HomeMy WebLinkAboutItem VI (B) Golf Course Update !" Agenda 3-16-93
t, Item VI B
"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER
Ocoee S.SCOTT VANDERGRIFF
Yy °_ CITY OF OCOEE COMMISSIONERS
RUSTY JOHNSON
4.�i J
� D. 150 N.LAKESHORE DRIVE PAUL W.FOSTER
D OCOEE,FLORIDA 34761 VERN COMBS
1-
i.
`�V (407)656 2322 SAM WOODSON
f G 00�``� CITY MANAGER
ELLIS SHAPIRO
MEMORANDUM
DATE: March 12, 1993
TO: The Honorable Mayor and Board of City Commissioners
FROM: Montye Beamer, Director `.
Administrative Services
SUBJECT: Effluent Disposal Site/Golf Course Ground Lease Agreement
On December 11, 1992, in the First Amendment to the Ground Lease Agreement between the
City of Ocoee and the Riverbend Golf Group, Inc., Riverbend was granted additional time up
to March 1, 1993, in order to meet certain pre-development obligations. Based upon on-site
review and additional information required by FDER, City Staff is recommending an additional
time extension to June 1,1993, as shown in the attachment (Second Amendment).
The schedule for the various project tasks is as follows:
3/12/93 • Stormwater Permit (starts 30 day review/no advertising
requirement)
3/18/93 • Meeting with FDER (Effluent Disposal)
3/30/93 • DRC
3/31/93 • Submittal of Effluent Disposal Report - FDER
4/6/93 • Board Approval of additional property purchase
• Amendment to Ground Lease Agreement (lender's requirements)
4/13/93 • P & Z - Golf Course Preliminary/Final Master Plan
4/20/93 • BCC - Golf Course Preliminary/Final Master Plan
For the Developer's Phase I Construction (Earthwork Contractor: Golf Course Clearing,
Grubbing, Earthwork/Rough Grading, Lake Excavation and Percolation Basis Construction), the
schedule includes:
3/18/93 • Distribute Plans and Specifications for Formal Bidding
Ott-
March 12, 1993
Page Two
3/25/93 • Pre-Bid Conference (10:00 am at site)
4/5/93 • Bid Opening and Review
4/15/93 • Award Contract
4/19/93 • Conduct Pre-Construction Meeting (1:00 pm at site)
4/22-5/17/93 • Notice to Proceed*
*Predicated on Finalizing Loan Conditions and City Requirements
There are several key dates for the City with the Developer in this Construction Phase:
4/5/93 • Notice of Intent to Commence Work on or after April 22
4/12/93 • Pre-Construction Meeting with Staff to Review Phase I Golf
Course Construction Listed Above (2:00 pm at City)
Ken Ezell, as a representative of Riverbend Golf Group, has provided the City with the attached
commitment letter from the lending institution. He will be present to discuss this letter as well
as answer any questions concerning the pre-development and design phases.
Action Requested
The Honorable Mayor and Board of City Commissioners extend the time in which the City and
Riverbend Golf Group, Inc. must meet certain pre-development obligations until June 1, 1993
as provided in the Second Amendment, and authorize the Mayor and City Clerk to execute.
MEB/jbw
Attachments
SECOND AMENDMENT TO
GROUND LEASE AGREEMENT
THIS SECOND AMENDMENT TO GROUND LEASE AGREEMENT is entered
into and to become effective this day of March, 1993, by and
between the CITY OF OCOEE, a Florida municipal corporation
("Lessor") , and RIVERBEND GOLF GROUP, INC. , a Florida business
corporation ("Lessee") .
WITNESSET H:
WHEREAS, Lessor and Lessee are parties to a Ground Lease
Agreement, dated December 3 , 1991, as amended December 17, 1992
(the "Lease") ; and
WHEREAS, under the terms of Article 2. 1. 1 of the Lease, either
party may terminate the Lease by written notice to the other in the
event Lessee is unable to comply with certain specified conditions
by March 1, 1993 ; and
WHEREAS, the parties have agreed to provide Lessee with
additional time in which to comply with such conditions as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements set forth herein and in the Lease,
the parties do hereby agree to amend the Lease as follows:
1. In Article 2.1. 1 of the Lease, the fifth (5th) full
sentence on page 6 is amended to provide as follows:
Notwithstanding any other provisions of this
Lease, if by June 1, 1993 , Lessee acting with
due diligence is unable to obtain suitable
financing or the development approvals and
permits necessary to construct and operate the
Construction Phase Improvements (or with
respect to any Master Effluent Treatment and
Disposal Permits, such permits have not been
obtained by Lessor) , or if they may be
obtained only upon terms and conditions which
in the reasonable judgment of Lessee or Lessor
render the development and operation of the
Facilities economically unfeasible, or if
Lessor is unable to obtain fee title to the
Railroad Right-of-Way on terms which are
acceptable to Lessor in its reasonable
judgment, this Lease may be terminated by
either party hereto by written notice to the
other no later than June 30, 1993, whereupon
all obligations of the parties to each other
shall end except as otherwise provided herein.
