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HomeMy WebLinkAboutExhibit 1PARTICIPATION AGREEMENT (Draft of 6/28/07) THIS PARTICIPATION AGREEMENT (the "Agreement") is made as of this day of , 2007, by and between MIAMI-DADE COUNTY (the " County"), and CITY OF MIAMI (the "City"). RECITALS 1. The County has made a loan to Parrot Jungle and Gardens of Watson Island, Inc., a Florida corporation (the "Borrower"), in the original principal amount of Twenty-five Million and No/100 Dollars ($25,000,000.00) (the "Loan"). The Loan is evidenced by a promissory note dated as of , 2000, in the face amount of $25,000,000.00 (the "Note"). 2. The purpose of the Loan was to finance the development of a botanical garden attraction located at Watson Island (the "Property"). 3. The County funded the Loan to Borrower by virtue of a $25,000,000.00 loan guaranteed by the United States Department of Housing and Urban Development ("USHUD") which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June 14, 2000 (the "Section 108 Loan"). 4. As security for the Section 108 Loan, the County pledged its present and future Community Development Block Grant ("CDBG") allocations as a guarantee of repayment of the principal and interest on the Section 108 Loan. 5. The County and the City entered into a Joint Participation Agreement ("JPA") dated September 9, 1998, wherein; the City agreed to assume eighty percent (80%) of the outstanding principal balance and future interest on the Section 108 Loan upon satisfaction of certain conditions, all of which have been satisfied or waived by the parties hereto. 6. In accordance with the intent of the JPA, and subject to the terms and conditions set forth herein, the City agrees to assume from the County, and County agrees to assign and transfer to the City, an undivided eighty percent (80%) interest in all of the benefits and obligations of the County, as lender of the Loan and under the Loan Documents. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions As used herein, the following terms have the respective meaning ascribed thereto below, which meanings shall be applicable equally to the singular and plural forms of the terms defined: ors:Document 81510 "Agreement" shall mean this Agreement, together with all exhibits and schedules hereto, as the same may be modified; amended or restated from time to time. "Assumption and Pledge Agreement" shall mean an Assumption of Loan Guarantee Assistance Liability and Pledge Agreement under Section 108 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5308, in the form attached hereto as Attachment "2", to be entered into by the County, USHUD, and the City. "Authority" shall mean any governmental or quasi -governmental authority, including, without limitation, any federal, state, county, municipal or other governmental or quasi -governmental agency, board, branch, bureau, commission, court department or other instrumentality or political subdivision, whether domestic or foreign. "Business Dav" shall mean any day other than a Saturday, Sunday or a day on which banking institutions in the State of Florida are authorized or obligated by law or executive order to be closed. "City's Pro Rata Share" shall mean an amount equal to 80% of the outstanding principal balance on the Section 108 Loan, as of the date Effective Date, plus accrued but unpaid interest as of such date and future interest until the Section 108 Loan is paid in full, "Collateral" shall mean all of the property pledged, mortgaged, hypothecated or assigned to, or deposited with Lenders from time to time, pursuant to, or as security for, the Loan or any of the indebtedness evidenced by the Loan Documents.. "Contract for Loan Guarantee Assistance" means the Contract for Loan Guarantee Assistance dated as of June 14, 2000, between the County and USIIUD with respect to the Section 108 Loan, as amended by the Assumption and Pledge Agreement, "Commitment Fee" shall mean the_commitment fee paid by Borrower to the County in connection with the making of the Loan by the County. "Confirmation of Lenders' Shares" shall mean the form attached hereto as Exhibit "A" and as referenced in Section 2.3 hereof. "County's Pro Rata Share" shall mean an amount equal to 20% of the outstanding principal balance on the Section 108 Loan as of the Effective Date plus accrued but unpaid interest as of such date and future interest until the Section 108 Loan is paid in full. "Deferred Amount" shall mean an amount equal to all payments due by Borrower under the Note commencing on , 2006 through and including the payment due on , 2012. "Effective Date" shall mean the date as of which this Agreement and the Assumption and Pledge Agreement shall have been approved and executed by City and County. ors:Document 81510 "Event of Default" shall mean any default under any of the Loan Documents which is not cured within the applicable grace period, if any. "Guarantors" shall mean Bern and Mary Levine. "Herein", "hereof, "hereto", hereunder and other words of tike import shall refer to any and every section and provision of this Agreement. "Lenders" shall mean County and City. "Loan" shall have the meaning assigned to it in the Recitals. "Loan Documents" shall mean the documents and instruments executed and delivered by Borrower and/or Guarantors in favor of the County in connection with the Loan, which are identified in Attachment "1" hereto, as they may be amended with the consent of the Lenders