HomeMy WebLinkAboutExhibit 1City of Miami
Master Report
Enactment Number:,R-07-0405
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File Number: 07-00895
Version: 2
File Type: Resolution
Reference:
Status: Passed
Controlling Body:
File Name: Participation Agreement - Parrot Jungle Introduced:
Requester: City Manager's Office Cost: Final Action:
Office of the City
Clerk
6/28/2007
7/10/2007
Title: A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE A PARTICIPATION AGREEMENT AND
AN ASSUMPTION OF LOAN GUARANTEE ASSISTANCE AND LIABILITY AND PLEDGE
AGREEMENT; IN SUBSTANTIALLY THE ATTACHED FORM(S), PROVIDING FOR THE CITY
OF MIAMI'S ("CITY") ASSUMPTION OF EIGHTY PERCENT (80%) OF MIAMI-DADE COUNTY'S
("COUNTY") LIABILITY UNDER THE SECTION 108 LOAN USED BY THE COUNTY, TO FUND
A $25.000.000, LOAN TO PARROT JUNGLE AND GARDENS OF WATSON ISLAND, INC.
("PARROT JUNGLE"), AND ALL OTHER DOCUMENTS AS MAY BE REQUIRED IN
CONFECTION TO SUCH ASSUMPTION. SUBJECT TO CITY ATTORNEY APPROVAL;
WAIVING SATISFACTION OF THE CONDITIONS PRECEDENT TO SUCH ASSUMPTION SET
FORTH IN THE JOINT PARTICIPATION AGREEMENT DATED SEPTEMBER 9, .1998, BETWEEN
THE CITY AND THE COUNTY; FURTHER CONSENTING TO THE MODIFICATION OF THE
TERMS OF THE LOAN FROM THE COUNTY TO PARROT JUNGLE, AS MORE SPECIFICALLY
DESCRIBED HEREIN.
Sponsors:
Notes:
Indexes:
Attachments: 07-00895.Legislation.pdf,07-00895 Exhibit 1.pdf,07-00895 Exhibit 2.pdf,07-00895 Exhibit
3.pdf,07-00895 Exhibit 4.pdf,07-00895 Exhibit 5.pdf,07-00895 Exhibit 6.pdf,07-00895 Exhibit
7.pdf,07-00895 Exhibit 8.pdf 07-00895 Exhibit 9.pdf 07-00895 Summary Form.pdf,
History of Legislative File
Version: Acting Body: Date:
Action:
Sent To:
Due Date: Return Date: Result:
1
Office of the City 6/28/2007 Review Pending.
Attorney
2 City Commission 7/10/2007 ADOPTED WITH
MODIFICATIONS
2 Office of the City 7/16/2007 Reviewed and
Attorney Approved
Action Note: modifications made by law
modifications made by law
2 Office of the.Mayor 7/20/2007 Signed by the Mayor
Office of the City Clerk 7/24/2007 Signed and Attested
by City Clerk
Office of the City
Clerk
Pass
City of Miami Page 1 Printed on 10/13/2011
City of Miami
Master Report
Enactment Number: R-07-0405
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
City of Miami Page 2 Printed on 10/13/2011
City of Miami
Legislation
Resolution: R-07-0405
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 07-00895
Final Action Date: 7/10/2007
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO EXECUTE A PARTICIPATION
AGREEMENT AND AN ASSUMPTION OF LOAN GUARANTEE ASSISTANCE AND
LIABILITY AND PLEDGE AGREEMENT, IN SUBSTANTIALLY THE ATTACHED
FORM(S), PROVIDING FOR THE CITY OF MIAMI'S ("CITY") ASSUMPTION OF
EIGHTY PERCENT (80%) OF MIAMI-DADE COUNTY'S ("COUNTY") LIABILITY
UNDER THE SECTION 108 LOAN USED BY THE COUNTY, TO FUND A
$25,000,000, LOAN TO PARROT JUNGLE AND GARDENS OF WATSON ISLAND,
INC. ("PARROT JUNGLE"), AND ALL OTHER DOCUMENTS AS MAY BE
REQUIRED IN CONNECTION TO SUCH ASSUMPTION, SUBJECT TO CITY
ATTORNEY APPROVAL; WAIVING SATISFACTION OF THE CONDITIONS
PRECEDENT TO SUCH ASSUMPTION SET FORTH IN THE JOINT .
PARTICIPATION AGREEMENT DATED SEPTEMBER 9, 1998, BETWEEN THE
CITY AND THE COUNTY; FURTHER CONSENTING TO THE MODIFICATION OF
THE TERMS OF THE LOAN FROM THE COUNTY TO PARROT JUNGLE, AS
MORE SPECIFICALLY DESCRIBED HEREIN..
WHEREAS, on January 9, 2001, Miami -Dade County ("County") made a loan to Parrot Jungle and
Gardens of Watson Island ("Parrot Jungle"), in the original principal amount of Twenty -Five Million
Dollars ($25,000,000) to facilitate the financing of the development of the Parrot Jungle and Gardens
of Watson Island Project (the "Parrot Jungle Loan"); and
WHEREAS; the County funded the Parrot Jungle Loan by virtue of a $25,000,000, loan
guaranteed by the United States Department of Housing and Urban Development ("HUD") which was
advanced to the County pursuant to the Section 108 Loan Guarantee Program (the "Section 108
Loan"); and
WHEREAS, the City of Miami ("City") and the County entered into. a Joint Participation Agreement
dated September 9, 1998 ("JPA"), in which the City agreed to replace the County as the guarantor of
80% of the Section 108 Loan, upon satisfaction of certain conditions set forth therein, including the
conditions that the Parrot Jungle Loan must be current and no event of default is in existence and that
the County assign to the City all of the documents securing the Loan (the "Loan Documents"); and
WHEREAS, the County is not able to assign the Loan Documents to the City pursuant to the
provisions of the documents evidencing or securing the Section 108 Loan; and
WHEREAS, Parrot Jungle has cured, and/or the County has agreed to waive and not enforce,
certain events of non-performance by Parrot Jungle under the Loan Documents; and
WHEREAS, to assist Parrot Jungle to cure its failure to make payments under the Parrot Jungle
Loan, the County has agreed, subject to the City's approval, to modify Parrot Jungle's obligations
underthe Loan Documents to (I) provide that Parrot Jungle shall not be obligated to make any
City of Miami
Page 1 of 2 File Id: 07-00895 (Version: 2) Printed On: 10/13/2011
File Number: 07-00895 Enactment Number: R-07-0405
payments under the Parrot Jungle Loan from August, 2006, through and including the payment due in
August, 2011 (the "Deferral"), and (II) require that all amounts that Parrot Jungle would have been
required to pay during the Deferral, totaling $17,277,000 (the "Deferred Amount"), plus interest at the
rate of 5% shall be payable in 10 equal annual installments commencing in 2020, provided that the
Parrot Jungle Loan has been fully paid; and
WHEREAS, it is in the best interest of the City to consent to the modification of the Parrot Jungle
Loan to defer payment of the Deferred Amount, as set forth herein, and to assume 80% of the
County's obligations under the Section 108 Loan;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. The City Commission waives satisfaction of all the conditions precedent to the City's
assumption of the County's obligations under the Section 108 Loan described in the JPA.
Section 3. The City Manager is authorized{1} to execute the Participation Agreement and the
Assumption of Loan Guarantee Assistance Liability and Pledge Agreement, substantially in the
attached forms, and such other documents as may be required, subject to the City Attorney's approval,
to assume eighty percent (80%) of the County's obligations under the Section 108 Loan.
Section 4. The modification of the Parrot Jungle Loan to defer payment of the Deferral Amount
until and including the payment of August, 2011, is approved and the City Manager is authorized{1}
to execute such documents as may be required to evidence this approval, subject to City Attorney
approval.
Section 5. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
Footnotes:
{1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar
days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall
become effective immediately upon override of the veto by the City Commission.
{2} The herein authorization is further subject to compliance with all requirements that may be
imposed by the City Attorney, including but not limited to those prescribed by applicable City
Charter and Code provisions.
City of Miami
Page 2 of 2 File Id: 07-00895 (Version: 2) Printed On.: 10/13/2011
Attachment 1
Page 1 of 21
PARTICIPATION AGREEMENT
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 January 9, 2001, 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 S25,000,000.00 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 Progam on June
14, 2000 (the "Section 108 Loan").
4. As sec7.: ' 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 ("TPA") 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 IPA, 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:
)21- # «-doc
Attachment 1
Page 2 of 21
"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 Areement" 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 faun attached hereto as Attachment
"2", to be entered into by the County, USHUD, and the City.
