HomeMy WebLinkAboutPre-Agrmts. & LegislationsEffective Date of Amendment:
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
FIRST AMENDMENT TO THE ASSUMPTION OF LOAN GUARANTEE ASSISTANCE
LIABILITY AND PLEDGE AGREEMENT UNDER SECTION 108 OF HOUSING AND
COMMUNITY DEVELOPMENT ACT OF 1937, AS AMENDED, 42 U.S.C. 95308.
NOV 17 2011
THIS FIRST AMENDMENT TO THE ASSUMPTION OF LOAN GUARANTEE
ASSISTANCE LIABILITY AND PLEDGE AGREEMENT (the "Amendment") is entered
into effective as of the Effective Date written above, by MIAMI-DADE COUNTY, FLORIDA,
as Borrower ("Borrower"), the CITY OF MIAMI, FLORIDA as Assumptor ("Assumptor"),
and the SECRETARY OF HOUSING AND URBAN DEVELOPMENT as guarantor
("Guarantor") (hereinafter the three parties together shall be referred to as the "Parties") for the
Guarantee made pursuant to Section 108 of title I of the Housing and Community Development
Act of 1974, as amended, 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 principal amount of
$25,000,000.00 (the "Old Note") and for the new promissory note that shall be issued following
defeasance of the Old Note and in substitution for the Old .Note and shall have the same note
number as the Old Note, the same maturity date as the Old Note, but in the new principal amount
of $15,560,000 (the "New Note", a copy of which is attached hereto as Exhibit A and
incorporated hereby).
1. RECITALS.
(a) On June 14, 2000, Borrower and Guarantor entered into a Contract for
Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act
of 1974, as Amended, 42 U.S.C. § 5308 for Series HUD 2000-A Certificates (the "Old
Contract"). The Old Contract incorporated the Old Note.
(b) The Parties subsequently entered into the Assumption of Loan Guarantee
Assistance Liability and Pledge Agreement Under Section 108 of Housing and Community
Development Act of 1937, as amended, 42 U.S.C. 95308 (the "Assumption Agreement")
(attached as Exhibit B hereto and incorporated hereby) dated May 13, 2008. That Assumption
Agreement set forth the liabilities, obligations, benefits, and duties on the part of the Parties as to
the Old Note and any amended note or note that may be issued in substitution for such note and
having the same note number.
(c) The Parties have an opportunity to defease the Old Note, which has a
remaining principal balance of $15,560,000.00, and to substitute for the Old Note a New Note in
the amount of $15,560,000.00. The Parties shall each benefit from the defeasance of the Old
Note and the substitution with the New Note as interest rates have declined thus creating an
opportunity for considerable financial savings by the Parties.
(d) In order to facilitate the defeasance of the Old Note and the substitution •
with the New Note, Borrower and Guarantor shall enter into a new Contract for Loan Guarantee
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Assistance Under Section 108 of the Housing and Community Development Act of 1974, as
Amended, 42 U.S.C. § 5308 for Series HUD 2011-A Certificates (the "New Contract"), which
shall replace the Old Contract.
(e) The Parties desire to carry forward all the liabilities, obligations, benefits,
and duties set forth in the Assumption Agreement as to the Old Note and the Old Contract and to
apply them and ratify them in an identical manner to the New Note and New Contract, with the
following amendments set forth below.
NOW, THEREFORE, in consideration of the premises, and of the mutual covenants
and agreements set forth below, the Parties agree as follows:
1. All the liabilities, obligations, benefits, and duties of the Parties set forth in the
Assumption Agreement as to the Old Note and the Old Contract shall now apply in an identical
manner to the New Note and New Contract.
2. Section 12 Remedial Actions of the Assumption Agreement shall be amended to
add at the end thereof a new Subsection (g) to read as follows:
"(g) Notwithstanding any of the foregoing provisions related to Section 11
Defaults above, the Secretary may, in the Secretary's sole discretion, (1) waive in writing a
Default regarding any failure to punctually and properly perform, observe, and comply with any
covenant, agreement, or condition applicable to the Borrower or applicable to the Assumptor
under this Agreement, and/or (2) provide a reasonable time for a cure period related to such
Default under the applicable circumstances. Any such waiver and/or cure by the Secretary shall
be in writing and shall be effective only to the extent specifically set forth in such writing. Any
such Default so waived shall be deemed to be cured and not continuing, if cured within the stated
reasonable time for a cure period under the applicable circumstances, but no such waiver shall
extend to any other or subsequent Default or impair any right(s) consequent thereto."
3. The Parties further agree that the costs of the refinancing in connection with the
New Note shall be paid to the Guarantor's Trustee in the following pro-rata manner: (a) twenty
percent (20%) by the Borrower, and (b) eighty percent (80%) by the Assumptor, with both the
Borrower and the Assumptor having respective rights to reimbursement of such refinancing
costs, if applicable, from any third -party (whether under the Participation Agreement referenced
in the original Assumption Agreement or otherwise) which ultimately benefits from the
reduction of costs under such refinancing.
4. The Parties agree to execute any future agreements, amendments or estoppels
necessary to fulfill the purposes of this Amendment.
5. Other than the amendments set forth above and the substitution of the Old Note
and Old Contract with the New Note and New Contract, no other changes are made by this
Amendment to the Assumption Agreement, and the Parties agree that the Assumption
Agreement is in full force and effect and that the Parties shall continue to abide by the terms of
the Assumption Agreement.
IN WITNESS WHEREOF, the undersigned, as respective authorized officials on behalf
of the Guarantor, the Borrower and the Assumptor, have caused this Amendment to be executed
as of the Effective Date first above written.
APPROVED AS TO FORM AND
LEG • : S ; F IENCY:
Nam - : Cu ..� tL.Y1
Title:
Date:
tt .
ATTES
By: d� `---�—
Priscilla A. Thompson, City Clerk
Date: lb - -1(
Appr
By:
Calvm Ellis,
Date: /0 2-i- //
ements:
anageinent Director
3
MIAMI-DADE COUNTY, FLORIDA
BORR•
BY:
Name:
Title:
Date: gyLe//‘
0"
CITY OF MIAMI, A municipal corporation
of the State of FloridaA
Approved as to Fonn and Correctness:
By: _---
Julie O. Bru, City Attorney
Date: 10 -a It
SECRETARY OF HOUSING AND
URBELOP
By:
Nai : Yolanda Chavez
Ti e: Deputy Assistant Secretar
for Grant Programs
Date: NOV 17 2011
EXHIBIT "A"
COPY OF NEW NOTE B-98-UC-12-0006
IN THE PRINCIPAL AMOUNT OF $15,560,000
EFFECTIVE DATE:
Fixed Rate Note 2011-A 2031 DEFEASING 8-16-11
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Fixed Rate Note for Series 2011-A Certificates
BORROWER: The Miami -Dade County, FL
NOTE NO. B-98-UC-12-0006
REGISTERED HOLDER: DATE:
THE BANK OF NEW YORK MELLON
AGGREGATE PRINCIPAL
AMOUNT: $15,560,000
For value received, the undersigned, the Miami -Dade County (the "Borrower," which
term includes any successors or assigns), a public entity or agency organized and existing under
the laws of the State (or Commonwealth, if applicable) of Florida, promises to pay to the order of
THE BANK OF NEW YORK MELLON, as Registered Holder (the "Holder," which term
includes any successors or assigns), the Principal Amounts set forth on the attached Schedule
P&I as of each applicable Principal Due Date set forth therein, together with interest on such
unpaid Principal Amounts at the rates applicable thereto as specified on such attached Schedule
P&I. Interest shall be calculated and payments shall be made in the manner set forth below. The
Holder is acting hereunder on behalf ofa trust (the "Trust") created pursuant to a Trust
Agreement by and between the Secretary of Housing and Urban Development (the "Secretary")
and Chemical Bank (now known as The Bank of New York Mellon), as trustee (the "Trustee"),
dated as of January 1, 1995, as amended (the "Trust Agreement"), as supplemented by the
applicable Supplement to the Trust Agreement, by and between the Secretary and the Trustee.
A. Principal and Interest
Interest on a Principal Amount of this Note that is due as of a given date specified on the
Schedule P&I attached hereto (such date, the 'Principal Due Date" for such Principal Amount)
shall accrue at the per annum rate specified on such Schedule P&I from (and including) the date
hereof to (but excluding) such Principal Due Date or, if applicable, to the applicable Interest Due
Date on which an Optional Redemption (as defined below) occurs. The aggregate of the interest
amounts accrued on the entire unpaid Principal Amount of this Note shall be due semiannually as
of February 1 and August 1 of each year (each, an "Interest Due Date"), commencing on February
1, 2012, until the Aggregate Principal Amount listed on the Schedule P&I attached to this Note is
paid in full. Interest shall be calculated on the basis ofa 360-day year consisting of twelve 30-day
months.
B. Optional Redemption
Certain Principal Amounts indicated as being eligible for Optional Redemption on the
Schedule P&I hereto may be paid, in whole or in part, at the option of the Borrower as of any
Interest Due Date on or after the date specified in such Schedule (an "Optional Redemption"). In
order to elect an Optional Redemption of a redeemable Principal Amount, the Borrower shall
give notice of its intention to redeem a Principal Amount to the Trustee and the Secretary not less
than 60 days nor more than 90 days prior to the Interest Due Date as of which the Borrower
intends to redeem the Principal Amount. The Trustee shall apply any payments received in
respect of Optional Redemptions in accordance with written instructions of the Borrower, as
approved by the Secretary. Principal Amounts that are not indicated as being eligible for Optional
Redemption on such Schedule may not be prepaid.
C. Additional Definitions
For purposes of this Note, the following terms shall be defined as follows:
"Business Day" shall mean a day on which banking institutions in New York, New York,
are not required or authorized to remain closed and on which the Federal Reserve Bank and the
New York Stock Exchange are not closed. If any payment (including a payment by the
Secretary) is required to be made on a day that is not a Business Day, then payment shall be made
on the next Business Day.
"Contract" shall mean the Contract for Loan Guarantee Assistance, and any amendments
thereto, between the Secretary and the Borrower, the designated public entity named therein (if
applicable), or the State named therein. (if applicable), which refers to and incorporates this Note
by the number hereof.
D. Borrower's Timely Payment to Trustee
Notwithstanding anything contained in this Note, the Borrower, in accordance with the
Contract, shall be required to make all payments of interest and principal, including any Optional
Redemption payments, directly to the Trustee on the seventh Business Day prior to the
appropriate Interest Due Date, Principal Due Date or date of Optional Redemption, as applicable.
E. Interest on Late Payments
If a payment of principal or interest herein provided for has not been duly received by the
Holder from either the Borrower or the Secretary by the close of business on the applicable
Interest Due Date or Principal Due Date, interest shall accrue on the amount of such payment at
the applicable interest rate or rates payable on this Note, from the relevant due date until the date
such payment is made. Nothing in the immediately preceding sentence shall be construed as
permitting or implying that the Borrower may, without the written consent of the Holder and the
Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely
to receive any and all payments of principal and interest specified in this Note.
F. Applicability of Fiscal Agency Agreement and Trust Agreement
This Note and payments made hereunder shall be administered pursuant to the terms of
the Trust Agreement and are subject to such agreement. The terms and provisions of the Trust
Agreement, insofar as they affect the rights, duties and obligations of the Holder and/or the
Borrower, are hereby incorporated herein and form a part of this Note. Capitalized terms not
defined in this Note shall have the meanings ascribed to them in Trust Agreement. The
Amended and Restated Master Fiscal Agency Agreement dated as of May 17, 2000, between the
Secretary and The Chase Manhattan Bank (now known as The Bank of New York Mellon), .as
Fiscal Agent (the "Fiscal Agency Agreement") provides for JPMorgan Chase Bank, acting as
Fiscal Agent to perform certain duties, including the duties of registrar for this Note until this
Note is canceled or a new registrar appointed in accordance with the Fiscal Agency Agreement.
The Trust Agreement provides for the Trustee to perform certain duties, including the duties of
paying agent and collection agent for this Note until a new Trustee is appointed in accordance
with the Trust Agreement. This Note may be surrendered to the Fiscal Agent for registration of
transfer or exchange, as provided in the Fiscal Agency Agreement. The Fiscal Agent and the
Trustee shall permit reasonable inspection to be made of a copy of the Fiscal Agency Agreement
or Trust Agreement kept on file at its corporate trust office. Neither the Fiscal Agency
Agreement nor the Trust Agreement shall change the Borrower's payment obligations under this
Note.
G. Applicability of Contract and Secretary's Guarantee
This Note evidences indebtedness incurred pursuant to and in accordance with the
Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act
of 1974, as amended (42 U.S.C. § 5308) (the "HCD Act"). This Note is subject to the terms and
provisions of the Contract, to which Contract reference is hereby made for a statement of said
terms and provisions and for a description of the collateral security for this Note. The payment
of principal on the applicable Principal Due Dates and of interest on the applicable Interest Due
Dates under this Note is unconditionally guaranteed by the Secretary to the Holder through a
guarantee (the "Guarantee"). Execution of the Secretary's Guarantee is required before this Note
is effective, and such Guarantee shall be issued pursuant to and in accordance with the terms of
the Contract and Section 108 of the HCD Act.
H. Default
A default under this Note shall occur upon failure by the Borrower to pay principal or interest on
this Note when due to the Trustee hereunder. On any Interest Due Date on or after the first
permissible Optional Redemption Date, if either (i) a Borrower defaults on the payment of any
interest or Principal Amount when due or (ii) the Secretary gives notice of a fmal decision to
declare the Borrower in default pursuant to the following paragraph, then the Secretary may, but
is not obligated to, make an acceleration payment to the Trustee equal to the Aggregate Principal
Amount of the Note, together with accrued and unpaid interest thereon to such Interest Due Date.
The Secretary shall give notice of such payment on the fourteenth Business Day preceding such
Interest Due Date and shall make such payment on the seventh Business Day preceding such
Interest Due Date. In the event that any such acceleration payment is made from sources other
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than funds pledged by the Borrower as security under the Contract (or other Borrower funds), the
amounts paid on behalf of the Borrower shall be deemed to be immediately due and payable to
the Secretary. Nothing in this paragraph shall be construed as permitting or implying that the
Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter
or affect in any manner whatsoever the right of the Holder timely to receive any and all payments
of principal and interest specified in this Note.
In addition, the Secretary may declare the Borrower in default under this Note if the
Secretary makes a final decision in accordance with the provisions of 24 CFR § 570.913 (or any
successor regulation thereof), including requirements for reasonable notice and opportunity for
hearing, that the Borrower has failed to comply substantially with Title i of the HCD Act.
Following the giving of such reasonable notice, the Secretary may take the remedial actions
specified as available in the relevant provisions of the Contract pending the Secretary's final
decision.
I. Holder's Reliance on Guarantee
Following a default by the Borrower under the terms of this Note, the Holder agrees to
rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of
any instruments or agreements securing or otherwise related to this Note shall be the sole
responsibility of the Secretary, and the Holder shall not be responsible for the preparation,
contents or administration of such instruments and agreements, or for any actions taken in
connection with such instruments and agreement. The Holder, to the extent it is legally able to do
so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon the
Holder by this Note.
J.
Amendment
This Note may only be amended with the prior written consent of the Secretary and the
Borrower. No such amendment shall reduce, without the prior written consent of the Holder of
this Note, in any manner the amount of, or delay the timing of, payments required to be received
on this Note by the Holder or Trustee, including Guarantee Payments.
K. Waivers
The Borrower hereby waives any requirement for presentment, protest or other demand or
notice with respect to this Note. The Borrower hereby waives notice of default and opportunity
for hearing for any failure to make a payment when due.
L. Delivery and Effective Date
This Note is deemed issued, executed, and delivered on behalf of the Borrower by its
authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the
HCD Act, effective as of the date of the Secretary's Guarantee.
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M. Borrower. Specific Provisions
Proceeds of this Note shall be used solely for the purpose of refinancing through
defeasance funds advanced under previous Note(s) having the same Note number.
[Remainder of Page Intentionally Left Blank]
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THE UNDERSIGNED, as an authorized official of the Borrower, has executed and
delivered this Note.
Miami -Dade County, FL
1 BORRQWER
Edward Marquez
(Name)
Deputy Mayor
(Title)
6
SCHEDULE P&I
Note No. B-98-UC-12-0006
Principal Amount Principal Interest Rate Optional Redemption Available
Due Date
YES NO
$ 1,945,000 August 1, 2012 X
$ 1,945,000 August 1, 2013 X
$ 1,945,000 August 1, 2014 X
$ 1,945,000 August 1, 2015 X
$ 1,945,000 August 1, 2016 X
$ 1,945,000 August 1, 2017 X
$ 1,945,000 August 1, 2018 X
$ 1,945,000 August 1, 2019 X
$ August 1, 2020 X
$ August 1, 2021 X
$ August 1, 2022 X
$ August 1, 2023 X
$ August 1, 2024 X
$ August 1, 2025 X
$ August 1, 2026 X
$ August 1, 2027 X
$ August 1, 2028 X
$ August 1, 2029 X
$ August 1, 2030 X
$ August 1, 2031 X
$15_,560,000 = Aggregate Principal Amount
Principal Amounts due on or after August 1, 2022, for which Optional Redemption is available
may be redeemed, subject to the terms contained herein and in the Trust Agreement, on any
Interest Due Date on or after August 1, 2021.