from time to time. "Note" shall have the meaning assigned to it in the Recitals, as the same may be modified, amended, restated or renewed from time to time. "Note Modification Agreement" shall mean the agreement to be entered into by Borrower and Lenders to provide for the payment of the Deferred Amount on a date not earlier than the maturity date of the Note, in the form of Attachment "5" hereto. "Person" shall include, without limitation, any manner of association, authority, business trust, company, corporation, estate, joint venture, natural person, partnership, trust or other entity. "Pro Rata Share" shall mean the respective undivided participation interest in the Loan of the County and the City set forth on Exhibit "A.". Section 1.2 Capitalized Terms. Capitalized terms used herein and not defined herein shall have the meanings given such terms in the Loan Agreement. ARTICLE 11 TERMS OF CITY'S PARTICIPATION IN SECTION 108 LOAN Section 2.1 RESERVED Section 2.2 Concurrent Obligations. Concurrently with the execution of this Agreement and the Assumption and Pledge Agreement by the City and the County: 2.2.1 Borrower shall have satisfied or cured, or the County shall have waived, all Events of Default under the Loan Documents, including specifically, but without limitation, ors:Docoment 81510 Borrower's obligation to make the contribution to the Aviary, as provided in the Development Agreement. 2.2.2 The County shall have executed and delivered to the City an estoppel certificate, substantially in the form of Attachment 3, certifying, among other things, that the Loan and the Section 108 Loan are current, that no event of default exists or remains uncured, and that there is no occurrence or event or circumstance which, with notice or lapse of time would become a default under any one of the Loan Documents or the Section 108 Loan. 2.2.3 The County shall have executed and delivered to the City an estoppel certificate, substantially in the form of Attachment 4, certifying, among other things, the outstanding amounts and terms of payment of all outstanding loans from the County to Borrower (the "County Outstanding Loans") and further certifying that all such Loans are current, that no event of default exists or remains uncured with respect thereto, and that there is no occurrence or event or circumstance which, with notice or lapse of time would become a default under any such County Outstanding Loans 2.2,4 The County shall have delivered to the City copies of all documents, including County Commission resolutions and supporting documents, relating to the County Outstanding Loan. 2.2.5 Borrower shall deliver to the County and the City a life insurance policy in the amount of $ , for the term of the Loan, insuring the life of Bern Levine, in favor of the City and the County in proportion to the Lenders' respective Pro Rata Shares. 2.2.6 The Guarantors shall execute Guarantee in favor of the City and the County, securing the parties' respective Pro Rata Shares. 2.2.7 The County shall certify to the City the amount of money received by the County as of the date of this Agreement representing the County's administrative fee relating to the Loan. The County further agrees that all payments by the City of the City's Pro Rata shall exclude 80% of the administrative fee. 2.2.8 The County shall have delivered to the City copies of all Loan Documents, Related Loan Documents (as defined in Section 3.1) and all other documents or instruments relating to the County Outstanding Loans, certified by the County Manager to represent complete, true and correct copies of all such documents. 2.2.9 The Borrower, the County and the City will have executed the Note Modification Agreement The City shall have the right to cause any or all of the above mentioned documents to be recorded in the public records of Miami -Dade County, Florida. Execution of this Agreement by the City shall constitute evidence of compliance with the foregoing Concurrent Obligations, unless otherwise specifically stated herein or in a separate document. ors:Document 81510 Section 2.3. Purchase of Participation The City shall evidence its participation in the Section 108 Loan, by executing the Assumption and Pledge Agreement, pursuant to which the City will pledge to USHUD its future years' CDBG allocations, as security for the repayment of the City's Pro Rata Share , as provided in the Contract for Loan Guarantee County and City hereby agree to use their best efforts to cause USHUD to execute the Assumption and Pledge Agreement, Concurrently with the execution of the Assumption and Pledge Agreement by all parties, USHUD shall provide to the City and the County the Confirmation of Lenders' Shares. Upon USHUD's execution of the Assumption and Pledge Agreement, both City and County's liability for repayment of the Section 108 Loan shall be limited to the sources provided for in the Contract for Loan Guarantee Assistance. It is understood and agreed that upon full execution of the Assumption and Pledge Agreement the County shall have no recourse against the City for the City's failure to pay its Pro Rata Share, it being understood and agreed that the City's liability for non payment of it's Pro Rata Share under this Agreement and the Assumption and Pledge Agreement is limited to the sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to such contract as of the date such Contract was first executed by the County and USHUD. ARTICLE