"Authority" shall mean any governmental or quasi-govemmental 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 Day" 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 fr m time to time, pursuant to, or as security for, the Loan or any of the
indebtedness evidences' by the Loan Dorurrients. .
"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_comrn.itment fee paid by Borrower to the County in
connection with the making of the Loan by the County.
"Continuation of Lenders' Shares" shall mean the form attached hereto as Exhibit "A" and
as referenced in Section 2.3 hereof
"Countv'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 August 1, 2006 through and including the payment due on August 1, 2011.
"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.
Attachment 1
Page 3 of 21
"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.
"Amendment to Development Areement" shall mean the agreement to be entered into by
Borrower and Lenders to provide for the payment of the Deferred Amount on the maturity date, or, at
Borrower's request, o —7 - period of In years commencing on the maturity date ,. in the form of
Attachment "5" hereto. 1�,L
"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 iri 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 II
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,
Attachment 1
Page 4 of 21
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 teiiiis 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 Loans.
2.2.5 Borrower 1-11 deliver to the County and the City a life insurance policy in the amount
of S2,000,000.00, 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 Amendment to
Development 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.
crtY)
Attachment 1
Page 5 of 21
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 III
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 oth.e ;'icuments or :_nEtruments 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 perfoiniance
of such obligations has been properly waived or forgiven by the County and (4) there is no unwaived
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.
Attachment 1
Page 6 of 21
Section 3.2 Fumishin2 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 dt7-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
Attachment 1
Page 7of21
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 cornnients 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 teinis of this Agreement or the Loan
Documents, the County is permitted or required to take or to grant. Subject to the provisions of
Section 7.1_ hereof, City's failure to grant or deny a requested approval within 30 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
folniation 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:
Attachment 1
Page 8 of 21
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 teens.
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 Rep: esentations 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.
Attachment 1
Page 9 of 21
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 Lo.cui 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 30 (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
Attachment 1
Pace 10of21
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 Areement, 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. 1 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 judgiuent,
materially affects the ..resnective 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
Attachment 1
Page 11 of 21
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 instnunents 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 Dave 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 Comity'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
Attachment 1
Page 12 of 21
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 Collateral or 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 Lnsses. 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 Govemine 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 governing body, then performance by such party shall be automatically extended by a
period of time equal to the number of days noinially required for an item to be presented to, and
considered by, such governing body, but in no event a period -eater than 60 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:
Attachment 1
Pace 13 of 21
If to County:
MIAMI-DADE COUNTY
111 N.W. 1St Street
2 9 Th Floor
Miami, Florida 3 312 8
Attention: County Manager
With Copies to:
MIAMI-DADE COUNTY
111 N.W. 1st Street
Suite 2 8 10
Miami, Florida 3 312 8
Attention: County Attorney
If to City:
CITY OF MIAMI
444 SW 2'd Avenue
Miami, Florida 33130
Attention: City Manager
With Copies to:
City of Miami
Office of the City Attorney
444 SW 2'd 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
turns 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 all 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 Agreementwithout this jury trial waiver, and that each
Attachment 1
Page 14 of 21
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 Venue 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
party'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
Attachment 1
Pate 15 of 21
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.
Attest:
COUNTY:
MIAI\'II-DADE COUNTY
CITY:
CITY OF MIAIVII
By: al -A -ea F.-7-0 7 By:
Prisc?�illa A. Thompson, City Clerk
Approved as to Form and Correctness:
.Idrge L. Fernandez, City Attorney n, r
Pedro a. Hernann City Manager
Approved as to Insurance Requirements:
Attachment 1
Page 16 of 21
ON USHUD'S LETTERHEAD]
EXHIBIT "A"
CONFIRMATION OF PARTICIPANT'S SHARES
MIAMI-DADE COUNTY
111 N.W. ls` Street
Miami, Florida 33128
CITY OF MIAMI
444 SW 2ND Ave
Miami, Fl. 33130
THIS IS TO CERTIFY THAT, pursuant to the PARTICIPATION AGREEMENT (the
"Agreement") dated as of , 2006 executed by MIAMI-DADE COUNTY (the
"County") and CITY OF MIAMI (the "City") relating to a S25,000,000.00 loan from Lender, the
County and the City are liable to the USHUD in accordance with each party's pro rata share, as
follows: T
Dated:
SCHEDULE"A" LENDERS' PRO RATA SHARES
Principal Amount Pro Rata Amount of Loan
LENDER:
MIAMI-DADE.C':_)TI TY: 35,000,000.00 20%
PARTICIPANT:
CITY OF MIAIvII: S20,000,000.00 80%
TOTAL OUTSTANDING: S25,000,000.00 100%
Attachment 1
Page 17 of 21
ATTACHMENT "1"
LOAN DOCUMENTS
ADA Cuordination
Agenda CUordinal ion
Animal Services
Art in Public Places
Auda and Management Services
Av41lnn
Budding
Budding ('.ode Compliance
Business Development
Capital Improvements
Citizens Independent Transportation Trust
Commission on Ethics and Public Trust
Communications
Community .ACtibn Agency
Community & Economic Development
Community Relations
Consumer Services
Corrections & Rehabilitation
Cultural Affairs
Elections
Emergency Management
Employee Relations
Empowerment Trust
Enterprise Technology Services
Environmental Resources Management
Fair Employment Practices
Finance
Fire Rescue
General Services Administration
Historic Preservation
Homeless Trust
Housing Agency
Housing Finance Authority
Human Services
Independent Review Panel
International Trade Consortium
Juvenile Services
Medical Examiner
Metro'Miami Action Plan
Melropohlan Planning Organization
Park and Recreation
Planning and Zoning
Police
Procurement Management
Properly Appraisal
Public Library System
Public Works
Safe Neighborhood Parks
Seaport
Solid waste Management
Suategic Business Management
Team Metro
• Transit
Task Force on Urban Economic Revitalization
Vizcaya Museum And Gardens
water & Sewer
lCQ Vur4t4
July 25, 2007
Olga Ramirez-Seijas
Assistant City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, Florida 33130
Re: Parrot Jungle and Gardens Document
Dear Ms. Ramirez-Seijas:
Community & Economic Development
140 West Flagler Street • Suite 1 000
Miami, Florida 33130
T 305-375-3422 F 305-375-3428.
miamidade.gov
We are hereby submitting the following Parrot Jungle and Gardens of Watson
Island, Inc. documents per your request:
$25 Million Section 108 Loan
• U.S. Department of Housing and Urban Development Contract
• Modification of Mortgage
• Assignment of Florida Leasehold Mortgage, Assignment of Leases and Rents
and Security Agreement
• Florida Leasehold Mortgage, Assignment of Leases and Rents and Security
Agreement
• Joint Participation Agreement between Miami -Dade and City of Miami for the
Parrot Jungle and Gardens of Watson -Island, Inc. Section 108 Loan Guarantee
Application
• Mortgage Subordination Agreement
• U.S. HUD Fixed Rate Note for Series 2000-A Certificates
• Promissory Note
• Continuing Guaranty for Bern and Mary Levine
• Amendatory Agreement
• Development Agreement between Miami -Dade County and Parrot Jungle and
Gardens of Watson Island, Inc. and the City of Miami
$1.5 Million Forgivable Loan
• Loan Agreement
• Promissory Note
$1 Million Loan
• Loan Agreement
• Promissory Note
• Continuing Guaranty for Bern and Mary Levine
The Estoppel Certificate and the modification of the Note are -currently in process
and will be provided in the next few days.
Page 2
Parrot Jungle and Gardens Document
July 25, 2007
Please note that the $4.7 million documents are in process. After execution,
they will be forwarded to you under separate cover letter.
Please contact Tangie White -Jackson at (305) 375-3434 should you have
any questions.
Sincerely
Jose Cintron
Director
JC:Ic
Enclosures
Larry Spring, CFO, City of Miami
Shannon Summerset, Assistant County Attorney — No Attachments
Mario F. Morlote, Assistant to the County Manager — No Attachments
Tangie White Jackson, Director — EDD
Attachment 1
Page 18 of 21
ATTACHMENT "2"
Assumption of Loan Guarantee Assistance Liability and Pledge Agreement
j n /
' W W'l" i (y!- I� U
Attachment 2
Page 1 of 14
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
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. 95308
Date of Agreement:
This Assumption of Loan Guarantee Assistance Liability and Pledge Agreement
("Agreement") is entered into by Miami -Dade County. Florida, as Borrower (the
"Borrower"), the City of Miami, Florida, as assumptor (the "Assumptor"), and the
Secretary of Housing and Urban Development ("Secretary"), as guarantor for the
Guarantee made pursuant to. section 108 ("Section 108") of title I of the Housing and
Community Development Act of 1974; as amended (the "Act") and 24 CFR Part 570,
Subpart M, of the promissory note issued on June 14, 2000, and numbered B-98-UC-12-
0006, in the original Aggregate Principal. Amount of 825.000.000, and any amended note
or note that may be issued in substitution for such note and having the same•note number
(the "Note"): Such Aggregate Principal Amount was paid or credited to the account of the
Borrower as of June 14, 2000 (the "Public Offering Date"), and all amounts so paid or
credited are collectively referred to herein as the "Guaranteed Loan Funds." The Note
includes the Fiscal Agency Agreement and the Trust Agreement as defined in the Note.
