amended accordingly. This is

a matter which counsel to the

mortgagor, as a specialist in the property

jurisdiction, should be able to ascertain.

W. Surveyor’s plat or survey: The

survey must be signed, sealed and dated

within 90 days of the closing. In a pure

Section 241(f) equity loan and certain

refinancing transactions, a survey would

not normally be required because no

new construction would have taken

place and, presumably, nothing would

have changed with respect to the

building(s) and the site. In such

situations, if there is other satisfactory

evidence that no site changes have

occurred, an administrative waiver

would necessitate the deletion of the

item from the Opinion. See X. below. If

the mortgagor’s attorney were to become

aware of any changes, this would have

to be addressed in the Opinion and a

survey could be required by HUD

depending upon the circumstances.

X. Surveyor’s Report: Unless there is

a title endorsement protecting against

any encroachments, etc., there will have

to be a surveyor’s certificate indicating

that nothing has changed since the last

survey with respect to encroachments,

lot line violations, construction activity,

etc. HUD should not be incurring the

risk of insuring any loan if there has

been any action which would impair the

lender’s and HUD’s respective positions.

As an alternative to a surveyor’s

certificate, the mortgagor’s attorney

could rely upon an appropriate

certificate from a qualified architect and

insert appropriate language in the

Opinion.

Z. Assurance of completion (bonds or

agreements): This documentation (now

bracketed) would not be utilized in a

pure refinancing or equity loan

transaction and, therefore, would only

be used in cases involving some

construction where the regulation

pertaining to assurance of completion is

applicable.

AA. Owner-Architect Agreement:

This document (now bracketed like

Documents J and K) should only be

indicated (where the Guide indicates

‘‘{INSERT DESIGN AND/OR

CONSTRUCTION ARCHITECT}’’) in

cases involving new construction or

substantial rehabilitation.

BB. Off-Site Bond or Agreement: This

document should only be used in cases

where off-site work is involved. As

such, the document would not normally

be used in pure equity loan transactions

or in refinancing transactions involving

no construction.

CC. Assurance of utility services:

These documents do not pertain to pure

Section 241(f) equity loan transactions

and certain refinancing transactions

and, therefore, should be deleted in

those instances.

FF. Escrow Deposit for On-Site

Improvements: If any such

improvements are required in

connection with an equity loan,

supplemental loan or refinancing

transaction, the form document

specified should be tailored to the

situation as determined by field

counsel. In a situation where such an

escrow is necessary, counsel to the

mortgagor should modify the form as

necessary and present it to field counsel

for review.

GG. Contractor’s Prevailing Wage

Certificate: This item is no longer

required in the HUD closing checklist;

therefore, some attorneys have taken the

position that it can be eliminated from

the Opinion. HUD believes the item

should be reviewed by counsel to the

Mortgagor for the purpose of assuring

consistency between the documents and

performance under the Construction

Contract to which the Mortgagor is a

party.

KK. Public Entity Agreement: The

references to this document and to the

Regulatory Agreement in Paragraph 6 of

the Certification of Mortgagor have

created some confusion about whether

the reference to the Regulatory

Agreement should be changed to Public

Entity Agreement. The two separate

references were intended, and no

change should be made.

LL. Bond Documents: This does not

include all documents involved in the

typical bond financing. It does include

those principal documents such as the

Prospectus, the Indenture, a sample

Bond, etc. All documents executed by

the Mortgagor or which establish or

describe any obligations of the

Mortgagor must be included.

NN. Certificate issued by architect or

other professional: Normally such a

document would not be necessary in the

case of a pure Section 241(f) equity loan

and certain refinancing transactions and

should be deleted unless those

circumstances mentioned under the last

sentence pertaining to Document X,

above, make the certificate appropriate.

Note that ‘‘Certificate’’ is a defined term

and that the Certificate can come from

‘‘an architect or other professional.’’

Consequently, there is no form for the

Certificate and HUD field counsel

should defer to HUD administrators

specializing in architectural and

engineering matters in determining the

acceptability of the Certificate.

It is referenced in Paragraph 9 of the

Opinion and should not be confused

with the Zoning Certificate which is

also a defined term and is referenced in

Paragraph 8.

OO. Docket search: The Docket Search

can be conducted by either the title

insurance company, a reputable

document search firm, the counsel to

the Mortgagor or any other attorney

licensed in the jurisdiction. Arguments

have been made by private counsel that

such a docket search is not necessary in

all transactions. One of the main

purposes of the new Guide was to

clearly define the work to be performed

by counsel to the mortgagor. It was

determined that such a search was

within the scope of the fees permitted

as a mortgage line item for counsel to

the mortgagor. Such a search is

important in the case of an existing

subsidized project where matters of

public record could reveal

circumstances wherein it would be

inadvisable for HUD to go forward with

insuring another loan.

An argument has also been made that

several record searches in separate

jurisdictions could be necessitated in

some cases and that this would cost a

significant amount of money with little

benefit. As the Guide was being

developed, HUD was cognizant of such
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a scenario; however, the benefit to HUD

of establishing that the public records

are clear outweighs the costs to the

mortgagor of conducting such searches.

In the case where a sole-asset mortgagor

is being created, however, a search of

the public records in the jurisdiction

where the mortgagor is located

(assuming a different location from the

others iterated) is unnecessary. The

Opinion could be amended in those

instances to indicate that particular state

of facts; however, all of the other

searches would have to be done.

Opinions

1. This paragraph contains several

options depending upon whether the

Mortgagor’s organizational documents

were prepared by counsel rendering the

Opinion and the type of mortgagor

entity. Care should be taken to ensure

that the correct option is selected and

that the requisite information is inserted

correctly. It is intended that, where the

mortgagor entity or general partner of

the mortgagor entity is established by

counsel to the Mortgagor, no reliance on

other sources is permitted and counsel

must opine as to the due organization of

the Mortgagor. If a Certificate of Good

Standing is not available in the State,

but an equivalent document is (i.e.,

Certificate of Existence), then the

bracketed language must be revised to

reflect the name/title of the equivalent

document so obtained. Any Certificate

of Good Standing or equivalent

document issued by the applicable

governmental authority must be dated

no more than 30 days prior to the date

of the Opinion of Mortgagor’s counsel.

If the Mortgagor is a foreign corporation

or partnership, the Opinion must recite

the review of all government approvals

required to do business in the Property

jurisdiction. If a Certificate of Good

Standing or equivalent document

cannot be obtained from the applicable

governmental authority (e.g., for general

partnerships, then the Mortgagor’s

attorney will be required to do the due

diligence necessary to give the opinion

or may engage other counsel to render

such opinion). If the Property

jurisdiction is not the State of formation

for the mortgagor entity, counsel must

also opine that the Mortgagor is

qualified to transact business in the

Property jurisdiction. Such opinion may

be made solely on the basis of a

certificate from the applicable

governmental authorities of the Property

jurisdiction, and if counsel is relying on

such certificate(s), then the opinion

must expressly identify those

certificate(s) and they must be attached

to the Opinion as an exhibit. If the

Mortgagor is an individual, paragraph

one should be deleted from the Opinion.

2. This paragraph provides, among

other things, that the Mortgagor

possesses all the necessary

governmental certificates, permits,

licenses, qualifications and approvals to

own and operate the Property. This

particular provision has generated

considerable controversy—particularly

where health care facilities are being

constructed or substantially

rehabilitated in large, urban

jurisdictions having a multitude of

regulatory requirements pertaining to

ownership and operation. Consequently,

field counsel have discretion to permit

a modification in which Counsel to the

Mortgagor itemizes those local

governmental requirements which have

been evaluated and indicates that, after

due diligence inquiry and insofar as the

attorney is aware, these local

requirements comprise the entire

universe of such requirements. The

Opinion should further state that, based

upon such itemized local requirements

and compliance therewith (with all

permits, certificates, etc. being

itemized), the Mortgagor possesses the

power and authority necessary to own

and operate the Property and to carry

out all of the transactions required by

the Loan Documents and to comply

with applicable federal statutes and

regulations of HUD in effect on the date

of the FHA commitment. In most

instances involving new construction, a

certificate of occupancy will not have

been obtained by the time of closing. In

such instances, field counsel have

discretion to permit an appropriate

clarification with respect to that

particular instrument.

11. If the Mortgagor or any principal

of the Mortgagor is involved in any

litigation, all such litigation matter(s)

must be disclosed in writing to HUD

field counsel in order that the

Department can determine whether the

endorsement of the loan is possible.