EXHIBIT "B"
ASSUMPTION OF LOAN GUARANTEE ASSISTANCE LIABILITY AND PLEDGE
AGREEMENT UNDER SECTION 108 OF HOUSING AND COMMUNITY
DEVELOPMENT ACT OF 1937, AS AMENDED, 42 U.S.C. 95308
Dated May 13, 2008
Attachment
. 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:
MAY 132008
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 $25.000.000, 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 Areement with initial capital letters and not otherwise defined in the
text hereof shall 1.a‘. the respecti.e,neanings 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
Government 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 theinitial 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&1 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.
Attachment 2
Page 2of14
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 liability under the Contract for repayment of the
principal and inlet es. of the Note, the Borrower agrees to remain liable to repay twenty
percent (20%) (ti.e "'borrower's Pio 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 paragraph 6 of this Agreement, the Borrower shall continue to pay to the
Fiscal Agent/Trustee, as collection agent for the Note, all 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 Notc). 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
fiends available in the Loan Repayment Account when payment is due to the Fiscal
AgentT ustee under the Contract, the Borrower and the Assumptor hereby agree to pay the
Da., owcr's Pro Rata Share and Assumptor's Pro Rata Share, respectively, of the shortage
c-
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(c) 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 Assumptor 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, as well as
any grants which are or may become available to the Borrower or the Assumptor, as
applicable, pursuant to Section 108(q).
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) All proceeds (including insurance and condemnation proceeds) from any of the
foregoing.
(e) All funds or investments in the accounts established pursuant to paragraphs 1
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 Age;icy,Trust Agree,uieats, 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 event 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
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 thc preceding
calendar month and a statement identifying the obligations and their assignrnents in the
Loan Repayment Investment Account.
(c) Upon the Secretary giving notice that the Borrower or thc 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 Notc, 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 Agreellic,.t or the Fiscal Agency/Trust Agreements, or the purchase of
Government obi:ba::lns in accorzlance 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.
&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
Page 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.
lODefeasance. 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 concerning 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 p iyment of principal and interest is guaranteed by, the United States of
America, includ;,1g ;.:it not limits,,; 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 S100,000,000.
H. 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 ageernent, 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 §070.913 (or any successor provisions), including
Attachment 2
Page 7of14
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. L. 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 1 I (a) shall be deemed a default by
the Assumptor as well under this Agreement. Such Default shall entitle the Secretary to
exercise remedial actions in accordance with their respective pro rata shares of liability
hereunder against funds respectively pledged by the Borrower and the Assumptor under this
Agreement.
(e) A Default limited to the Assumptor under this Agreement shall occur upon failure
by the Assumptor to:
(i) pay when due any amount owing under paragraph 2 or 4 of this Agreement; or (ii)
punctually and properly perform, observe, and comply with any covenant, agreement,
or condition applicable to the Assumptor in this Agreement.
A Default limited to the Assumptor under this paragraph 11(e) shall entitle the Secretary to
exercise remedial actions only against funds pledged by the Asssumptor 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 Goverranent Obligations in accordance with paragraph I0 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.
(J} 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 designated 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 illy sc.ader of an answer back; and (iv) if sent by telecopier, upon receipt.
The Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster Director Financial Management Division
451 7th Street. SW, Room 7180
Washington, D.C. 20410
Borrower:
Miami -Dade County
III NW 1st Street, 29''' Floor
Miami, Florida 33128
Attention: County Manager
With Copies to:
Miami -Dade County
Office of Community and Economic Development
Attention: Director
140 W. Flagler
Miami. Florida 33 130
Assumptor:
Attachment 2
Pace 9 of 14
City of Miami
444 SW 2nd Avenue, Miami, Florida 33130
WithCopiesto: City of Miami, Office of the City Attorney,
444 SW 2nd Avenue, 9th Fl., Miami, Florida 33130
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
(b) 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 loan 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 2
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 interests of the Obligor in and to any licenses,
permits, 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 form acceptable to the Secretary.
(C) The original 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 form acceptable to the Secretary.
(D) The original recorded Collateral Assignment of Leases and Rents and an
assignment thereof to the Secretary, in a recordable fonn 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 assignment 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 terms, 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
terms.
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 indthtedress 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.
An appraisal of the Obligor's Leasehold interest in the Property specifying. an esti: ate of
fair market value of not less than $31.250.000. The appraisal was completed by an appraiser who was
certified by the state and has a professional designation (such as "SRA" or "MAT"), and the appraisal
conformed to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of
1989 ("FIItREA") 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 therefor.
(c) Paragraph 12 is amended by adding at the end thereof the following language:
"(g) 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.
"(h) The Secretary 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 remediesthat may be available under the Security Documents, declare the Notes
in Default and exercise any and all remedies available under paragraph 12. 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) (i) The Borrower acknowledges and agrees that the Secretary's guarantee of the Note and
subsequent execution of this Agreement were made in reliance upon the availability of grants pledged
pursuant to paragraph 5(a) (individually, a "Pledged Grant" and, collectively, the "PIedged Grants") in
any Federal fiscal year subsequent to the Federal fiscal year ending September 30, 2005, to: (A) pay
when due the payments to become due on the. Note, or (B) defease (or, if permitted, prepay) the full
amount outstanding on the Note, each to the extent of the Borrower's Pro Rata Share. The Borrower
further acknowledges and agrees that if the Secretary (in the Secretary's sole discretion) determines
that Pledged Grants are unlikely to be available for either of such purposes, such determination shall be
a permissible basis for any of the actions specified in paragraphs (ii) and (iii) below (without notice or
Attachment 2
Page 12 of 14
hearing, which the Borrower expressly waives).
(ii) 'Upon written notice from the Secretary to the Borrower at the address specified in
paragraph 12(f) above that the Secretary (in the Secretary's sole discretion) has determined that
Pledged Grants are unlikely to be available for either of the purposes specified in (A) and (B) of
paragraph (i) above (such notice being hereinafter referred to as the "Notice of Impaired Security"), the
Secretary may limit the availability of PIedged Grants by withholding amounts at the time a Pledged
Grant is approved or by disapproving payment rec uests (drawdowns) submitted with respect to
Pledged Grants.
(iii) If after 60 days from the Notice of Impaired Security the Secretary (in the Secretary's sole
discretion) determines that Pledged Grants are still unlikely to be available for either of the purposes
specified in (A) and (B) of paragraph (i) above, the Secretary may declare the Note in Default and
exercise any and all remedies available under paragraph 12. This paragraph (iii) shall not affect the
right of the Secretary to declare the Note and/or this Contract in Default pursuant to paragraph 11 and
to exercise in connection therewith any and all remedies available under paragraph 12.
(iv) All notices and submissions provided for hereunder shall be submitted as directed in
paragraph i 2(f) above.
(1 (i) The Assumptor acknowledges and agrees that the Secretary's Guarantee of the Note and
subsequent execution of this Agreement were made in reliance upon the availability of grants pledged
pursuant to paragraph 5(a) (individually, a "Pledged Grant" and, collectively, the "Pledged Grants") in
any Federal fiscal year subsequent to the Federal fiscal year ending September 30, 2005, to: (A) pay
when due the payments to become due on the Note, or (B) defease (or, if permitted, prepay) the full
amount outstanding on the Note, each to the extent of the Assumptor's Pro Rata Share. The
Assumptor further acknowledges and agrees that if the Secretary (in the Secretary's sole discretion)
determines that Pledged Grants are unlikely to be available for either of such purposes, such
determination shall be a permissible basis for any of the actions specified in paragraphs (ii) and (iii)
below (without notice or hearing, which the Assumptor expressly waives).
(ii) Upon written notice from the Secretary to the Assumptor at the address specified in
paragraph 12(f) above that the Secretary (in the Secretary's sole discretion) has determined that
Pledged Grants are unlikely to be available for either of the purposes specified in (A) and (B) of
paragraph (i) above (such notice being hereinafter referred to as the "Notice of Impaired Security"), the
Secretary may limit the availability of Pledged Grants1by withholding amounts at the time a Pledged
Grant is approved or by disapproving payment requests (drawdowns) submitted with respect to
Pledged Grants.
(iii) If after 60 days from the Notice of Impaired Security the Secretary (in the Secretary's sole
discretion) determines that Pledged Grants are still unlikely to be available for either of the purposes
specified in (A) and (B) of paragraph (i) above, the Secretary may declare the Note in Default and
exercise any and all remedies available under paragraph 12. This paragraph (iii) shall not affect the
right of the Secretary to declare the Note and/or this Contract in Default pursuant to paragraph 11 and
to exercise in connection therewith any and all remedies available under paragraph 12.
(iv) All notices and submissions provided for hereunder shall be submitted as directed in
paragraph 12(f).
(g) As of the effective date of this Agreement, the Secretary shall treat the Borrower's Pro Rata Share
and the Assumptor's Pro Rata Share, respectively, of the outstanding principal balance due on the Note
as the 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).
Attachment
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.
APPROVED AS TO LEGAL FORM
AND CORRECTNESS:
JORGE L. FERNANDEZ,,,;1
CITY ATTORNEY 4f,'
MIAMI-DADE COUNTY FLORIDA
BORROWER
BY7
(Nme) with, Carr j
s
(Title) Ea tS - Co tt,et/i H•. haj
(Signature)
(Date) V,Vb 7
CITY OF MIA 1 FLORIDA
ASSUMP
BY:
(Name) Pedro G. Hernandez
(Title) City Manager
(Signature)
(Date)
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
BY:
(Name) Nelson R. Bregon
(rifle) General Deputy Assistant Secretary
(Signature) for Community Planning and
(Date) Development
MAY 1 3 2008
Attachment 2
Page 14of14
ATTACHMENT 3
Description of Real Property
The Borrower has inserted the legal description of the Property as defined
in paragraph 1 5(b)(i)(A) in Attachment 3 to the Contract. That Iegal description
has not changed.
[Rest of this page intentionally left blank)
(P)
City of Miami
Certified Copy
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
File Number: 11-00983 Enactment Number: R-11-0442
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND TO EXECUTE
AMENDMENTS TO THE PARTICIPATION AGREEMENT (INCLUDING ALL THE
ATTACHMENTS THERETO, DATED AS OF AUGUST 3, 2007 ("PARTICIPATION
AGREEMENT"), AND THE ASSUMPTION OF LOAN GUARANTEE ASSISTANCE
AND LIABILITY AND PLEDGE AGREEMENT, INCLUDING ALL ATTACHMENTS
THERETO, -("ASSUMPTION"), AFTER CONSULTATION WITH THE CITY
ATTORNEY, PROVIDING FOR THE REFINANCING OF THE CITY OF MIAMI'S
("CITY") ASSUMPTION OF NOT TO EXCEED EIGHTY PERCENT (80%) OF
MIAMI-DADE COUNTY'S ("COUNTY") LIABILITY UNDER THE UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'S SECTION 108
LOAN ("SECTION 108 LOAN") USED BY THE COUNTY, IN CONNECTION WITH
THE MODIFICATION OF SECTION 108 LOAN WHICH WAS IN THE ORIGINAL
PRINCIPAL LOAN AMOUNT OF $25,000,000, FOR PARROT JUNGLE AND
GARDENS OF WATSON ISLAND, INC. ("PARROT JUNGLE"), AND ALL OTHER
DOCUMENTS AS MAY BE REQUIRED 1N CONNECTION TO AMENDING SUCH
PARTICIPATION AGREEMENT AND ASSUMPTION TO PROVIDE COSTS
SAVINGS TO THE CITY AND THE COUNTY, SUBJECT TO CITY ATTORNEY
APPROVAL; FURTHER CONSENTING TO AND AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND TO EXECUTE, AFTER CONSULTATION WITH
THE CITY ATTORNEY, ANY OTHER RELATED MODIFICATIONS,
AMENDMENTS, SUPPLEMENTS, AND OTHER DOCUMENTS AS NECESSARY,
TO ACCOMPLISH SUCH COST SAVINGS TO THE CITY.
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 be current and no event of default wa in existence and that the
County assign to the City all of the documents securing the Loan (the "Loan Documents"); and
WHEREAS, the County was 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 then cured, and/or the County then agreed to waive and not enforce,
certain events of non-performance by Parrot Jungle under the Loan Documents; and
CiryofMiami Page 1 of R-11-0442
File Number: 11-00983 Enactment Number: R-11-0442
WHEREAS, to assist Parrot Jungle to cure its failure to make payments under the Parrot Jungle
Loan, the County agreed, subject to the City's approval, to modify Parrot Jungle's obligations under
the Loan Documents to (I) provide that Parrot Jungle shall not be obligated to make any payments
under the Parrot Jungle Loan from August, 2006, through and including the payment due in August,
2011 (the "Deferral Period"), and (1I) required that all amounts that Parrot Jungle would have been
required to pay during the Deferral Period, totaling $17,277,403 (the "Deferred Amount"), plus interest
at the rate of 5% shall be payable in 10 equal annual installments commencing in 2019, provided that
the Parrot Jungle Loan has been fully paid; and
WHEREAS, it was determined to be 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 therein, and for the City
to assume 80% of the County's obligations under the Section 108 Loan; and
WHEREAS, on July 10, 2007, pursuant to Resolution No. 07-0405, the City Commission
authorized the City Manager to execute a new Participation Agreement, including al! attachments
thereto, with the County which was dated as of August 3, 2007, (the "Participation Agreement") and an
Assumption of Loan Guarantee Assistance and Liability and Pledge Agreement, including all
attachments thereto, with the County and HUD (the "Assumption") and all other necessary documents
in connection with such loan modification and assumption and related modifications of the
modifications of the terms of the Parrot Jungle Loan from the County to Parrot Jungle; and
WHEREAS, the original Section 108 Loan amount has been paid down to $15,560,000; and
WHEREAS, recently the County and HUD have advised the City of the opportunity to further
modify the Section 108 Loan for additional savings by reducing the interest rate without extending the
maturity of the Section 108 Loan and it is in the best interests of the City to amend the Participation
Agreement and the Assumption and all other necessary documents to obtain such savings without
extending the maturity of the original 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 Manager is authorized(1) to negotiate and to execute amendments to the
Participation Agreement, including all attachments thereto, dated as of August 3, 2007 ("Participation
Agreement"), and the Assumption of Loan Guarantee Assistance Liability and Pledge Agreement,
including all attachments thereto, ("Assumption"), after consultation with the City Attorney, and such
other documents as may be required, subject to the City Attorney's approval, providing for the
refinancing of the City of Miami's ("City") assumption of not to exceed eighty percent (80%) of
Miami -Dade County's ("County") liability under the United States Department of Housing and Urban
Development's Section 108 Loan ("Section 108 Loan") which was in the original principal amount of
$25,000,000, for Parrot Jungle and Gardens of Watson Island, Inc. ("Parrot Jungle"), and all other
documents as may be required in connection to amending such Participation Agreement and
Assumption to provide cost savings to the City and the County, subject to City Attorney approval.
Section 3. The City Commission further consents to and authorizes the City Manager to negotiate
and to execute, after consultation with the City Attorney, any other related modifications, amendments,
supplements and other documents as necessary to accomplish such cost savings to the City.
City of Miami Page 1 of 3 R-11-0442
File Number: 1]-00983 Enactment Number: R-11-0442
Section 4. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor.{2}
Date: OCTOBER 27, 2011
Mover: COMMISSIONER SUAREZ
Seconder: COMMISSIONER SARNOFF
Vote: AYES: 5 - COMMISSIONER(S) GORT, SARNOFF, CAROLLO, SUAREZ AND
SPENCE-JONES
Action: ADOPTED
Date:
Action:
OCTOBER 27. 2011
SIGNED BY THE MAYOR
1, Priscilla A. Thompson, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do
hereby certify that this constitutes a true and correct copy of Resolution No. R-11-0442, with
attachments, passed by the City Commission on 10/27/2011.