Terms used in this Agreement with initial capital letters and not otherwise defined in the
text hereof shall i.a' .. the respective meanings given thereto in the Note. The Fiscal Agency
Agreement and the Trust Agreement are sometimes collectively referred to herein as the
"Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are
sometimes collectively referred to as the "Fiscal Agent/Trustee."
RECITALS
A. The Note. On the Public Offering Date, trust certificates backed by the
Note and similar notes issued by other Section 108 borrowers, denominated "Section 108
Govemment Guaranteed Participation Certificates Series HUD 2000-A" (the
"Certificates"), were purchased for a purchase price of the full aggregate principal amounts
thereof at interest rates determined by the Secretary and the initial purchasers, which
purchasers were underwriters selected by the Secretary (the "Underwriters"). The Note is
payable to the Trustee as Registered Holder on behalf of the Beneficial Owners of the
Certificates. The interest rate at which the trust certificate of a specified maturity was sold
to the Underwriters was the interest rate inserted on the Public Offering Date in Schedule
P&I of the Note for the Principal Amount of corresponding maturity. After the Public
Offering Date, the Borrower has agreed and the Assumptor hereby acknowledges that the
Trustee pursuant to the Trust Agreement will maintain the books and records of all
payments on the Note and all Principal Amounts and interest rates on such Principal
Amounts. The Note and the Secretary's Note Guarantee as held by the Trustee and the
Secretary's Certificate Guarantees are not amended and are not affected by this Agreement.
12
Attachment 2
Page 2 of 14
B. The Contract. Effective as of the Public Offering Date, the Borrower and
the Secretary entered into a Contract for Loan Guarantee Assistance (the "Contract") with
respect to the temporary deposit and the use of the Guaranteed Loan Funds for eligible
activities, the terms of the Secretary's Guarantee, .the security for the Secretary's Guarantee,
the establishment of a Loan Guarantee Repayment Account and any other matter covered
by the Contract.
C. The Participation Agreement. Contemporaneously herewith, the
Borrower and the Assumptor have entered into a Participation Agreement with respect to
the "Loan" as defined therein, which is the same loan described in paragraph 15(b) of the
Contract. Such loan was made with Guaranteed Loan Funds to the "Obligor," is evidenced
by the "Obligor Loan Agreement" and the "Obligor Note," and is secured by the
"Collateral", each as also described in paragraph 15 of the Contract. Such loan shall be
referred to herein as the "Obligor Loan." Pursuant to the Participation Agreement, the
Assumptor purchased eighty percent (80%) of the Borrower's interest in the Obligor Loan
and the Collateral therefore, and the Borrower retained a twenty percent (20%) interest in
the Obligor Loan and the Collateral therefore.
" AGREEMENT
The Assumptor hereby agrees to assume eighty percent (80%) (the "Assumptor's
Pro Rata Share") of the Borrower's Iiability under the Contract for repayment of the
principal and intuits: of the Note, the Borrower agrees to remain liable to repay twenty
percent (20%) (i. c "Borrower's F:o Rata Share") of the principal and interest on the Note,
and the parties hereby agree to the more specific understandings, undertakings, and
amendments to the Contract set forth below. The paragraph numbers in this Agreement
correspond to the paragraph numbers in the Contract. This Agreement amends and
supersedes the corresponding provisions of the Contract, except as otherwise provided in
this Agreement.
1. Receipt, Deposit and Use of Guaranteed Loan Funds. .
The Borrower has received and disbursed the entire proceeds of the Note to the Obligor for
the Obligor Loan and has submitted all reports to HUD as required under paragraph 1 of
the Contract. No funds remain in the Guaranteed Loan Funds or the Guaranteed Loan
Funds Investment Accounts, and these Accounts have been closed.
2. Payments Due on Note. Using any available funds in the Loan Repayment
Account under paragaph 6 of this Agreement, the Borrower shall continue to pay to the
Fiscal Agent/Trustee, as collection agent for the Note, al] amounts due pursuant to the
terms of the Note. In accordance with the Note and the Fiscal Agency/Trust Agreements,
payment shall be made by 3:00 P.M. (Near York City time) on the seventh Business Day
(the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date
(each as defined in the Note). If any Note Payment Date falls on a day that is not a Business
Day, then the required payment shall be made on the next Business Day. Payments to the
Fiscal Agent/Trustee may be made by check or wire transfer. In the event of a shortage in
Attachment 2
Page 3 of 14
funds available in the Loan Repayment Account when payment is due to the Fiscal
Agent/Trustee under the Contract, the Borrower and the Assumptor hereby agree to pay the
Borrower's Pro Rata Share and Assumptor's Pro Rata Share, respectively, of the. shortage
needed to make the payment. In such event, the Borrower will promptly notify the
Assumptor of the Assumptor's Pro Rata Share of the payment due, and the Assumptor
hereby agrees promptly to pay such amount to the Borrower by wire transfer to the Loan
Repayment Account maintained by the Borrower under paragraph 6 of the Contract and
this Agreement.
3. Selection of New Fiscal Agent or Trustee. The Secretary shall select a new
Fiscal Agent or Trustee if the Fiscal Agent or Trustee resigns or is removed by the
Secretary. The Borrower and the Assumptor hereby consent in advance to any such
selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any
Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(d) of this Agreement.
4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary.
(a) The Borrower agrees to pay the Borrower's Pro Rata Share and the Assumptor
agrees to pay the Assumptor's Pro Rata Share of the cost of reimbursement and/or
compensation of the Trustee pursuant to the Trust Agreement, including Sections 3.11 and
7.01 thereof, to the extent the Borrower is notified of any such costs after the date of this
Agreement. If the Borrower is so notified, the Borrower agrees to promptly notify the
Assumptor of the Assumptor's Pro Rata Share.
(b) The Assu“.iptor shall submit to the Secretary, concurrently with execution and
delivery of this Agreement, an opinion acceptable to the Secretary from the Assumptor's
counsel to the effect that: (i) the governing body of the Assumptor has authorized by
resolution or ordinance, in accordance with applicable State and local law, the execution of
this Agreement; (ii) this Agreement is a valid, binding, and enforceable obligation of the
Borrower; (iii) the pledge of funds pursuant to 24 CFR §570.705(b)(2) and paragraph 5(a)
of this Agreement is valid and binding; and (iv) there is no outstanding litigation that will
affect the validity of this Agreement.
(c) The undertakings in paragraphs 3 and 4 of this Agreement are expressly subject
to the requirement that the Fiscal Agency/Trust Agreements shall in no event require
payment of fees or charges, reimbursement of expenses, or any indemnification by the
Borrower or the Assumptor from any source other than funds pledged pursuant to
paragraphs 5 or 15 of this Agreement.
5. Security. The Borrower and the Assumptor hereby pledge as security for
repayment of their respective pro rata share of the Note and such other charges as may
be authorized in the Contract or this Agreement, in their respective pro rata shares
hereunder, the following:
(a) All allocations or grants which have been made or for which the Borrower or
the Assumptor, as applicable, may become eligible under Section 106 of the Act.
Attachment 2
Page 4 of 14
(b) Program income, as defined at 24 CFR 570.500(a)(or any successor regulation),
directly generated from the use of the Guaranteed Loan Funds.
(c) Other security as described in paragraph 15, _et seq.,_of the Contract or this
Agreement.
(d) Al] proceeds (including insurance and condemnation proceeds) from any of the
foregoing.
(e) All funds or investments in the accounts established pursuant to paragraphs l
and 6 of this Agreement.