2. The first sentence of Article 2. 1.1 and the first
sentence of Article 2.1.3 of the Lease are amended to provide that
the "Predevelopment Phase" of the term of the Lease shall end and
the "Construction Phase" of the Lease shall commence at such time
as the necessary financing and all governmental permits and
approvals required to construct and operate the Construction Phase
Improvements have been obtained, or on July 1, 1993, whichever
first occurs, unless the term of this Lease has been previously
terminated in accordance with the terms of Section 2.1.1 hereof.
3. Except as provided herein, the Lease shall continue in
full force and effect in accordance with its terms.
2
IN WITNESS WHEREOF, Lessor and Lessee have caused this
Amendment to be executed by their duly authorized representatives
and their seals to be hereunto affixed the day and year indicated
below.
WITNESSES: LESSEE:
RIVERBEND GOLF GROUP, INC. , a
Florida business corporation
By:
Title:
Attest:
Executed on:
(CORPORATE SEAL)
WITNESSES: LESSOR:
THE CITY OF OCOEE, a Florida
municipal corporation
By:
Attest:
Executed on:
(SEAL)
For use and reliance only
by the City of Ocoee, Florida
Approved as to form and legality
this day of March, 1993.
FOLEY 6 LARDNER APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
, 1993 UNDER
AGENDA ITEM NO.
By:
City Attorney
3
JOINDER BY CLIFTON
LLOYD CLIFTON AND ASSOCIATES, INC. , a Florida business
corporation, hereby joins in this Lease solely for the purpose of
agreeing to be bound by the provisions of Section 2.1.2 hereof.
WITNESSES: LLOYD CLIFTON AND ASSOCIATES, INC.
By:
Name:
Title:
Executed on
•
CWe3R000SOCOFE RIVEOROLLSE 13/11 x93111E013I ldC£j.1
4
First Union National Bank Ca y
f Florida _
rlando Tower Office
20 North Orange Avenue
Post Office Box 1000
Orlando, Florida 32802-1000
407 649-2265
FN
March 10, 1993
Mr. Kenneth C. Ezell
Forest Lake Golf Club, Ltd.
ULP Associates, Inc.
2180 Park Avenue, North, Suite 328
Winter Park, FL 32789
Re: Construction and Mini-permanent Loan Commitment
Forest Lake Golf Club, 18-hole Championship Public Golf Course
and Facilities in Ocoee, Florida
Dear Mr. Ezell:
First Union National Bank of Florida ("Lender") is pleased to offer the following construction
and mini-permanent loan commitment to Forest Lake Golf Club, Ltd. ("Borrower"), subject to
the following terms and conditions:
1. Loan Type: Combination Construction and Mini-permanent Loan
2. Purpose: To finance the construction of an 18-hole championship public golf course,
clubhouse, and maintenance facilities in Ocoee, Florida ("Improvements"), and to provide mini-
permanent financing.
3. Premises: Approximately 240 acres of land located in Ocoee, Florida, being more
particularly described as frontage located on Clarcona-Ocoee Road in West Orange County. The
site is on the north side of the highway about four miles north of Highway 50 and one and one-
half miles north of Silver Star Road, is owned in Fee Simple by the City of Ocoee and will be
ground-leased to the Borrower for a minimum term of 50 years ("Premises"). (Improvements
and Premises are hereinafter collectively referred to as the "Mortgaged Premises").
4. Borrower: Forest Lake Golf Club, Ltd., a Florida limited partnership, whose sole general
partner is Riverbend Golf Group, Inc., a Florida corporation.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 2
5. Guarantors: The loan shall be jointly and severally unconditionally guaranteed by A.
Wayne Rich, Richard C. Harkins, Edward J. Meyer, Richard McDonald, Lloyd M. Clifton,
George M. Clifton, Kenneth C. Ezell, and Riverbend Golf Group, Inc.