October 27, 2011
City Clerk, Deputy Clerk (for P. A. tlabmpson, Date Certified
City Clerk)
{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 3 of 3
R-11-0442
City of Miami
Legislation
Resolution: R-07-0405
City Hail
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File ?umber: 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
FORKS), 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
kTTDRNEY 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
IORESPECIFICALLY 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 Watso n 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
under -the Loan Documents to (I) provide that Parrot Jungle shall not be obligated to make any
City of Miarn i
Page I of 2
• Fite Id: 07-00895 (version: 2) Printed On: 10/13/2011
File Number.' 07-00895 Enactment Number.: R-07-0403
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 i$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 SY 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 Attorneys 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 ofMiami Page 2 of2 File Id: 07-00895 (Version: 2) Pruned On: 10/I3/2011
Artachment 1
Page 1 of 21.
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (the "Agreement") is 'made as of this
. 3{c( 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
attractioil.]ocated at Watson Island (the "Property").
3. The County funded the Loan to Borrower by virtue of a $25,000,000.00 loan
guaranteed by the United States Department of Housing and Urban Development ("USHUD")
which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June
14, 2000 (the "Section-108 Loan").
•
4. As sere:: -it:, for the Section 108 Loan, the County pledged its present and future
Community Development Block Grant ("CDBG") allocations as a guarantee of repayment of the
principal and interest on the Section 108 Loan.
5. The County and the City entered into a Joint Participation Agreement ("IPA") dated
September 9, 1998, wherein; the City agreed to assume eighty percent (80%) of the outstanding
principal balance and future interest on the Section 108 Loan upon satisfaction of. certain
conditions, all of which have been satisfied or waived by the parties hereto.
6. In accordance with the intent of the JPA, and subject to the terms and conditions set
forth herein, the City agrees .to assume from the County, and•County agrees to assign and transfer
to the City,.an undivided eighty percent (80%) interest in all of the benefits and obligations of the •
County, as lender of the Loan and under the Loan Documents.
NOW, THEREFORE, in consideration of Ten Dollars ($ 10.00) and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:
ARTICLE
I
DEFINITIONS .
Section'. 1 Definitions As used herein, the following terms have the respective
meaning ascribed thereto .below, which meaningsshallbe. applicable equally to the singular and
plural forms of the terms defined: .
Attachment 1
Page 2 of 21
"Agreement" shall mean this Ageement, together with all exhibits and schedules hereto, as
the same may be modified; amended or restated from time to time.
"Assumption and Pledge Agreement" shall mean an Assumption of Loan Guarantee
Assistance Liability and Pledge Agreement under Section 108 of the Housing and Community
Development Act of 1974, as amended, 42 U.S.C. §5308, in the form attached hereto as Attachment
."2", to be entered into by the County, USHUD, and the City.
"Authority" shall mean any governmental or quasi-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 Dav" shall mean any day other than a.Saturday, Sunday or a day on which banking
institutions in the State of Florida are authorized or obligated by law or executive order to be closed.
• "City's Pro Rata Share" shall mean an amount equal to 80% of the outstanding principal
balance on the Section 108 Loan, as of the date Effective Date, plus accrued but unpaid interest as of
such date and future interest until the Section 108 Loan is paid in full. •
"Collateral" shall mean all of the property pledged, mortgaged, hypothecated or assigned to,
or deposited with Lenders irnm time to time, pursuant to, or as security for, the Loan or any of the
indebtedness evidences' b;• +he Loan Dovaments. .
"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 Ageement,
"Commitment Fee" shall mean the commitment fee paid by Borrower to the County in
connection with the making of the Loan by. the County.
"Confirmation of Lenders' Shares" shall mean the form attached hereto as Exhibit "A" and
as referenced in Section 2.3 hereof.
"County's Pro Rata Share" shall mean an amount equal to 20% of the outstanding principal
balance on the Section 108 Loan as of the Effective Date plus accrued but unpaid interest as of such
date and future interest until the Section 108 Loan is paid in full.
"Deferred Amount" shall mean an amount equal to all payments due by Borrower under the
Note commencing on 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 Agreerent 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 Like 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 Agreement" 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•;':-sr r period of n ears conunencing on the maturity date ,. in the form of
Attachment "5" hereto.
"Person" shall include, without limitation, any manner of association, authority, business
trust, company, corporation, estate, joint venture, natural person, partnership, trust or other entity.
"Pro Rata Share" •shall mean the respective undivided participation interest in the Loan of the
. County and the City set forth on Exhibit "A.".
• Section 1.2 Capitalized Terms. Capitalized terms used herein and not defined herein shall
have the meanings given such terms in the Loan Agreement.
ARTICLE II
TERMS OF CITY'S PARTICIPATION
IN SECTION 108 LOAN
Section 2.1 • RESERVED
Section 2.2 Concurrent Oblisations. 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, al] Events of
Default under the Loan Documents, including specifically, but without limitation,
Attachment 1
Paee 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
Iapse of time would become a default under any one of the Loan Documents or the
Section 108 Loan. •
2.2.3 The County shall have executed and delivered to the City an estoppel certificate,
substantially in the form of Attachment 4, certifying, among other things, the
outstanding amounts and terms of payment of all outstanding loans from the County to
Borrower (the "County Outstanding Loans") and further certifying that all such loans
are current, that no event of default exists or remains uncured with respect thereto, and
that there is no occurrence or event or circumstance which, with notice or lapse of time
would become a default under any such County Outstanding Loans
. 2.2,4 The County shall have delivered to the City copies of all documents, including County
Commission resolutions and supporting documents, relating to the County
Outstanding Loans.
2.2.5 Borrower s};.11 deliver to the County arid 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 aata
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 •
recordedin 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. •
d7
Attachment 1
Page 5of21
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 Areement is limited to the
sources provided for in the Contract for Loan Guarantee Assistance, as if the City had been a party tb
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 executin.3 this Agreement, that it has delivered to the City all of the Loan
Documents, and all other documents or instruments delivered to or obtained by the County pursuant
to or in connection with the Loan, the Section 108 Loan, or the transactions contemplated thereby,
including, without limitation, resolutions, correspondence, schedules, credit information; appraisals
and such other instruments and documents pertaining to the transactions contemplated hereby (the
"Related Loan Documents"), which Loan Documents and Related Loan Documents are listed in
Attachment 1 hereto, and that (1) The Loan Documents are all of the documents evidencing or
securing the Loan, (2) to the best of the County's knowledge, after due investigation, the Related
Loan Documents are all of the documents delivered to, or obtained by, the County relating to the
Loan, the Section 108 Loan and the transactions contemplated herein, (3) Borrower and/or
Guarantor's obligations under the Loan Documents are current and in good standing, or performance
of such obligations has been properly waived or, forgiven by the County and (4) there is no 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 6of21
Section 3.2 Fumishine 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 toor 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 Payment: and retain for its own account the remaining portion thereof. County agees
to disburse all sums d:tr., 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 withLenders 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
USHLID, 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 adrnister 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 reassigr ments
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 incorpoi•ate Yte City's comments or suggestions in any response or action to be taken
by County as a result thereof.
Section 3.6 Consultation with City The County shall seek and obtain the City's
approval with respect to any actions or approvals which, by the terms of this Agreement or the Loan
Documents, the County is permitted or required to take or to grant. Subject to the provisions of
Section 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
formation of a partnership or joint. venture between or among the parties hereto, and no party shall be
liable to any other Person for the liability of any other party hereto arising in connection with the
Loan or any transaction connected therewith.
ARTICLE Iv
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of City The City, as a material
inducement to County to enter into this Ageement and to consummate all of the transactions
contemplated hereby; represents and warrants to County as follows:
Attachment I
Page 8 of 2 ]
A. City is a municipal corporation of the State of Florida and has the legal power and
authority to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
B. ' The execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated. hereby, have been duly authorized by all necessary action on the
part of City, do not and will not contravene its articles of incorporation or association or bylaws or
any agreement, law, governmental rule, regulation or order binding on City (including, without
limitation, legal lending limits applicable to it), and do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other action with respect to, any
Authority.
C. This Agreement constitutes the legal, valid and binding obligation of City, and is
enforceable in accordance with its terms.
D. Neither City nor any Person that City has authorized to act on its behalf has directly
or indirectly offered any interest or participation in this Agreement to any other Person.
E. City has made and. will continue to make such independent evaluation of such •
financial information and other data relating to Borrower, Guarantors and the Collateral as it deems
necessary and prudent.. .
Section 4.2 .lieu_ 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, delivey 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 Lows h 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 extentrequired),
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 ]
Page to of 21
reason of, or in connection with, any act or failure to act on the part of the County in accordance
with the terms of the Loan Documents or this Agreement, or any breach of representations contained
herein.
B. City hereby agrees to indeirinify'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, ] Default by Borrower Upon County or City acquiring knowledge of any
Event of Default under any of the Loan Documents or any event which•with the passage of time or
giving of notice or both would constitute an Event of Default, or of any matter which in,its judgment,
materially affects the _respective interests of the parties hereunder, then the party having such
knowledge shall with reasuiiable 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 riot 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
��a
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, thenthe City shall•be in default and
the County may, in addition to all other remedies available to it by law or in equity, seek injunctive
relief against the City and the City hereby waives its right to assent that the County has an adequate
remedy at law
. Section 6.3 Foreclosure Subject to the rights of the USHUD pursuant to the Contract
for Loan Guarantee Assistance, the County shall hold the Loan Documents (together with any and all
other documents executed and delivered in connection therewith) and title to any of the Collateral
acquired by County after an Event of Default in its name as agent for both City and County (to the
extent of County's and City's Pro Rata Shares thereof). Accordingly, in the event of a foreclosure and
foreclosure sale of any Collateral, or any judicial sale of any of the collateral, the County shall bid at
such sale for the benefit of both Lenders and if such bid is successful, County shall, to the extent
permitted by law, cause all title instruments relating to such Collateral to be issued in the name of
each Lender in accordance with each Lenders' Pro Rata Share. If a successful bid is entered by a
third party, and is acceptable to the City, then, to the extent that the proceeds of the foreclosure sale
are, pursuant to law, the property of the holder of the Loan Documents, such proceeds shall be
received by Lender and shall thereupon be divided among Lenders in proportion to their respective
Pro Rata Shares.
Section 6.4 Default Administration. Subject to the rights of the USHUD pursuant
to the Contract for Loan .Guarantee Assistance, upon the determination by County of a course of
action taken after an Event of Default in accordance with Section 6.1 hereof, and after consultation
with City, the County shall have the right to maintain, manage and operate the Collateral and sell all
or any part thereof in a manner consistent with such course of action or as County determines to be
prudent, respectively, and may employ' an independent management company, sales agent or others
to maintain, manage, operate and sell the Collateral, all of which activity shall be part of County's
right to service and administer the Loan. If County determines, in its discretion, that a management
agreement is necessary, such management agreement will be negotiated in good faith by County,
subject to City's approval. . In the event of the appointment of a receiver for any of the Collateral
during the pendency of a foreclosure proceeding or otherwise, Lenders shall share in the profits and
expenses of the receivership in proportion to their respective Pro. Rata Shares. Notwithstanding the
foregoing, any sale of the Collateral by County shall require the approval of the City. In such case
County shall promptly notify City of each written offer to purchase the Collateral received by
County, (the "Offer") advising City as. to whether or not County wishes to accept the Offer. The City
Manager shall notify County, in writing, within five (5) business days after City's receipt of the
Offer, whether or not it wants to accept the Offer, which . decision shall be subject to City
Commission approval. If one party wishes to accept the Offer, but the City Manager of the other
party does not, the parties shall immediately consult. If, after such consultation, the parties still do not
agree, then the party not wanting to accept the Offer (the "Purchasing Party") shall submit to its
board of commissioners the Offer and the board shall then be obligated to either accept the offer to
sell, or shall purchase from the other party (the "Selling Party") the Selling Party's Pro Rata Share of
the Collateral at a price equal to the amount which the Selling Party would have received from a sale
pursuant to the Offer (including, without limitation, the payment of any expenses to be reimbursed to
the -Selling Party under the terms of this Agreement). The purchase and sale of the Selling Party's Pro
Rata Share of the.. Collateral pursuant to this paragraph shall be without recourse, warranties or
Attachment ]
Page ] 2 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 Docurrients, 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 Goveminn 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 normally required for an item to be presented to, and
considered by, such governing body, but in no event a period greater than 60 days horn 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 ackrnowledged) 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:
Anachment 1
Page 13 of 21
If to County:
MIAMI-DADE COUNTY
111 N.W. 1st Street •
29 T' Floor
Miami, Florida 33128
Attention: County Manager.
With Copies to:
MIAMI-DADE COUNTY
111 N.W. 1st Street
Suite 2 810
Miami, Florida 33128
Attention:. County Attorney
If to City:
CITY OF MIAMI
444 SW 2"a Avenue
Miami, Florida 33130
Attention: City Manager
. With Copies to:
City of Miami
Office of the City.Attorney
444 SW 2nd Avenue,. 9th Floor
Miami, Florida 33130
or to such other address as the party to be served with Notice may furnish.in accordance with the
terms of this Section to the party seeking or desiring to serve Notice as a place for the service of
Notice, Notices shall be deemed effective (a) when delivered if delivered by hand, (b) two (2)
Business Days after mailing, and (c) the next Business Day after delivery to any express courier
service.
Section 7.3 Entire Agreement This Agreement, together with its' Exhibits and
Attachments, contains the entire agreement of the parties and supersedes all other representations,
warranties, agreements and understandings, oral or otherwise, between the parties with respect to
the matters contained herein.
Section 7.4 Waiver of Jury. The parties hereto hereby severally, voluntarily, lalowingly
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
concems any contractual or tortious or other claim. The parties hereto acknowledge that this waiver
of jury trial is a material inducement to the parties hereto in entering into this Agreement, that the
parties hereto would not have -entered into this .Agreement .without this jury trial waiver, and that each
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,
amendrnent.or waiver of any provision of any Note or any of the other Loan Documents. '
Section 7.6 Governine 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 •
1"
Priscilla A, Thomidson,.City Clerk
Attachment 1
Page 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 purposesonly 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:
MIAMI-DADE COUNTY
CITY:
CITY OF MIAMI
By: 7 By:
Pedro. Hernan , City Manager
Approved as to Form and Correctness:
i
frge L. Fernandez, City Attorney
U
Approved as to Insurance Requirements:
4 / % . d �" �''�LV
4.0,144 •evuh,,_
ON USHUD'S LETTERHEAD
EXHIBIT "A"
CONFIRMATION OF PARTICIPANT'S SHARES
MIAMI-DADE COUNTY
111 N.W. 151 Street
Miami, Florida 33128
CITY OF MIAMI .
444 SW 2" Ave
Miami, Fl. 33130
Attachment 1
Page 16 of 21
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 $25,000,000.00 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.COTJNTY: - $5,000,000.00 20%
PARTICIPANT:
CITY OF MIAMI: $20,000,000.00 80%
TOTAL OUTSTANDING: $25,000,000.00 •100%
Attachment •1
Page 17 of 2]
ATTACHMENT "1"
LOAN DOCUMENTS
c�•4sL�rj... :
M I A NI I-DADE
ADA Coordination
Agenda Cuordinauun
AnrmSI Services
Arl in Public Places
Budd am] Managamenl Services
Avie!inn
Budding
Budding Code Compliance
Business Development
Capital trnprosemrMs
Citizens' Independent Ttansponal inn Trust
Cornnrssir n on Ethics and Public Trust
Communications
Community Aetrbn Agency
Community & Economic Development
Community Relations
Consumer Services
Correttrons F Rehabilitation
Cultural AJtairs
• - Deacons
Emergency Ma rag amen!
Employee Relations
Empowerment Trust
Enterpme Technology Services
fnvironmenlal Resources Management
Fall Employment Praclrcei
Finance
Fire Rescue
General Services Administration
J•{islor,c PreSeeualiDn
Homeless Trust
Housing Agency
Housing Finance Authnri ty
Human Services
Independent Review Panel
mlema nano) Trade ConsonWm
Juvenile Services
Medical Examiner
Marra -Miami Actin. Plan
Metropolitan Planning grganiaanon
Park and Recreation
Planning and Zoninn
Police
Procurement Management
Prcpeny Appraisal
Pubfic. Library System
Public Works
Sale Neighborhood Parks
Seaport
Solid waste management
Strategic Business Management
Team Metro
• Transit
Task Force on Urban Economic Rev'aalization
Vizcaya Museum And Canteen
Water & Sewer
•
•
•
•
•
-Rac lArg*-
July 25, 2007
Olga Ramirez-Seijas
Assistant City Attorney
City of Miami
444 S.W. 2nd Avenue
Miami, Florida 33130
Community & Economic Development
140 West Flagler Street • Suite 1000
Miami, Florida 33130
T 305.375.3422 F 305.375-3428.
miamidade.gov
Re: Parrot Jungle and Gardens Document
Dear Ms. Ramirez-Seijas:
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, Ind. and the City of Miami •
$1.5 Minion 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.
