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HomeMy WebLinkAbout38-02 Resolution RECORD OF RESOLUTIONS Dayton Legal Blank Co.. Form No. 30045 I' I! 38-02 ...... .~ Resolution No. H Passed ......H......H. "H"'H'HHHHHHHHHHHHH' YEAR -~~- I I , A RESOLUTION CONSENTING TO, APPROVING AND ,I AUTHORIZING THE MODIFICATION OF AN EXISTING :i ii MORTGAGE AND THE EXECUTION OF A SECOND II Ii MORTGAGE MODIFICATION AGREEMENT AND ANY i: Ii OTHER NECESSARY AND RELATED AGREEMENTS, II ALL IN CONNECTION WITH AN ADDITIONAL II BORROWING BY TARTAN GOLF COMPANY, LLC II II RELATING TO THE GOLF CLUB OF DUBLIN. II il il I I WHEREAS, by Ordinance No. 119-00 passed by this Council on October 16,2000, the I' '! II City entered into a certain Ground Lease and Operating Agreement, dated as of " I December 7, 2000, as amended by the Amendment No. 1 to Ground Lease and Operating Agreement, dated October 22, 2001 (collectively, the "Lease Agreement") with Tartan Golf Company, LLC (the "Lessee") wherein the City leased certain real property (as such real property is described in the Lease Agreement, the "Property") to the Lessee and the Lessee agreed therein to construct and operate upon such Property an eighteen hole golf course and related facilities, now known as the "Golf Club of Dublin"; and WHEREAS, the Lease Agreement provides that the City shall have the right to approve or disapprove any liens which may be placed on the Property in connection with any financing by the Lessee; and WHEREAS, in 2001, the Lessee completed a financing in the amount of $6,500,000 (the "Original Financing") with The Huntington National Bank (the "Bank") to provide for the construction of the Golf Club of Dublin; and WHEREAS, in connection with that Original Financing, the City executed certain agreements including an (a) Open-End Mortgage, Assignment of Rents and Security Agreement, dated June 11,2001, (b) a Multi-Party Agreement, dated June 11,2001, and (c) a Mortgage Modification Agreement, dated October 19, 2001, all of which executed agreements are presently on file in the office of the Clerk of Council and are collectively referred to herein as the "Original Financing Agreements"; and WHEREAS, by executing those Original Financing Agreements, the City (a) consented to the Original Financing which provided for Lessee to borrow from the Bank an amount not to exceed $6,500,000 to provide for the construction of the Golf Club of Dublin, (b) consented to Lessee granting a mortgage on Lessee's leasehold interest in the Property under the Lease Agreement (the "Leasehold Mortgage"), and (c) approved a mortgage on the City's fee simple interest in the Property (the "City's Mortgage"), all subject to the terms and conditions in the Lease Agreement and the Original Financing Agreements; and WHEREAS, the Lessee has determined that the proceeds from the Original Financing will be insufficient to complete the construction of the Golf Club of Dublin and that additional monies are necessary to complete that construction and to fund its operations, and has requested the Bank to modify the terms of the Original Financing to allow the Lessee to borrow an aggregate amount not to exceed $7,500,000 (the "Revised Financing"); and WHEREAS, the complete and secure the Revised Financing, the Bank has requested that the City (a) consent to such Revised Financing, (b) consent to the modification of the Leasehold Mortgage to also secure the Revised Financing, (c) approve a modification of the City's Mortgage to also secure the Revised Financing, and (d) execute all necessary and related agreements; and i II RECORD OF RESOLUTIONS Dayton Legal Blank Co.. Form No. 30045 +111 Resolution NO'H?~~~?H PassedHHHHHHHHHH~~~~H7 W .. ....''___._' YEAR "-----,--.-------------.- ., i II WHEREAS, the City has determined that it is in the best interests of the residents of the !I City to consent to and approve such Revised Financing and related modifications and to Ii authorize the execution of a Second Mortgage Modification Agreement (the form of II which is on file in the office of the Clerk of Council and referred to herein as the "Second II Modification") and any other necessary and related agreements and instruments to effect !I the purpose of this Resolution. i! ;1 'I 'i NOW, THEREFORE, BE IT RESOLVED by the City of Dublin, in Franklin, Union ii and Delaware Counties, Ohio, that: I' I II Section 1. This Council on behalf of the City hereby consents to (a) the Revised II Financing and (b) the modification of the Leasehold Mortgage to secure the Revised II Financing, all as described in the Second Modification. II ii' Section 2. This Council on behalf of the City hereby approves, confirms and ratifies the I Original Financing Agreements and further approves and authorizes the modification of II the City's Mortgage to