6. Principal Amount: The loan shall be the lesser of$2,620,000 or 70% of Lender-approved
appraised market value. The loan will be allocated in accordance with a Sources and Uses of
Funds Budget to be provided prior to closing; example attached to this Commitment (Schedule
C) .
7. Security: A mortgage constituting a valid first lien on the Mortgaged Premises, together
with all Improvements and assignment of a leasehold interest in appurtenances presently located
or hereafter to be constructed thereon. The final legal description of the Mortgaged Premises,
all terms and conditions of the Ground Lease from the City of Ocoee, and the condition of title
must be approved by the Lender and its counsel.
8. Additional Security: The loan shall also be secured by the following:
(a) A first collateral Assignment of Leases, Rents, Profits and Contracts.
(b) A Security Agreement constituting a valid first lien on and prior perfected security
interest (Financing Statement, UCC-1) on all fixtures, furnishings and equipment,
contract rights, permits and general intangibles, owned or held by, or occurring to the
benefit of, Borrower then or thereafter acquired or affixed to or used or useful by the
Borrower in the construction or operation of the Mortgaged Premises, including,
without limitation, additions, replacements, substitutions, after-acquired property, and
all building materials for the construction of the Improvements.
(c) A Pledge and Security Agreement with respect to the "Reserve Account" described
under Paragraph 23, "Additional Conditions & Covenants" on page 8 of this Commit-
ment.
9. Interest Rate During Construction Period: The Bank is offering Borrower a choice of
interest-rate options during the construction portion of the loan transaction contemplated herein.
Borrower shall indicate at the time of Commitment acceptance which of the following options
is selected:
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 3
Option A: The interest rate on the principal balance outstanding shall be First Union
National Bank's prime rate ("Prime Rate") plus one and one-half percent (P+1' %)
per annum as that Prime Rate may change from time to time, said changes to occur on
the first date the Prime Rate changes. Prime Rate shall be defined as that rate
announced by First Union National Bank from time to time as its Prime Rate.
Option B: The loan shall bear interest at a fixed rate of nine and one-quarter percent
(9'/4%) per annum. The 9 VI% fixed rate will expire if the loan is not closed by April
15, 1993.
Regardless of which option is selected, interest shall be calculated using a year base of 360 days
and charged for the actual number of days elapsed in an interest period.
10. Interest Rate During Mini-Perm Loan: The Bank is offering Borrower a choice of
interest-rate options for the mini-perm portion of the loan transaction contemplated herein.
Borrower shall indicate at the time of Commitment acceptance which of the following options
is selected:
Option A: The interest rate on the principal balance outstanding shall be First Union
National Bank's prime rate ("Prime Rate") plus one and one-half percent (P+11/2%)
per annum as that Prime Rate may change from time to time, said changes to occur on
the first date the Prime Rate changes. Prime Rate shall be defined as that rate
announced by First Union National Bank from time to time as its Prime Rate.
Option B: The loan shall bear interest at a fixed rate of nine and one-quarter percent
(91/4%) per annum. The 914% fixed rate will expire if this Commitment is not
accepted by April 15, 1993.
Option C: The loan shall bear interest at a fixed rate to be determined by the Bank
at the time the loan moves from the construction portion to the mini-perm portion of
the loan. The Bank shall make its determination based upon its estimate, in its sole and
absolute discretion, of what is a reasonable market rate for a loan of this character on
the date of such determination. If the mini-perm portion were being funded today, that
rate would be 914%
Regardless of which option is selected, interest shall be calculated using a year base of 360 days
and charged for the actual number of days elapsed in an interest period.
March 10, 1993
Forest Lake Golf Club, Ltd.
' Page 4
11. Construction Period: Ten (10) months.
12. Term/Maturity: Five (5) years (excluding the construction period).
13. Repayment Terms: Throughout the term of the loan, interest shall be computed on the
outstanding principal balance for the actual number of days which have elapsed in an interest
period, calculated on the basis of a 360-day year.
(a) During the 10-month construction period, interest only, at the above-mentioned
variable or fixed rate, shall be due and payable monthly on loan funds previously dis-
bursed.
(b) Commencing on the 15th day of the first month of the permanent mortgage portion
of the loan term and continuing on the 15th day of each month thereafter, the loan shall
be payable in fifty-nine (59) monthly installments, with the principal balance of the
loan, if not sooner paid, being payable at maturity, which shall be the 15th day of the
sixtieth (60th) month of the mortgage loan term. Payments are based upon the chosen
mini-perm interest-rate option and are as follows:
Option A: Monthly principal payments of$14,555.56 plus interest shall be due in fifty-
nine (59) monthly installments, as aforesaid. The monthly payment amount has been
computed on the basis of a 15-year amortization, with a five-year balloon.