Note that litigation involving a principal

of the Mortgagor must be disclosed.

Confusion has developed when there

has been litigation involving lower tiers

of a partnership. If the issue cannot be

resolved through reference to the

definition of ‘‘principal’’ in the 2530

regulations, HUD field counsel should

consult with HUD program

administrators and determine whether

the litigation should be disclosed. If the

litigation involves HUD’s compliance

with civil rights requirements, it must

immediately be brought to the attention

of appropriate Fair Housing and Equal

Opportunity personnel (regardless of

whether a ‘‘principal’’ or some lesser

component of the Mortgagor is the

subject of the litigation). As an example,

it is not uncommon for neighbors of a

proposed site for a group home for

persons with disabilities to harbor

discriminatory attitudes toward persons

with disabilities and to sue to attempt

to block the establishment or operation

of a group home.

13. If any UCC Financing Statements

have been filed on the Personalty in

conjunction with any transaction other

than the Loan, they must be identified

to the HUD field counsel as well as

details with respect to how such

Financing Statements will be terminated

at the time of closings.

If the property is an elderly housing

project or a health care facility of if the

loan otherwise is to be secured by

significant amounts of personal

property, the matter should be

discussed with field counsel. In the

event further discussion is necessary,

field counsel should contact the

Assistant General Counsel, Multifamily

Mortgage Division. For projects in

which the personalty is mostly

household appliances (e.g., refrigerators)

or a limited quantity of smaller

equipment, the Opinion will be limited

as shown. In other instances, the

Opinion may have to be expanded

particularly with respect to ensuring

that items such as receivables, income

stream, etc. are security property.

One or more UCC searches performed

not more than 30 days prior to the date

of the Opinion must be made and

attached to the Opinion.

15. If the Mortgagor is a trust (other

than a land trust), then Paragraph 15

must be included in the Opinion. The

second sentence need only be included

if the trust was formed in a jurisdiction

other than the Property jurisdiction.

Acceptability of Counsel

• Mortgagor’s counsel must opine as

to the law of the Property jurisdiction

and the State of Mortgagor’s

organization, if different from the

Property jurisdiction. HUD requires that

Mortgagor’s counsel be admitted to

practice law in each jurisdiction in

which such admission is required by the

laws or ethical considerations of the bar

to be able to give the opinion. If

multiple jurisdictions are involved, two

opinions may be required: one with

respect to the organization of the

Mortgagor and another with respect to

the real property and loan issues. A

combination of the Mortgagor’s regular

counsel and special local counsel may

be required to satisfy this requirement.

If counsel’s satisfaction of these

requirements is not evident from the

letterhead of the firm, the field counsel

should include a written explanation in
8760 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

the Washington docket. In all events,

each provision in the Guide must be

addressed whether one or more

opinions is required to do so.

Signatures

• The Opinion may be signed by an

authorized person of the law firm, in

that person’s name.

Certification of Mortgagor

• A form of Certification of Mortgagor

is attached. The form represents the

minimum amount of information that

should be obtained from the Mortgagor

(but additions, revisions and

rephrasings are acceptable so long as the

Mortgagor is certifying as to factual

matters and not legal conclusions). The

Certification of Mortgagor must be dated

the same date as the Loan Documents.

Identity of Interest

• Numerous issues have been raised

with respect to the confirmation in (d)

of the penultimate paragraph of the

Guide. A decision was made that the

attorney signing the Opinion could not

have an identity of interest with the

Mortgagor entity. No waivers are

possible in such instance. In instances

where other members of the firm have

an interest in the Mortgagor entity, such

interest must be disclosed and such

interest must be acceptable to field

counsel based upon the ethics rules of

the applicable bar. Furthermore, any

interest must be administratively

acceptable to HUD and 2530 clearance

must be obtained. In addition, there

appears to be an increasing trend

wherein mortgagees are insisting upon

using counsel to the mortgagee to

handle many aspects of the transaction

even though the Opinion is being signed

by a separate attorney. There have been

some instances where counsel to the

mortgagee have asked to represent the

mortgagor in whole or in part and to

provide all or a part of the Opinion.

Confirmation (d) in the penultimate

paragraph has been clarified to reflect

the intent of HUD from the inception of

the Opinion that any such

representation of both parties is not

permitted.

Liens

• Paragraph (f), which is in the

penultimate paragraph of the Opinion,

contains a statement that there are no

liens or encumbrances against the

Property. Several attorneys have

objected to making the statement

because they indicate that, at the time

of closing, there may be liens that have

actually not been released even though

the title company has received funds

and/or release documents to do so and

intends to process the release after the

closing. Except in cases involving the

insurance of secondary loans, HUD is

only authorized to insure first

mortgages; consequently, there cannot

be any liens and encumbrances on the

property when HUD endorses the

mortgage note for insurance. As a result,

there cannot be any liens outstanding

which would prime the insured

mortgage loan. Hence, Paragraph (f)

should not be changed.

Reliance on Other Opinions

• The issue of proper wording and

format has probably surfaced most often

in cases where counsel to the mortgagor

is relying on opinions issued by other

attorneys. This has occurred most often

in cases involving a separate opinion for

bond financing documentation, property

jurisdiction vs. organizational

jurisdiction, zoning, etc. In this area, it

is imperative that counsel to the

Mortgagor specifically reference and

attach the additional opinion(s) and that

such opinions track the language of the

Guide as close as is practical under the

circumstances. HUD field counsel

should exercise discretion in this area,

taking the unique circumstances into

account.

For use in the Section 202, Supportive

Housing for the Elderly Program

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, FEDERAL

HOUSING ADMINISTRATION

GUIDE FOR OPINION OF OWNER’S

COUNSEL

{TO BE TYPED ON FIRM

LETTERHEAD}

{INSERT CAPITAL ADVANCE INITIAL

CLOSING DATE}

Re: Project Name llllllllllll

202 Project No. llllllllllll

Location lllllllllllllll

[OWNER]

[ADDRESS]

FEDERAL HOUSING COMMISSIONER

{INSERT APPROPRIATE FIELD OFFICE

ADDRESS}

Ladies and Gentlemen: We are [I am]

[general/special] counsel to

llllll {INSERT NAME OF

OWNER} (the ‘‘Owner’’), a llllll

{INSERT TYPE OF ENTITY} organized

under the laws of the State of

llllll {INSERT STATE,

INCLUDES THE DISTRICT OF

COLUMBIA AND PUERTO RICO} (the

‘‘Organizational Jurisdiction’’), in

connection with a first Mortgage (Deed

of Trust) and Mortgage Note (‘‘Capital

Advance’’) in the amount of

llllll Dollars ($llllll)

from HUD to the Owner. Such Capital

Advance is being made pursuant to a

Capital Advance Agreement dated as of

the date hereof, by and between HUD

and the Owner and will be used to

construct, rehabilitate or acquire and

maintain the captioned 202 project

(‘‘Project’’), commonly known as

llllll and located in

llllll {INSERT COUNTY AND

STATE} (said State to be referred to

hereinafter as the ‘‘Property

Jurisdiction’’) on the property described

in Exhibit llllll {ATTACH

LEGAL DESCRIPTION} (together with

all improvements and fixtures thereon)

(the ‘‘Property’’). The Capital Advance

is being issued, pursuant to Section 202

of the Housing Act of 1959, as amended,

a firm commitment dated llllll

and which expires on llllll

(‘‘Commitment’’). The Owner has

requested that we [I] deliver this

opinion and has consented to reliance

by HUD in making the Capital Advance

and has waived any privity between

Owner and us [me] in order to permit

such reliance by HUD. We [I] consent to

reliance on this opinion by HUD.

In our [my] capacity as [general/

special] counsel to the Owner, we [I]

have prepared or reviewed the following

Capital Advance Documents,

Organizational Documents and

Collateral Documents (will be

collectively referred to as ‘‘the

Documents’’ unless expressly limited to

a group of the above referenced

documents).

Note: Numerical references in parenthesis

following the Documents listed below are to

HUD form numbers:

CAPITAL ADVANCE DOCUMENTS:

A. BEFORE INITIAL CLOSING

1. Capital Advance Agreement (HUD

90167–CA).

2. Requisition for Disbursement of

Capital Advance Funds (HUD–92403–

CA).