6. Loan Repayment Account.
(a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) of this
Agreement, and all amounts required to be paid by the Borrower and the Assumptor under
Section 2 hereof, shall. be deposited immediately. upon receipt in a separate identifiable
custodial account maintained by the Borrower (the "Loan Repayment Account") with a
financial institution whose deposits or accounts are Federally insured. The Loan
Repayment Account has been established and designated the form document entitled
"Letter Agreement for Section 108 Loan Guarantee Program Custodial Account"
(Attachment 1 to the Contract), and such account shall be continuously maintained for
deposit of all such pledged funds. Borrower shall make withdrawals from said account only
for the purpose of paying interest and principal due on the Note (including the purchase of
Government Obligations for defeasance in accordance with paragraph 10 hereof), for
payment of any other obligation of the Borrower and the Assumptor under this Agreement
or the Fiscal Agency Trust Agreeui nts, in their respective pro rata shares hereunder, or for
the temporary investment of funds pursuant to this paragraph, until final payment and
discharge of the indebtedness evidenced by the Note, unless otherwise expressly authorized
by the Secretary in writing. Such temporary investment of funds shall be required within
three Business Days after the balance of deposited funds exceeds the amount of the Federal
deposit insurance on the Loan Repayment Account. At that time, any balance of funds in
the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and
continuously invested in Government obligations, as defined in paragraph 10 hereof.
All temporary' investments, whether or not required as above, shall be limited to
Government Obligations having maturities that are consistent with cash requirements for
payment of principal and interest as required under the Note. In no even shall the
maturities of such investments exceed one year. All such investments shall be held in trust
for the benefit of the Secretary by the above financial institution in an account (the "Loan
Repayment Investment Account") that has been established and designated pursuant the
form document entitled "Letter Agreement for Section 108 Loan Guarantee Program
Custodial Investment Account" (Attachment 2 to the Contract), which account shall be
maintained for all Government Obligations purchased with funds from the Loan
Repayment Account. All proceeds and income derived from such investments shall be
returned to the Loan Repayment Account.
As of the date of this Agreement, the Borrower and the Assumptor shall be deemed
to share ownership of the Loan Repayment Account and the Loan Repayment Investment
Account, in accordance with their respective pro rata shares hereunder, although the
�3
Attachment 2
Page 5 of 14
Borrower shall continue to maintain such accounts in accordance with this Agreement and
with Borrower's obligations to Assumptor under the Participation Agreement..
(b) Borrower shall by the fifteenth day of each. month, provide the Secretary and the
Assumptor with a written statement showing the balance of funds in the Loan Repayment
Account and the deposits and withdrawals of all funds in such account during the preceding
calendar month and a statement identifying the obligations and their assignments in the
Loan Repayment Investment Account.
(c) Upon the Secretary giving notice that the Borrower or the Assumptor, or bath of
them if applicable, is in Default under this Agreement or the Note, all right, title, and
interest of the Borrower or the Assumptor, or both of them, as applicable, in and to the
Loan Repayment and Loan Repayment Investment Accounts shall immediately vest in the
Secretary for use in making payment on the Note, purchase of Government obligations in
accordance with paragraph 10, or payment of any other obligation of the Borrower under
this Agreement or the Fiscal Agency/Trust Agreements.
7. Use of CDBG Funds for Repayment. Any funds available to the Borrower or the
Assumptor under Section 106 of the Act (including program income derived therefrom) are
authorized to be used by the Borrower or the Assumptor, in accordance with their
respective pro rata shares under this Agreement, for payments due on the Note, Optional
Redemption (as defined in the Note), payment of any other obligation of the Borrower
under this Agree ucat or the Fiscal Agency/Trust Agreements, or the purchase of
Government ob::gat:ons in accordance with paragraph 10_ Unless otherwise specifically
provided herein or unless otherwise expressly authorized by the Secretary in writing, the
Borrower shall substantially disburse funds available in the Loan Repayment or the Loan
Repayment Investment Accounts before funds from grants under Section 106 of the Act are
withdrawn from the U.S. Treasury for such purposes by either the Borrower or the
Assumptor.
8.Secretary's Right to Restrict Use of CDBG Funds to Repayment. Upon a
determination by the Secretary that payments required by paragraph 2 and/or paragraph 4
of this Agreement are unlikely to be made as required in accordance with their respective
pro rata shares hereunder by either the Borrower or the Assumptor, or both, the Secretary
may give the Borrower and/or the Assumptor, as applicable, notice that the availability to
the Borrower and/or the Assumptor, as specified in such notice, of funds pledged under
paragraph 5(a) of this Agreement for purposes other than satisfaction of the pledge is being
restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient
to ensure that the payments referred to in paragraph 2 and/or paragraph 4 hereof are made
when due by the Borrower and/or the Assumptor, as applicable. With respect to the
Borrower and/or the Assumptor as applicable, this restriction may be given effect by
conditioning the restricted amounts to prohibit disbursement for purposes other than
satisfaction of the pledge at the time such restricted funds are approved as grants, by
limiting the restricted party's ability to draw down or expend the restricted funds for other
purposes, and by disapproving payment requests submitted with respect to such grants far
purposes other than satisfaction of the pledge.
Attachment 2
Paee 6 of 14
9.Secretary's Right to Use Pledged Funds for Repayment. The Secretary may use funds
pledged under paragraph 5(a) of this Agreement or funds restricted under grants pursuant to
paragraph 8 of this Agreement to make any payment. required of the Borrower or the
Assumptor under paragraph 2 and/or paragraph 4, if such payment has not been timely
made by the Borrower or the Assumptor, as applicable.
10Defeasance. For purposes of this Agreement, the Note shall be deemed to have been
paid (defeased) to the extent that there shall have been deposited with the Trustee either
moneys or Government Obligations (defined below), which in the sole determination of the
Secretary, mature and bear interest at times and in amounts sufficient, together with any
other moneys on deposit with the Trustee for such purpose, to pay when due the principal
and interest to become due on the Note. The Aggregate Principal Amount of the Note or
any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest
Due Date, or any other Business Day acceptable to HUD, the Borrower, and the
Assumptor. In accordance with the Note and the Trust Agreement, the Borrower_shall give
timely notice and written. instructions to the Secretary and the Trustee conceming any
principal amounts proposed to be defeased, including any Optional Redemptions proposed,
which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal
Amount of the Note guaranteed pursuant to this Contract shall be defeased and deemed to
have been paid in full, then the Borrower and the Assumptor shall be released from all
agreements, covenants, and further obligations under the Note.
"Government Obligation" means a direct obligation of, or any obligation for .which
the full and timely -payment of principal and interest is guaranteed by; the United States of
America, including ;.ut not limiteu to, United States Treasury Certificates of Indebtedness,
Notes and Bonds - State and Local Government Series or certificates.of ownership of the
principal of or interest on direct obligations of, or obligations unconditionally guaranteed
by, the United States of America, which obligations are held in trust by a commercial
bank which is a member of the Federal Reserve System and has capital and surplus
(exclusive of undivided profits) in excess of S 100,000,000.
11. Defaults.
(a) A Default under the Note and this Agreement shall occur upon the Borrower's
failure to:
(i) pay when due an installment of principal or interest on the Note; or (ii)
punctually and properly perform, observe, and comply with any covenant,
agreement, or condition of the Borrower contained in: (A) this Agreement, (B) any
security agreement, deed of trust, mortgage, assignment, Guarantee, or other
Agreement securing payment of indebtedness evidenced by the Note, or (C) any
future amendments, modifications, restatements, renewals, or extensions of any
such documents.
(b) The Borrower and the Assumptor each waive notice of Default and opportunity
for hearing with respect to a Default under paragraph 11(a).
(c) In addition to Defaults under paragraph 11(a), the Secretary may declare the
Note in Default if the Secretary makes a final decision in accordance with the provisions of
section 111 of the Act and 24 CFR §570.913 (or any successor provisions), including
Attachment
Page 7 of 14
requirements for reasonable notice and opportunity for hearing, that either the Borrower or
the Assumptor, or both have failed to comply substantially with title I of the Act.
Notwithstanding any other provision, following the giving of such reasonable notice to
either such party, or both., the. Secretary may withhold the making of commitments to
guarantee or the guarantee of any or all obligations not yet guaranteed in accordance with
outstanding commitments on behalf of the Borrower or the Assumptor, or both, as
applicable. In addition, in the event that notice of Default has been given to the Borrower
under this paragraph 11(c), the Secretary may, in the Secretary's sole discretion pending the
Secretary's final decision, direct the Borrower's financial institution to: refuse to honor any
instruments drawn upon, or withdrawals from, the Loan Repayment Account initiated by
the Borrower, and/or refuse to release obligations and assignments by the Borrower from
the Loan Repayment Investment Account.
(d) A Default by the Borrower under paragraph 11(a) shall be deemed a default by
the Assumptor only if Assumptor has failed to pay when due any amount owing under
paragraph 2 or 4 of this Agreement or to punctually and properly perform, observe, and
comply with any covenant, agreement, or condition applicable to the Assumptor in this
Agreement. In such event, the Secretary shall be entitled to exercise remedial actions in
accordance with the respective pro rata shares of liability of Borrower and Assumptor
hereunder against funds respectively pledged by the Borrower and the Assumptor under
this Agreement.