Option B: Equal monthly payments of principal and interest in the amount of
$26,964.84 per month, computed on the basis of a 15-year amortization plan, with a
five-year balloon.
Option C: Equal monthly payments of principal and interest shall be computed by the
Bank so as to fully amortize the loan on the basis of a 15-year mortgage amortization,
with a five-year balloon.
14. Prepayment: Depending upon the interest-rate option selected for the mini-perm portion
of the loan, prepayment shall be allowed as follows:
Option A: The loan may be prepaid in whole or in part at any time without any
prepayment premium, penalty, or fee whatsoever, provided, however, that any such
prepayment must be made on an installment payment date and the Bank must be given
at least thirty (30) days prior written notice of Borrower's intention to prepay.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 5
Options B or C: Prepayment of the loan while a fixed interest rate is in effect shall
not be permitted. Provided, however, if the Bank receives and elects to accept
prepayment of principal from the Borrower on other than those dates specified by the
Loan Agreement, or if the Borrower elects to pay off the loan or is in default and the
Bank accelerates the payment of the loan, before its stated maturity date, and the Bank,
at its sole option, elects to permit such prepayment, Borrower shall pay to the Bank on
demand any amounts required to compensate the Bank for any losses (including losses
in anticipated interest income), costs or expenses which it may incur as a result of such
prepayment or election.
The prepayment penalty due the Bank by the Borrower shall be determined as follows:
(A - B) xCxD
A = Fixed rate.
B = As of the date of the prepayment, the "Bond Equivalent" yield of
the U.S. Treasury Bill or Note with the maturity date closest to the
date marking the end of the fixed-rate period for the loan. Bond
equivalent yields are those quoted under the (Yld.) column of the
Treasury Bonds, Notes and Bills Section of The Wall Street
Journal or equivalent published source on the date of such
prepayment (or final judgement of amounts due).
C = Scheduled average outstandings (per original amortization sched-
ule) from the prepayment date to the end of the fixed-rate period.
D = Number of days from date of prepayment to the end of the fixed-
rate period, divided by a year base of 360 days.
In the event that the fixed rate is less than the "Bond Equivalent" yield, no prepayment
penalty shall be paid.
15. Commitment Fee: A non-refundable commitment fee of 1% of the loan amount ($26,200)
shall be due and payable in two installments; 'h% ($13,100) with a signed commitment and 'h%
($13,100) at loan closing.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 6
16. Loan Construction Fee: The Bank shall be paid a Loan Fee equal to 1% of the loan
amount ($26,200), in consideration of the Bank managing the construction portion of the loan.
The Loan Fee shall be due and payable upon closing.
17. Forward Rate Fee: If Interest Rate Option A is selected during construction along with
Option B during the mini-perm then a non-refundable fee of .45% of the loan amount ($11,790)
shall be due and payable at the loan closing. This fee is required only if Interest Rate Option
A is selected during the construction period, along with Option B during the mini-perm portion
of the loan. The forward-rate fee will hold a fixed rate of 9.25% (if the loan is closed by April
15, 1993) until January 15, 1994. On January 15, 1994, if the loan is still in the construction
phase, the rate will cease to be a floating rate and a rate of 9.25% will be charged.
18. Appraisal: At least ten (10) days prior to closing, Lender must receive a satisfactory
current appraisal of the Borrower's leasehold interest in the Mortgaged Premises (consisting of
the Premises and the proposed Improvements) expressing an opinion of Market Value (i) "as is,"
(ii) as if completed, and (iii) as if completed and achieving stabilized operations. The Lender
must arrange for the appraisal and engage the appraiser. The appraisal must be ordered directly
by the Lender and must conform to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA) and the related rules and regulations of the Office of the
Comptroller of the Currency (the OCC), 12 CFR Part 34, effective August 24, 1990, as
amended. The appraisal, including, without limitation, the appraisal methodology and the
conclusion(s) of Market Value, shall be subject to Lender's review and approval. All appraisal
costs and fees shall be paid by Borrower, and Borrower hereby agrees to immediately pay or
prepay such appraisal costs or fees upon the request of Lender.
Lender, on behalf of itself and its appraisers, reserves the right to enter onto the Mortgaged
Premises at reasonable times during the term of the loan for the purpose of inspecting and
appraising the Mortgaged Premises. All such appraisal costs and fees shall be paid by
Borrower; provided, however, Borrower shall have no duty or obligation to pay for more than
one such appraisal in any twelve (12) month period.