Sincerelyf�,C
lrtt,i
Jose Cintrdn
Director
JC:Ic
Enclosures
c: 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
Page 18 of 21
ATTACHMENT "2"
Assumption of Loan Guarantee Assistance Liability and Pledge Agreement
Actachrnent 2
Page l 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 Aereernent;
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 Aggegate Principal. Amount of S25.000.000, 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'Ageement with initial capital fetters and not otherwise defined in the
text hereof shall uav: the respective meanings Sven thereto in the Note, The Fiscal Agency
Agreement and the Trust Agreement are sometimes collectively referred to herein as the
"Fiscal Agency/I-rust Agee_ments," 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
Government 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&1 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.
Attachment 2
Page2of14
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 liability under the Contract• for repayment of the
principal and interest of the Note, the Borrower agrees to remain liable to repay twenty
percent (20%) (i :C "Borrower's I':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 paraa_raph 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 paragraph 6 of this Agreement, the Borrower shall continue to pay to the
Fiscal Agent/Trustee, es collection agent for the Note, all 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 fails 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 Assurnptor'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 ageed to by any
Fiscal Agerit 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 Assu1.;ptor 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 paragaphs 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 inderimification 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.
3 -Z
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 gg.,_of the Contract or this
Agreement
(d) All proceeds (including insurance and condemnation proceeds) from any of the
foregoing.
(e) All funds or investments in the accounts established pursuant to paragraphs 3.
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 Agcnc) -Trust Agree,ttnts, 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•Govemment 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
10 share ownership of the Loan Repayment Account and the Loan Repayment Investment
Account, in accordance with their respective pro rata shares hereunder, although the
Attachment 2
Paee 5 of 34
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 Agreeinc•ot or the Fiscal Agency/Trust Agreements, or the purchase of
Government ob::ga::ans in accb:daice•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.
• $.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 die 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 thepledge.
3�
• Attachment 2
Page 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 concerning 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 timeiy•payment of principal and interest is guaranteed by; the United States of
America; includi,;g Lut, not Iimiteu 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.
(2) 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 2
. Page 7of11
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 1 ] (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 Ageement 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 Secretary to exec. iee remedial actions only against funds pledged by the
Assumptor or the Borrower, as applicable, under this Agreement.
I2.Remedial Actions. Upon aDefault 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 anyfunds 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
I O 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•AgentlTrustee 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 8of14
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. retraining 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 shalI•be designated 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 sender of an answer back; and (iv) if sent by telecopier, upon receipt.'
The Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster Director Financial Management Division
451 7th Street. SW. Room 7180
Washington. D.C. 20410
Borrower:
Miami -Dade County
311 NW I S' Street, 29'' Floor
Miami. Florida 33128
Attention: County Manager
With Copies to:
Miami -Dade County
Office of Community and Economic Development
Attention: Director
140 W. Fla21er
Miami. Florida 33130
Assumptor:
Attachment 2
Page 9 of ]4
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 Bon-ower 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,.
(b) Guaranteed Loan funds were used by the Borrower to make a loan to Parrot Juna]e &
Gardens, Inc. (the "Obligor"), which loan was evidenced by a promissory note (the
"Obligor Note") and a [ban 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 arid
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
Arathment 2
Page 10 of 14
of•a collateral assignment of leases and rents (the "Collateral Assigrunent of Leases
and Rents"). The Collateral Assignment of Leases and Rents is in a forrn,
acceptable to the Secretary. •
'(C) Any and•all rights; titles, -and interests•of.the .Obligor in and to any licenses,
permits, 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.
• (it) 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 form acceptable to the Secretary.
(C) The orig;,,a1 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 forrn acceptable to the Secretary. -
(D) The original recorded Collateral Assigrunent 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 Assigrunent•. of Interest in Licenses, Permits, and
Agreements and an assignment 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 terms, 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
terms.
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.
(f) An appraisal of the Obligor's Leasehold interest in the Property specifying an
estimate of fair market value of not less than S3I.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
assigunents 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 Secrett•ry may exercise or enforce any and all other rights or remedies
(includ.ing 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 Wants 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 1 l (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
(to
Attachment 2
Page 12of14
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]
Attachment 2
Page 13 or 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
( me) Cyr)-1-i11a. W. Curry
(Title) 11.5541.Cou.tt4. ( QY
(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)
c�v
Attachment 2
Page 14 of 19
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]
cf 5
Attachment 1
Page 19 of 21
ATTACHMENT "3"
. Estoppel Certificate Retarding the parrot Joule Loan and the Section 108 Loan
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•-Agreernent• 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 lean
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— S %b 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 assure eighty percent (8O%) 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 corlifrms to the
City the following:
1I. . The Section 10S 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) nonce
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.
96/Zts 39vd
K21.1601.1V AiWt i Tt55-SZC-SaE hZ: T /E11/89
II. 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 date set forth above.
Attest
By:
Clerk, Board of County
Commissioners
. Approved as to form and legal sufficiency:
Shannon D. Summerset
MIAMI DADE COUNTY
By:
eorge M..*gess
County Manager
ATTACH 3 -Estoppel on PJ and Senon 108 Loans
SCE/ECG 39Vd
/,3N6t7J.1'y Tt55-5LE-53: hZ:LT Le3,17EG/SCE
STATE OF FLORIDA
) SS:
COUNTY OF MIAMI-DADE )
Thyforegoing instrument was acknowledged before me this •3 day of
.; 2007 bYS1/544716 - • ; es /its': CO Ahn.„0,9f Miami -Dade
f
Coun y, on behalf of the county.
IN WITNESS WHEREOF, I have hereunto set my hand and seal in the County and State
aforesaid.
- 3 -
No b ic
Type, Print or Stamp Name
JUCIT8WARIX
• - COMMISSION CD 3e3894
EXPIRES: NmrctntO 12, 2CO2
&at-4 TIvr Km-, Pont' Urdanbeve
ATTACH 3 -Estoppel on Pi and Secron 108 Loans
90/Ve • 39Vd
A3geDilv
TT95-9a--..c0C t-Z:LT alU/E0/e0
EXHIBIT A
SECTION 108 LOAN DOCUMENTS
ATTACl•13 - Estoppel on P! and Secton 108 Loans
9B/SI? 3Dvd
t,3ld�ffj!1'w' h114fOC TiSS-SLE-SCE t' :LT LO0 /ECG/fi0
98/90 31:.)Vd
EXEIIBIT 93"
PARROT JUNGLE LOAN DOCUMENTS
A3N8011V IMOD
ATTACH 3 - Estoppel on PS and Serton 108 Loans
TTBS-PE.-2DE: 08 :LT Li3BZIEB/B13
Attest
ler ?oar runty
ommis.. s
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 Fr~s.Ss.'?, Lon , 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, Assigrunent 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
• SI,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'srci Day of eGOA'144 z4`
8. f pA • krp Z 'IIAMI-DADS COUNTY
p(cat,tvn�m•
� l�
4402/
•••::.••'`s4 ., • Bur_ess
ount Manager
Approved as•to form and legal sufficiency: •
B:
S annon D. Surmnerset
Attachment 1
Page 20 of 21
ATTACHMENT "4"
Estoppel Certificate Regarding the Other Loans
41-tacAntuAl .
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
"City'), 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 ($25,000,000.00) (the "Parrot Jungle Loan") to finance the development of a botanical
garden attraction located at Watson Island.
2. The County funded the Parrot Jungld Loan by virtue of a $25,000,000.00 loan
guaranteed by the United States Department of Housing and Urban Development ("USHUD")
which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June
14, 2000 (the "Section 108 Loan").
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,inconsideration 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:
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:
S1.5 Million Forgivable Loan
$1 MiIlion Loan
S4.7 Million Loan
II. The S1.5 Million Forgivable Loan:
I. 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 "$1.5 Million Forgivable Loan
Documents").
•
2. . The $1.5 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: S1,050,000.00, consisting of S1,05-0,000 of principal and $0 interest from through the
date hereof. Payment of the $1.5 Millidn 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 i.ts obligations per the Developinent.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 pr 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 $1 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 $1 Million Loan (the "S1 Million Loan Documents").
2. The $1 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 $1 Million Loan is:
$981,940.04, consisting of $945,041.49 of principal and $36,898.56.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 $1 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."$4.7 Million Loan•Documents").
2. The $4.7 Million Loan Documents have not been modified, altered of amended.
3. As of the date hereof, the outstanding balance of the $4.7 Million Loan is:
$4,701,782.00, consisting of $ 4,701,782.00 of principal and $0 interest from July 2006 through
July 1, 2014. Payment of the S4.7 Million Loan is to commence in July l; 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) occurrence.or event or circumstance
which, with notice or lapse of time would become a default, under the $4.7 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 aipo.ve,.,. s
CO Cve i f a' •
f U'TY Z
Attest , N �t.� nl .
4., 1.
By:
Clerk oarunty
one
Approved as to form and legal sufficiency:
By:
Shannon D. Summerset
`
,yJ
STATE OF FLORIDA )
) SS:
COUNTY .OF•MIAMI-DADE )
-3-
MLAMI DADE COUNTY
By:
George : urgess •
Count Manager
PJ ATTACH 4 - Estoppel on County Loans 822007
The foregoing inst mei}t -was acknowledged before me this 3 day of
, 2007 by CtJ +'KA.- ". a'iy , of Miami -Dade
Coun`fy, on behalf of the county.
IN WITNESS WHEREOF, I••have hereunto•set my hand and seal in the County and State
aforesaid.
,
hT ublic
`gem
• Type, Print or Stamp Name
-4-
- JUDItH MCBRIDE
;rY MY COMMISSION I< DD 353884
aE,2003
t iTry 'jk, µttea
PJ. ATTACK 4 - Estoppel on County. Loans .B220.0..7.
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
AMENDMENT TO DEVELOPMENT AGREEMENT
THIS AMENDMENT TO DEVELOPMENT AGREEMENT (this "Agreement")
is entered into as of the 3_rat 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 MI.AMI, 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 j'une 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 terms 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 resp.ective pro rata shares, the payments due on the
Section 108 Loan comrnencing.with 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 $I7,277,403 (the "Deferred Amount").
10. Under the terms of the Development Agreement Maker promised to make
payments totaling $2 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 ofthe 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 _?'arrot Jungle Loan shall continue throughout the temp of the Parrot
Jungle Loan but, shall ;:;;tend to. the Deferred Amount only 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 terns 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 "$25
Million Loan Amortization Schedule").
(c) The Deferred Amount shall become due and payable on August I, 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 $362,957.97.
(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 S 183,253.67.
(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
Payrnents 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 $2 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
terns. 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 ?gave executed .this Agreement the day and year
first above written.
• PARROT JUNGLE AND
GARDENS OF WATSON
ISLAND, INC., a Florida
corporation
By: ✓Z
Name: B-'�rrd 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]
Approved as to forin and substance:
(3t.
Print Name: 4-
Title: Lk,
Approved as to form and substance:
Print Name:
Title:
. MIAMI-DADE COUNTY
CITY. OF MIAMI
By:
City Manager
5
OFFICIAL TILE COPY
CLERK OFT$E BOARD
O'F COUNTY COMMISSSO'."+ERS
LAMI-DADE covi `I1`, FLORIDA
Date: July 7, 2011
MI AMI E 4DE
Memorandum cic!trl
To: Honorabie Chairman Joe A. Martinez
and Members, Board of ounty Commissioners
From: Alina T. Hudak
County Manager
Subject: Resolution Authorizing Refinance of the US HUD Section 108 Promissory Notes for Loan
Guarantee Assistance
Agenda Item No. 8 (K) (1) (A)
Resolution No. R-531-11
Recommendation
It is recommended that the Board of County Commissioners (Board) adopt the attached resolution
authorizing the County. Mayor or the County Mayor's designee to refinance the Section 108 Loans
between Miami -Dade County (County) and US Department of Housing and Urban Development (US
HUD) whenever US HUD offers refinancing opportunities provided that the refinancing generates net
present value savings of five percent or more (inclusive of issuance and other costs to refinance) and the
final maturity of the refinancing is not longer than the current maturity.
US HUD periodically offers a Section 108 borrower, like the County, an opportunity to refinance
outstanding debt; however, time is of the essence as the timeframes to take advantage of these offers
are typically very short. This resolution authorizes the County Mayor or County Mayor's designee to
refinance these _loans provided it is in the best interest of the County and that there is a net economic
benefit to the County, and to report to the Board when such transactions occur. Refinancing the existing
Section 108 US HUD debt Certificates will result in significant interest savings to the following loan
portfolios:
1. Parrot Jungle Gardens and Watson Island (Series HUD 2000-A)
2. Targeted Urban Areas (TUA) Revolving Loan Fund (Series HUD 2001-A, Series HUD 2004-A,
and Series HUD 2006-A), and
3. Brownfield Revolving Loan Fund (Series HUD 2001-A).
Staff will provide the Board with a report with the details of the transactions when any of these loan
portfolios are refinanced.
Scope
The scope of this item is countywide. Miami -Dade County's Section 108 loan portfolio comprises
commercial loans made to businesses located throughout Miami -Dade County.
Fiscal Impact/Funding Source
The current Section 108 portfolio Includes three separate loan portfolios within Miami -Dade County's
Section 108 Loan Guarantee Program with an initial principal value of $54 million of which $37 million in
principal is outstanding. Miami -Dade County entered into loan agreements with US HUD for Section 108
funds to support commercial growth activities countywide and is required to make the debt service
payments to US HUD. The attached Table 1 summarizes the three Section 108 loan portfolios. The
principal and interest on the new notes sold shall be payable from the repayments of the outstanding
Section 108 loans.
If the County refinances these loans in accordance with the net present value savings required under this
resolution, the County will realize significant savings in interest payments on these loans. From time to
time, US HUD offers the opportunity for Section 108 borrowers to refinance their Section 108 loans.
Background
The Section 108 Loan Guarantee Programis authorized under the Housing and Community
Development Act of 1974 as part of the Community Development Block Grant (CDBG) Program and
Honorable Chairman Joe A. Martinez
and Members, Board of County Commissioners
Page 2
offers local governments a source of financing for economic development, large-scale public facility
projects, and public Infrastructure. US HUD sells bonds on the private market and uses the proceeds to
fund Section 108 loans through state and local governments. The local government may loan the funds,
which must be repaid to US HUD, to third parties to undertake eligible CDBG activities (typically
economic development). US HUD uses future CDBG allocations to jurisdictions as secondary security
(loan guarantee) for the loan to the local government.
From time to time, US HUD offers recipient jurisdictions an opportunity to refinance outstanding debrbut
the timeframe to take advantage of these offers are typically very short. Given the time required for
legislative approval and negotiations between the parties, this item will authorize staff to refinance these
loans provided that there is a net economic benefit to the County with net present value savings of five
percent or more as required under this resolution and Resolution R-1313-09. it is important to note that
in the case of the Parrot Jungle Gardens and Watson island (Series HUD 2000-A) loan, the refinancing
will also require the prior input and negotiations with the City of Miami. Staff will report with the details of
the transactions to the Board, including the net present value savings of the refinancing and the final
maturity.
The following is a background on the three loan portfolios.
Parrot Jungle Gardens and Watson island
In the fall of 1997, Miami -Dade County was approached by Parrot Jungle Gardens -and Watson island
(PJG), now known as Jungle Island, for the purpose of seeking financial assistance through the US HUD
Section 108 Loan Program. The assistance was being requested to facilitate the relocation of the PJG
attraction from its long-time home in South Dade to a new location on Watson Island in the City of Miami.
Miami -Dade County obtained a $25 million US HUD Section 108 Loan to make a loan to PJG for the
relocation and expansion of the attraction. In addition to its collateral for the loan to PJG, the County has,
as required by US HUD, pledged its current and future CDBG funds as the ultimate source of repayment
for this obligation. However, the BCC directed that no CDBG funds can be used to address the non-.
payment from PJG to the County for the Section 108 loan. As the BCC is aware, the County and PJG
have entered into agreements for the repayment of funds the County has advanced on behalf of PJG. In
addition, the County, City and PJG signed a Joint Participation Agreement agreeing that the County and
City would repay this loan to US HUD on a 20 percent to 80 percent proration, respectively through
August 2011. As such, the refinancing of this loan portfolio will require that the County amend or execute
agreements with US HUD and the City.
TUA Revolving Loan Fund
Through the adoption of Resolution R-1318-97, $40 million of Miami Dade County's Section 108 Loan
program was reserved for the exclusive use and purpose of implementing the Task Force on Urban
Economic Revitalization's (UERTF) Urban Economic Revitalization Plan that would generate and benefit
urban economic development within the County's designated TUAs. Subsequent to the adoption of the
Resolution and the preparation of the UERTF's initial Urban Economic Revitalization Plan, the Board
adopted Ordinance 99-94 which authorized the submission of an application to USHUD for a Section 108
Loan in the amount of $40 million for the sole purpose of creating a revolving loan fund.
