38-02 Resolution
RECORD OF RESOLUTIONS
Dayton Legal Blank Co.. Form No. 30045
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I! 38-02
...... .~ Resolution No. H Passed ......H......H. "H"'H'HHHHHHHHHHHHH'
YEAR
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, A RESOLUTION CONSENTING TO, APPROVING AND
,I AUTHORIZING THE MODIFICATION OF AN EXISTING
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ii MORTGAGE AND THE EXECUTION OF A SECOND
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Ii MORTGAGE MODIFICATION AGREEMENT AND ANY
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Ii OTHER NECESSARY AND RELATED AGREEMENTS,
II ALL IN CONNECTION WITH AN ADDITIONAL
II BORROWING BY TARTAN GOLF COMPANY, LLC
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II RELATING TO THE GOLF CLUB OF DUBLIN.
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I WHEREAS, by Ordinance No. 119-00 passed by this Council on October 16,2000, the
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II City entered into a certain Ground Lease and Operating Agreement, dated as of
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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
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RECORD OF RESOLUTIONS
Dayton Legal Blank Co.. Form No. 30045
+111 Resolution NO'H?~~~?H PassedHHHHHHHHHH~~~~H7
W .. ....''___._' YEAR
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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.
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'i NOW, THEREFORE, BE IT RESOLVED by the City of Dublin, in Franklin, Union
ii and Delaware Counties, Ohio, that:
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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.
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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.
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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:
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Attest:
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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.
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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.
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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,
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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,
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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
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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
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13., nor the below WARNING language below shall not apply in any respect to City.
[signatures contained on following pages]
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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]
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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
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