3. Direct Deposit Sign-up Form (SF

1199A)

4. Project Rental Assistance Contracts

(PRAC) documents:

a. Part I of Agreement to Enter into

PRAC (HUD 90172A–CA);

b. Part II of Agreement to Enter into

PRAC (HUD 90172B–CA);

c. Part I of the PRAC (HUD 90173A–

CA); and

d. Part II of the PRAC (HUD 90173B–

CA).

B. INITIAL CLOSING

1. Firm Commitment for Capital

Advance Financing (HUD–92432–CA)

[including reissued, revised or amended

commitments, thereof, if any].

2. Owner’s Certificate (HUD 92433–

CA).
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8761

3. Evidence of Owner’s Deposit

(minimum capital investment) (escrow

agreement, see 6(q)(1) of commitment)

and ability to provide moveable

furnishings and equipment not covered

by capital advance, if necessary.

4. Agreement and Certification (HUD

93566–CA).

5. Mortgage Note (HUD–93432–CA).

6. Mortgage (Deed of Trust) (HUD–

90165–CA).

7. Regulatory Agreement (HUD–

92466–CA).

8. Use Agreement (HUD 90163–CA).

9. Owner’s assurance of funds to

cover costs over and above capital

advance (if applicable).

ORGANIZATIONAL DOCUMENTS

(Documents regarding Organization of

Non-Profit Owner)

1. Approved and certified articles of

organization (Certificate of

Incorporation (HUD–91732A–CA).

2. Certificate of Good Standing.

3. By-laws.

4. Incumbency Certificate.

5. Owner’s I.R.S. Tax-Exemption

Ruling.

6. Corporate Resolution.

COLLATERAL AND OTHER

DOCUMENTS (‘‘Collateral Documents’’)

1. Collateral Agreements, if any.

2. {INSERT THE NUMBER OF UCC’s

TO BE FILED} Uniform Commercial

Code Financing Statements executed by

the Owner as debtor and naming HUD

as secured party as its interest may

appear, to be filed in llllll,

{INSERT LOCATION(S)} (the Filing

Offices), upon the {DESCRIBE EVENTS}

(the ‘‘Financing Statements’’);

3. The Security Agreement by and

between Owner and HUD, granting a

security interest under the Uniform

Commercial Code, in those items of

personalty described therein, dated

llllll, (the ‘‘Security

Agreement’’);

4. A search conducted by

llllll dated llllll {no

earlier than 30 days before this opinion}

of the financing records of the county

and Property Jurisdiction [and

Organizational Jurisdiction] (the ‘‘UCC

Search’’).

[5. A receipt from the insurance

company providing flood insurance

evidencing payment for the premium,

dated llllll, (the ‘‘Flood

Insurance Receipt’’).]

6. The Title Insurance Policy issued

by llllll {acceptable company

under HUD’s regulations}, together with

all endorsements, and naming HUD as

insured, dated llllll, (the ‘‘Title

Policy’’).

[7. The Surveyor’s Plat OR Survey

showing completed project, prepared by

llllll, dated llllll, (the

‘‘Survey’’).]

8. The Surveyor’s Report (HUD–

92457), executed by llllll, dated

llllll, (the ‘‘Surveyor’s Report’’).

[9. The following documents

evidencing zoning compliance

llllll, {DESCRIBE ALL

DOCUMENTS FULLY} (the ‘‘Zoning

Certificate’’).]

[10. The building permit(s) issued on

llllll, by llllll (the

‘‘Building Permit’’).]

[11. The following permits,

llllll, {DESCRIBE PERMITS}

which are required for the operation of

the project, issued by llllll on

llllll (‘‘Other Permits’’).]

12. Construction Contract:

a. Lump Sum (HUD 92442–CA) OR

Cost Plus (HUD 92442A–CA), as

appropriate;

b. Contractor’s Requisition (HUD

92448); and

c. Construction Contract, Incentive

Payment (HUD 92443–CA), if

applicable.

[13. The Contractor’s and/or

Mortgagor’s Cost Breakdown (HUD

92328) executed by the General

Contractor, dated llllll, (the

‘‘Cost Breakdown’’).]

14. Assurance of Completion:

a. Performance/Payment Bond 100%

Dual-Obligee (92452–CA); OR

b. Performance Bond (FHA 2452) and

Payment Bond (FHA 2452A) and Surety

Company’s Telegram or Facsimile; OR

c. Completion Assurance Agreement

(HUD 92450–CA).

[15. Owner-Architect Agreement (AIA

Document B181) (see attached to Capital

Advance Agreement; HUD 90167–CA)

and HUD Amendment (HUD 90169–

CA)) executed by llllll {INSERT

DESIGN AND/OR CONSTRUCTION

ARCHITECT} and Owner, dated

llllll, (the ‘‘Owner-Architect

Agreement’’).]

16. Real Estate Tax Exemption (if

applicable).

[17. Lease (if mortgage is on

leasehold) (Lease Addendum at

Appendix 14 of HUD Handbook

4571.5).]

18. Land-Dispositions Contract and

Deed (required only for projects in

urban renewal areas).

19. Insurance and fidelity bonds:

a. All applicable insurance policies

per Property Insurance Requirements

(HUD–90164–CA), including Property

Insurance Schedule (HUD–92329); and

b. Blanket Fidelity Bond.

20. Assurance of Completion of Offsite Facilities, if applicable:

a. Off-site Bond (HUD 90177–CA); OR

b. Escrow Agreement for Off-site

Facilities (HUD 90170–CA).

21. Fair Housing

a. FHEO Certification in Connection

with the development and operation of

the project (assurance of compliance

with HUD regulations (HUD Form 915);

and

b. Affirmative Fair Housing Marketing

Plan (HUD will determine if

administratively satisfied; Exhibit 3 to

PRAC).

[22. The following documents

assuring water, electricity, sewer, gas,

heat or other utility services (the

‘‘Assurance of Utility Services’’):

lllllllllllllllllllll

{DESCRIBE FULLY}].

[23. The certificate executed by

llllll {INSERT ARCHITECT OR

OTHER PROFESSIONAL}, dated

llllll, (the ‘‘certificate’’).]

[24. A search conducted by

llllll dated [no earlier than 30

days before this opinion] of the public

records of the federal District Court and

State and local courts in (i) the

jurisdiction where the Property is

located; and (ii) the jurisdiction(s)

where the Owner is organized, located

and does business (‘‘Docket Search’’).]

[25. Additional Closing Requirements

(State or local requirements).]

In basing the several opinions set

forth in this document on ‘‘our [my]

knowledge,’’ the words ‘‘our [my]

knowledge’’ signify that, in the course of

our [my] representation of the Owner,

no facts have come to our [my] attention

that would give us [me] actual

knowledge or actual notice that any

such opinions or other matters are not

accurate. Except as otherwise stated in

this opinion, we [I] have undertaken no

investigation or verification of such

matters. Further, the words ‘‘our [my]

knowledge’’ as used in this opinion are

intended to be limited to the actual

knowledge of the attorneys within our

[my] firm who have been involved in

representing the Owner in any capacity

including, but not limited to, in

connection with the Capital Advance.

We [I] have no reason to believe that any

of the documents on which we [I] have

relied contain matters which, or the

assumptions contained herein, are

untrue, contrary to know facts, or

unreasonable.

In reaching the opinions set forth

below, we [I] have assumed, and to our

[my] knowledge there are no facts

inconsistent with, the following:

(a) Each of the parties to the

Documents, other than the Owner (and

any person executing any of the

Documents on behalf of the Owner), has

duly and validly executed and delivered

each such instrument, document, and
8762 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

agreement to be executed in connection

with the Capital Advance to which such

party is a signatory, and such party’s

obligations set forth in the Documents

are its legal, valid, and binding

obligations, enforceable in accordance

with their respective terms.

(b) Each person executing any of the

Documents, other than the Owner (and

any person executing any of the

Documents on behalf of the Owner),

whether individually or on behalf of an

entity, is duly authorized to do so.

(c) Each natural person executing any

of the Documents is legally competent

to do so.

(d) All signatures of parties other than

the Owner (and any person executing

any of the Documents on behalf of the

Owner) are genuine.

(e) All Documents which are

submitted to us [me] as originals are

authentic; all Documents which were

submitted to us [me] as certified or

photostatic copies conform to the

original document, and all public

records reviewed are accurate and

complete.

(f) All applicable Documents have

been duly filed, indexed, and recorded

among the appropriate official records,

and all fees, charges, and taxes due and

owing as of this date have been paid.