Based on the pledge of the County's CDBG allocation, the eligibility requirements for projects to be
funded through the TUA revolving loan fund were designed to limit the County's participation under the
program to the most appropriate and viable projects in need of "gap" financing. Eligible uses of the funds
included the purchase of machinery and equipment, real estate or long-term working capital. The
maximum loan amount per project could range up to an amount not to exceed 20 percent of total project
costs or $5 million. Loans were limited to businesses operating within or planning to operate within the
TUAs.
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER
SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT
OF 1974, AS AMENDED, 42 U.S.C. 55308
For Series HUD 2011-A Certificates
This Contract for Loan Guarantee Assistance ("Contract") is
entered into by the. Miami -Dade County, Florida, as Borrower .(the
"Borrower"), 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 executed
contemporaneously herewith and numbered B-98-UC-12-0006, in the
Aggregate Principal Amount of $15,560,000; and any amended note .
or note issued in substitution for such note and having the same
note number (the "Note"). This is one of multiple Contracts under
the Funding.Approval ("Commitment") of the same number, which was
approved by the -Secretary .on April 26, 1999. Such Aggregate
Principal Amount will be paid or credited to the account of the
Borrower pursuant hereto (including any funds used to pay off
prior interim notes refinanced by the Note), and all such amounts
are collectively referred to herein as the "Guaranteed Loan
Funds." The Note (including the Fiscal Agency Agreement. and the
Trust Agreement as defined in the Note and incorporated therein)
is hereby incorporated into the Contract. Terms used in the
Contract with initial capital letters and not otherwise defined
in the text hereof shall have 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 are sometimes collectively referred to as the "Fiscal
Agent/Trustee."
PART I
A. The Note. The Note is payable to the Trustee as Registered
Holder. On the Public Offering Date, it is expected that
trust certificates backed by the Note and similar notes
issued by other.Section 108 borrowers, denominated "Section
108 Government Guaranteed Participation Certificates Series
HUD 2011-A," will be purchased for a purchase price of the
full Aggregate Principal Amounts thereof.by underwriters
selected by the Secretary (the "Underwriters`.') pursuant to
an Underwriting Agreement between the Underwriters and the
Secretary, at a closing on such Public Offering Date as
determined by the Secretary and the Underwriters,. The .
Borrower agrees that the interest rate at which the trust
certificate of a specified maturity is sold to the
Underwriters shall be the interest rate inserted on the
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
2
Public Offering Date in Schedule P&I of the Note for the
Principal'Amount of corresponding maturity. The Note shall
be effective as an obligation of the Borrower only upon its
delivery by the Secretary to the Fiscal Agent/Trustee and
sale to the -Underwriters at the closing on the Public
Offering Date. The Borrower authorizes the Secretary to
deliver the Note, together with the Secretary's Guarantee
thereof, to the Fiscal Agent/Trustee as of such closing on
the Public Offering Date, in accordance with the Fiscal
Agency/Trust Agreements. After the Public Offering .Date, the.
Borrower agrees 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.
B. Consents. By execution of this Contract, the Borrower
ratifies and consents to the Secretary's selection of the
Underwriters and authorizes the Secretary to negotiate with
the Underwriters theterms of the Underwriting Agreement and
of the public offering of. interests in the trust certificates
to investors (including the applicable interest rates). In
addition, by execution hereof the Borrower ratifies and
consents to the Secretary's selection of the Fiscal
Agent/Trustee and agrees to the_ respective terms of the
'Fiscal Agency/Trust Agreements.
C Prior Contracts. As of the date of the Secretary's Guarantee
of the Note, this Contract supersedes any prior Contract for
Loan Guarantee Assistance entered into between the parties
with respect to the Guaranteed Loan Funds, the terms of the
Secretary's Guarantee, and any other matter covered by this
Contract, provided that any such prior Contract continues to
govern any action taken by the Borrower or the Secretary
pursuant thereto and prior to the Secretary's Guarantee of
the Note (except for the provisions of paragraph 4 of this
Contract). Notwithstanding the preceding sentence, if such
prior Contract contained provisions forsecurity for the
benefit of the Secretary in addition to the security
identified in paragraphs 5(a), 5(b), 5(d), or 5(e) hereof,
which security may be generally set forth or incorporated in
paragraph 5(c) (and any related provisions incorporated in
paragraph 12) of such prior Contract, or may be set forth in
paragraph 15 or any succeeding paragraphs (including related
provisions incorporated in paragraph 12) of such prior
Contract, such additional security provisions of the prior
Contract are hereby incorporated in this Contract and shall
be deemed a part hereof.
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
PART II
3
1. Receipt, Deposit and Use of Guaranteed Loan Funds.
(a) Except for fees and charges deducted on the Public
Offering Date pursuant to paragraph 4(a) by the Fiscal
Agent/Trustee, or funds used to pay off any interim note
refinanced by the Note, the Guaranteed Loan Funds shall be
electronically transferred in accordance with the Borrower's
instructions for deposit in a separate, identifiable
custodial account (the "Guaranteed Loan Funds Account") with
a financial institution whose deposits or accounts are
Federally insured. The• Guaranteed Loan Funds Account shall be
established and designated as prescribed in the attached form
document entitled "Letter Agreement for Section 108 Loan
Guarantee Program Custodial Account" (Attachment 1) and shall
be continuously maintained for the Guaranteed Loan Funds.
Such Letter Agreement must be executedwhen the Guaranteed
Loan Funds Account is established. (A fully executed copy of
such Letter Agreement shall be submitted to the Secretary
within thirty days of its execution.)
The Borrower shall make withdrawals from said account only
for payment of the costs of Section 108 activities approved
by HUD, for transfer to the Loan Repayment Account or for the
temporary investment of funds pursuant to this paragraph
1(a). Such temporary investment of funds into the Guaranteed
Loan Funds Investment Account shall be required within three
Business Days after the balance of deposited funds exceeds
the amount of the Federal deposit insurance on the Guaranteed
Loan Funds Account. At that time, any balance of funds in the
Guaranteed Loan Funds Account exceeding such insurance
coverage shall be fully (100%) and continuously invested in
Government Obligations, as defined in paragraph 10 hereof,
held in the Guaranteed Loan Funds Investment Account.
All temporary investments, whether or not required as above,
shall.be limited to Government Obligations having maturities
that are consistent with the cash requirements of the
approved activities. In no. event shall the investments mature
on or after N/A • , or have maturities which
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 "Guaranteed Loan Funds
Investment Account") established and designated as prescribed
in the attached form document entitled "Letter Agreement for
Section 108 Loan Guarantee Program Custodial Investment
Account" (Attachment 2), which account shall be maintained
for all Government Obligations purchased with funds from the
Guaranteed Loan Funds Account. The Guaranteed Loan Funds
Investment Account need only be established if and when the
Borrower is required to invest, or otherwise invests, the
Guaranteed Loan Funds in Government Obligations. Such Letter
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
4
Agreement must be executed when the Guaranteed Loan Funds
Investment Account is established. (A fully executed copy of
such Letter Agreement shall be submitted to the Secretary
within thirty days of its execution.) All proceeds.and income
derived from such investments shall be returned to the
Guaranteed Loan Funds Account.
All funds in the Guaranteed Loan Funds Account or the
Guaranteed Loan Funds Investment Account must be withdrawn
and disbursed by the Borrower for approved activities by
N/A . Any funds remaining in either Account after
this date shall be immediately transferred to the Loan
Repayment Account established pursuant to. paragraph 6 of this
Contract.
(b) The 'Borrower shall by the fifteenth day of each month
provide the Secretary with a written statement showing the
balance of funds in the Guaranteed Loan Funds Account and the
•withdrawals from such account during the preceding calendar
.month, and a statement identifying the obligations and their
assignments in the Guaranteed Loan Funds Investment Account,
until such Accounts are fully disbursed:
(c) Upon the Secretary giving notice that the Borrower is in
Default under this Contract or the Note, all right, title,
and interest of the Borrower in and to the Guaranteed Loan
Funds and Guaranteed Loan Funds Investment Accounts shall
immediately vest in. the Secretary for use in making payment
on the Note, purchase of Government Obligations in accordance
with paragraph 10, or payment of any other obligations of the
Borrower under this Contract or the Fiscal Agency/Trust
Agreements, in each case as elected by the Secretary in his
sole discretion.
2. Payments Due on Note. The Borrower shall pay to the Fiscal
Agent/Trustee, as collection agent for the Note, all 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. (New 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. Payment may be made by check or
wire transfer.
Upon final payment of all amounts due to Holders under the
Note, including any payment made by the Secretary pursuant to
the Guarantee, the Fiscal Agent/Trustee is required by the
Fiscal Agency/Trust Agreements to return the Note to the
Secretary. Upon final payment to the Secretary of any amounts
due as a result of Guarantee Payments or otherwise due under
this Contract, the Secretary will cancel and return the Note
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
to the Borrower in discharge of the Borrower's obligations
under the Note.
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 hereby consents 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 Contract.
4. Payments Due Fiscal.Agent or Trustee; Documents• to the
Secretary.
(a) The Borrower agrees to pay the Borrower's share, as
determined by the Secretary, of the customary and usual
issuance,.underwriting, and other costs related to the public
offering and future, administration of the Note and the trust
certificates, as approved by the Secretary, including the
cost of reimbursement and/or compensation of the Trustee
pursuant to the Trust Agreement, including Sections 3.11 and
7.01 thereof. In connection with the public offering, such •
payment shall either be made. by wire transfer to the Trustee
on the day prior to the Public Offering Date or shall be
deducted from the Guaranteed Loan Funds on the Public -
Offering Date.
(b) The Borrower shall submit to the Secretary not later
than twelve (12) Business Days prior to the Public Offering
Date applicable to the Note, this executed Contract, the
executed Note, and an opinion acceptable to the Secretary
from the'Borrower's counsel to the effect that: (i) the
governing body of the Borrower has authorized by resolution
or ordinance, in accordance with applicable State and local
law, the issuance of the Note and -the execution of this .
Contract; (ii) the Note and this Contract are valid, binding,
and enforceable obligations of the Borrower; (iii) the pledge
of funds pursuant to 24 CFR §570.705(b)(2) and paragraph 5(a).
of this.Contract is valid and binding; and (iv) there is no
outstanding litigation that will affect the validity of the
Note or this Contract. In addition, the Borrower shall submit
'any other additional documents or opinions specifically
required by this Contract (e_.g., paragraph 5(c), or paragraph
15, et seq.), at the time required thereby.
(c) The Borrower agrees to reimburse the Underwriters upon
demand by the Secretary for the Borrower's share, as.
determined by the Secretary, of all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of
counsel) incurred in connection with a proposed public
offering, if the Underwriters incur such additional costs for
the public offering because the Borrower withdraws from the
offering within ten Business Days of the Public Offering
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing* 6
Date, or if the Borrower fails forany reason timely to
submit in acceptable form any document required by this
Contract (including paragraph 4(b)) to be submitted before
the Public Offering Date. By execution and delivery of this
Contract to the Secretary, the Borrower hereby expressly
authorizes the Secretary to pay amounts due under this
paragraph from funds pledged under paragraph 5(a) of this
Contract.
(d) The undertakings in paragraphs 3 and 4 of this Contract
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 from any source other than
funds or other security phedged pursuant to paragraphs D (if
applicable), 5, or 15, et seq., of this Contract..
5. Security. The Borrower hereby pledges as security for
repayment of the Note, and such other charges as may be
authorized in this Contract, the following:
(a). All allocations or grants which have been made or for
which the Borrower may become eligible under Section 106 of
the Act, as well as any grants which are or may become.
available to the Borrower pursuant to Section 108(q).
(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., or
incorporated herein by paragraph D hereof, as applicable.
(d) All proceeds (including insurance and condemnation
proceeds) from any of the foregoing.
(e) All funds or investments in the accounts established
pursuant to paragraphs 1 and 6 of this Contract.
6. Loan Repayment Account.
(a) All amounts pledged pursuant to paragraphs 5(b), 5(c),
and 5(d) of this Contract shall be deposited immediately on
receipt in a separate identifiable custodial account (the
"Loan Repayment Account") with a financial institution whose
deposits or accounts are Federally insured. The Loan
Repayment Account shall be established and designated as
prescribed in the attached form document entitled "Letter
Agreement for Section 108 Loan Guarantee Program Custodial
Account" (Attachment 1) and shall be maintained for such
pledged funds. The Loan Repayment Account need only be
established if and when the Borrower receives amounts pledged
pursuant to paragraph 5(b), 5(c) or 5(d). Such Letter
7
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
Agreement must be executed when the Loan Repayment Account is
established. (A fully executed copy of such Letter Agreement
shall be submitted to the Secretary within thirty days of its
execution.) 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 in
accordance with paragraph 10 hereof), for payment of any
other obligation of the Borrower under this Contract or the
Fiscal Agency/Trust Agreements, 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 abov.ei.
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
event 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")
established and designated as prescribed in the attached form
document entitled "Letter Agreement for Section 108 Loan
Guarantee Program Custodial. Investment Account" (Attachment
2), which account shall be maintained for all Government .
Obligations purchased with funds from the Loan Repayment
Account. Such Letter -Agreement -must be executed when the Loan
Repayment Investment Account is established. (A fully
executed copy of such Letter Agreement shall be submitted to
the Secretary within thirty days of its execution.) All
proceeds and income derived from such investments shall be
returned to the Loan Repayment Account.
(b) Borrower shall by the fifteenth day of each month,
provide the Secretary 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, forany month in which there are funds in
such Accounts.
(c) Upon the Secretary giving notice that the'Borrower is in
Default under this Contract or the Note, all right, title,
and interest of the Borrower in and to the Loan Repayment: and
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
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
paymentof any other obligation of the Borrower under this
Contract or the Fiscal Agency/Trust Agreements, in each case
as elected by the Secretary in his sole discretion.
7 Use of CDBG, EDI or BEDI Funds for Repayment. Any funds
available to the Borrower under Section 106 of the Act
(including program income derived therefrom) are authorized to
be used by the Borrower for payments due on the Note, Optional
Redemption (as defined in the Note), payment of any other
obligation of the Borrower under this Contract or the Fiscal
Agency/Trust Agreements, or the purchase of Government
Obligations in accordance with paragraph 10. Any funds
specifically available to the Borrower for such payments or as a
debt service reserve under an EDI Grant Agreement pursuant to
Section 108(q) of the Act which supports the eligible project(s)
and activities financed by the Note may also be used therefor;
any other use of Section 108(q) funds for such purposes shall
require the prior written approval of the Secretary. 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.
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 Contract are unlikely to
be made as specified, the Secretary may give the Borrower notice
that the availability to the Borrower of funds pledged under
paragraph 5(a) of this Contract 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. 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 Borrower's ability to draw down or
expend the restricted funds for other purposes, and by
disapproving payment requests submitted with respect to such
grants for purposes other than satisfaction of the pledge.
9. Secretary's Right to Use Pledged Funds for Repayment. The
Secretary may use funds pledged under paragraph 5(a) of this
Contract or funds restricted under grants pursuant to paragraph
8 of this Contract to make any payment required of the Borrower
under paragraph 2 and/or paragraph 4, if such payment has not
been timely made by the Borrower.
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*-
9
10 Defeasance. For purposes of this Contract, the Note shall be
deemed to have been paid (defeased) if 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 both HUD and the Borrower.
In accordance with the Note and the Trust Agreement, the
Borrower shall give timely notice and written instructions to
the Secretary and the Trustee concerning 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 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 but not limited 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
$100,000,000.
11..Default.
(a) A Default under the Note and this Contract shall occur
upon failure by the Borrower to:
(i) pay when due an installment of principal orinterest
on the Note; or (ii) punctually and properly perform,
observe, and comply with any covenant, agreement, or
condition contained in: (A) this Contract, (B) any
security agreement, deed of trust, mortgage, assignment,
guarantee, or other contract 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 waives notice of Default and opportunity
for hearing with respect to a Default under paragraph 11(a).
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
10
(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 requirements for reasonable notice and
opportunity for hearing, that the Borrower has failed to
comply substantially with title I of the Act. Notwithstanding
any other provision, following the giving of such reasonable
notice, the Secretary may, in the Secretary's sole discretion
pending the Secretary's final decision, withhold the
guarantee of any or,al1 obligations not yet guaranteed on
behalf of the Borrower under outstanding commitments, and/or
direct the Borrower's financial institution to: refuse to
honor any instruments drawn upon, or withdrawals from, the
Guaranteed Loan Funds Account or the Loan Repayment Account
.initiated 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.