secure the Revised Financing, as described in the Second II Modification, and the execution of the Second Modification by the City. The City Ii Manager and Director of Finance, for and in the name of the City, are hereby authorized II to execute the Second Modification; provided further that the approval of changes thereto !II by those officials, provided the character of the changes are not substantially adverse to the City, as evidenced conclusively by their execution of the Second Modification, are !I hereby approved and authorized. I, II Section 3. This Council further hereby authorizes each one or more of, as appropriate, the !I City Manager, the Director of Finance, the Director of Law, the Clerk of Council, or other I appropriate officers of the City to prepare and sign all agreements and instruments and to I take any other actions as may be appropriate to implement this Resolution, including but not limited to, modifications of the Original Financing Agreements, and to evidence and secure the terms ofthe Revised Financing. Section 4. This Council finds and determines that all formal actions of this Council concerning or relating to the passage of this Resolution were taken in an open meeting of this Council and that all deliberations of this Council that resulted in those formal actions were in meetings open to the public in compliance with the law. Section 5. This Resolution shall take effect and be in force in accordance with Section 4.04(a) of the Dublin City Charter. Signed: ~ Attest: ~C2-~ Clerk of Council Passed: Y~-1. I ~ ,2002 Effective: 5 ~1. / Y ,2002 I hereby cortify thet copies of this Ontimmce'!~esolulion w~re po.~te( 1n tl1f City of Dublin in [\((Ofctance Wit\1 ~tction 731.25 of The 9h:o Revm~d Code. RESOLUTION 38-02 MEMORANDUM TO: Dublin City Council FROM: Stephen J. Smith, Law Director DATE: September 9,2002 RE: Resolution Authorizing Additional Borrowing by Tartan Golf Company As Council is aware, in a previous resolution the City authorized the additional borrowing of funds to complete the golf course project, namely, Resolution No. 34-02. However, after reviewing all the documents and conferring with bond counsel, it is the opinion of this office that Council should adopt the attached Resolution to further clarify what documents the City Manager will be executing in order to effectuate this Resolution. There are no additional monies being approved beyond what Council approved in their last Resolution, but merely procedurely giving the City Manager appropriate authority to execute various documents on behalf of the City. -- {H02307271 } SECOND MORTGAGE MODIFICATION AGREEMENT This Second Mortgage Modification Agreement (this "Modification") is made and entered into effective this _ day of , 2002 (the "Effective Date"), by and among MORTGAGEE, The Huntington National Bank, a national banking association, which has a principal place of business located at 41 South High Street Columbus, Ohio 43215 ("Bank"), MORTGAGOR. Tartan Golf Company (Dublin), LLC, a limited liability company organized and existing under the laws ofthe State of Ohio, which has a principal place of business located at 8070 Tartan Fields Drive, Dublin, Ohio 43017 ("Tartan"), MORTGAGOR, the City of Dublin, Ohio, a municipal corporation, which has a principal place of business located at 6665 Coffman Road, Dublin, Ohio 43017 ("City"; Tartan and City being referred to herein separately and collectively as "Mortgagor"), and Thomas D. Anderson, whose address is 8550 Tartan Fields Drive, Dublin, Ohio 43017 ("Guarantor"). Backeround Information A. Pursuant to that certain Construction and Term Loan and Security Agreement dated June 11,2001 among Tartan, Guarantor and Bank (as the same is amended on this date pursuant to that certain Change in Terms Agreement by and among Tartan, Guarantor and Bank, and as the same may from time to time be further revised, restated, modified, amended, supplemented or replaced, the "Loan Agreement"), Bank extended a construction and term loan facility (the "Original Loan") to Tartan, the outstanding principal balance of which, as ofthe Effective Date, being $6,085,000.00, which Original Loan was secured, inter alia, by certain liens and security interests, including those granted pursuant to the (i) Loan Agreement, and (ii) that certain Open-End Mortgage, Assignment of Rents and Security Agreement dated June 11, 2001, as shown recorded as Instrument No. 200106140134730 of the records of the Recorder of Franklin County, Ohio, as amended pursuant to that certain Mortgage Modification Agreement dated October 19, 2001, as shown recorded as Instrument No. 200110220242699 of the records of the Recorder of Franklin County, Ohio (collectively, the "Mortgage"). Each capitalized term used but not otherwise defined herein shall have