(e) A Default limited to the Assumptor or to the Borrower under this Agreement
shall entitle the `'co_-etary to exe-ci:e remedial actions only against funds pledged by the
Assumptor or the Borrower, as applicable, under this Agreement.
12.Remedial Actions. Upon a Default or declaration of Default under this Agreement, the
Secretary may, in the Secretary's sole discretion, take any or all of the following remedial
actions:
(a) With any funds or security pledged under this Agreement, the Secretary may (i)
continue to make payments due on the Note, (ii) make an acceleration payment with
respect to the principal amount of the Note subject to Optional Redemption as provided in
Section B of the Note, (iii) purchase Government Obligations in accordance with paragraph
10 of this Agreement, (iv) pay any interest due for late payment as provided in the Note,
this Agreement, or the Fiscal Agency/Trust Agreements, (v) pay any other obligation of the
Borrower and/or the Assumptor, as applicable, under this Agreement or the Fiscal
Agency/Trust Agreements, and/or (vi) pay any reasonable expenses incurred by the
Secretary or the Fiscal Agent/Trustee as result of the Default.
(b) The Secretary may withhold the guarantee of any or all obligations not yet
guaranteed or grants not yet disbursed under outstanding guarantee commitments or grant
approvals for the Borrower and/or the Assumptor, under Section 108 and/or Section 106 of
the Act.
(c) The Secretary may direct the Borrower's financial institution to: refuse to honor
any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or
Attachment 2
Page 8 of 14
the Loan Repayment Account by the Borrower, and/or refuse to release obligations and
assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the
Loan Repayment Investment Account; and/or direct the Borrower and/or the Borrower's
financial institution to transfer• remaining balances from. the Guaranteed Loan Funds
Account to the Loan Repayment Account.
(d) With respect to amounts subject to Optional Redemption, the Secretary may
accelerate the Note,
(e) The Secretary may exercise any other appropriate remedies or sanctions
available by law or regulation applicable to the assistance provided under this Agreement,
or may institute any other action available under law to recover Guaranteed Loan Funds or
to reimburse the Secretary for any payment under the Secretary's Guarantee or any
reasonable expenses incurred by the Secretary as a result of the Default.
0 All notices and submissions provided for hereunder shall be in writing
(including by telex, telecopier or any other form of telecommunication) and mailed or sent
or delivered, as to each party hereto, at its address set forth below or at such other address
as shall be desigiiated by such party in a written notice to the other party hereto. All such
notices and other communications shall be effective when received as follows: (i) if
sent by hand delivery, upon delivery; (ii) if sent by mail, upon the earlier of the date of
receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex,
upon receipt by ti,c sander of an answer back; and (iv) if sent by telecopier, upon receipt.
Ifie Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster Director Financial Management Division
451 7th Street. SW, Room 7180
Washin gton. D.C. 20410
Borrower:
Miami -Dade County
111 NW 15f Street, 29''' Floor
Miami. Florida 33128
Attention: Countv Manager
With Copies to:
Miami -Dade County
Office of Community and Economic Development
Attention: Director
140 W. Flagler
Miami, Florida 33130
Assumptor:
Attachment 2
Page 9 of 14
City of Miami
With Copies to:
13. Limited Liability. Notwithstanding any other provision of this Agreement, the
Fiscal Agency/Trust Agreements or the Note, any recovery against the Borrower or
Assumptor for any liability for amounts due pursuant to this Agreement under the Note, the
Fiscal Agency/Trust Agreements and this Agreement shall be limited to the sources of
security pledged in paragraphs C., 5, or any Special conditions of this Agreement. Neither
the general credit nor the taxing power of the Borrower, the Assumptor or of the State in
which the Borrower and the Assumptor are located, is pledged for any payment due under
the Note, the Agreement, or the Fiscal Agency/Trust Agreements.
14. Incorporated Grant Agreement. The Agreement and the Note are hereby
incorporated in and made a part of the Grant Agreement authorized by the Secretary on
December 31. 1998. under the Funding Approval for grant number B-98-UC-12-0006 to
the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the
Borrower and the Assumptor agrees to comply with the Act and 24 CPR Part 570, as
provided in Subpart M thereof.
15. Special Conditions and ,Modifications:
(a) RESERVED ,
(6) Guaranteed Loan funds were used by the Borrower to make a loan to Parrot Jungle &
Gardens, Inc. (the "Obligor"), which loan was evidenced by a promissory note (the
"Obligor Note") and a Ioan agreement (the "Obligor Loan Agreement"), which Obligor
Note and Obligor Loan Agreement were in a form acceptable to the Secretary. The
amounts of principal and/or interest payable under the Obligor Note. during the twelve
month period beginning July 1 of each year and ending on June 30 of the next succeeding
year are equal to or greater than the amounts of principal and/or interest payable under the
Notes for the corresponding period.
(i) In order to secure the payment and performance of the secured
obligations of the Obligor to the Borrower, the Borrower obtained the following collateral
(collectively, the "Collateral"):
(A) A lien on the Obligor's leasehold interest in the property described in
Attachment 3 hereof (the "Property"), established through an appropriate and
properly recorded leasehold mortgage (the "Obligor Leasehold Mortgage").
Obligor's leasehold interests that are the subject of that leasehold mortgage are
those interests identified in a Lease Agreement entered into between the Obligor
and the City of Miami, Florida. The Obligor Leasehold Mortgage contained such
provisions as the Secretary deemed necessary.
(B) Any and all rights, titles, and interests of the Obligor in and to any leases
covering the Property. Such rights, titles, and interests of the Obligor are the subject
Attachment
Page 10 of 14
of a collateral assignment of leases and rents (the "Collateral Assignment of Leases
and Rents"). The Collateral Assignment of Leases and Rents is in a form,
acceptable to the Secretary.
(C) Any and all rights, titles, and interestsof the Obligor in and to any Licenses,
peinuits, and other agreements covering the Property. Such rights, titles, and
interests are the subject of a collateral assignment of interest in licenses, permits,
and other agreements (the "Collateral Assignment of Interest in Licenses, Permits,
and Agreements"). The Collateral Assignment of Interest in Licenses, Permits, and
Agreements is in a form acceptable to the Secretary.
(ii) The Borrower selected a financial institution acceptable to the Secretary (the
"Custodian") to act as custodian for the documents specified in (iii) below (hereinafter
referred to as the "Security Documents"). The Borrower and the Custodian entered into a
written agreement containing such provisions as .the Secretary deemed necessary. A fully
executed copy of such agreement, with original signatures, was forwarded to the Secretary
contemporaneously with the delivery of documents pursuant to (iii) below.
(iii) Not later than five business days .after the initial disbursement of the
Guaranteed Loan Funds to the Obligor, the Borrower delivered to the Custodian the
following:
(A) The original Obligor Note, endorsed in blank and without recourse.
(B) The original Obligor Loan Agreement and an 'assignment thereof to the
Secretary, which assignment was in a fouii acceptable to the Secretary.
(C) The origi„al recorded Obligor Leasehold Mortgage signed by the Obligor and
an assignment thereof to the Secretary, in a recordable form but unrecorded, which
assignment was in a foiuu acceptable to the Secretary.
(D) The original recorded Collateral Assignment of Leases and Rents and an
assignment thereof to the Secretary, in a recordable form but unrecorded, which assignment
was in a form acceptable to the Secretary.
,(E) The- original Collateral Assignment of Interest in Licenses, Permits, and
Agreements and an assigrunent thereof to the Secretary, which assignment was in a form
acceptable to the Secretary.
(F) An opinion of the Borrower's counsel, addressed to the Secretary and on its
letterhead, that (as of the date of such opinion):
(1) the Obligor is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Florida;
(2) the Obligor Note has been duly executed and delivered by a party
authorized by the Obligor to take such action and is a valid and binding obligation
of the Obligor, enforceable in accordance with its teicuis, except as limited by
bankruptcy and similar laws affecting creditors generally; and
(3) the security instruments specified in (B) through (E) above are valid
and legally binding obligations, enforceable in accordance with their respective
teinis.
Attachment 2
Page 11 of 14
(G) A mortgagee title policy, issued by a company and in a form acceptable to the
Secretary, naming the Borrower as the insured party. The policy either included in the
definition of the "insured" each successor in ownership of the indebtedness secured .by
the Obligor- Leasehold Mortgage -or was. accompanied by an endorsement of the policy to
the Secretary.