ffi DUTIES AND REPRESENTATIONS OF COUNTY Section 3.1 Representation and Possession of Loan Documents The County represents and warrants to the City, with full knowledge that the City is relying on such warranties and representations in executing this Agreement, that it has delivered to the City all of the Loan Documents, and all other documents or instruments delivered to or obtained by the County pursuant to or in connection with the Loan, the Section 108 Loan, or the transactions contemplated thereby, including, without limitation, resolutions, correspondence, schedules, credit information, appraisals and such other instruments and documents pertaining to the transactions contemplated hereby (the `Related Loan Documents"), which Loan Documents and Related Loan Documents are listed in Attachment 1 hereto, and that (1) The Loan Documents are all of the documents evidencing or securing the Loan, (2) to the best of the County's knowledge, after due investigation, the Related Loan Documents are all of the documents delivered to, or obtained by, the County relating to the Loan, the Section 108 Loan and the transactions contemplated herein, (3) Borrower and/or Guarantor's obligations under the Loan Documents are current and in good standing, or performance of such obligations has been properly waived or forgiven by the County and (4) there is no occurrence or event or circumstance which, with notice or lapse of time, would become a default under any one of the Loan Documents, or would result in, or permit the exercise of remedies or the imposition or accrual of any default interest, penalties fees or charges as a result of such default. The County further represents and warrants to the City that it shall hold in its possession, for the benefit of both Lenders in accordance with the terms of this Agreement, the originals (or original counterparts) of each of the Loan Documents and Related Loan Documents.. The County shall also keep in its files, for the benefit of both Lenders, all of the foregoing documents and such other documents as the County may deem advisable. The City shall have the right to examine and photocopy all documents described herein or relating to the transactions contemplated hereby contained in County's files during normal business hours at the office of County, or at such other place as County may designate from time to time, upon City's delivery of reasonable prior notice to County. ors;Document B1510 Section 3.2 Furnishing of Information to City Immediately upon receipt of notice thereof, the County shall furnish to the City notice of the following: (i) any change in the perfection or priority of any lien securing the Loan, (ii) the occurrence of any Event of Default, (iii) any written request by Borrower or any other obligor on the Loan to modify the terms of the Loan or substitute or release any Collateral or any obligor on the Loan, and (iv) any loss, damage, destruction, condemnation or other governmental taking of all or any material portion of the Collateral. Section 3.3 Payments to City The County will comply with the Contract for Loan Guarantee Assistance between County and USHUD, as amended by the Assumption and Pledge Agreement, as long as any balance remains outstanding on the Section 108 Loan. Thereafter, whenever the County collects or receives immediately available funds representing payments of principal, interest, late charges, commitment fees, extension fees and other fees, recoverable expenses or any other amounts payable to or for the benefit of one or both Lenders pursuant to any of the Loan Documents or otherwise in connection with the Loan, including, without limitation, as a result of the enforcement of any mortgage lien on or security interest in any Collateral (collectively, "Payments"), but excluding proceeds of insurance or condemnation awards to be held pending restoration, as provided in the Loan Documents, the County shall receive, hold and disburse the same as follows: (i) shall retain for the account and the benefit of both Lenders expenses reimbursed by Borrower pursuant to the terms of the Loan Documents and reimbursable to one or both Lenders pursuant hereto and disburse to the City the eighty percent (80%) of such payment to the extent the City made payments toward the payment of the expense; and (ii) disburse to the City eighty percent (80%) of any Payments and retain for its own account the remaining portion thereof. County agrees to disburse all sums due to the City hereunder by wire transfer not later than one (1) Business Day after the funds have been collected by the County's financial institution , except as otherwise provided by this Agreement. The County and the City shall each continue to receive their respective Pro Rata Share of all Payments made by Borrower in connection with the Loan, except as otherwise provided by this Agreement, until the Loan has been paid in full. Section 3.4 Collateral The County shall hold in its name, for the benefit of itself and the City, the Collateral and such other collateral pledged, mortgaged, hypothecated or assigned to, or deposited with Lenders from time to time pursuant to or as security for the Loan or any of the indebtedness evidenced by the Loan Documents. Section 3.5 Loan Administration A. The interest of the County and the City in the Loan shall be of equal priority. Except as otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of USHUD, as long as any balance remains