19. Environmental Schedule: In accordance with Paragraph 6 of the attached Standard Loan
Terms and Conditions (Exhibit A), Borrower must complete and return the attached
Environmental Schedule with the acceptance copy of the commitment letter. The completed
Environmental Schedule shall be subject to the review and approval of the Lender.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 7
20. Phase I Environmental Site Assessment Report: At least twenty (20) days prior to
closing, Borrower, at Borrower's expense, must provide Lender a satisfactory Phase I
Environmental Site Assessment Report certified to Borrower and Lender performed by an
environmental consulting firm previously approved by the Lender. The Environmental Site
Assessment shall conform to the Lender's attached specifications, at a minimum, and shall
otherwise be acceptable to the Lender in scope, form, and content. In the event that the
environmental consultant recommends, or the Lender otherwise requires, further investigation(s)
as a result of fmdings of the Phase I Environmental Site Assessment Report, then such
investigation(s) shall be conducted at Borrower's sole cost and expense by an environmental
consulting firm approved by the Lender. This Commitment is contingent upon the Lender's
receipt and approval of the Phase I Environmental Site Assessment Report and any subsequent
findings, test results, consultant recommendations and/or reports generated as a result of such
further investigation(s).
21. Initial Equity Requirement: The Borrower's initial cash equity requirement shall be the
greater of$1,000,000.00 or 30% of Lender-approved appraised value if the value is determined
to be $3,350,000.00 or less. If the value is determined to be greater than $3,350,000.00 the
Initial Cash Equity Requirement shall be $1,000,000.00. Prior to closing, Borrower must
provide Lender satisfactory written proof of such equity.
22. Payment and Performance Bonds: In accordance with Paragraph 5, Section N, of
Additional Standard Terms and Conditions For Construction Loan Commitments (Exhibit B),
Borrower shall furnish Lender with a one hundred percent (100%) dual obligee Performance
Bond and Labor and Material Payment Bond (collectively the "Bonds") regarding the
construction contract ("Contract") issued by a surety acceptable to Lender naming the Borrower
and Lender as co-obligees thereunder. The Bonds shall both provide that:
(a) The construction contractor must give written notice to the Lender of any alleged
default by the Borrower/Owner under the Contract or any other contract documents
relating to the Contract.
(b) The Lender shall have not less than ninety (90) days after receipt of such notice
or such time as is reasonably necessary to cure such default, whichever is greater.
Failure to give such notice shall constitute a waiver of such default and the bond shall
remain in full force and effect notwithstanding the Owner's alleged default.
(c) The only type of default that may be asserted against Lender shall be a monetary
default.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 8
(d) Claims submitted to arbitration shall not constitute defaults.
(e) Any changes or modifications in or under the Contract or the other contract
documents shall not release the surety.
(f) The surety shall waive any defense of timeliness of completion if time extensions
are granted by the Borrower/Owner to the construction contractor.
If not already included, the Performance Bond shall be amended to add the following provision:
"In the event that any legal action is brought by any Obligee pursuant to this
Performance Bond, whether or not suit is commenced, Obligee shall be entitled to
recover reasonable attorneys' fees and costs against the Surety, including such fees and
costs for any appeals."
If not already included, the Labor and Material Payment Bond shall be amended to add the
following provision:
"This is a payment Bond under the provisions of Chapter 713, Florida Statutes, and
(without limitation)the provisions and limitations of Sections 713.02(6) and 713.23, Florida
Statues, are incorporated into this Bond by reference, and in the event of any conflict
between the terms of this Bond and Chapter 713, Florida Statutes, the provisions of Chapter
713, Florida Statutes, shall control."
23. Additional Conditions and Covenants: A Loan Agreement will be executed and delivered
by the Borrower in favor of the Lender at the closing which shall incorporate such terms and
conditions as may be required by Lender or Lender's counsel, including without limitation, the
following special conditions:
(a) Borrower will establish at closing and will maintain throughout the term of the
loan a restricted cash deposit account with Lender (the "Reserve Account") which shall
at all times have a minimum balance of$100,000.00. At least annually, Borrower will
contribute to the Reserve Account additional cash in an amount equal to 15% of the
company's net cash income until the Reserve Account reaches and maintains a balance
of $500,000.00. "Net cash income" is defined as Borrower's cash from operations
after operating expenses and debt service and before dividends and other distributions
to Borrower's partners, principals, or Affiliates of Borrower, its partners or their
principals. After the Reserve Account reaches a balance of $500,000.00, annual
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 9
payments to the Reserve Account shall only be required if the Reserve Account at any
time falls below $500,000.00.