(H) A certified survey with a legal description conforming to the title policy and
the Obligor Leasehold Mortgage.
(I) An appraisal of the Obligor's Leasehold interest in the Property specifying an
estimate of fair market value of not less than S31.250.000. The appraisal was completed
by an appraiser who was certified by the state and has a professional designation (such as
"SRA" or "MAI"), and the appraisal conformed to the standards of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") when issued.
. (iv) Concurrently with the execution of this Agreement, Borrower and Assumptor
executed a Participation Agreement pursuant to which Assumptor assumed eighty percent
(80%) of Borrower's interest in the Obligor Loan and the Collateral therefore.
(c) Paragraph 12 is amended by adding at the end thereof the following language:
"(f) The Secretary may complete the endorsement of the Obligor Note and record the
assignments referred to in paragraph 15(b)(iii) and thereby effectuate the transfer
of the documents referenced and underlying indebtedness from the Borrower to
the Secretary or the Secretary's assignee.
The Assumptor hereby grants irrevocable consent to any such action by the
Secretary.
"(g) The Secret,-ry may exercise or enforce any and all other rights or remedies
(including any and all rights and remedies available to a secured party under the
Uniform Commercial Code) available by law or agreement (including any of the
Security Documents, as defined .in paragraph 15(b)) against the Collateral, against
.the Borrower, against the Obligor, or against any other person or property. The
Assumptor hereby grants irrevocable consent to any such action by the
Secretary."
(d) The Borrower agrees that it shall promptly notify the Secretary and the Assumptor
in writing upon the occurrence of any event which constitutes a default (an "Event
of Default") under (and as defined in) any of the Security Documents, as defined
in paragraph 15(b). Notification of an Event of Default shall be delivered to the
Secretary, at 451 Seventh Street, SW, Washington, DC 20410, Attention:
Director, Financial Management Division, Office of the Assistant Secretary for
Community Planning and Development. Upon the occurrence of an Event of
Default, the Secretary may (without prior notice or hearing, which Borrower
hereby expressly waives), in addition to (and not in lieu of) exercising any and all
remedies that may be available under the Security Documents, declare the Notes
in Default and exercise any and all remedies available under paragraph 12, subject
to the provisions of paragraph 11 (e). This paragraph 15(d) shall not affect the
right of the Secretary to declare the Notes in Default pursuant to paragraph 11 and
to exercise in connection therewith any and all remedies available under
paragraph 12.
(e) As of the effective date of this Agreement, the Secretary shall treat the Borrower's
Attachment 2
Page 12 of 14
Pro Rata Share and the Assumptor's Pro Rata Share, respectively, of the
outstanding principal balance due on the Note as the amounts, respectively, of the
Borrower's and the Assumptor's unpaid obligations under the Note for purposes
of 24 CFR 570.705(a)(2)(i).
[Rest of this page .intentionally left blank]
L� [
Attachment 2
Page 13 of 14
IN WITNESS WHEREOF, the undersigned, as authorized officials on
behalf of the Borrower, the Assumptor or the. Secretary, have executed this
Agreement, which shall be effective and shall be dated as of the date of execution
by the Secretary, after execution on behalf of the Borrower and the Assumptor.
MIAMI-DADE COUNTY FLORIDA
BORROWER
(�� �+)
(lame) yni'�!�Q W• Curry
(Title) 4551 ou.n-jcztny
(Signature)
(Date) ?pp 7
CITY OF MIAMI FLORIDA
ASSUMPTOR
BY:
(Name)
(Title)
(Signature)
(Date)
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
BY:
(Name)
(Title)
(Signature)
(Date)
Attachment 2
Page 14 of 14
ATTACHMENT 3
Description of Real Property
The Borrower has inserted the legal description of the Property as defined
in paragraph 15(b)(i)(A) in Attachment 3 to the Contract. That legal description
has not changed.
[Rest of this page intentionally left blank]
Attachment 1
Pate 19 of 21
ATTACHMENT "3"
Estoppel Certificate Regarding the parrot Jungle Loan and the Section 108 Loan
v
itY
ESTOPPEL CERTIFICATE
(Section 108 and Parrot Jungle Loans)
THIS ESTOPPEL CERTIFICATE (this "Certificate") is made as of the 3 day of
2007 by Miami -Dade County (the "County") in favor of the City of Miami (the
"City'), pursuant to the Participation- Aereernent between the County and the City dated
, 2007 (the Participation Agreement").
RECITALS
1. On January 9, 2001, the County made a loan to Parrot Jungle and Gardens of
Watson Island, Inc., ("Parrot Jungle"), in the original principal amount of Twenty-five Million and
No/100 Dollars (S25,000,000.00) (the "Parrot Jungle Loan") to finance the development of a
botanical garden attraction located at Watson Island.
2. The County funded the Parrot Jungle Loan by virtue of a S25,000,000.00 loan
giaranteed 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").
3. In accordance with the intent of a Joint Participation Agreement between the City
and the County dated September 9, 1998, and as authorized by Resolution No. 07- , adopted
by the City Commission on July 10, 2007 and Resolution No. 07" , adopted by the Board of
County Commissioners on July 24, 2007, the City and the County entered into the Participation
Agreement pursuant to which the City will assume eighty percent (80%) of the outstanding
principal balance and future interest on the Section 108 Loan upon satisfaction of certain
conditions contained therein, which include the County's execution of this Certificate.
4. One of the conditions set forth in the Participation Agreement is the execution of
this Certificate by the County.
NOW, THEREFORE, in consideration of the foregoing, and knowing that the City will
rely upon the accuracy of the information herein contained, the County hereby confirms to the
City the following:
1. The Section 108 Loan:
1. Attached hereto, as Exhibit "A", are complete, true and correct copies of the
documents and instruments executed and delivered by the County to HUD in connection with the
Section 108 Loan (the "Section 108 Loan Documents").
2. The Section 108 Loan Documents have not been modified, altered or amended,
except as provided in the Participation Agreement and the Assumption and Pledge Agreement, as
defined in the Participation Agreement.
3. As of the date hereof, there are no: (i) existing or uncured defaults, or (ii) notice
of the occurrence of an event of default, or (iii) occurrence or event or circumstance which, with
notice or lapse of time would become a default, under the Section 108 Loan or any of the
Section 108 Loan Documents.
90/Z0 39hd h31 Ojj.kJ A,1Nn0O
TT9S-SLE-SOE t,Z:LT Lae/Ea/BCC
TT. The Parrot Jungle Loan:
1. Attached hereto, as Exhibit "B", are complete, true and correct copies of the
documents and instruments executed and delivered by Parrot Jungle and/or Guarantors in favor
of the County (the `Parrot Jungle Loan Documents").
2. • The Parrot Jungle Loan Documents have not been modified, altered or amended,
except as provided in the Participation Agreement and the Note Modification Agreement
described therein.
3. As of the date hereof, and subject to the provisions of Section 4 below, there are
no: (i) existing or uncured defaults, or (ii) notice of the occurrence of an event of default, or (iii)
occurrence or event or circumstance which, with notice or lapse of time would become a default,
under the Parrot Jungle Loan or any of the Parrot Jungle Loan Documents.
4. The County agrees that it will not, without the City's prior written consent,
enforce any terms of the Parrot Jungle Loan Documents with which Parrot Jungle is, as of the
date hereof, not in compliance. The foregoing statement. includes but is not limited to, Parrot
Jungle's obligation to make a contribution to the Aviary, as contemplated in the Development
Agreement, a copy of which is enclosed as part of Exhibit ` B."
IN WITNESS WHEREOF, the County has caused this Agreement to be executed as of
the data set forth above.
Attest
By:
Clerk, Board of County
Commissioners
. Approved as to form and legal sufficiency:
Shannon D. Summerset
-'-
MIAMI DADE COUNTY
By:
seorge M. l tltgess
County Manager
ATTACH 3 - Estoppel on Pi and Sector 108 Loans
50/EO 3OVd
r,3N'dolly /,Il flO TT9S-SLE-SaE t' :LT LeK/EO/8O
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
Thy foregoing instrument was acknowledged before me this 3 day of
2007 by Sil5a ne, n } � . , as ` epo,i� / vp��f Miami -Dade
County, on behalf of the county. �f
IN WITNESS WHEREOF, I have hereunto set my hand and seal in the County and State
aforesaid.