outstanding on the Section 108 Loan, the County shall have the rights and duties with respect to the collection and administration of the Loan and the security therefore described in this Section 3.5. City agrees that the County shall administer the Loan, make payments to USHUD, if any, as required under the Section 108 Loan, and enforce the Loan Documents and collect and administer the Collateral, with the same degree of care, skill, caution and prudence the County ordinarily exercises in its administration of loans which it holds entirely for its own account (the "County Standard of Care"). Subject to the other provisions of this Agreement and consistent with the foregoing standard, the County shall administer the Collateral so as to preserve its value in the manner in which the County administers collateral under other loans. Notwithstanding the foregoing, the County agrees that, at the City's request, upon the occurrence of an Event of ors:Document 81510 Default, or if the City feels itself insecure with respect to the Collateral or the Loan, it will, or will authorize the City to, diligently and in good faith pursue such actions and remedies as may be reasonably required to enforce the Loan Documents and/or collect or administer the Collateral in accordance with the provisions of Section 6.1 hereof. Further, the County agrees that it shall not have the power to grant releases, satisfactions, consents, joinders, assignments and reassignments with respect to the Collateral without the consent of City, which the City agrees to grant to the extent required by the terms of the Loan Documents. The County will maintain accurate books and records with respect to the Loan and the costs and expenses related thereto in the same manner as the County customarily maintains books and records for similar loans in which it acts exclusively for its own account, and shall make such books and records available for inspection by a designated representative of the City at such reasonable times as the City may request. In no event shall the County , without the written consent, and the approval of the governing body of the City: (i) change the principal amount of the Loan; (ii) postpone the due date of any scheduled payment of principal or interest or waive any such payment or any other claim against Borrower; (iii) reduce the interest rate under the Note from the rate specified therein; (iv) release any Guarantor from his obligations under his guarantee of the Loan; (v) release, substitute or exchange the Collateral or any part thereof from any Loan Document; or (vi) pledge, assign, transfer or extend any of the Loan Documents. B. The County agrees that, upon its receipt of any written notice from Borrower claiming or asserting that County has breached its obligations to Borrower pursuant to any of the Loan Documents or that County is in default of the observance or performance of any of its obligations under any of the Loan Documents, it will promptly give the City notice thereof. The County agrees to consult with the City regarding any alleged breach of the Loan Documents by the County and to incorporate the City's comments or suggestions in any response or action to be taken by County as a result thereof. Section 3.6 Consultation with City The County shall seek and obtain the City's approval with respect to any actions or approvals which, by the terms of this Agreement or the Loan Documents, the County is permitted or required to take or to grant. Subject to the provisions of Section hereof, City's failure to grant or deny a requested approval within — days after the County's request shall be deemed to be approval of such action by the City, except as may be otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of USHUD. Section 3.7 No Partnership Neither the execution of this Agreement, nor the sharing in the Loan or in any of the proceeds of the Collateral, nor any agreement to share in profits or losses arising as a result of this transaction is intended to be, nor shall it be construed to be, the formation of a partnership or joint venture between or among the parties hereto, and no party shall be liable to any other Person for the liability of any other party hereto arising in connection with the Loan or any transaction connected therewith, ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1 Representations and Warranties of City The City, as a material inducement to County to enter into this Agreement and to consummate all of the transactions contemplated hereby, represents and warrants to County as follows: ors:Document 81510 A. City is a municipal corporation of the State of Florida and has the legal power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. B. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of City, do not and will not contravene its articles of incorporation or association or bylaws or any agreement, law, governmental rule, regulation or order binding on City (including, without limitation, legal lending limits applicable to it), and do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any Authority. C. This Agreement constitutes the legal, valid and binding obligation of City, and is enforceable in accordance with its terms. D. Neither City nor any Person that City has authorized to act on its behalf has directly or indirectly offered any interest or participation in this Agreement to any other Person. E. City has made and will continue to make such independent evaluation of such financial information and other data relating to Borrower, Guarantors and the Collateral as it deems necessary and prudent. Section 4.2 Representations and Warranties of County The County, as a material inducement to the City to enter 'into this Agreement and to consummate all of the transactions contemplated hereby, represents and warrants to City, in addition to the matters set forth in Article III hereof and elsewhere in this Agreement, as follows: A. County is a political subdivision of the State of Florida and has the legal power and authority to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. B. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of County, do not and will not contravene its charter, code, or any agreement, law, governmental rule, regulation or order binding on Lender (including, without limitation, legal lending limits applicable to it), and do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any Authority. C. This Agreement constitutes the legal, valid and binding obligation of County, and is enforceable in accordance with its terms. D. Neither County nor any Person that County has authorized to act on its behalf has directly or indirectly offered any interest or participation in this Agreement to any other Person. D. The representations and warranties of County under this Agreement, specifically, Section 3.1 hereof, are true and correct. ors:Document 81510 Comment [552]t Fur the a reasonp re �1to ot1icr rclirncc 1e�Cgupgs Section 4.3 Survival of Representations. The representations contained herein shall survive the performance of this Agreement and execution of the Assignment and Pledge Agreement. ARTICLE V COVENANTS OF LENDERS Section 5.1 Other Payments. If Borrower fails to pay taxes, assessments, insurance premiums or any other charges or sums required by the Loan Documents to be paid, as the same become due and payable and County deems it necessary to, and in fact does, pay any such amounts, the City will reimburse to the County the City's Pro Rata Share of same promptly upon demand of County. Any such amounts, to the extent provided in the Loan Documents, shall be secured by the Loan Documents and the Collateral. Additionally, City agrees to pay to County, to the extent County is not reimbursed by Borrower, its Pro-Rata Share of any reasonable out-of-pocket expenses and liabilities hereafter incurred by County in connection with the administration of the Loan provided, however, that nothing contained herein shall diminish the County's obligation to use County Standard of Care in the enforcement of the Loan Documents and the administration and collection of the Collateral. Section 5.2 Enforcement of County Outstanding Loans. The County covenants that, without the prior written consent of the City, it will not enforce Borrower's obligation to make any monetary payments to the County under the County Outstanding Loans or the Development Agreement until the Loan has been paid in full. Section 5.3 Declaration of Invalidation. City agrees that, to the extent any amounts received in repayment of the Loan from Borrower or otherwise, whether by payment, realization of Collateral or otherwise, are, through no fault of the County, subsequently invalidated , declared to be fraudulent or preferential, set aside or required by any Authority to be repaid to a trustee, receiver or any other Person under any applicable law, order or judgment, including the Bankruptcy Code or any similar state law or any other cause of action, and the County repays such amount to the Borrower, a trustee, receiver, or other Person , then the City shall repay to the County, within (Business Days after request by County, its Pro Rata Share of any such amount (with interest to the extent required), so that County and City will be affected by any such invalidation, declaration, set aside or repayment in accordance with its Pro Rata Share thereof. Section 5.4 Excess Payments to City or County Should either City or County receive or retain any payment in excess of its Pro Rata Share of all or any portion of the Loan in any form or in any manner whatsoever, the receiving party shall forthwith pay over such excess payment to the other party as to result in a proportional participation by both Lenders in such amount; Section 5.5 Indemnification A. County hereby agrees to indemnify and hold harmless the City (including its officers, directors, attorneys, agents and employees) from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses including, without limitation, attorneys' fees and disbursements at the trial and appellate levels (collectively, "Losses") which may be incurred by the City or which may be imposed upon the City by Borrower or any third party, arising out of or resulting from, by ors:Docwnent 81510 reason of, or in connection with, any act or failure to act on the part of the County in accordance with the terms of the Loan Documents or this Agreement, or any breach of representations contained herein. B. City hereby agrees to indemnify and hold harmless the County (including its officers, directors, attorneys, agents and employees) from all Losses which may be incurred by the County or which may be imposed upon the County by Borrower or any third party, arising out of or resulting from, by reason of, or in connection with any act or failure to act on the part of the City in accordance with the terms of the Loan Documents or this Agreement, or