the meaning ascribed thereto in the Loan Agreement. B. In connection with the Original Loan and the Mortgage, Tartan, City, Bank and Guarantor entered into that certain Multi-Party Agreement dated June 11,2001 (the "Multi-Party Agreement"), pursuant to which the parties set forth their agreement with respect to certain rights and obligations relating to the Property and the Project and their interests therein pursuant to the Mortgage, the Lease and otherwise. C. Tartan has requested that Bank extend to Tartan (i) an additional construction and term loan advance (the "Additional Advance") in the amount of $585,000.00 for the purpose of financing the completion of construction of the Project, and (ii) one or more revolving loans (collectively, the "Revolving Loans") in the maximum aggregate amount of $250,000.00 (the "Commitment"). D. Bank has agreed to make the Additional Advance and to extend the Revolving Loans to Borrower, on the condition, among others, that Mortgagor and Guarantor enter into this Modification. {H0231666.1 } A~reement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the foregoing and as follows: 1. Modification of Mortgage. Mortgagor hereby agrees that the Mortgage shall secure the aggregate outstanding balance of the Original Loan, the Additional Advance, and the Revolving Loans made under the Commitment. The Mortgage is hereby modified to provide: a. that it shall secure (i) the Original Loan and the Additional Advance, as evidenced by that certain Consolidation and Replacement Promissory Note (the "New Note") given by Tartan to Bank dated of even date herewith in the original principal amount of$7,085,000.00, and (ii) the Revolving Loans, as evidenced by that certain Revolving Credit Loan Note (the "Revolving Note") given by Tartan to Bank dated of even date herewith in the original principal amount of $250,000.00. Further, any reference in the Mortgage to the "Note" shall mean, collectively, the New Note and the Revolving Note, and any reference to the indebtedness evidenced by the "Note" shall mean the Original Loan (now evidenced by the New Note), the Additional Advance (evidenced by the New Note), and the Revolving Loans (evidenced by the Revolving Note). b. that Section 29 of the Mortgage is hereby revised and replaced in its entirety by the following: "29. LOAN ADVANCES. This Instrument shall secure unpaid balances of loan advances which Lender may make after this Instrument is delivered to the Recorder for record pursuant to the provisions ofthe Loan Agreement. The maximum amount of the unpaid balance of said loan advances, in the aggregate and exclusive of interest accrued thereon, which may be outstanding at any time is Seven Million Five Hundred Thousand Dollars ($7,500,000.00). " 2. Modification of Multi-Partv Agreement. The Multi-Party Agreement is hereby modified as follows: a. In order to correct certain typographical errors, (i) the last paragraph of Section 1. is hereby revised and replaced in its entirety by the following: "The foregoing notwithstanding, to the extent such Event of Default consists of a violation of any of the provisions of the Loan Documents referenced in (b) and (c) in Section 2 of this Agreement, {H0231666.! } 2 only Dublin's assumption of the Loan shall be deemed a cure of such Event of Default. Notwithstanding the foregoing, to the extent any Event of Default consists of a violation of Paragraph 10 of the Mortgage by virtue of Borrower's failure to provide financial information to Lender, rather than Borrower's other obligations under such Paragraph 10 (including the obligation to keep proper books, records and accounts), Dublin's assumption of the Loan shall not be required to effect a cure of such Event of Default provided Dublin does provide the financial information required by the Loan Documents within the Cure Period." (ii) The phrase "(excluding the Loan Agreement)" as it appears in Section 2. is hereby deleted. (iii) Subpart (b) of Section 2. is hereby revised and replaced in its entirety by the following: "(b) the last sentence of Paragraph 10 of the Mortgage pertaining to the provision of financial statements or other financial information," (iv) the reference to "(iii)" in the last sentence of the first paragraph of Section 2. is hereby changed to "(d)". b. The reference to "$6,500,000.00" in Section 6. is hereby changed to "$7,085,000.00". c. Mortgagor hereby agrees that the Multi-Party Agreement shall apply in all manner with respect to the Original Loan, the Additional Advance and the Revolving Loans and that this Modification shall become a part of the Multi- Party Agreement; that the Multi-Party Agreement shall remain in full force and effect notwithstanding this Modification, the Change in Terms Agreement or any other documents or instruments executed in