Type, Print or Stamp Name
JUarriMcaRIX
MY COMMISSION 0 DD 3t'3884
EXPIRES: Nownbcr 12, 2oc€
Buthk T - ;wary hoc Ur -w,mn
ATTACH 3 - Estoppel on PJ and Secton 108 Loans
So/be 3EJhd A3-40_1_1V 1,1NnoD TI92,-SLE-S0E :LI L00a/EOiB0
EXHIBIT A
SECTION 108 LOAN DOCUMENTS
ATTACH 3 - Estoppel on PJ and Secton 108 Loans
90/SG 3>t7d
A2ydOLiV AiNlo: TTSS-GLEE-SGE PE :LT LGO./E0/8O
EXHIBIT "B"
PARROT JUNGLE LOAN DOCUMENTS
ATTACH 3 - Estoppel on PJ and Secton 108 Loans
Se/S /.346o1.1H AiyrIoD
TTSS-SLE-SOE PL7:LT LGH /Eo/BO
Attest
unty
ommis
CERTIFICATION FROM COUNTY MANAGER ON THE LOAN DOCUMENTS BEING
DELIVERED TO THE CITY OF MIAMI
Pursuant to Section 3.1 of the Participation Agreement between Miami Dade County and the City of Miami,
dated ku.5, 31 , I hereby.certify that the loan.document as set forth below being delivered to the City
represent complete, true and correct copies of all such documents.
S25,000,000 Section 108 Loan
• US Department of Housing and Urban Development Contract
• Modification of Mortgage
= Assignment of Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement
• Florida Leasehold Mortgage, Assignment of Leases and Rents and Security Agreement
• Joint Participation Agreement between Miami -Dade County and City of Miami for the Parrot Jungle
and Gardens of Watson Island, Inc Section 108 Loan Guarantee Application
• Mortgage Subordination Agreement
• US HUD Fixed Rate Note for Series 2000-A Certificates
• Promissory Note
• Continuing Guaranty for Bern and Mary Levine
• Amendatory Agreement
• Development Agreement between Miami -Dade County and Parrot Jungle and Gardens of Watson
Island, Inc and the City of Miami
S1,500,000 Forgivable Loan
• Loan Agreement
• Promissory Note
S1,000,000 Loan
• Loan Agreement
• Promissory Note
• Amendment to Promissory Note
• Continuing Guaranty for Bern and Mary Levine
S4,701,782 Loan
• Loan Agreement
• Promissory Note
• Continuing. Guaranty for Bern and Mary Levine
Dated this�*ck Day of '\. , 9047'"`—,.,,
it', GO M 4j/sp,`,
�o
t• ? f oR~. .MIAMI-DADE COUNTY
EO rnd
.00
Approved as to forrn and legal sufficiency:
Shannon D. Sumrnerset
. Burgess
Manager
Attachment 1
Pace 20 of 21
ATTACHMENT "4"
Estoppel Certificate Regarding the Other Loans
U
1-Radloruik-1
ESTOPPEL CERTIFICATE
(County Outstanding Loans)
THIS ESTOPPEL CERTIFICATE (this "Certificate") is made as of the 3 day of
, 2007 by Miami -Dade County (the "County") in favor of the City of Miami (the
"Cit • '), pursuant to the Participation Agreement between the County and the City dated
, 2007 (the Participation Agreement").
RECITALS
1. -On January 9, 2001, the County made a loan to Parrot Jungle and Gardens of Watson
Island, Inc., ("Parrot Jungle"), in the original principal amount of Twenty-five Million and No/100
Dollars (S25,000,000.00) (the "Parrot Jungle Loan") to finance the development of a botanical
garden attraction located at Watson Island.
2. The County funded the Parrot Jungle Loan by virtue of a S25,000,000.00 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").
3. In accordance with the intent of a Joint Participation Agreement between the City
and the County dated September 9, 1998, and as authorized by Resolution No. 07- , adopted
by the City Commission on July 10, 2007 and Resolution No. 07 , adopted by the Board of
County Commissioners on July 24, 2007, the City and the County entered into the Participation
Agreement pursuant to which the City will assume eighty percent (80%) of the outstanding
principal balance and future interest on the Section 108 Loan upon satisfaction of certain
conditions contained therein, which include the County's execution of this Certificate.
4. One of the conditions set forth in the Participation Agreement is the execution of
this Certificate by the County.
• NOW, THEREFORE, in consideration of the foregoing, and knowing that the City will
rely upon the accuracy of the information herein contained, the County hereby confinnis to the
City the following:
I. The Loans:
As of the date hereof there are three (3) outstanding loans made by the County to Parrot
Jungle, excluding the Parrot Jungle Loan (the "County Outstanding Loans"), as follows:
(a) $1.5 Million Forgivable Loan
(b) $1 Million Loan
(c) $4.7 Million Loan
II. The S1.5 Million Forgivable Loan:
1. Attached hereto, as Exhibit "A", are complete, true and correct copies of the
documents and instruments executed and/or delivered by the Parrot Jungle to the County in
connection with the S1.5 Million Forgivable Loan (the "51.5 Million Forgivable Loan
Documents").
2. The S1.5 Million Forgivable. Loan Documents have not been modified, altered or
amended, except as follows:
(a) Pursuant to the Participation Agreement the County agrees not to enforce
any payment obligation of Parrot Jungle thereunder without the prior
written consent of the City.
3. As of the date hereof, the outstanding balance of the S1.5 Million Forgivable
Loan is: S 1,050,000.00, consisting of S 1,050,000 of principal and S0 interest from through the
date hereof Payment of the S1.5 Million Forgivable Loan is made at S150,000.00 per year
starting with Sept. 3, 2004 through September 3, 2013 by the County so long as Parrot Jungle is
not in default in any of its obligations per the Development.Agreement. The County agrees not
to enforce any payment obligation of Parrot Jungle without the prior consent ,of the City, as
provided in the Participation Agreement.
4. As of the date hereof, there are no unwaived: (i) existing or uncured defaults, or
(ii) notice of the occurrence of an event of default, or (iii) occurrence or event or circumstance
which, with notice or lapse of time would become a default, under the S1.5 Million Forgivable
Loan or any of the loan documents evidencing or securing said loan..
III. The S1 Million Loan:
1. Attached hereto, as Exhibit "B",= are complete, true and correct copies of the
documents and instruments executed and/or delivered by the Parrot Jungle to the County in
connection with the S1 Million Loan (the "S1 Million Loan Documents").
2. The S1 Million Loan Documents have not been modified, altered or amended,
except for the County's agreement not to enforce any payment obligation of Parrot Jungle
. thereunder without the prior consent of the City, as provided in the Participation Agreement.
3. As of the date hereof, the outstanding balance of the S1 Million Loan is:
S981,940.04, consisting of S945,041.49 of principal and 536,898.56 interest from Sept 2005
through July 2007.. Payment is deferred until September 3, 2013, when a balloon payment in the
total outstanding amount, including all outstanding principal and accrued interest, shall be due.
The County agrees not to enforce any payment obligation of Parrot Jungle without the prior
consent of the City, as provided in the Participation Agreement.
4. As of the date hereof, .there are no unwaived: (i) existing or uncured defaults, or
(ii). notice of the occurrence of an event of default, or (iii) occurrence or event or circumstance
which, with notice or lapse of time would become a default, under the 51 Million Loan or any of
the loan documents evidencing or securing said loan.
2 -
PJ ATTACH 4 - Estoppel on County Loans 822007
IV. The S4.7 Million Loan
1. Attached hereto, as Exhibit "C", are complete, true and correct copies of the
documents and instruments executed and/or delivered by the Parrot Jungle to the County in
connection with the S4:7 Million Loan (the "S4.7 Million Loan -Documents").
2,
The $4.7 Million Loan Documents have not been modified, altered or amended.
3. As of the date hereof, the outstanding balance of the $4.7 Million Loan is:
S4,701,782.00, consisting of $ 4,701,782.00 of principal and SO interest from July 2006 through
July 1, 2014. Payment of the $4.7 Million Loan is to commence in July 1, 2014 for $804,000 for
7 payments through July 2020. The County agrees not to enforce any payment obligation of
Parrot Jungle without the prior consent of the City,. as provided in the Participation Agreement.
4. As of the date hereof, there are no unwaived: (i) existing or uncured defaults, or
(ii) notice of the occurrence of an event of default, or (iii) occurrenceor event or circumstance
which, with notice or lapse of time would become a default, under the S4.7 Million Loan or any
of the loan documents evidencing or securing said loan..