(g) The parties to the Documents and

their successors and assigns will: (i) act

in good faith and in a commercially

reasonable manner in the exercise of

any rights or enforcement of any

remedies under the Documents; (ii) not

engage in any conduct in the exercise of

such rights or enforcement of such

remedies that would constitute other

than fair and impartial dealing; and

(iii) comply with all requirements of

applicable procedural and substantive

law in exercising any rights or enforcing

any remedies under the Documents.

(h) The exercise of any rights or

enforcement of any remedies under the

Documents would not be

unconscionable, result in a breach of the

peace, or otherwise be contrary to

public policy.

(i) The Owner has title or other

interest in each item of (i) real and (ii)

tangible and intangible personal

property (‘‘Personality’’) comprising the

Property in which a security interest is

purported to be granted under the

Documents [and, where Personalty is to

be acquired after the date hereof, a

security interest is created under the

after-acquired property clause of the

Security Agreement].

In rendering this opinion we [I] also

have assumed that the Documents

accurately reflect the complete

understanding of the parties with

respect to the transactions contemplated

thereby and the rights and the

obligations of the parties thereunder.

We [I] also have assumed that the terms

and the conditions of the Capital

Advance as stated in the Documents

have not been amended, modified or

supplemented, directly or indirectly, by

any other agreement or understanding of

the parties or waiver of any of the

material provisions of the Documents.

After reasonable inquiry of the Owner,

we [I] have no knowledge of any facts

or information that would lead us [me]

to believe that the assumptions in this

paragraph are not justified.

In rendering our [my] opinion in

paragraph 13, we [I] also have assumed

that: (i) all Personalty in which a

security interest is created under the

Documents (other than accounts or

goods of a type normally used in more

than one jurisdiction) is located at the

Property and (ii) Owner’s [Chief

Executive Office] [only place of

business] [residence] is located in

llllll. After reasonable inquiry

of the Owner, we [I] have no knowledge

of any facts or information that would

lead us [me] to believe that the

assumptions in this paragraph are not

justified.

In rendering this opinion we [I] have,

with your approval, relied as to certain

matters of fact set forth in the Owner’s

Opinion Certificate, the Certificate of

Good Standing [and certain other

specified Documents,] as set forth

herein. After reasonable inquiry of the

Owner as to the accuracy and

completeness of the Owner’s Opinion

Certificate, the Certificate of Good

Standing, [and such other Documents],

and we [I] have no knowledge of any

facts or information that would lead us

[me] to believe that such reliance is not

justified.

Based on the foregoing and subject to

the assumptions and qualifications set

forth in this letter, it is our [my] opinion

that:

{TO BE USED IN CASES WHERE

ORGANIZATIONAL DOCUMENTS

WERE PREPARED BY OWNER’S

ATTORNEY}

1. The Owner is a private non-profit

corporation, duly organized and validly

existing under the laws of the

Organizational Jurisdiction. The Owner

is duly qualified to do business and,

based solely on the Certificate(s) of

Good Standing, copy attached hereto as

Exhibit llll, is in good standing

under the laws of the Organizational

Jurisdiction and is qualified to do

business as a foreign llllll entity

in the Property Jurisdiction based on a

review of llllll.

2. The Owner has the corporate power

and authority and possesses all

necessary governmental certificates,

permits, licenses, qualifications, tax

exempt status and approvals to own

(including the authority to borrow the

proceeds of the Capital Advance, to

encumber the Property with the

Security Instrument, to execute the

Capital Advance Documents) and

operate the Property and such other

assets as is necessary to carry on its

business and to carry out all of the

transactions contemplated by the

Capital Advance Documents and

Collateral Documents as of the date of

this opinion and to comply with all

applicable statutes and regulations of

the Federal Housing Commissioner in

effect on the date of the Firm

Commitment.

3. The execution and delivery of the

Capital Advance Documents and

Collateral Documents (where

applicable) by or on behalf of the

Owner, and the consummation by the

Owner of the transactions contemplated

thereby, and the performance by the

Owner of its obligations thereunder,

have been duly and validly authorized

by all necessary corporate action by, or

on behalf of, the Owner.

4. All authorizations, consents,

approvals, and permits have been

obtained from, appropriate actions have

been taken by, and necessary filings

have been made with all necessary

Organizational and Property

Jurisdictions or federal courts or

governmental authorities, all disclosed

on Exhibit llll, attached hereto,

and as listed and set forth in Paragraphs

ll of this opinion [i.e., good standing

certificate]. To the best of our

knowledge, these represent all such

authorizations, consents, approvals,

permits, actions and filings that are

required in connection with the

execution and delivery by the Owner of

the Capital Advance Documents and

Collateral Documents (where

applicable) and the ownership [and

operation] of the Property.

5. Each of the Capital Advance

Documents and Collateral Documents

(where applicable) has been duly

executed and delivered by the Owner

and constitute the valid and legally

binding promises or obligations of the

Owner, enforceable against the Owner

in accordance with its terms, subject to

the following qualifications:

(i) the effect of applicable bankruptcy,

insolvency, reorganization, moratorium

and other similar laws affecting the

rights of creditors generally;

(ii) the effect of the exercise of judicial

discretion in accordance with general
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8763

principles of equity (whether applied by

a court of law or of equity); and

(iii) certain remedies, waivers, and

other provisions of the Documents may

not be enforceable, but, subject to the

qualifications set forth in this paragraph

at (i) and (ii) above, such

unenforceability will not preclude (a)

the enforcement of the obligation of the

Owner to make the payments as

provided in the Mortgage and Note (and

HUD’s regulations), and (b) the

foreclosure of the Mortgage upon the

event of a breach thereunder.

[6. {TO BE INSERTED WHEN ANY

OR ALL OF THE LOAN DOCUMENTS

ARE NOT HUD APPROVED FORMS OR

WHEN HUD APPROVED FORMS HAVE

BEEN REVISED OR MODIFIED IN

CONNECTION WITH THE LOAN} The

execution and delivery of, and the

performance of the obligations under,

the Capital Advance Documents and

Collateral Documents (where

applicable), will not violate the

Organizational Documents of the Owner

or the applicable provisions of local or

State law.]

[7. {INSERT FOR LOANS

INVOLVING CONSTRUCTION OR

REHABILITATION} To our [my]

knowledge there are no proposed

change(s) of law, ordinance, or

governmental regulation (proposed in a

formal manner by elected or appointed

officials) which, if enacted or

promulgated after the commencement of

construction/rehabilitation, would

require a modification to the Project,

and/or prevent the Project from being

completed in accordance with the plans

and specifications, dated llllll,

and executed by llllll {INSERT

OWNER} and llllll {INSERT

GENERAL CONTRACTOR}, and

referred to in the Construction Contract

(the ‘‘Plans and Specification’’).]

[8. {INSERT IF THERE IS NO

ZONING ENDORSEMENT

INCORPORATED INTO THE TITLE

POLICY} The attached Zoning

Certificate states that the Property

appears on the zoning maps of [Property

Jurisdiction] as being located in a

llllll zone. According to the

zoning ordinance of the Property

Jurisdiction, the use of the Property as

a llllll is a permitted use in

such zone.

Based solely on the Zoning

Certificate, the Property may be used for

llllll as a permitted use.]

[9. { USE FOR NEW CONSTRUCTION

OR SUBSTANTIAL REHABILITATION

IN CASES WHERE HUD DOES NOT

RECEIVE A CERTIFICATE DIRECTLY

FROM THE PROFESSIONAL} Based

solely on the Certificate, construction/

rehabilitation of the Project in

accordance with the Plans and

Specifications will comply with all

applicable land use and zoning

requirements.]

10. Based solely upon (a) our [my]

knowledge and (b) the Owner’s Opinion

Certification, the execution and delivery

of the Capital Advance Documents and

Collateral Documents (where

applicable) will not: (i) cause the Owner

to be in violation of, or constitute a

default under the provisions of, any

agreement to which the Owner is a party

or by which the Owner is bound, (ii)

conflict with, or result in the breach of,

any court judgment, decree or order of

any governmental body to which the

Owner is subject, and (iii) result in the

creation or imposition of any lien,

charge, or encumbrance of any nature

whatsoever upon any of the property or

assets of the Owner, except as

specifically contemplated by the Capital

Advance Documents or Collateral

Documents.

11. Based solely upon (a) our [my]

knowledge, (b) the Owner’s Opinion

Certification and (c) the Docket Search;

there is no litigation or other claim

pending before any court or

administrative or other governmental

body or threatened in writing against

the Owner, or the Property, [except as

identified on Exhibit lll].