12. Remedial Actions. Upon a Default or declaration of Default
under this Contract, the Secretary may, ih the Secretary's sole
discretion, take any or all of the following remedial actions:
(a) With any funds or security pledged under this Contract, 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 Contract, (iv) pay any
interest due for late payment as provided in the Note, this
Contract, or the Fiscal Agency/Trust Agreements, .(v) pay any
other obligation of the Borrower under this Contract 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 Borrower's Default.
(b) The Secretary may withhold the guarantee of any or all
obligations not yet guaranteed or the disbursement of any or all
grants not yet disbursed in full under outstanding guarantee
commitments or grant approvals for the Borrower under Sections
108 and/or 106 of the Act.
(cy 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 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.
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
11
(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 Contract, 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.
(f) All notices and submissions provided for hereunder shall be
in writing (including by telex, telecopier or any other form of
facsimile communication)..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 designated 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 the sender of an answer back; and (iv) if.
sent by telecopier, upon confirmed receipt.
The Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster, Director '
Financial Management Division
451 7th Street SW, Room 7180
Washington, DC' 20410
Borrower:
Miami -Dade County
Attention:. County Mayort
111 NW 1" Street, 29th Floor
Miami, FL 33128
Copy to:
Miami -Dade County Attorney's Office
Attention:.Brenda Kuhns Neuman
111 NW 1' Street, Suite 2810
Miami, FL 33128
13. Limited Liability. Notwithstanding any other provision of this
Contract, the Fiscal Agency/Trust Agreements or the Note, any
recovery against the Borrower for any liability for amounts due
pursuant to the Note, the Fiscal Agency/Trust•Agreements.and
12
this Contract shall be limited to the sources of security
pledged in paragraphs D, 5, or any Special Conditions of this
Contract, as applicable. Neither the general credit nor the
taxing power of the Borrower, or of the State in which the
Borrower is located, is pledged for any payment due under the
Note, the Contract, or the Fiscal Agency/Trust Agreements.
14. Incorporated Grant Agreement. The Contract 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 agrees to comply with the Act and
24 CFR Part 570, as provided in Subpart M thereof.
15. Special Conditions and Modifications:
(a) The Guaranteed Loan Funds shall be used only to prepay
principal amounts payable on or after February 1, 2012,
under that certain promissory note issued by the
Borrower and identified as Note Number
B-98-UC-12-0006, Series 2000-A. The Guaranteed Loan
Funds shall be deposited in a defeasance account
established with the Trustee pursuant to the Contract
for Loan Guarantee Assistance executed in connection
with the issuance of such promissory note. The .
Borrower agrees to pay to the Trustee moneys in an
amount equal to the amount of the payment to become due
on such promissory note on February 1, 2012 for deposit
in such defeasance account. Such payment shall be in
addition to any payment required under paragraph 4(a)
of this Contract and shall be made by wire transfer to
the Trustee on the day prior to the Public Offering
Date. In addition to the Secretary's rights under
paragraph 9 of this Contract, the Secretary may use
funds pledged under paragraph 5(a) of this Contract or
funds restricted under grants pursuant to paragraph 8
of this Contract to make any payment requiredof the
Borrower under this paragraph 15(a), if such payment
has not been timely made by the Borrower.
(b) Additional Grounds for Default. Notice of Default.
Restriction of Pledged Grants. Availability of Other
Remedial Actions.
(i) The Borrower acknowledges and agrees that the
Secretary's guarantee of the Note is made in
reliance upon the availability of grants pledged
pursuant to paragraph 5(a) (individually, a
"Pledged Grant" and, collectively, the "Pledged
Grants") in any Federal fiscal year subsequent to
the Federal fiscal year ending September 30, 2012
Contract for Fixed Rate Note, Entitlement, 8-16-11 *Defeasing*
13
to: (A) pay when due the payments to become due on
the Note, or (B). defease (or, if permitted,
prepay) the full amount outstanding on the Note.
The Borrower further acknowledges and agrees that
if the Secretary (in the Secretary's sole
discretion) determines that Pledged Grants are
unlikely to be available for either of such
purposes, such determination shall be a
permissible basis for any of the actions specified
in paragraphs (ii) and (iii) below (without notice
or hearing, which the Borrower expressly waives).
(ii) Upon written notice from the Secretary to the
Borrower at the address specified in paragraph
12(f) above that the Secretary (in the Secretary's.
sole discretion) has determined that Pledged
Grants are unlikely to beavailable for either of
the purposes specified in (A) and (B) of paragraph
(i) above (such notice being hereinafter referred
to as the "Notice of Impaired Security"), the
Secretary may limit the. availability of Pledged
Grants by withholding amounts at the time a
Pledged Grant is approved or by disapproving
payment requests (drawdowns) submitted with
respect to Pledged Grants.
(iii) If after 60 days from the Notice of Impaired
Security the Secretary (in the Secretary's sole
discretion)_determines that Pledged Grants are
still unlikely to be available for either of the
purposes specified in .(A) and (B) of paragraph (i)
above, the Secretary may declare the Note in
Default and exercise any and all remedies
available under paragraph 12. This paragraph
(iii) shall not affect the right of the Secretary
to declare the Note and/or this Contract in
Default pursuant to paragraph 11 and to exercise
in connection therewith any and all remedies
available under paragraph 12.
(iv) All notices and submissions provided for hereunder
shall be .submitted as directed in paragraph 12(f)
above.
[Rest of Page Intentionally Left Blank]
Contract for Fixed Rate Note; Entitlement, 8-16-11 *Defeasing*
THE UNDERSIGNED, as authorized officials on behalf of the
Borrower or the Secretary, have executed this Contract for Loan
Guara)Ztee Assistance, which shall be effective upon delivery of
the Note and Guarantee: as of the Public Offering Date (except
that paragraphs 4 and 15(a) hereof shall be effective when this
Contract is executed on behalf of the Borrower and delivered to
the Secretary).
Miami -Dade County, FL
BORROWER
Edward Marquez
(Name)
Deputy Mayor
14
(Title)
/D/?� "
(Dat )
SECRETARY OF HOUSING AND URBAN
DEVELO
l
BY:
(Signature)
Yolanda Chavez
(Name)
Deputy Assistant Secretary
for Grant Programs
(Title)
NOV 17 2011
(Date)
Honorable Chairman Joe A. Martinez
and Members, Board of County Commissioners
Page 3
Due to initial expressions of interest in obtaining funding through the RLF from the community, the County
requested an initial draw down on August 10, 2001 for $10 million.
The County drew down an additional $6.3 million and $10.303 million for a total of $16.603 million, from
the US HUD Section 108 Program. While these notes are not currently available to be refinanced, it is
recommended that the BCC authorize the County Mayor or the County Mayor's designee to initiate and
undertake the refinancing process of the Section 108 Loans between the County and US HUD to retire
existing debt for Series 2004-A and 2006-A Certificates as the opportunity becomes available. As
mentioned above, the County will take the opportunity to refinance the Section 108 loan portfolio only if
the County can generate net present value savings of five percent or more, inclusive of issuance and
other costs to refinance.
Brownfield Revolving Loan Fund
On July 27,1999, Ordinance No. 99-95 authorized the County Manager to apply to the US Department of
Housing and Urban Development for a Section 108 Loan Guarantee to provide affordable fixed rate
financing to qualified eligible borrowers for site clean-up, rehabilitation and redevelopment of Brownfield
sites. The County was awarded a $5,000,000 loan, with a grant of $1,750,000. On August 9, 2001, the
County drew down $2,500,000 as well as $1,100,000 in grant funds, to be used as an interest reserve for
the Loan Fund.
Additional Information
The following conditions apply if the BCC chooses to participate in the US HUD upcoming debenture
offering:
• The new promissory note will not be pre -payable for the remaining period of the loans, but they
can be defeased at any time.
• The County will have to pay issuance costs on the new loans, which will probably be in the range
of 0.5 of one percent of the loan amounts; the County can use CDBG funds to pay these costs.
• Fundamental terms of the new promissory notes must be exactly the same as the existing
promissory notes (for example, the principal payment schedules will remain the same and the
security provisions of the existing notes will apply to the new notes).
• If these Section 108 Notes were issued to third -party borrowers, the County should discuss the
refinancing option with the third -party entities and see if the option will work for all parties.
• To enable the refinancing, the County may need to defease the existing note by depositing cash
is with the Section 108 Trustee sufficient to pay all amounts due.
Assistant Cou anager
3
Section 108 Loan Portfolio
Parrot Jungle Gardens
and Watson Island
(Series HUD 2000-A)
TUA Revolving Loan
Fund
(Series HUD 2001-A)
Brownfield Revolving
Loan Fund
(Series HUD 2001-A)
TUA Revolving Loan
Fund'
(Series HUD 2004-A)
TUA Revolving Loan
Fund'
(Series HUD 2006-A)
Total
Original Principal
$25,000,000
$10,000,000
$2,500,000
$6,300,000
$10,303,000
$54,103,000
Oricgina1Interest2
25,046,602
6,738,514
1,696,475
5,102,565
7,665,338
46,249,494
Total Original P&I
$50,046,602
$16,738,514
$4,196,475
$11,402,565
$17,968,338
$100,352,494
Remaining Principal2
$15,560,000
$5,274,000
$1,327,000
$5,600,000
$9,853,000
$37,614,000
Remaining interest2
5,513,842
1,791,378
456,619
2,511,530
4,940,751
15,214,120
Remaining P&I
$21,073,842
$7,065,378
$1,783,619
$8,111,530
$14,793,751
$52,828,120
1— The $6.3 million in Series HUD 2004-A will be eligible for refinancing In 2014 and $10.303 million in Series HUD 2006-A will be eligible in 2016.
2— Remaining principal and interest payments assume all payments beginning February 1, 2012.
MEMORANDUM
(Revised)
TO: Honorable Chairman Joe A. Martinez DATE: July 7, 2011
and Members, Board of County Commissioners
FROM: R. A. Cuevas, Jr.
County Attorney
SUBJECT: Agenda Item No. 8(K) (1) (A)
Please note any items checked.
"3-Day Rule" for committees applicable if raised
6 weeks required between first reading and public hearing
4 weeks notification to municipal officials required prior to public
hearing
Decreases revenues or increases expenditures without balancing budget
Budget required
Statement of fiscal impact required
Ordinance creating a new board requires detailed County Manager's
report for public hearing
No committee review
AppIicable legislation requires more than a majority vote (Le., 2/3's
3/5's , unanimous ) to approve
Current information regarding funding source, index code and available
balance, and available capacity (if debt is contemplated) required
Approved Mayor Agenda Item No. 8 (K) (1) (A)
Veto 7-7-11
Override
RESOLUTION NO.
R-531-11
RESOLUTION AUTHORIZING THE COUNTY MAYOR OR COUNTY
MAYOR'S DESIGNEE TO INITIATE AND UNDERTAKE THE
REFINANCING PROCESS FOR THE EXISTING SECTION 108
LOANS BETWEEN MIAMI-DADE COUNTY AND THE UNITED
STATES DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT AS THE OPPORTUNITY BECOMES AVAILABLE
GIVEN THE REFINANCING GENERATES NET PRESENT VALUE
SAVINGS OF FIVE PERCENT OR MORE AND FINAL PROPOSED
MATURITY IS NOT LONGER THAN CURRENT MATURITY;
AUTHORIZING THE COUNTY MAYOR OR COUNTY MAYOR'S
DESIGNEE TO EXECUTE ANY NECESSARY AGREEMENTS WITH
US HUD, CITY OF MIAMI, AND OTHER PARTIES
WHEREAS, it is in the best interest of the County to refinance the existing Section 108
loans accompanying the Contracts for Loan Guarantee Assistance with the US Department of
Housing and Urban Development (US HUD); and
WHEREAS, this Board desires to accomplish the purposes outlined in the accompanying
memorandum, a copy of which is incorporated herein by reference,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that this Board authorizes
the County Mayor or the County Mayor's designee to initiate and undertake the refinancing of
the Section 108 loans, accompanying the Contracts for Loan Guarantee Assistance between
Miami -Dade County and US HUD as the opportunity becomes available provided the
refinancing generates net present value savings of five percent or more, inclusive of issuance and
other costs to refinance, and the final maturity of the refinancing is not longer than the current
maturity; authorizes the County Mayor or County Mayor's designee to execute any necessary
agreements with US HUD, the City of Miami, and other parties; authorizes the County Mayor or
6
Agenda Item No. 8 (K) (1) (A)
Page No. 2
County Mayor's designee to pay issuance or other costs to refinance using the County's
Community Development Block Grant (CDBG) funds, CDBG program income, or funds from
other parties with an interest in the respective Section 108 loans.
The foregoing resolution was offered by Commissioner Barbara J. Jordan
who moved its adoption. The motion was seconded by Commissioner Joe A. Martinez
and upon being put to a vote, the vote was as follows:
Joe A. Martinez, Chairman aye
Audrey M. Edmonson, Vice Chairwoman aye
Bruno A. Barreiro aye Lynda Bell aye
Esteban L. Bovo, Jr. aye Jose "Pepe" Diaz aye
Sally A. Heyman absent Barbara J. Jordan aye
Jean Monestime aye Dennis C. Moss aye
Rebeca Sosa aye Sen. Javier D. Souto aye
Xavier L. Suarez absent
The Chairperson thereupon declared the resolution duly passed and adopted this 7th cay
of July, 2011. This resolution shall become effective ten (10) days after the date of its adoption
unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this
Board.
AMIA.MI-DADE COUNTY, FLORIDA
BY ITS BOARD OF
m t COUNTY COMMISSIONERS
4,1
co 1 HARVEY RUVIN, CLERK
***
By: Christopher Agrippa
Deputy Clerk
Approved by County Attorney as
to form and legal sufficiency.
Brenda Kuhns Neuman
T Fir, BANK OF NEW YORK MELLON
HUD 108 Amortization Summary
Series: 2011-A
Borrower: MIAMI-DADS COUNTY. FL
Note #: B-98-UC-12-0006
Run Date: 01/18/2012
Run Time: 1128:45 am
Note Date: 11/17/2011
Payment
Date
Interest Principal Total Unpaid
Due Due P&I Principal
02/01 /2012 36,144.60 0.00 36,144.60 15,560,000.00
08/01/2012 86,747.00 1,945,000.00 2,031,747.00 13,615,000.00
02/01/2013 83,732.25 0.00 83,732.25 13,615,000.00
08/01/2013 83,732.25 1,945,000.00 2,028,732.25 11,670,000.00
02/01/2014 79,550.50 0.00 79,550.50 11,670,000.00
08/01/2014 79,550.50 1,945,000.0D 2,024,550.50 9,725,000,00
02/01/2015 73,034.75 0.00 73,034.75 9,725,000.00
08/01/2015 73,034.75 1,945,000.00 2,018,034.75 7,780,000.00
02/01/2016 63,990.50. 0.00 63,990.50 7,780,000.00
08/01/2016 63,990.50 1,945,000.00 2,008,990.50 5,835,000.00
02/01/2017 52,126.00 0.00 52,126.00 5,835,000.00
08/01/2017 52,126.00 1,945,000.00 1,997,126.00 3,890,000.00
02/01/2018 37,149.50 0.00 37,149.50 3,890,000.00
08/01/2018 37,149.50 1,945, 000.00 1,982,149.50 1,945,000.00
02/01 /2019 19,936.25 . 0.00 19,936.25 1,945,000.00
08/01/2019 19,935.25 1,945,000.00 1,964,936.25 0.00
TOTAL: 16 941,931.10
15,560,000.00 16,501,931.10
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 MAYBE
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
under the Loan Documents to (I) provide that Parrot Jungle shall not be obligated to make any
payments under the Parrot Jungle Loan from August, 2006, through and including the payment due in
City of Miami Page I of 2 File Id: 07-00895 (Version: 2) Printed On: 6/18/2013
File Number: 07-00895 Enactment Number: R-07-0405
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 otherdocumentsas maybe required, subject to the CityAttorney'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: 6/18/2013
PARTICIPATION AGREEMENT
(Draft of 6/28/07)
THIS PARTICIPATION AGREEMENT (the "Agreement") is made as of this
day of , 2007, by and between MIAMI-DADE COUNTY (the "
County"), and CITY OF MIAMI (the "City").
RECITALS
1. The County has made a loan to Parrot Jungle and Gardens of Watson Island, Inc., a
Florida corporation (the "Borrower"), in the original principal amount of Twenty-five Million and
No/100 Dollars ($25,000,000.00) (the "Loan"). The Loan is evidenced by a promissory note dated
as of , 2000, in the face amount of $25,000,000.00 (the "Note").
2. The purpose of the Loan was to finance the development of a botanical garden
attraction located at Watson Island (the "Property").
3. The County funded the Loan to Borrower by virtue of a $25,000,000.00 loan
guaranteed by the United States Department of Housing and Urban Development ("USHUD")
which was advanced to the County pursuant to the Section 108 Loan Guarantee Program on June
14, 2000 (the "Section 108 Loan").