any breach of representations contained herein. Notwithstanding the foregoing, upon USHUD's execution of the Assignment and Pledge Agreement, the County shall have no recourse against the City for the City's failure to pay its Pro Rata Share, it being understood and agreed that the City's liability for non payment of it's Pro Rata Share under this Agreement and the Assumption and Pledge Agreement is limited to the sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party to such contract as of the date such Contract was first executed by the County and USHUD. ARTICLE VI DEFAULT Section 6. I Default by Borrower Upon County or City acquiring knowledge of any Event of Default under any of the Loan Documents or any event which with the passage of time or giving of notice or both would constitute an Event of Default, or of any matter which in its judgment, materially affects the respective interests of the parties hereunder, then the party having such knowledge shall with reasonable promptness notify the other party in writing of such Event of Default or matter. In the event of any Event of Default, the County shall within five (5) Business Days thereafter notify the City of such Event of Default and of County's intended action. The County shall act (or forebear from acting) as a result of such Event of Default as it shall be directed by the City, which may request the County, in writing, to do everything necessary to protect the lenders' interest in the Loan, including to institute and pursue legal action against the Borrower and/or against the guarantors and/or commence foreclosure (or seek a relief from bankruptcy stay if such then exists followed by the commencement and pursuit of foreclosure) (collectively, the "Default Remedies"). The County shall commence and thereafter diligently pursue the Default Remedy or Default Remedies specified by the City within ten (10) days of the date of the City's written notice. If the County elects not to pursue the Default Remedies, as requested by the City, it must immediately notify the City whereupon the City shall have the right to pursue the Default Remedies and, at the City's request, the County shall take all action reasonably necessary to assist the City in the pursuit of such remedies, consistent with the County Standard of Care, including, but not limited to, assigning to the City all of the County's rights to enforce the Loan Documents and /or the Collateral. Section 6.2 Default by County or City In the event that County does not commence the requested Default Remedy or Default Remedies within the aforementioned ten (10) day period and thereafter diligently pursue same, or fails to notify the City of its election not to pursue the Default Remedies, or fails to assist the City as contemplated in Section 6.1 above, then the County shall be deemed in default. In such event, the City may, in addition to all other remedies available to it by law or in equity, seek injunctive relief against the County and the County hereby waives its right ors:Document 81510 to assert that the City has an adequate remedy at law. In the event the City undertakes to enforce the Default Remedies, and thereafter fails to diligently pursue same, then the City shall be in default and the County may, in addition to all other remedies available to it by law or in equity, seek injunctive relief against the City and the City hereby waives its right to assent that the County has an adequate remedy at law Section 6.3 Foreclosure Subject to the rights of the USHUD pursuant to the Contract for Loan Guarantee Assistance, the County shall hold the Loan Documents (together with any and all other documents executed and delivered in connection therewith) and title to any of the Collateral acquired by County after an Event of Default in its name as agent for both City and County (to the extent of County's and City's Pro Rata Shares thereof). Accordingly, in the event of a foreclosure and foreclosure sale of any Collateral, or any judicial sale of any of the collateral, the County shall bid at such sale for the benefit of both Lenders and if such bid is successful, County shall, to the extent permitted by law, cause all title instruments relating to such Collateral to be issued in the name of each Lender in accordance with each Lenders' Pro Rata Share. If a successful bid is entered by a third party, and is acceptable to the City, then, to the extent that the proceeds of the foreclosure sale are, pursuant to law, the property of the holder of the Loan Documents, such proceeds shall be received by Lender and shall thereupon be divided among Lenders in proportion to their respective Pro Rata Shares. Section 6.4 Default Administration. Subject to the rights of the USHUD pursuant to the Contract for Loan Guarantee Assistance, upon the determination by County of a course of action taken after an Event of Default in accordance with Section 6.1 hereof, and after consultation with City, the County shall have the right to maintain, manage and operate the Collateral and sell all or any part thereof in a manner consistent with such course of action or as County determines to be prudent, respectively, and may employ an independent management company, sales agent or others to maintain, manage, operate and sell the Collateral, all of which activity shall be part of County's right to service and administer the Loan. If County determines, in its discretion, that a management agreement