12. The Mortgage is in appropriate

form for recordation in

llllllll {INSERT PROPER

NAME OF LOCAL LAND RECORDS

OFFICE} of llllllll {INSERT

COUNTY OR CITY} of the Property

Jurisdiction, and is sufficient, as to

form, to create the encumbrance and

security interest it purports to create in

the Property.

13. Filing of the Financing Statements

in the Filing Offices will perfect the

security interest in the Personalty of the

Owner located in the Project

Jurisdiction, but only to the extent that,

under the Uniform Commercial Code as

in effect in the Project Jurisdiction, a

security interest in each described item

of Personalty can be perfected by filing.

The Filing Offices are the only offices in

which the Financing Statements are

required to be filed in order to perfect

the security interest in the Personalty.

14. The Capital Advance does not

violate the usury laws or laws regulating

the use or forbearance of money of the

Property Jurisdiction.

15. The laws of Property Jurisdiction

govern the interpretation and the

enforcement of the Capital Advance

Documents and Collateral Documents

(where applicable) notwithstanding that

the Owner may be formed in a

jurisdiction other than Property

Jurisdiction. The Owner can sue and be

sued in Property Jurisdiction, including

without limitation, a suit on the Note or

a foreclosure proceeding arising under

the Mortgage. Venue for any foreclosure

proceeding under the Mortgage may be

had in Property Jurisdiction.

[16. {APPLIES TO CASES WHERE

THE LAND IS BEING PURCHASED

FROM A PUBLIC BODY} There is no

default under the Public Entity Purchase

Agreement, and construction in

accordance with the Plans and

Specifications and within the time

frame specified in the Construction

Contract will not lead to a default under

the Public Entity Purchase Agreement.

{RELIANCE IS PERMITTED ON THE

BASIS OF KNOWLEDGE AND

OWNER’S CERTIFICATE}]

[17. {APPLIES TO CASES WHERE

THE PROJECT IS IN AN URBAN

RENEWAL AREA} There is no default

under the Land Disposition Contract

between lllll and llllll,

dated llllll and the time within

which construction must be completed

under the Capital Advance Agreement is

within the time specified for completion

in said Land Disposition Contract.]

In addition to the assumptions set

forth above, the opinions set forth above

are also subject to the following

qualifications:

(i) The Uniform Commercial Code of

the Property Jurisdiction requires the

periodic filing of continuation

statements with llllll [and

llllll] not more than

llllll prior to and not later than

the expiration of the lll year period

from the date of filing of the Financing

statements and the expiration of each

subsequent lll year period after the

original filing, in order to maintain the

perfection and priority of security

interests and to keep the Financing

Statements in effect.

(ii) We express no opinion as to the

laws of any jurisdiction other than the

laws of the Property Jurisdiction and

[and the Organizational Jurisdiction, if it

is different,] and the laws of the United

States of America. The opinions

expressed above concern only the effect

of the laws (excluding the principles of

conflict of laws) of the Property

Jurisdiction [and the Organizational

Jurisdiction, if it is different] and the

United States of America as currently in

effect. We assume no obligation to

supplement this opinion if any

applicable laws change after the date of

this opinion, or if we become aware of

any facts that might change the opinions

expressed above after the date of this

opionion.

We [I] confirm that:

(a) based on the Organizational

Documents, the name of the Owner in
8764 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

each of the Capital Advance Documents

and Collateral Documents (where

applicable) and the Title Policy and

Firm Commitment is the correct legal

name of the Owner;

(b) the legal description of the

Property is consistent in the Documents

wherein it appears and in Exhibit lll

hereto;

(c) we [I] do not have any financial

interest in the Project, the Property, or

the Capital Advance, other than fees for

legal services performed by us, payment

for which has been made; and we [I]

agree not to assert a claim or lien against

the Project, the Owner, the Capital

Advance proceeds or income of the

Project;

(d) other than as counsel for the

Owner, we have no interest in the

Owner or any other party involved in

the Capital Advance transaction and do

not serve as [a director, officer or] [an]

employee of the Owner. We have no

undisclosed interest in the subject

matters of this opinion;

(e) based solely upon the Surveyor’s

Report and the Surveyor’s Plat, flood

insurance [is OR is not] required

pursuant to 42 U.S.C. 4012a(a). [INSERT

IF FLOOD INSURANCE IS REQUIRED:

Based solely on the Flood Insurance

Receipt, flood insurance is in effect

which satisfies the requirements of 42

U.S.C. 4012a(a).]

(f) we [I]] do not represent any

development team member or any other

party or interest in connection with the

above referenced housing project other

than the Owner except for

representation as the personal attorney

for an individual associated with a

development team member in matters

not involving the housing project. If a

dispute arises between the Owner and a

development team member, my efforts

will be directed exclusively towards

serving the Owner. We [I] have

submitted to HUD an Identity of Interest

and Disclosure Certification; and

(g) to our knowledge, there are no

liens or encumbrances against the

Property which are not reflected as

exceptions to coverage in the Title

Policy.

The foregoing opinions are for the

exclusive reliance of HUD; however,

they may be made available for

informational purposes to, but not for

the reliance of, the assigns or transferees

of the Owner, or prospective purchasers

of the Project. We [I] acknowledge that

the making, or causing to be made, of a

false statement of fact in this opinion

letter and accompanying materials may

lead to criminal prosecution or civil

liability as provided pursuant to

applicable law, which may include 18

U.S.C. 1001, 1010, 1012; 31 U.S.C. 3729,

3802.

Sincerely,

lllllllllllllllllllll

[Authorized Signature]

To be used in FHA Insured

Transactions.

JANUARY 30, 1997.

EXHIBIT A TO OPINION OF

MORTGAGOR’S COUNSEL

CERTIFICATION OF MORTGAGOR

This Certification of Mortgagor is

made the lll day of lllll,

19ll, by llll, (the ‘‘Mortgagor’’)

for reliance upon by lllll (the

‘‘Mortgagor’s Counsel’’) in connection

with the issuance of an opinion letter

dated of even date herewith (the

‘‘Opinion Letter’’) by (‘‘Mortgagor’s

Counsel’’) as a condition for the

provision of mortgage insurance by the

Department of Housing and Urban

Development (‘‘HUD’’) of the

$lllll loan (the ‘‘Loan’’) from

llllll (the ‘‘Mortgage’’) to

Mortgagor. In connection with the

Opinion Letter, the Mortgagor hereby

certifies to Mortgagor’s Counsel for its

reliance, the truth, accuracy and

completeness of the following matters:

1. The Organizational Documents are

the only documents creating the

Mortgagor or authorizing the Loan, and

the Organizational Documents have not

been amended or modified except as

stated in the Opinion Letter.

2. The terms and conditions of the

Loan as reflected in the Loan

Documents have not been amended,

modified or supplemented, directly or

indirectly, by any other agreement or

understanding of the parties or waiver

of any of the material provisions of the

Loan Documents.

3. All tangible personal property of

the Mortgagor in which a security

interest is granted under the Loan

Documents [other than off-site

construction materials and/or accounts

or goods of a type normally used in

more than one jurisdiction and/or

additional collateral personality] is

located at the Property (as defined in the

Opinion Letter) and the Mortgagor’s

[Chief Executive Office] [only place of

business] [residence] is located in

. llllllllllllllllllll

4. The execution and delivery of the

Loan Documents will not (i) cause the

Mortgagor to be in violation of, or

constitute a material default under the

provisions of any agreement to which

the Mortgagor is a party or by which the

Mortgagor is bound, (ii) conflict with, or

result in the breach of, any court

judgment, decree or order of any

governmental body to which the

Mortgagor is subject, and (iii) result in

the creation or imposition of any lien,

charge, or encumbrance of any nature

whatsoever upon any of the property or

assets of the Mortgagor, except as

specifically contemplated by the Loan

Documents.

5. There is no litigation or other claim

pending before any court or

administrative or other governmental

body or threatened against the

Mortgagor, the Property, or any other

properties of the Mortgagor [,except as

identified on Exhibit [l], List of

Litigation, in the Opinion Letter.]

6. There is no default under the

Public Entity Agreement (as defined in

the Opinion Letter) nor have events

occurred which with the passage of time

will result in a default under the

Regulatory Agreement.

Note: All capitalized terms not defined

herein shall have the meanings set forth in

the Opinion Letter.

IN WITNESS WHEREOF, the

Mortgagor has executed this

Certification of Mortgagor effective as of

the date set forth above.