4. As security for the Section 108 Loan, the County pledged its present and future
Community Development Block Grant ("CDBG") allocations as a guarantee of repayment of the
principal and interest on the Section 108 Loan.
5. The County and the City entered into a Joint Participation Agreement ("JPA") dated
September 9, 1998, wherein; the City agreed to assume eighty percent (80%) of the outstanding
principal balance and future interest on the Section 108 Loan upon satisfaction of certain
conditions, all of which have been satisfied or waived by the parties hereto.
6. In accordance with the intent of the JPA, and subject to the terms and conditions set
forth herein, the City agrees to assume from the County, and County agrees to assign and transfer
to the City, an undivided eighty percent (80%) interest in all of the benefits and obligations of the
County, as lender of the Loan and under the Loan Documents.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section 1.1 Definitions As used herein, the following terms have the respective
meaning ascribed thereto below, which meanings shall be applicable equally to the singular and
plural forms of the terms defined:
ors:Document 81310
"Agreement" shall mean this Agreement, together with all exhibits and schedules hereto, as
the same may be modified; amended or restated from time to time.
"Assumption and Pledge Agreement" shall mean an Assumption of Loan Guarantee
Assistance Liability and Pledge Agreement under Section 108 of the Housing and Community
Development Act of 1974, as amended, 42 U.S.C. §5308, in the form attached hereto as Attachment
"2", to be entered into by the County, USHUD, and the City.
"Authority" shall mean any governmental or quasi -governmental authority, including,
without limitation, any federal, state, county, municipal or other governmental or quasi -governmental
agency, board, branch, bureau, commission, court department or other instrumentality or political
subdivision, whether domestic or foreign.
"Business 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 from time to time, pursuant to, or as security for, the Loan or any of the
indebtedness evidenced by the Loan Documents..
"Contract for Loan Guarantee Assistance" means the Contract for Loan Guarantee Assistance
dated as of June 14, 2000, between the County and USIJIJD with respect to the Section 108 Loan, as
amended by the Assumption and Pledge Agreement,
"Commitment Fee" shall mean the commitment fee paid by Borrower to the County in
connection with the making of the Loan by the County.
"Confirmation of Lenders' Shares" shall mean the form attached hereto as Exhibit "A" and
as referenced in Section 2.3 hereof.
"County's Pro Rata Share" shall mean an amount equal to 20% of the outstanding principal
balance on the Section 108 Loan as of the Effective Date plus accrued but unpaid interest as of such
date and future interest until .the. Section 108 Loan is paid in full.
"Deferred Amount" shall mean an amount equal to all payments due by Borrower under the
Note commencing on , 2006 through and including the payment due on
2012.
"Effective Date" shall mean the date as of which this Agreement and the Assumption and
Pledge Agreement shall have been approved and executed by City and County.
ors:Document 81510
"Event of Default" shall mean any default under any of the Loan Documents which is not
cured within the applicable grace period, if any.
"Guarantors" shall mean Bern and Mary Levine.
"Herein "hereof, "hereto". hereunder and other words of tike import shall refer to any and
every section and provision of this Agreement.
"Lenders" shall mean County and City.
"Loan" shall have The meaning assigned to it in the Recitals.
"Loan Documents" shall mean the documents and instruments executed and delivered by
Borrower and/or Guarantors in favor of the County in connection with the Loan, which are identified
in Attachment "1" hereto, as they may be amended with the consent of the Lenders from time to
time.
"Note" shall have the meaning assigned to it in the Recitals, as the same may be modified,
amended, restated or renewed from time to time.
"Note Modification Agreement" shall mean the agreement to be entered into by Borrower
and Lenders to provide for the payment of the Deferred Amount on a date not earlier than the
maturity date of the Note, in the form of Attachment "5" hereto.
"Person" shall include, without limitation, any manner of association, authority, business
trust, company, corporation, estate, joint venture, natural person, partnership, trust or other entity.
"Pro Rata Share" shall mean the respective undivided participation interest in the Loan of the
County and the City set forth on Exhibit "A.".
Section 1.2 Capitalized Terms. Capitalized terms used herein and not defined herein shall
have the meanings given such terms in the Loan Agreement.
ARTICLE 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,
ors:Document 81510
Borrower's obligation to make the contribution to the Aviary, as provided in the
Development Agreement.
2.2.2 The County shall have executed and delivered to the City an estoppel certificate,
substantially in the form of Attachment 3, certifying, among other things, that the
Loan and the Section 108 Loan are current, that no event of default exists or remains
uncured, and that there is no occurrence or event or circumstance which, with notice or
lapse of time would become a default under any one of the Loan Documents or the
Section 108 Loan.
2.2.3 The County shall have executed and delivered to the City an estoppel certificate,
substantially in the form of Attachment 4, certifying, among other things, the
outstanding amounts and terms of payment of all outstanding loans from the County to
Borrower (the "County Outstanding Loans") and further certifying that all such loan
are current, that no event of default exists or remains uncured with respect thereto, and
that there is nooccurrence 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 Loan4
2.2.5 Borrower shall deliver to the County and the City a life insurance policy in the amount
of $ , for the term of the Loan, insuring the life of Bern Levine, in favor of
the City and the County in proportion to the Lenders' respective Pro Rata Shares.
2.2.6 The Guarantors shall execute Guarantee in favor of the City and the County, securing
the parties' respective Pro Rata Shares.
2.2.7 The County shall certify to the City the amount of money received by the County as of
the date of this Agreement representing the County's administrative fee relating to the
Loan. The County further agrees that all payments by the City of the City's Pro Rata
shall exclude 80% of the administrative fee.
2.2.8 The County shall have delivered to the City copies of all Loan Documents, Related
Loan Documents (as defined in Section 3.1) and all other documents or instruments
relating to the County Outstanding Loans, certified by the County Manager to
represent complete, true and correct copies of all such documents.
2.2.9 The Bon-ower, the County and the City will have executed the Note Modification
Agreement
The City shall have the right to cause any or all of the above mentioned documents to be
recorded in the public records of Miami -Dade County, Florida. Execution of this Agreement by the
City shall constitute evidence of compliance with the foregoing Concurrent Obligations, unless
otherwise specifically stated herein or in a separate document.
ors:Document 815i0
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 topay 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 MI knowledge that the City is relying on such warranties and
representations in executing this Agreement, that it has delivered to the City all of the Loan
Documents, and all other documents or instruments delivered to or obtained by the County pursuant
to or in connection with the Loan, the Section 108 Loan, or the transactions contemplated thereby,
including, without limitation, resolutions, correspondence, schedules, credit information, appraisals
and such other instruments and documents pertaining to the transactions contemplated hereby (the
"Related Loan Documents"), which Loan Documents and Related Loan Documents are listed in
Attachment 1 hereto, and that (1) The Loan Documents are all of the documents evidencing or
securing the Loan, (2) to the best of the County's knowledge, after due investigation, the Related
Loan Documents are all of the documents delivered to, or obtained by, the County relating to the
Loan, the Section 108 Loan and the transactions contemplated herein, (3) Borrower and/or
Guarantor's obligations under the Loan Documents are current and in good standing, or performance
of such obligations has been properly waived or forgiven by the County and (4) there is no
occurrence or event or circumstance which, with notice or lapse of time, would become a default
under any one of the Loan Documents, or would result in, or permit the exercise of remedies or the
imposition or accrual of any default interest, penalties fees or charges as a result of such default. The
County further represents and warrants to the City that it shall hold in its possession, for the benefit
of both Lenders in accordance with the terms of this Agreement, the originals (or original
counterparts) of each of the Loan Documents and Related Loan Documents.. The County shall also
keep in its files, for the benefit of both Lenders, all of the foregoing documents and such other
documents as the County may deem advisable. The City shall have the right to examine and
photocopy all documents described herein or relating to the transactions contemplated hereby
contained in County's files during normal business hours at the office of County, or at such other
place as County may designate from time to time, upon City's delivery of reasonable prior notice to
County.
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Section 3.2 Furnishing of Information to City Immediately upon receipt of notice
thereof, the County shall fumish to the City notice of the following: (i) any change in the perfection
or priority of any lien securing the Loan, (ii) the occurrence of any Event of Default, (iii) any written
request by Borrower or any other obligor on the Loan to modify the terms of the Loan or substitute
or release any Collateral or any obligor on the Loan, and (iv) any loss, damage, destruction,
condemnation or other governmental taking of all or any material portion of the Collateral.
Section 3.3 Payments to City The County will comply with the Contract for Loan
Guarantee Assistance between County and USHUD, as amended by the Assumption and Pledge
Agreement, as long as any balance remains outstanding on the Section 108 Loan. Thereafter,
whenever the County collects or receives immediately available funds representing payments of
principal, interest, late charges, commitment fees, extension fees and other fees, 'recoverable
expenses or any other amounts payable to or for the benefit of one or both Lenders pursuant to any of
the Loan Documents or otherwise in connection with the Loan, including, without limitation, as a
result of the enforcement of any mortgage lien on or security interest in any Collateral (collectively,
"Payments"), but excluding proceeds of insurance or condemnation awards to be held pending
restoration, as provided in the Loan Documents, the County shall receive, hold and disburse the same
as follows: (i) shall retain for the account and the benefit of both Lenders expenses reimbursed by
Borrower pursuant to the terms of the Loan Documents and reimbursable to one or both Lenders
pursuant hereto and disburse to the City the eighty percent (80%) of such payment to the extent the
City made payments toward the payment of the expense; and (ii) disburse to the City eighty percent
(80%) of any Payments and retain for its own account the remaining portion thereof. County agrees
to disburse all sums due to the City hereunder by wire transfer not later than one (1) Business Day
after . the funds have been collected by the County's financial institution -,-except as otherwise
provided by this Agreement. The County and the City shall each continue to receive their
respective Pro Rata Share of all Payments made by Borrower in connection with the Loan, except
as otherwise provided by this Agreement, until the Loan has been paid in full.
Section 3.4 Collateral The County shall hold in its name, for the benefit of itself and
the City, the Collateral and such other collateral pledged, mortgaged, hypothecated or assigned to, or
deposited with Lenders from time to time pursuant to or as security for the Loan or any of the
indebtedness evidenced by the Loan Documents.
Section 3.5 )Loan Administration
A. The interest of the County and the City in the Loan shall be of equal priority. Except
as otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of
USHUD, as long as any balance remains outstanding on the Section 108 Loan, the County shall have
the rights and duties with respect to the collection and administration of the Loan and the security
therefore described in this Section 3.5. City agrees that the County shall administer the Loan, make
payments to USHUD, if any, as required under the Section 108 Loan, and enforce the Loan
Documents and collect and administer the Collateral, with the same degree of care, skill, caution and
prudence the County ordinarily exercises in its administration of loans which it holds entirely for its
own account (the "County Standard of Care"). Subject to the other provisions of this Agreement and
consistent with the foregoing standard, the County shall administer the Collateral so as to preserve its
value in the manner in which the County administers collateral under other loans, Notwithstanding
the foregoing, the County agrees that, at the City's request, upon the occurrence of an Event of
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Default, or if the City feels itself insecure with respect to the Collateral or the Loan, it will, or will
authorize the City to, diligently and in good faith pursue such actions and remedies as may be
reasonably required to enforce the Loan Documents and/or collect or administer the Collateral in
accordance with the provisions of Section 6.1 hereof. Further, the County agrees that it shall not
have the power to grant releases, satisfactions, consents, joinders, assignments and reassignments
with respect to the Collateral without the consent of City, which the City agrees to grant to the extent
required by the terms of the Loan Documents. The County will maintain accurate books and records
with respect to the Loan and the costs and expenses related thereto in the same manner as the County
customarily maintains books and records for similar loans in which it acts exclusively for its own
account, and shall make such books and records available for inspection by a designated
representative of the City at such reasonable times as the City may request. In no event shall the
County , without the written consent, and the approval of the governing body of the City: (i) change
the principal amount of the Loan; (ii) postpone the due date of any scheduled payment of principal or
interest or waive any such payment or any other claim against Borrower; (iii) reduce The interest rate
under the Note from the rate specified therein; (iv) release any Guarantor from his obligations under
his guarantee of the Loan; (v).release, substitute or exchange the Collateral or any part thereof from
any Loan Document; or (vi) pledge, assign, transfer or extend any of the Loan Documents.
B. The County agrees that, upon its receipt of any written notice from Borrower
claiming or asserting that County has breached its obligations to Borrower pursuant to any of the
Loan Documents or that County is in default of the observance or performance of any of its
obligations under any of the Loan Documents, it will promptly give the City notice thereof. The
County agrees to consult with the City regarding any alleged breach of the Loan Documents by the.
County and to incorporate. the City's comments or suggestions in any response or action to be taken
by County as a result thereof.
Section 3.6 Consultation with City The County shall seek and obtain the City's
approval with respect to any actions or approvals which, by the terms of this Agreement or the Loan
Documents, the County is permitted or required to take or to grant. Subject to the provisions of
Section hereof, City's failure to grant or deny a requested approval within — days after the
County's request shall be deemed to be approval of such action by the City, except as may be
otherwise provided in the Contract for Loan Guarantee Assistance with respect to the rights of
USHUD.
Section 3.7 No Partnership Neither the execution of this Agreement, nor the
sharing in the Loan or in any of the proceedsof the Collateral, nor any agreement to share in profits
or losses arising as a result of this transaction is intended to be, nor shall it be construed to be, the
formation of a partnershipor joint venture between or among the partieshereto, 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:
or,:Document 81510
A. City is a municipal corporation of the State of Florida and has the legal power and
authority to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
B. The execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized by all necessary action on the
part of City, do not and will not contravene its articles of incorporation or association or bylaws or
any agreement, law, governmental rule, regulation or order binding on City (including, without
limitation, legal lending limits applicable to it), and do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other action with respect to, any
Authority.
C. This Agreement constitutes the legal, valid and binding obligation of City, and is
enforceable in accordance with its terms.
D. Neither City nor any Person that City has authorized to act on its behalf has directly
or indirectly offered any interest or participation in this Agreement to any other Person,
E. City has made and will continue to make such independent evaluation of such
financial information and other data relating to Borrower, Guarantors and the Collateral as it deems
necessary and prudent.
Section 4.2 Representations and Warranties of County The County, as a material.
inducement to the City to enter 'into this Agreement and to consummate all of the transactions
contemplated hereby, represents and warrants to City, in addition to the matters set forth in Article III
hereof and elsewhere in this Agreement, as follows:
A. County is a political subdivision of the State of Florida and has the legal power and
authority to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
B. The execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, have been duly authorized by all necessary action on the
part of County, do not and will not contravene its charter, code, or any agreement, law, govemmental
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.
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Section 4.3 Survival of Representations. The representations contained herein shall
survive the performance of this Agreement and execution of the Assignment and Pledge Agreement.
ARTICLE V
COVENANTS OF LENDERS
Section 5.1 Other Payments. If Borrower fails to pay taxes, assessments, insurance
premiums or any other charges or sums required by the Loan Documents to be paid, as the same
become due and payable and County deems it necessary to, and in fact does, pay any such amounts,
the City will reimburse to the County the City's Pro Rata Share of same promptly upon demand of
County. Any such amounts, to the extent provided in the Loan Documents, shall be secured by the
Loan Documents and the Collateral. Additionally, City agrees to pay to County, to the extent County
is not reimbursed by Borrower, its Pro-Rata Share of any reasonable out-of-pocket expenses and
liabilities hereafter incurred by County in connection with the administration of the Loan provided,
however, that nothing contained herein shall diminish the .County's obligation to use County
Standard of Care in the enforcement of the Loan Documents and the administration and collection of
the Collateral.
Section 5.2 Enforcement of County Outstanding Loans, The County covenants that,
without the prior written consent of the City, it will not enforce Borrower's obligation to make any
monetary payments to the County under the County Outstanding Loans or the Development
Agreement until the Loan has been paid in full.
Section 5.3 Declaration of Invalidation. City agrees that, to the extent any amounts
received in repayment of the Loan from Borrower or otherwise, whether by payment, realization of
Collateral or otherwise, are, through no fault of the County, subsequently invalidated , declared to be
fraudulent or preferential, set aside or required by any Authority to be repaid to a trustee, receiver or
any other Person under any applicable law, order or judgment, including the Bankruptcy Code or any
similar state law or any other cause of action, and the County repays such amount to the Borrower,
a trustee, receiver, or other Person , then the City shall repay to the County, within (Business
Days after request by County, its Pro Rata Share of any such amount (with interest to the extent
required), so that County and City will be affected by any such invalidation, declaration, set aside or
repayment in accordance with its Pro Rata Share thereof.