is necessary, such management agreement will be negotiated in good faith by County, subject to City's approval.. In the event of the appointment of a receiver for any of the Collateral during the pendency of a foreclosure proceeding or otherwise, Lenders shall share in the profits and expenses of the receivership in proportion to their respective Pro Rata Shares. Notwithstanding the foregoing, any sale of the Collateral by County shall require the approval of the City. In such case County shall promptly notify City of each written offer to purchase the Collateral received by County, (the "Offer") advising City as to whether or not County wishes to accept the Offer. The City Manager shall notify County, in writing, within five (5) business days after City's receipt of the Offer, whether or not it wants to accept the Offer, which decision shall be subject to City Commission approval. If one party wishes to accept the Offer, but the City Manager of the other party does not, the parties shall immediately consult. If, after such consultation, the parties still do not agree, then the party not wanting to accept the Offer (the "Purchasing Party") shall submit to its board of commissioners the Offer and the board shall then be obligated to either accept the offer to sell, or shall purchase from the other party (the "Selling Party") the Selling Party's Pro Rata Share of the Collateral at a price equal to the amount which the Selling Party would have received from a sale pursuant to the Offer (including, without limitation, the payment of any expenses to be reimbursed to the Selling Party under the terms of this Agreement). The purchase and sale of the Selling Party's Pro Rata Share of the Collateral pursuant to this paragraph shall be without recourse, warranties or ors:Document 81510 representations, except as to the ownership of the Pro Rata Share being sold and shall occur as promptly as possible, but no later than fifteen (15) business days after the action is approved by the party's governing board. The parties shall cooperate with each other and execute such documents as are reasonably necessary to accomplish such sale as promptly as possible. Section 6.5 Enforcement Costs. To the extent Borrower does not reimburse Lenders, each party shall contribute its Pro Rata Share of the costs and expenses of enforcing the Default Remedies. Section 6.6 Application of Default Sums All amounts received by Lenders or with respect to the Loan Documents following any Event of Default whether paid by Borrower, realized from the Collateral or otherwise, shall be applied by Lenders as follows: (i) first, to the payment of any and all reasonable costs and expenses, including, without limitation, all amounts outstanding on the Section 108 Loan, reasonable trial and appellate attorneys' fees, costs and disbursements, incurred by either Lender in connection with or incidental to its collection of any amount due and payable to either Lender under the Loan Documents, the preparation for sale of the Collateralor any portion thereof and the sale, transfer and delivery of the Collateral or any portion thereof, (ii) second, to the satisfaction of all amounts, including principal, interest, fees and other amounts, due and payable to Lenders pursuant to the Loan Documents (iii) third, to the payment of any other amounts required by applicable law; and (iv) last, to the extent of the surplus, if any, of such proceeds, to Borrower (or such other entity as may be entitled thereto). Section 6.7 Losses. All losses incurred by Lenders as a result of any failure on the part of Borrower to repay the Loan and any other sums due pursuant to the Loan Documents shall be borne by Lenders in accordance with their respective Pro Rata Shares. ARTICLE VII MISCELLANEOUS Section 7.1 Approval by Governing Board of Parties Whenever this document requires a party to take action which is in the opinion of the party's counsel subject to the approval of the party's goveming body, then performance by such party shall be automatically extended by a period of time equal to the number of days normally required for an item to be presented to, and considered by, such governing body, but in no event a period greater than _days from the date notice requesting approval is submitted. Section 7.2 Notice Except as otherwise indicated herein, any notice, request, demand or other communication permitted or required to be given hereunder (collectively, a "Notice") shall be in writing, shall be signed by the party giving it, and shall be deemed to have been properly delivered if delivered by hand (with receipt acknowledged) to the party to whose attention it is directed or if mailed by United States registered or certified mail, return receipt requested or if sent by express courier service (with receipt acknowledged) addressed to the following addresses: ors:Document 81510 If to County: MIAMI-DADE COUNTY 111 N.W. 181 Street 29T' Floor Miami, Florida 33128 Attention: County Manager With Copies to: MIAMI-DADE COUNTY 111 N.W. 1st Street Suite 2 810 Miami, Florida 3 312 8 Attention: County Attorney If to Cityz CITY OF MIAMI 444 SW 2nd Avenue Miami, Florida 33130 Attention; City Manager With Copies to: City of Miami Office of the City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 or to such other address as the party to be served with Notice may furnish in accordance with the terms of this Section to the party seeking or desiring to serve Notice