MORTGAGOR:

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

For use in the Section 202, Supportive

Housing for the Elderly Program.

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT FEDERAL

HOUSING ADMINISTRATION

INSTRUCTIONS TO GUIDE FOR

OPINION OF OWNER’S COUNSEL

EXPLANATORY COMMENTS

The Guide for this opinion was

originally prepared in 1994 in view of

changes in opinion practice as reflected

by the ABA Accord and various State

law bar reports on opinion letters and

has been revised to reflect

approximately three years experience in

using the Guide. The principal purpose

of this Guide remains to achieve a

uniform format which can be utilized

throughout the nation and which will be

familiar to HUD counsel in all

jurisdictions. Such a standardized

format is crucial in an era when less

resources are available to the

Department; however, it should be

emphasized that certain limited changes

can be authorized by HUD field counsel

as required by local law or by the

unique nature of the transaction. An

effort has been made in these revised

instructions to specify examples in more

(but not all) of those areas where such
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8765

changes can be authorized. Otherwise,

the format of the Guide must be

followed and is not open to negotiation.

In this regard, revisions cannot be

justified because of a particular Opinion

having been approved by another HUD

field office. The exercise of discretion

by one HUD field counsel in unique

circumstances cannot become the basis

for any modification to the Opinion.

Any requested modification must be

analyzed on its own merit and in a

particular context. In these explanatory

comments, the document may be

referred to as the ‘‘Guide’’ or the

‘‘Opinion,’’ depending upon the

context.

The Department regards the counsel

to the Owner as the crucial, central

figure in the process of preparing and

executing the legal and administrative

documents necessary to achieve a

closing in connection with a first

Mortgage (Deed of Trust) and Mortgage

Note (‘‘Capital Advance’’) from HUD to

the Owner. Pursuant to 24 CFR

24.105(p), attorneys or others in a

business relationship with the Owner

are defined as ‘‘principals.’’ Even

though the Guide is quite different in

form from its predecessor (HUD 90166–

CA), the substance is not intended to be

substantially different and the revision

does not in any fashion relieve the

counsel to the Owner of its obligations

to its client and the Department. In part,

these responsibilities entail the exercise

of due diligence to assure the accurate

and timely preparation, completion and

submission of the forms required by the

Department in connection with the

transaction. Further, the counsel to the

Owner and any other attorneys involved

in the transaction, should be thoroughly

familiar with the regulations,

procedures and directives of the

Department pertaining to each

transaction in which counsel

participates. The Department takes

seriously the preparation and

completion of the various documents

involved in the Capital Advance

Program (most of which are HUD form

documents) and cannot overemphasize

the importance of the following:

‘‘Warning: HUD will prosecute false

claims and statements. Conviction may

result in criminal and/or civil penalties.

(18 U.S.C. 1001, 1010, 1012; 31 U.S.C.

3729, 3802)’’

With limited state law related

exceptions, we expect that Owner’s

counsel will be able to follow the Guide

in rendering an opinion and HUD field

counsel should not accept opinions that

otherwise substantially or materially

deviate from the Guide. Although we

understand that attorneys and law firms

may have evolved particular styles and

forms of opinion, HUD field counsel do

not have time to negotiate each and

every Opinion for stylistic changes and

it is essential that the Guide be followed

in both style and substance in order to

ensure a timely closing. The counsel to

the Owner is expected to complete a

draft Opinion for submission to HUD

field counsel at least ten days prior to

the closing along with the other closing

documents. Any deviations should be

specifically identified (redlined or

highlighted) and discussed with field

counsel at that time. Any material

deviation not required by State or local

law must be brought to the attention of

HUD’s Office of General Counsel by

field counsel along with an explanation

as to the necessity for the deviation.

The Guide is not intended to serve as

a closing checklist; therefore, HUD field

counsel may update or modify existing

closing checklists as necessary to meet

constantly changing program needs and

handbook instructions and directives.

Brackets continue to be used in the

Guide to indicate alternate language,

insertions, documents, or instructions

depending on the applicable facts and

underlining is used to indicate blanks

that must be completed.

The Guide contains some instructions

and definitions and is largely selfexplanatory; however, the following

expanded instructions and clarifications

should provide additional assistance to

both private counsel and HUD counsel.

The numbers and letters used below

relate to the paragraph numbers and

letters in the Guide unless page

numbers are specifically designated.

Page 1 and Introductory Paragraph

• Letterhead and date: The Opinion

must be typed on the firm letterhead

and dated the date of the Capital

Advance by HUD.

• Reference: Data regarding the

project (name, HUD project number, and

location must be accurate and inserted

in the appropriate blanks.

• Addressees: The opinion must be

delivered to HUD to establish the

explicit right to rely on the Opinion.

• Description of the Capital Advance:

The Capital Advance amount is the

original principal amount of the Capital

Advance unless a modification is

necessitated in connection with the

closing.

List of Documents

• In General: If there are no brackets

around a particular document, the

document is one which is commonly

used for capital advance closings;

however, it should be emphasized that

it is impossible to list every document

for every capital advance. Some

documents may not be utilized in a

particular transaction and should be

deleted from the list in the actual

Opinion. Brackets around the name of

the document indicate that the

document may or may not be used for

every capital advance. If bracketed

documents are not used in a particular

capital advance transaction, then delete

such documents from the list in the

actual Opinion. Each document

executed in connection with the Capital

Advance must be listed by its correct

title. It is imperative that care must be

taken to compile a list that accurately

and completely reflects the transaction

prior to submission to HUD of the initial

draft. After HUD review of the initial

draft, the opinion may have to be

modified, as necessary, to satisfy HUD.

All documents executed in

connection with the Capital Advance

must be listed regardless of whether the

document is required by HUD. The

appropriate HUD or FHA form number,

if applicable, must be indicated in

parens after each document.

All of the Documents must be

reviewed. The following HUD

guidelines should be followed in

preparing or reviewing the Documents.

1. HUD Handbook 4571.5, Supportive

Housing for the Elderly—Conditional

Commitment—Final Closing, dated July

1992, should be followed. This

Handbook provides copies of most of

the Documents required by HUD to be

used in the 202 Program Closings.

2. All 202 Owners must adopt the

model Certificate of Incorporation

(HUD–91732–A–CA) except for Field

Counsel modifications related to State

law or modifications required by the

Internal Revenue Service. All other

modifications must be approved by

HUD.

3. The HUD field counsel have not

been consistent in requiring HUD to be

named in the Financing Statements as a

secured party or as its interests may

appear; consequently, the requirement

that HUD be so named is now being

standardized. This should be clarified

through appropriate language in the

Security Agreement. The purpose is to

clarify that, under certain

circumstances, HUD may assert some

rights in the personalty arising under

the Regulatory Agreement which would

precede an assignment of the mortgage.

This is desirable in the event HUD

exercises some of its remedies under the

Regulatory Agreement in cases where

the mortgage has not been assigned to

HUD. It will not be necessary for HUD

to consent to every UCC termination,

renewal, assignment, etc. until HUD’s

rights as a secured party are established.

HUD is being named ‘‘as its interests
8766 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

appear’’ so that, for example, where

HUD obtains a court order, HUD will be

able to establish a paramount interest in

the Project income stream, and other

personalty pursuant to the Regulatory

Agreement.

4. UCC searches: The UCC Search can

be conducted by either the title

insurance company, a reputable

document search firm, the counsel to

the Owner or any other attorney

licensed in the jurisdiction. One or more

UCC searches performed not more than

30 days prior to the date of the opinion

of Owner’s counsel must be made and

retained by the field counsel in the

Capital Advance file.

5. Flood insurance receipt: Arguments

have been made that this document is

not necessary. Flood plain maps change.

HUD must know whether the property

is located in an area where flood

insurance is required and, if so, whether

the insurance is in effect. HUD would

not necessarily have the data on file,

and it was determined that this is a

matter which counsel could confirm

near the end of the Guide. Note that no

opinion is required, and the factual

determinations necessitated by the

Guide are considered within the usual

duties of counsel.

6. Title Insurance Policy: Currently

the 1992 ALTA Format (with

appropriate endorsements) is required

by HUD in most jurisdictions.

7. Evidence of zoning compliance:

The evidence of zoning compliance will

vary depending on the circumstances.