connection herewith or therewith; that the aggregate amount of principal indebtedness evidenced by (i) the New Note ($7,085.000.00), and (ii) the Revolving Note ($250,000.00) shall constitute the "Loan", as said term is used in the Multi- Party Agreement; that the New Note and the Revolving Note shall, collectively, constitute the "Note", as said term is used in the Multi-Party Agreement; that the Loan Agreement, as the same is amended pursuant to the Change in Terms Agreement, shall constitute the "Loan Agreement", as said term is used in the Multi-Party Agreement; that the Mortgage, as amended hereby, shall constitute the "Mortgage", as said term is used in the Multi- Party Agreement; and that the Loan Documents, as amended pursuant to the Change in Terms Agreement, shall constitute the "Loan Documents", as said term is used in the Multi-Party Agreement; and the Multi-Party Agreement is hereby modified to provide that each of the above terms shall have the meaning ascribed thereto above, {H0231666.! } 3 \ 3. Ratification of Loan Documents. Except as herein expressly modified, each Mortgagor hereby ratifies, approves, accepts and confirms all of the terms and conditions applicable to it and contained in the Mortgage and the Multi-Party Agreement, as amended on the date hereof. 4. Continuation of Mortgage Liens and Security Interests. Except for the modifications above stated, the parties hereby expressly intend that this Modification shall not constitute the creation of a new debt (except to the extent of the Additional Advance and any Revolving Loans) or the extinguishment of the Original Loan or any other debt originally secured by the Mortgage; nor shall it in any manner affect or impair any mortgage lien or security interest granted by the respective Mortgagors in connection with the Original Loan, which each Mortgagor hereby acknowledges such respective mortgage liens and security interests to be valid and existing liens on its respective property, as described in the Mortgage and the Loan Agreement to which each Mortgagor is a party, and the parties agree that said mortgage liens and security interests (i) shall continue in full force and effect from the date hereof until the Original Loan now evidenced by the New Note is fully and indefeasibly satisfied, and (ii) shall extend and apply with respect to, and shall secure, the Additional Advance and any Revolving Loans from the date hereof until the Additional Advance and the Commitment are each fully and indefeasibly satisfied and all obligations of Bank to extend additional credit to Borrower under the Commitment or otherwise have terminated. 5. No Course of Dealing: Waiver. Mortgagor expressly acknowledges and agrees that the execution ofthis Modification shall not constitute a waiver of, and shall not preclude the exercise of, any right, power or remedy granted to Bank in any document evidencing the indebtedness or obligations of Mortgagor to Bank, or as provided by law, except to the extent expressly provided herein. No previous modification, extension, or compromise entered into with respect to any indebtedness or obligation of Mortgagor to Bank shall constitute a course of dealing or be inferred or construed as constituting an express or implied understanding to enter into any future modification, extension or compromise. No delay on the part of Bank in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice Bank's rights, powers or remedies. 6. Promise to Pay and Perform. Tartan hereby covenants and promises to pay to the order of Bank, the unpaid principal balance ofthe New Note and the Revolving Note, together with interest thereon, and each Mortgagor hereby promises to perform, all of the covenants, conditions, stipulations and agreements applicable to each such Mortgagor as contained in the New Note, the Revolving Note and the other Loan Documents to which each such Mortgagor is a party, including without limitation, the Mortgage and the Multi-Party Agreement, as provided herein and therein. 7. Setoffs. Claims and Defenses. Each Mortgagor hereby certifies that, as of the date hereof, it has no setoffs, counter-claims or other defenses of any nature whatsoever to the payment or performance of any part of its respective obligations or liabilities owed to Bank as of the date of execution of this Modification. 8. Governing Law. This Modification shall be interpreted and construed in accordance with and governed by the laws of the State of Ohio (without respect to conflict of law principles). Further, the parties hereto intend that this Modification shall be in compliance with all applicable laws and shall be enforceable in accordance with its terms. If any provision of this Modification {H0231666.