Section 5.4 Excess Payments to City or County Should either City or County receive
or retain any payment in excess of its Pro Rata Share of all or any portion of the Loan in any form or
in any manner whatsoever, the receiving party shall forthwith pay over such excess payment to the
other party as to result in a proportional participation by both Lenders in such amount;
Section 5.5 Indemnification
A. County hereby agrees to indemnify and hold harmless the City (including its officers,
directors, attorneys, agents and employees) from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses including, without limitation, attorneys' fees and disbursements
at the trial and appellate levels (collectively, "Losses") which may be incurred by the City or which
may be imposed upon the City by Borrower or any third party, arising out of or resulting from, by
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reason of, or in connection with, any act or failure to act on the part of the County in accordance
with the terms of the Loan Documents or this Agreement, or any breach of representations contained
herein.
B. City hereby agrees to indemnify and hold harmless the County (including its officers,
directors, attorneys, agents and employees) from all Losses which may be incurred by the County or
which may be imposed upon the County by Borrower or any third party, arising out of or resulting
from, by reason of, or in connection with any act or failure to act on the part of the City in accordance
with the terms of the Loan Documents or this Agreement, or any breach of representations contained
herein. Notwithstanding the foregoing, upon USHUD's execution of the Assignment and Pledge
Agreement, the County shall have no recourse against the City for the City's failure to pay its Pm
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 judgment,
materially affects the respective interests of the parties hereunder, then the party having such
knowledge shall with reasonable promptness notify the other party in writing of such Event of
Default or matter. In the event of any Event of Default, the County shall within five (5) Business
Days thereafter notify the City of such Event of Default and of County's intended action. The
County shall act (or forebear from acting) as a result of such Event of Default as it shall be directed
by the City, which may request the County, in writing, to do everything necessary to protect the
lenders' interest in the Loan, including to institute and pursue legal action against the Borrower
and/or against the guarantors and/or commence foreclosure (or seek a relief from bankruptcy stay if
such then exists followed by the commencement and pursuit of foreclosure) (collectively, the
"Default Remedies"). The County shall commence and thereafter diligently pursue the Default
Remedy or Default Remedies specified by the City within ten (10) days of the date of the City's
written notice. If the County elects not to pursue the Default Remedies, as requested by the City, it
must immediately notify the City whereupon the City shall have the right to pursue the Default
Remedies and, at the City's request, the County shall take all action reasonably necessary to assist the
City in the pursuit of such remedies, consistent with the County Standard of Care, including, but not
limited to, assigning to the City all of the County's rights to enforce the Loan Documents and /or the
Collateral.
Section 6.2 Default by County or City In the event that County does not commence
the requested Default Remedy or Default Remedies within the aforementioned ten (10) day period
and thereafter diligently pursue same, or fails to notify the City of its election not to pursue the
Default Remedies, or fails to assist the City as contemplated in Section 6.1 above, then the County
shall be deemed in default. In such event, the City may, in addition to all other remedies available to
it by law or in equity, seek injunctive relief against the County and the County hereby waives its right
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to assert that the City has an adequate remedy at law. In the event the City undertakes to enforce the
Default Remedies, and thereafter fails to diligently pursue same, then the City shall be in default and
the County may, in addition to all other remedies available to it by law or in equity, seek injunctive
relief against the City and the City hereby waives its right to assent that the County has an adequate
remedy at law
Section 6.3 Foreclosure Subject to the rights of the USHUD pursuant to the Contract
for Loan Guarantee Assistance, the County shall hold the Loan Documents (together with any and all
other documents executed and delivered in connection therewith) and title to any of the Collateral
acquired by County after an Event of Default in its name as agent for both City and County (to the
extent of County's and City's Pro Rata Shares thereof). Accordingly, in the event of a foreclosure and
foreclosure sale of any Collateral, or any judicial sale of any of the collateral, the County shall bid at
such sale for the benefit of both Lenders and if such bid is successful, County shall, to the extent
permitted by law, cause all title instruments relating to such Collateral to be issued in the name of
each Lender in accordance with each Lenders' Pro Rata Share. If a successful bid is entered by a
third party, and is. acceptable to the City, then, to the extent that the proceeds of the foreclosure sale
are, pursuant to law, the property of the holder of the Loan Documents, such proceeds shall be
received by Lender and shall thereupon be divided among Lenders in proportion to their respective
Pro Rata Shares.
Section 6.4 Default Administration. Subject to the rights of the USHUD pursuant
to the Contract for Loan Guarantee Assistance, upon the determination by County of a course of
action taken after an Event of Default in accordance with Section 6.1 hereof, and after consultation
with City, the County shall have the right to maintain, manage and operate the Collateral and sell all
or any part thereof in a manner consistent with such course of action or as County determines to be
prudent, respectively, and may employ an independent management company, sales agent or others
to maintain, manage, operate and sell the Collateral, all of which activity shall be part of County's
right to service and administer the Loan. If County determines, in its discretion, that a management
agreement is necessary, such management agreement will be negotiated in good faith by County,
subject to City's approval. . In the event of the appointment of a receiver for any of the Collateral
during the pendency of a foreclosure proceeding or otherwise, Lenders shall share in the profits and
expenses of the receivership in proportion to their respective Pro Rata Shares. Notwithstanding the
foregoing, any sale of the Collateral by County shall require the approval of the City. In such case
County shall promptly notify City of each written offer to purchase the Collateral received by
County, (the "Offer") advising City as to whether or not County wishes to accept the Offer. The City
Manager shall notify County, in writing, within five (5) business days after City's receipt of the
Offer, whether or not it wants to accept the Offer, which decision shall be subject to City
Commission approval. If one party wishes to accept the Offer, but the City Manager of the other
party does not, the parties shall immediately consult. If, after such consultation, the parties still do not
agree, then the party not wanting to accept the Offer (the "Purchasing Party") shall submit to its
board of commissioners the Offer and the board shall then be obligated to either accept the offer to
sell, or shall purchase from the other party (the "Selling Party") the Selling Party's Pro Rata Share of
the Collateral at a price equal to the amount which the Selling Party would have received from a sale
pursuant to the Offer (including, without limitation, the payment of any expenses to be reimbursed to
the Selling Party under the terms of this Agreement). The purchase and sale of the Selling Party's Pro
Rata Share of the Collateral pursuant to this paragraph shall be without recourse, warranties or
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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 goveming 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 attomeys' 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 Losses. All losses incurred by Lenders as a result of any failure on the
part of Borrower to repay the Loan and any other sums due pursuant to the Loan Documents shall be
borne by Lenders in accordance with their respective Pro Rata Shares.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Approval by Governing Board of Parties Whenever this document
requires a party to take action which is in the opinion of the party's counsel subject to the approval of
the party's goveming body, then performance by such party shall be automatically extended by a
period of time equal to the number of days normally required for an item to be presented to, and
considered by, such governing body, but in no event a period greater than days from the date
notice requesting approval is submitted.
Section 7.2 Notice Except as otherwise indicated herein, any notice, request, demand
or other communication permitted or required to be given hereunder (collectively, a "Notice") shall
be in writing, shall be signed by the party giving it, and shall be deemed to have been properly
delivered if delivered by hand (with receipt acknowledged) to the party to whose attention it is
directed or if mailed by United States registered or certified mail, return receipt requested or if sent
by express courier service (with receipt acknowledged) addressed to the following addresses:
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If to County:
MIAMI-DADE COUNTY
111 N.W. 1st Street
2971' Floor
Miami, Florida 33128
Attention: County Manager
With Copies to:
MIAMI-DADE COUNTY
111 N.W. 1th Street
Suite 2 810
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
terms of this Section to the party seeking or desiring to serve Notice as a place for the service of
Notice. Notices shall be deemed effective (a) when delivered if delivered by hand, (b) two (2)
Business Days after mailing, and (c) the next Business Day after delivery to any express courier
service.
Section 7.3 Entire Agreement This Agreement, together with its Exhibits and
Attachments, contains the entire agreement of the parties and supersedes all other representations,
warranties, agreements and understandings, oral or otherwise, between the parties with respect to
the matters contained herein.
Section 7.4 Waiver of Jury. The parties hereto hereby severally, voluntarily, knowingly
and intentionally waive any and 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 Agreement without this jury trial waiver, and that each
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of them has been represented by an attorney or has had an opportunity to consult with an attomey
regarding this Agreement and understands the legal effect ofthis 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 towhich 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
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opinion of counsel for the party seeking to amend the Agreement, approval by the governing
body is required.
Section 7.11 Captions The sections, captions and other headings contained in this
Agreement are for convenient reference purposes only and shall not affect the meaning or
interpretation, or define, describe, extend or limit the scope or intent, of this Agreement or any
provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
COUNTY:
MIAMI-DADE COUNTY
By:
CITY:
Attest: CITY OF MIAMI
By: By:
Priscilla A. Thompson, City Clerk Pedro H. Hernandez, City Manager
Approved as to Form and Correctness: Approved as to Insurance Requirements:
Jorge L. Fernandez, City Attorney
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ON USHUD'S LETTERHEAD1
EXHIBIT "A"
CONFIRMATION OF PARTICIPANT'S SHARES
MIAMI-DADE COUNTY
111 N.W. 1" 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 $25,000,000.00 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
SCHEDULE"A" LENDERS' PRO RATA SHARES
Principal Amount Pro Rata Amount of Loan
LENDER.:
MIAMI-DADE COUNTY: $5,000,000.00 20%
PARTICIPANT:
CITY OF MIAMI: $20,000,000.00 80%
TOTAL OUTSTANDING: $25,000,000.00 100%
Dated:
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ATTACHMENT "1"
LOAN DOCUMENTS
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ATTACHMENT "2"
Assumption of Loan Guarantee Assistance Liability and Pledge Aereement
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ATTACHMENT "3"
Estoppel Certificate Regarding the parrot Jungle Loan and the Section 10$ Loan
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ATTACHMENT "4"
Estoppel Certificate Regarding the Other Loans
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ATTACHMENT "5"
Note Modification Agreement
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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$25,000,000,, 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 have 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 Government
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.
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
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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 liability under the Contract for repayment of the principal and interest of.
the Note, the Borrower agrees to remain liable to repay twenty percent (20%) (the "Borrower's Pro
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 paragraph 6 of this Agreement,
the Borrower shall continue to pay to the Fiscal Agent/Trustee, as collection agent for the Note, all
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
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
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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 Assumptor 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.
(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) All proceeds (including insurance and condemnation proceeds) from any of the
foregoing.
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(e) All funds or investments in the accounts established pursuant to paragraphs 1 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
Agreements, 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 event 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 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
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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 Agreement or the Fiscal Agency/Trust Agreements, or the purchase of
Government obligations 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.
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.
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10. Defeasance.
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 concerning 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 but not limited 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
$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). [Note: I think the Assumptor needs
notice of Default since payment is not within Assumptor's control].
(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 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
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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 Secretary to exercise 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 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.
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(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.
(fl 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 designated 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 the sender of an answer back; and (iv) if sent
by telecopier, upon receipt.
The Secretary:
U.S. Dept. of Housing and Urban Development
Attention: Paul Webster Director Financial Management Division
451 7th Street, SW, Room 7180
Washington, D.C. 20410
Borrower:
Miami -Dade County
111 NW 1s` Street, 29'h Floor
Miami, Florida 33128
Attention: County Manager
With Copies to:
Miami -Dade County
Office of Community and Economic Development
Attention: Director
140 W. Flagler
Miami, Florida 33130
Assumptor:
City of Miami
With Copies to:
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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
(b) 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 loan 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.
1. 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"):
(1) 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.
(it) 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 of a collateral assignment of leases and rents (the "Collateral Assignment of
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Leases and Rents"). The Collateral Assignment of Leases and Rents is in a form,
acceptable to the Secretary.
(iii) Any and all rights, titles, and interests of the Obligor in and to any
licenses, permits, 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.
2. The Borrower selected a financial institution acceptable to the Secretary
(the "Custodian") to act as custodian for the documents specified in 3 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 (2) below.
3. 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:
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(i) The original Obligor Note, endorsed in blank and without recourse.
(ii) The original Obligor Loan Agreement and an assignment thereof to
the Secretary, which assignment was in a form acceptable to the Secretary,
(iii) The original 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 form acceptable to the Secretary.
(iv) 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.
(v) The original Collateral Assignment of Interest in Licenses, Permits,
and Agreements and an assignment thereof to the Secretary, which assignment was
in a form acceptable to the Secretary.
(vi) An opinion of the Borrower's counsel, addressed to the Secretary
and on its letterhead, that (as of the date of such opinion):
(a) the Obligor is a corporation duly organized; validly
existing, and in good standing under the laws of the State of Florida;
(b) the Obligor Note has been duly executed and delivered by a
party authorized by the Obligor to take such action and is a valid
and binding obligation of the Obligor, enforceable in accordance
with its terms, except as limited by bankruptcy and similar laws
affecting creditors generally; and
(c) the security instruments specified in (B) through (E) above
are valid and legally binding obligations, enforceable in accordance with
their respective terms.
(vii) 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.
(viii) A certified survey with a legal description conforming to the title
policy and the Obligor Leasehold Mortgage.
(ix) An appraisal of the Obligor's Leasehold interest in the Property
specifying an estimate of fair market value of not less than $31,250,000. 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,
4. 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 Secretary 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."
ors:Document 81518
(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
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).
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
BY:
(Name)
(Title)
(Signature)
(D ate)
CITY OF MIAMI FLORIDA
AS SUMPTOR
BY:
(Name)
(Title)
(Signature)
ors:Document 81518
(Date)
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
BY:
(Name)
(Title)
(Signature)
(Date)
ors:Document 81518
PARROT JUNGLE SECTION 108 LOAN
TERM SHEET
1. City will assume 80% of the outstanding principal and future interest under the Section 108
Loan commencing August, 2007.
2. Pursuant to a Note Modification Agreement, Parrot Jungle shall not be required to make any
payments under its note in favor of the County (the "PJ Loan") from August 2006 through
and including the payment due in August 2011 (the "Deferral Period). All payments due to
HUD during the Deferral Period, totaling approximately, $17,277,000 (the "Deferred
Amount") shall be made by the City and the County, with the City being responsible for
80% of such payments. A schedule of payments is attached.
3. The Note Modification Agreement will require Parrot Jungle to pay the Deferred Amount to
the City and the County in 10 annual installments, commencing on the maturity date of the.
PJ Loan, and provided the PJ Loan has been fully paid. The Deferred Amount shall bear
interest at the rate of 5% from the maturity date of the PJ Loan until paid and shall be
secured by the same collateral securing the PJ Loan. .
4. In August 2006 the County made a loan to Parrot Jungle in the amount of $4,702,000. This
loan represents all amount due by Parrot Jungle to the County under the PJ Loan (and paid
by the County to HUD) through February, 2006. The County also made a loan/grant to
Parrot Jungle, in the amount of .$2.5 million, $1 million of which the County requires to be
repaid. The County has agreed not to accept payment of these loans until after the PJ Loan
has been paid in full.
5. The County has agreed to cure/waive all existing defaults of Parrot Jungle under the PJ
Loan, except for the payment of $2 million toward the Zoo Aviary, which the County has
agreed to defer until 2020. The County has further agreed to recommend a waiver of this
obligation if the PJ Loan and the $4,702,000 loan described in paragraph 4 above, are fully
paid by the year 2011.
6. Upon HUD's approval of the transaction (evidenced by HUD's execution of the Pledge and
Assumption Agreement) the County shall have no recourse against the. City if the City fails
to remit to the County 80% of payments due by the County to HUD. Instead, the City's
obligations shall be enforced by HUD by a reduction of the City's CDBG allocation.
7. Parrot Jungle's obligations shall be further secured by a key man life insurance on Bern
Levine and a Guarantee from Bern Levine in favor of the City and the County in proportion
to each parry's prorata share responsibility under the Section 108 loan.
8. The City will specifically waive satisfaction of 2 of the conditions precedent to the City's
assumption of the Section 108 under the JPA (that the PJ loan must be current and that all PJ
loan documents be assigned to the City).
ors:Document 82512 1
Payment
Date
Total
Payment
80 Percent
(City)
20 Percent
(County)
August 1, 2006
$1,665,914
$1,332,731
$333,183
February 1, 2007
889,177
711,341
177,835
August 1, 2007
1,889,177
1,511,341
377,835
February 1, 2008
853,077
682,461
170,615
August 1, 2008
2,103,077
1,682,461
420,615
February 1, 2009
807,964
646,371
161,593
August 1, 2009
2,307,964
1,846,371
461,593
February 1, 2010
753,979
603,183
150,796
August 1, 2010
2,698,979
2,159,183
539,796
February 1, 2011
681,547
545,238
136,309
August 1, 2011
2,626,547
2,101,238
525,309
TOTAL
$17,277,403
$13,821,922
$3,455,481