The evidence should establish that the

building, if constructed according to

plans and circumstances, will comply

with all zoning requirements. The

evidence may be in the form of a letter

or certificate from the appropriate local

official stating that, if the building is

constructed according to the plans and

specifications submitted for review, the

building will comply with all zoning

requirements. If the locality has no

zoning ordinance, a letter should be

submitted from the chief executive

stating such. In those circumstances, it

may be necessary to obtain a letter from

the local planning body of the county in

which the project is located, that the

proposed development is compatible

with the county’s comprehensive plan.

If the zoning approval is based upon a

variance or other special action, the

closing may have to be delayed until the

time for appeals has run. In extremely

complex cases, an opinion may need to

be obtained from legal counsel

specializing in local zoning matters.

Such letter must be attached as an

exhibit and referenced in the

appropriate paragraphs of the Opinion.

8. Building permit(s): If no building

permit is required, this document is not

applicable and should be deleted from

the Opinion. This would also be true

with respect to occupancy permits

unless new permits are required under

local law.

9. Permits required for the operation

of the project: Several practitioners have

argued that the documentation is

unnecessary. HUD is concerned that any

permits required for the continued

operation of the project be proper and

in place such that an opinion can be

rendered. If no such permits are

required, the Opinion should be

amended accordingly. This is a matter

which counsel to the Owner, as a

specialist in the property jurisdiction,

should be able to ascertain.

10. Surveyor’s plat or survey: The

survey must be signed, sealed and dated

within 90 days of the closing.

11. Surveyor’s Report: There needs to

be a surveyor’s certificate indicating that

nothing has changed since the last

survey with respect to encroachments,

lot line violations, construction activity,

etc. As an alternative to a surveyor’s

certificate, the Owner’s attorney could

rely upon an appropriate certificate

from a qualified architect and insert

appropriate language in the Opinion.

12. Owner-architect Agreement: This

document should only be indicated

(where the Guide indicates ‘‘[Insert

Design and or Construction Architect’’]

in cases involving new construction or

substantial rehabilitation.

13. Certificate issued by architect or

other professional: Normally such a

document would not be necessary and

should be deleted unless those

circumstances mentioned under the last

sentence in paragraph 11, above, make

the certificate appropriate. Note that

‘‘Certificate’’ is a defined term and that

the Certificate can come from ‘‘an

architect or other professional.’’

Consequently, there is no form for the

Certificate and HUD field counsel

should defer to HUD administrators

specializing in architectural and

engineering matters in determining the

acceptability of the Certificate. It is

referenced in Paragraph 9 of the

Opinion and should not be confused

with the Zoning Certificate which is

also a defined term and is referenced in

Paragraph 8.

14. Docket search: The Docket Search

can be conducted by either the title

insurance company, a reputable

document search firm, the counsel to

the Owner or any other attorney

licensed in the jurisdiction.

Opinions

1. This paragraph requires an opinion

regarding the organization of the Owner.

Care should be taken to ensure that the

requisite information is inserted

correctly. Any Certificate of Good

Standing or equivalent document issued

by the applicable governmental

authority must be dated no more than

30 days prior to the date of the Opinion

of Owner’s counsel. If the Property

jurisdiction is not the State of formation

for the Owner, counsel must also opine

that the Owner is qualified to transact

business in the Property jurisdiction.

Such opinion may be made solely on

the basis of a certificate from the

applicable governmental authorities of

the Property jurisdiction, and if counsel

is relying on such certificate(s), then the

opinion must expressly identify those

certificate(s) and they must be attached

to the Opinion as an exhibit.

2. This paragraph provides, among

other things, that the Owner possesses

all the necessary governmental

certificates, permits, licenses,

qualifications and approvals to own and

operate the Property. Field counsel have

discretion to permit a modification in

which Counsel to the Owner itemizes

those local governmental requirements

which have been evaluated and

indicates that, after due diligence

inquiry and insofar as the attorney is

aware, these local requirements

comprise the entire universe of such

requirements. The Opinion should

further state that, based upon such

itemized local requirements and

compliance therewith (with all permits,

certificates, etc. being itemized), the

Owner possesses the power and

authority necessary to own and operate

the Property and to carry out all of the

transactions required by the Documents

and to comply with applicable federal

statutes and regulations of HUD in effect

on the date of the FHA commitment. In

most instances involving new

construction, a certificate of occupancy

will not have been obtained by the time

of closing. In such instances, field

counsel have discretion to permit an

appropriate clarification with respect to

that particular instrument.

11. If the Owner is involved in any

litigation, all such litigation matter(s)

must be disclosed in writing to HUD

field counsel. If the litigation involves

HUD’s compliance with civil rights

requirements, it must immediately be

brought to the attention of appropriate

Fair Housing and Equal Opportunity

personnel.

13. If any UCC Financing Statements

have been filed on the Personalty in

conjunction with any transaction other
Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices 8767

than the Capital Advance, they must be

identified to the HUD field counsel as

well as details with respect to how such

Financing Statements will be terminated

at the time of closings. One or more

UCC searches performed not more than

30 days prior to the date of the Opinion

must be made and attached to the

Opinion.

Acceptability of Counsel

• Owner’s counsel must opine as to

the law of the Property jurisdiction and

the State of Owner’s organization, if

different from the Property jurisdiction.

HUD requires that Owner’s counsel be

admitted to practice law in each

jurisdiction in which such admission is

required by the laws or ethical

considerations of the bar to be able to

give the opinion. If multiple

jurisdictions are involved, two opinions

may be required: one with respect to the

organization of the owner and another

with respect to the real property and

loan issues. A combination of the

Owner’s regular counsel and special

local counsel may be required to satisfy

this requirement. If counsel’s

satisfaction of these requirements is not

evident from the letterhead of the firm,

the counsel should include a written

explanation in the Washington docket.

In all events, each provision in the

Guide must be addressed whether one

or more opinions is required to do so.

Signatures

• The Opinion may be signed by an

authorized person of the law firm, in

that person’s name.

Owner’s Certification

• A form of Owner’s Certification is

attached. The form represents the

minimum amount of information that

should be obtained from the Owner (but

additions, revisions and rephrasings are

acceptable so long as the Owner is

certifying as to factual matters and not

legal conclusions). The Owner’s

Certification must be dated the same

date as the Capital Advance Documents.

Identity of Interest

• Numerous issues have been raised

with respect to the confirmation in (d)

of the penultimate paragraph of the

Guide. A decision was made that the

attorney signing the Opinion could not

have an identity of interest with the

Owner. No waivers are possible in such

instance. In instances where other

members of the firm have an interest in

the Owner entity, such interest must be

disclosed and such interest must be

acceptable to field counsel based upon

the ethics rules of the applicable bar.

Furthermore, any interest must be

administratively acceptable to HUD and

2530 clearance must be obtained. In

addition, there appears to be an

increasing trend wherein FHA

mortgagees are insisting upon using

counsel to the mortgagee to handle

many aspects of the transaction even

though the Opinion is being signed by

a separate attorney. There have been

some instances where counsel to the

mortgagee has asked to represent the

mortgagor in whole or in part and to

provide all or a part of the Opinion.

Confirmation (d) in the penultimate

paragraph has been clarified to reflect

the intent of HUD from the inception of

the Opinion that any such

representation of both parties is not

permitted.

Liens

• Paragraph (f), which is in the

penultimate paragraph of the Opinion,

contains a statement that there are no

liens or encumbrances against the

Property. Several attorneys have

objected to making the statement

because they indicate that, at the time

of closing, there may be liens that have

actually not been released even though

the title company has received funds

and/or release documents to do so and

intends to process the release after the

closing. Unless authorized by HUD, as

in cases involving secondary loans,

there cannot be any liens and

encumbrances on the property when

HUD makes a capital advance. As a

result, there cannot be any liens

outstanding which would prime the

mortgage. Hence, Paragraph (f) should

not be changed.

Reliance on Other Opinions

• The issue of proper wording and

format has probably surfaced most often

in cases where counsel to the Owner is

relying on opinions issued by other

attorneys. This has occurred most often

in cases involving a separate opinion for

property jurisdiction vs. organizational

jurisdiction, zoning, etc. In this area, it

is imperative that counsel to the Owner

specifically reference and attach the

additional opinion(s) and that such

opinions track the language of the guide

as close as is practical under the

circumstances. HUD field counsel

should exercise discretion in this area,

taking the unique circumstances into

account.