IN WITNESS WHEREOF, the County has caused this Agreement to be executed as of
the date set forth ato,ve.„ .,
Attest
By:
Clerk
oner
•
n �lc�AJt���v
i )
Y 4ihT
= V.O - ny
Qs.c
�1 a
aunty
Approved as to foiiu and legal sufficiency:
By:Pt—
Shannon D. Summerset
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
MLA_MI DADE COUNTY
By:
George . Burgess
Count Manager
-3-
PJ ATTACH 4 - Estoppel on County Loans 822007
The foregoing inst met was acknowledged before me this 3 day of
-�' , 2007 by (<-l/ '201/4- atr/ , as„ .?);cZ14/0 of Miami -Dade
Coun`fy, on behalf of the county. J
IN WITNESS WHEREOF, I have hereunto -set my hand and seal in the County and State
aforesaid.
a/4.-6tk, lie/9v ciz,
N Public
�1, Al -►
Type, Print or Stamp Name
JUDITH MCBRIDE
p; MY COMMISSION k DD 353654
EXPIRES:
NNEPackUreareturs
-4
PJ ATTACH 4 - Estoppel on County Loans 822007
EXHIBIT A
THE S1.5 MILLION FORGIVABLE LOAN DOCUMENTS
PJ ATTACH 4 - Estoppel on County Loans 822007
EXHIBIT "B"
THE SI MILLION LOAN DOCUMENTS
PJ ATTACH 4 - Estoppel on County Loans 822007
EXHIBIT C
THE S4.7 MILLION LOAN DOCUMENTS
PJ ATTACH 4 - Estoppel on County Loans 822007
Attachment 1
Page 21 of 21
ATTACHMENT "5"
Amendment to Development Agreement
Mc(clity--kut
AMENDMENT TO DEVELOPMENT AGREEMENT
THIS AMENDMENT TO DEVELOPMENT AGREEMENT (this "Agreement")
is entered into as of the ?/,1, day of August , 2007, by and between PARROT JUNGLE
AND GARDENS OF WATSON ISLAND, INC., a Florida corporation and PJG
WATSON, L.L.C., a Florida limited liability company (referred to jointly as "Maker"),
MIAMI-DADE COUNTY, FLORIDA, a political subdivision of the State of Florida
(the "County"), and the CITY OF MIAMI, a municipal corporation of the State of
Florida (the "City") to modify the terms of repayment of the Parrot Jungle Loan and
payment of the Aviary contribution as set forth herein;
RECITALS:
1. On January 2, 2001, the County made a loan to Maker, in the original
principal amount of Twenty-five Million and No/100 Dollars (S25,000,000.00) (the "Parrot
Jungle Loan") to finance the development of a botanical garden attraction located at
Watson Island.
2. The County funded the Parrot Jungle Loan by virtue of a S25,000,000.00
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").
3. The Parrot Jungle Loan was evidenced by a Promissory Note (the "Note")
dated January 9, 2001 and executed by Maker.
4. Pursuant to the terms of the Note, repayment teuus of the Parrot Jungle
Loan were set forth in a Development Agreement among Parrot Jungle and Gardens of
Watson Island, Inc., the County, and the City dated April 20, 2000, and amended by the
Amendatory Agreement dated August 25, 2003 (the "Development Agreement").
5. At the request of Maker, the County has agreed to modify the repayment
terms of the Parrot Jungle Loan as set forth in the Development Agreement.
6. The Maker has requested that Maker's obligation to make payments on the
Parrot Jungle Loan from August 1, 2006, through an including the payment due on August
1, 2011 be deferred through February 1, 2012 (.the "Deferral Period").
7. In order for the County and City to grant the Maker's request to defer
payments on the Parrot Jungle Loan, the County and City must make payments to USHUD
on the Section 108 Loan, as they become due, during the Deferral Period.
8. Pursuant to the terms of a Participation Agreement entered into between the
County and the City and dated on even date herewith, the County and the City have made
and plan to make, according to their respective pro rata shares, the payments due on the
1
Section 108 Loan commencing the payment due to USHUD on August 1, 2006 and
continuing through and including the payment due on August 1, 2011.
9. . It_is estimated that,.if the County and the City make all of the scheduled
payments due on the Section 108 Loan during the Deferral Period, the County and City will
have made payments on Maker's behalf totaling $17,277,403 (the "Deferred Amount").
10. Under the terms of the Development Agreement Maker promised to make
payments totaling S2 million to the Aviary at Metro Zoo beginning in year five of the
Parrot Jungle Loan and continuing through year twelve (the "Aviary Payments").
11. Maker has not made the required Aviary Payments and has requested the
County to defer this payment until the date that all of Maker's obligations hereunder
become due and payable.
12. In accordance with the terms of the Development Agreement, which require
the City to consent to any changes in the Development Agreement, the City hereby
consents to the modification of the repayment terms of the Parrot Jungle Loan as set forth
in the Development Agreement and is joining in the execution of this Agreement as
evidence of its consent.
13. The Continuing Guaranty given by Bernard M. Levine and Mary Levine in
connection with the_ Parrot Jungle Loan shall continue throughout the term of the Parrot
Jungle Loan but, shall extend to the Deferred Amount on'y as to Bernard M. Levine and
not as to Mary Levine.
NOW, THEREFORE, for and in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereby covenant and agree:
1. Section 1.1 of the Development Agreement setting forth the terms of the
repayment of the Note, is amended as follows:
(a) Notwithstanding anything in the Development Agreement to the contrary,
Maker's obligation to make payments of principal and interest on the Parrot Jungle Loan
from (and including the payment due on) August 1, 2006 through the payment due on
August 1, 2011 (the Deferral Period") is hereby deferred until August 1, 2019. All
amounts due during the Deferral Period, in the approximate sum of $17,277,403 (the
"Deferred Amount"), shall be payable as provided in subsection (c) below.
(b) Commencing on February 1, 2012, Maker shall begin making payments
on the Parrot Jungle Loan in the amounts, and on the dates, set forth in the amortization
schedule attached hereto as Exhibit "A" and made a part of this Agreement (the "S25
Million Loan Amortization Schedule").
(c) The Deferred Amount shall become due and payable on August 1, 2019,
but Maker shall have the option to extend the payment of the Deferred Amount over a
period of 10 years, by giving written notice to the County of its election to do so, by not
2
later than February 1, 2019. If Maker elects to extend the payment of the Deferred
Amount in accordance with this section, then commencing on August 1, 2019 the unpaid
balance of the Deferred Amount will bear interest at the rate of 5% per annum, and shall
be payable as follows:
(i) The first payment of principal and interest shall be due and payable
on January 1, 2020, in the total sum of S362,957.97.
(ii) Commencing on February 1, 2020, and on the first day of each
month thereafter, through and including January 1, 2030, Maker shall make, equal
monthly payments of principal and accrued interest in the amount of S183,253.67.
(iii) The remaining unpaid principal balance, if any, together with all
accrued and unpaid interest shall be due and payable in full on January 1, 2030
Section 9.1 of the Development Agreement, providing for the Aviary
Payments, is hereby amended to (i) defer Maker's obligation to make the required Aviary
Payments until the date that all of Maker's obligations under this Agreement become due
and payable, including payment of the Deferred Amount over a 10 year period, if Maker so
elects; and (ii) require that the Aviary Payments, in the total sum of S2 million, be made in
a lump sum not later than August 1, 2020. County covenants that it will not seek to enforce
Maker's obligations under this section, by legal action, until Maker has paid all sums due
under the Note, including the Deferred Amount, as modified in this Agreement.
2. Except as expressly modified by this Agreement, the Note, the
Development Agreement (as previously modified by the Amendatory Agreement) and the
other Loan Documents shall remain in full force and effect in accordance with their
teiiiis. In the case of any inconsistencies or conflict between the provisions of this
Agreement and those agreements, the terms of this Amendment to Development
Agreement shall prevail.
3. This Agreement shall bind and inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties to this Agreement.
4. This Agreement being modified is to be construed and enforced in
accordance with the laws of the State of Florida and the law and regulations of the United
States of America. In the event of conflict between Florida law and the law and
regulations of the United States of America, the law and regulations of the United States
of America shall govern.
THE PARTIES, JOINTLY AND SEVERALLY, HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON THIS AGREEMENT, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS, WHETHER VERBAL OR WRITTEN, OR ACTIONS OF
EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE PARTIES TO ENTER INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first above written.
PARROT JUNGLE AND
GARDENS OF WATSON
ISLAND, INC., a Florida
corporation
By2
Name: Be rd M. Levine
Title: President
[Corporate Seal]
PJG WATSON, L.L.C., a Florida
limited liability company
By:
Name: Bernard M. L
Title: Manager
ine
[Corporate Seal]
4
Approved as to form and substance:
I\�
Print Name: . ;
Title: C.v:.�.=��
•
MIAMI-DADE COUNTY
my IvLbtlager
CITY OF MIAMI
By:
Approved as to form and substance: City Manager
Print Name:
Title:
5