as a place for the service of Notice. Notices shall be deemed effective (a) when delivered if delivered by hand, (b) two (2) Business Days after mailing, and (c) the next Business Day after delivery to any express courier service. Section 7.3 Entire Agreement This Agreement, together with its Exhibits and Attachments, contains the entire agreement of the parties and supersedes all other representations, warranties, agreements and understandings, oral or otherwise, between the parties with respect to the matters contained herein. Section 7.4 Waiver of Jury. The parties hereto hereby severally, voluntarily, knowingly and intentionally waive any and ail rights to trial by jury in any legal action or proceeding arising under or in connection with this Agreement, regardless of whether such action or proceeding concerns any contractual or tortious or other claim. The parties hereto acknowledge that this waiver of jury trial is a material inducement to the parties hereto in entering into this Agreement, that the parties hereto would not have entered into this Agreement without this jury trial waiver, and that each ors:Document 81510 of them has been represented by an attorney or has had an opportunity to consult with an attorney regarding this Agreement and understands the legal effect of this jury trial waiver. Section 7.5 Survival, etc. Notwithstanding the applicable statute of limitations, any other law or any investigation made at any time by or on behalf of any party hereto, all representations, warranties, covenants and other agreements (collectively, "Obligations") made by any party herein shall survive the execution and delivery of this Agreement, and shall remain and continue in full force and effect until both Lenders shall have fully performed and discharged all of their respective Obligations hereunder, without regard to any modification, extension, renewal, amendment or waiver of any provision of any Note or any of the other Loan Documents. Section 7.6 Governing Law and Venug This Agreement shall be deemed negotiated and entered into in Miami -Dade County, Florida, and shall be governed by and construed in accordance with the laws of the State of Florida as an agreement entered into and to be performed wholly within the State of Florida. The parties agree that venue for any lawsuit in connection with this Agreement shall be in Miami -Dade County, Florida, unless an action to which any party hereto is made a defendant or third party defendant is filed in a different jurisdiction by a plaintiff not a party hereto. Section 7.7 Benefit This Agreement shall inure to the benefit of and be binding upon each party hereto and their permitted successors and assigns, subject to the provisions of Section 5.5 hereof. All respective Obligations of Lenders shall inure to the benefit of the other and its permitted successors and assigns, subject to the provisions of Section 5.5 hereof. Nothing in this Agreement or in any transaction contemplated hereby, either expressed or implied, is intended to confer upon any Person other than the parties hereto any rights, remedies, obligations, or liabilities under or by reason of this Agreement. Section 7.8 Counterparts This Agreement may be executed in one or more counterparts, each of which may be executed by one or more of the parties hereto, but all of which, when taken together, shall constitute but one agreement. Section 7.9 No Waiver by Action Any waiver or consent respecting any Obligation or other provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which given and shall not be deemed, regardless of the frequency given, to be a further or continuing waiver or consent. The failure or delay of a party at any time or times to require performance of, or to exercise its rights with respect to, any Obligation or other provision of this Agreement, including any investigation by or on behalf of any party, in no manner shall affect such parry's right at a later time to enforce any such provision. All remedies, rights, powers and privileges of the Lenders hereunder are cumulative and are in addition to and shall not limit any other remedy, right, power or privilege of the Lenders hereunder or under applicable law. Section 7.10 Modification Each and" every modification and amendment of this Agreement shall be in writing and signed by all of the parties hereto, and each and every waiver of, or consent to any departure from, any Obligation or other provision of this Agreement, shall be in writing and signed by the party hereto against which such waiver or consent is sought to be enforced. The County Manager, on behalf of the County, and the City Manager, on behalf of the City, shall have the right to amend this Agreement unless in the ors:Document 81510 opinion of counsel for the party seeking to amend the Agreement, approval by the governing body is required. Section 7.11 Captions The sections, captions and other headings contained in this Agreement are for convenient reference purposes only and shall not affect the meaning or interpretation, or define, describe, extend or limit the scope or intent, of this Agreement or any provision hereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. COUNTY: MIAMI-DADE COUNTY By: CITY: Attest: CITY OF MIAMI By: By: Priscilla A. Thompson, City Clerk Pedro H. Hernandez, City Manager Approved as to Form and Correctness: Approved as to Insurance Requirements: Jorge L. Fernandez, City Attorney ors:Document 81510