For use in the Section 202, Supportive

Housing for the Elderly Program

EXHIBIT A TO OPINION OF OWNER’S

COUNSEL

CERTIFICATION OF OWNER

This Certification of Owner is made

the llllll day of llllll,

19ll, by llllllll, (the

‘‘Owner’’) for reliance upon by

llllll (the ‘‘Owner’s Counsel’’)

in connection with the issuance of an

opinion letter dated of even date

herewith (the ‘‘Opinion Letter’’) by

(‘‘Owner’s Counsel’’) as a condition for

the making of a capital advance by the

Department of Housing and Urban

Development (‘‘HUD’’) in the amount of

$llll (the ‘‘Capital Advance’’) to

the Owner. In connection with the

Opinion Letter, the Owner hereby

certifies to Owner’s Counsel for its

reliance, the truth, accuracy and

completeness of the following matters:

1. The Organizational Documents are

the only documents creating the Owner

or authorizing the Capital Advance, and

the Organizational Documents have not

been amended or modified except as

stated in the Opinion Letter.

2. The terms and conditions of the

Capital Advance as reflected in the

Capital Advance Documents have not

been amended, modified or

supplemented, directly or indirectly, by

any other agreement or understanding of

the parties or waiver of any of the

material provisions of the Capital

Advance Documents.

3. All tangible personal property of

the Owner in which a security interest

is granted under the Capital Advance

Documents [other than off-site

construction materials and/or accounts

or goods of a type normally used in

more than one jurisdiction and/or

additional collateral personality] is

located at the Property (as defined in the

Opinion Letter) and the Owner’s [Chief

Executive Office] [only place of

business] [residence] is located in

lllllllllllllllllllll

4. The execution and delivery of the

Capital Advance Documents will not (i)

cause the Owner to be in violation of,

or constitute a default under the

provisions of any agreement to which

the Owner is a party or by which the

Owner is bound, (ii) conflict with, or

result in the breach of, any court

judgment, decree or order of any

governmental body to which the Owner

is subject, and (iii) result in the creation

or imposition of any lien, charge, or

encumbrance of any nature whatsoever

upon any of the property or assets of the

Owner, except as specifically

contemplated by the Capital Advance

Documents.

5. There is no litigation or other claim

pending before any court or

administrative or other governmental

body or threatened against the Owner,

the Property, or any other properties of

the Owner [, except as identified on

Exhibit ll, List of Litigation, in the

Opinion Letter.]
8768 Federal Register / Vol. 62, No. 38 / Wednesday, February 26, 1997 / Notices

6. There is no default under the

Public Entity Agreement (as defined in

the Opinion Letter) nor have events

occurred which with the passage of time

will result in a default under the

Regulatory Agreement.

Note: All capitalized terms not defined

herein shall have the meanings set forth in

the Opinion Letter.

In Witness Whereof, the Owner has

executed this Certification of Owner

effective as of the date set forth above.

OWNER:

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

[FR Doc. 97–4685 Filed 2–25–97; 8:45 am]

BILLING CODE 4210–01–M

DEPARTMENT OF THE INTERIOR

Office of the Assistant Secretary;

Water and Science Central Utah

Project Completion Act; Uintah Unit

Replacement Project

AGENCIES: The Department of the

Interior (Department) and the Central

Utah Water Conservancy District

(District).

ACTION: Notice of availability of the

Draft Environmental Impact Statement:

DES 97–7.

SUMMARY: Pursuant to section 102(2)(C)

of the National Environmental Policy

Act of 1969, as amended, the

Department, and the District have

issued a joint Draft Environmental

Impact Statement (Draft EIS) on the

Uintah Unit Replacement Project

(Uintah Unit). The Draft EIS consists of

a proposed action and alternatives to

construct a combination of features that

will develop water supplies for the

Uintah Unit of the Central Utah Project

in the Uinta Basin of northeastern Utah.

The Draft EIS evaluates the

environmental impacts of water storage

reservoirs, improved diversion and

distribution of water, water

conservation, stabilization of high

mountain lakes, instream flows, fish and

wildlife mitigation and enhancement,

recreation developments and land

retirement.

There is a need to manage the water

supply within the Uintah Unit to

develop resources of the Ute Indian

Tribe of the Uintah and Ouray

Reservation, provide early and late

season irrigation water, and provide

water and facilities for environmental

and recreation purposes. The proposed

action and alternatives seek to meet

these needs by providing storage,

improved distribution of water, water

conservation, instream flows, fish and

wildlife enhancements, and recreation

developments.

Public participation has occurred

throughout the EIS process. A Notice of

Intent was filed in the Federal Register

on December 31, 1992. Since that time,

open houses, public meetings, and mailouts have been conducted to solicit

comments and ideas. Any comments

received throughout the process have

been considered.

DATES: Written comments on the Draft

EIS must be submitted or postmarked no

later than April 29, 1997. Comments on

the Draft EIS may also be presented

verbally or submitted in writing at the

public hearings to be held at the

following times and locations:

• Tuesday, April 1, 1997, 1:00 p.m.,

Ute Tribal Auditorium, Tribal

Headquarters, Fort Duchesne, Utah.

• Tuesday, April 1, 1997, 6:00 p.m.,

Union High School Auditorium, 135

North Union, Roosevelt, Utah.

• Wednesday April 2, 1997, 6:00

p.m., Salt Lake County Commission

Chambers, Room N1101, 2001 South

State Street, Salt Lake City, Utah.

The public hearings are being held to

address the Draft EIS for the proposed

Uintah Unit Replacement Project. In

order to be included as part of the

hearing record, written testimony must

be submitted at the time of the hearing.

Verbal testimony will be limited to 5

minutes. Those wishing to give

testimony at a hearing should submit a

registration form, included at the end of

the Draft EIS, to the address listed below

by, March 25, 1997.

ADDRESS: Comments on the Draft EIS

should be addressed to: Terry

Holzworth, Project Manager, Central

Utah Water Conservancy District, 355

West 1300 South, Orem, Utah 84058.

FOR FURTHER INFORMATION: Additional

copies of the Draft EIS, copies of the

resources technical reports, Draft

Feasibility Study, or information on

matters related to this notice can be

obtained on request from: Ms. Nancy

Hardman, Central Utah Water

Conservancy District, 355 West 1300

South, Orem, Utah 84058, Telephone:

(801) 226–7187, Fax: (801) 226–7150.

Copies are also available for

inspection at:

Central Utah Water Conservancy

District, 355 West 1300 South, Orem,

Utah 84058

Department of the Interior, Natural

Resource Library, Serials Branch, 18th

and C Streets, NW, Washington, D.C.

20240

Department of the Interior, Central Utah

Project Completion Act Office, 302

East 1860 South, Provo, Utah 84606

Bureau of Indian Affairs, Uintah and

Ouray Agency, 988 South 7500 East,

Fort Duchesne, Utah 84026.

Dated: February 21, 1997.

Ronald Johnston,

CUPCA Program Director, Department of the

Interior.

[FR Doc. 97–4753 Filed 2–25–97; 8:45 am]

BILLING CODE 4310–RK–P

Fish and Wildlife Service

Notice of Receipt of Applications for

Permit

The following applicants have

applied for a permit to conduct certain

activities with endangered species. This

notice is provided pursuant to Section

10(c) of the Endangered Species Act of

1973, as amended (16 U.S.C. 1531, et

seq.):

PRT–824747.

Applicant: Zoological Society of San Diego,

San Diego, CA.

The applicant requests a permit to

import one female captive born Pink

pigeon (Columba mayeri) from Jersey

Wildlife Preservation Trust for the

purpose of enhancement of the species

through propagation.

PRT–825321.

Applicant: U.S. Fish and Wildlife Service—

Ecological Services, Pierre, SD.

The applicant requests a permit to

export 5 pairs Black-footed ferret

(Mustela nigripies) carcasses to National

Museums of Scotland, Edinburgh,

Scotland for the purpose of

enhancement of the survival of the

species through scientific research.

PRT–825316.

Applicant: Wildlife Waystation, San

Fernando, CA.

The applicant requests a permit to

import one female captive-born tiger

(Panthera tigris) from the Irish Seal

Sanctuary, Garristown, Ireland, for the

purpose of enhancement of the survival

of the species through conservation

education.

PRT–678845.

Applicant: Mesa Garden, Belen, NM.

The applicant requests renewal of a

permit to export and sell in interstate

and foreign commerce artificially

propagated seeds and whole plants of

tobusch fishhook cactus (Anicistocactus

tobuschi syn. Sclerocactus

brevihamatus), Nellie’s cory cactus

(Coryphania (=Escobaria) minima),

Sneed pincushion cactus (Corypantha

(=Escobaria) sneedii var. Sneedii),