\ } 4 shall be illegal or unenforceable, such provision shall be deemed cancelled to the same extent as though it never had appeared herein, but the remaining provisions shall not be affected thereby. 9. Further Assurances. Mortgagor shall execute and deliver any and all other documents and take any and all other steps or actions reasonably deemed necessary by Bank and permitted by law to effectuate this Modification and to preserve the mortgage interests intended by the Mortgage and the rights and obligations intended by the Multi-Party Agreement and this Modification. 10. Costs and Expenses. Tartan agrees to reimburse Bank for all costs and expenses incurred in the preparation, execution and delivery of this Modification, including reasonable attorneys' fees. II. Successors and Assigns. This Modification shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns, and shall inure to the benefit of Bank and its successors and assigns. 12. Titles and Headings. The titles and headings herein are intended to promote convenience and are not a part of this Modification for purposes of interpreting and applying the provisions hereof. 13. WAIVER OF JURY TRIAL. BANK, TARTAN AND GUARANTOR EACH HEREBY MUTUALLY, VOLUNT ARIL Y, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF THE OTHER ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE LOAN DOCUMENTS, THIS MODIFICATION, THE TRANSACTIONS RELATED HERETO OR THERETO OR THE RELATIONSHIP ESTABLISHED HEREBY OR THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK, TARTAN AND GUARANTOR TO ENTER INTO THIS TRANSACTION. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THE LOAN DOCUMENTS. 14. Confession of Judgment. Tartan and Guarantor hereby jointly and severally authorize any attorney at law to appear in any state or federal court of record in the United States of America after the maturity of the indebtedness evidenced and secured by the Loan Documents (whether occurring by lapse of time or acceleration), to waive the issuance and service of process, to admit the maturity thereof and the amount then appearing due thereon, to confess judgment against all of the aforesaid parties (or any thereof) in favor of the holder thereof for the amount then appearing due, together with interest and costs of suit, and thereupon to release all errors and to waive all rights of appeal and stay of execution. No judgment against less than all of the aforesaid parties shall bar any subsequent judgment against the other or others or any thereof. Should any judgment be vacated for any reason this warrant of attorney nevertheless may thereafter be used for obtaining additional judgments. Tartan and Guarantor waive any conflict of interest that any attorney-at-law employed or retained by the holder hereof may have in confessing judgment hereunder and consents to the payment of a legal fee to any attorney-at-law confessing judgment hereunder. Neither this paragraph {H0231666.1} 5 13., nor the below WARNING language below shall not apply in any respect to City. [signatures contained on following pages] {H0231666.! } 6 IN WITNESS WHEREOF, the parties have executed this Modification effective the date first set forth above. MORTGAGOR: CITY OF DUBLIN, OHIO, a municipal corporation By: Print Name: Title: MORTGAGOR: T ART AN GOLF COMPANY (Dublin), LLC, an Ohio corporation By. Thomas D. Anderson Its: President WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HA VE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE MODIFICATION, OR ANY OTHER CAUSE. GUARANTOR: Thomas D. Anderson WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAYBE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE, AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE MODIFICATION, OR ANY OTHER CAUSE. [signatures continue on next page] {H0231666.1} 7 MORTGAGEE/BANK: THE HUNTINGTON NATIONAL BANK By: William R. Remias, Jr. Its: Vice President STATE OF OHIO COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me this _ day of September, 2002, by Thomas D. Anderson, individually and as the President of Tartan Golf Company (Dublin), LLC, an Ohio limited liability company, for and on behalf of the limited liability company. Notary Public Commission Expires: STATE OF OHIO COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me this _ day of ,2002, by , as of the City of Dublin, Ohio, a municipal corporation, for and on behalf of the said municipal corporation. Notary Public Commission Expires: STATE OF OHIO COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me this _ day of September, 2002, by William R. Remias, Jr., as Vice President of The Huntington National Bank, a national banking association, for and on behalf of said national banking association, Notary Public Commission Expires: THIS INSTRUMENT PREPARED BY: Marie A. Malloy, Esq. Schottenstein, Zox & Dunn 41 South High Street Columbus, Ohio 43215 {H0231666.1} 8