(b) Borrower shall not pay any dividends or other distributions to its partners, their
principals, or any affiliate of Borrower, its partners, or their principals:
(1) in the event of any default by Borrower in any of the Loan Agreement
covenants, or any other of the Borrower obligations under the loan docu-
ments; and
(2) in any event from the Reserve Account;
(3) and then only to the extent that such dividends and distributions in the
aggregate do not exceed 85% of net cash income for any given fiscal year of
Borrower when the Reserve Account balance is less than $500,000.00.
(c) No management fees, partnership administration fees, or the like shall be paid by
the Borrower unless, and then only to the extent that, net operating income (before
payment of debt service and payment to the Reserve Account required pursuant to this
loan),
(1) for Borrower's second fiscal year, exceeds $584,000.00;
(2) for Borrower's third fiscal year, exceeds $689,000.00;
(3) for Borrower's fourth fiscal year, $805,000.00;
(4) for Borrower's fifth fiscal year, $931,000.00;
(5) for Borrower's sixth fiscal year, $1,071,000.00.
(d) Borrower will annually budget and spend not less than 50% of its total expendi-
tures toward maintenance of the golf course, clubhouse, and other improvements at the
Mortgaged Premises.
(e) Borrower shall not incur any additional debt without the prior written consent of
the Lender.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 10
(f) Borrower shall, at all times, maintain a net operating income equal to at least
150% of the debt service required from time to time under this loan. "Net Operating
Income" is defined as Borrower's income from operations after operating expenses and
before debt service, dividends, taxes, and other distributions to Borrowers, partners,
principals, or Affiliates to Borrower, its partners, or their principals.
(g) Borrower shall prepare and deliver not less often than quarterly within 15 days
after each calendar quarter: (1) a company-prepared balance sheet as of the end of the
prior calendar quarter; (2)a company-prepared income and expense statement reflecting
a breakdown of all income and expenses for the prior calendar quarter, and cumulative-
ly for the year; (3) a Loan Agreement Compliance Review in a form prepared by
Lender confirming compliance by the Borrower on a quarterly basis with each and
every of the covenants set forth in the Loan Agreement.
(h) Borrower shall cause to be prepared and provided to Lender not later than 90 days
after each fiscal year-end a CPA-audited balance sheet and income statement. The
CPA selected by Borrower shall be satisfactory to the Bank.
(i) Borrower shall not assign its Ground Lease, or any rights under its Ground Lease,
without the prior written consent of the Lender.
(j) There shall be no change in the equity ownership structure of Borrower or any of
Borrower's partners or the principals of those partners, without the prior written
consent of the Bank.
(k) The Borrower shall not change management companies nor shall there be any
change in the equity ownership structure of such management company, without the
prior written consent of the Bank.
24. Additional Conditions to Closing: The Lender shall not be required to close this
transaction and may terminate this Commitment if any of the following conditions to closing
shall fail to be satisfied before the Closing Date.
(a) The appraisal on the Mortgaged Premises must be in form and content acceptable
to Lender.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 11
(b) Plans and specifications for all improvements to be made to the Mortgaged
Premises must be submitted to and approved by Lender and a third-party engineering
firm selected by Lender.
(c) Borrower shall submit documentary verification acceptable to Lender as to all
equity contributions which are proposed by Borrower to satisfy the minimum equity
contribution requirements of this loan.
(d) A certified copy of a final, fully executed Ground Lease Agreement between the
City of Ocoee and Borrower must be delivered to Lender which (1) has a minimum 50-
year term, with a 25-year renewal option; (2) provides for annual base rent in amounts
set forth on proforma statements previously delivered to and approved by Lender, and
(3) otherwise contains terms, covenants, and conditions all of which are acceptable to
the Lender and Lender's counsel in their sole and absolute discretion.
(e) Borrower must obtain and deliver to the Lender an estoppel certificate and
agreement drafted by Lender's counsel from the City of Ocoee containing such terms
and conditions as may be required by Lender or Lender's counsel after their review of
the finalized Ground Lease. The estoppel certificate will contain, without limitation,
the City's: (1) confirmation as to the status of the Lease, (2) confirmation as to
limitation of Borrower's real estate tax liability on Improvements only, (3) consent to
Lender's leasehold mortgage as it may be modified and extended from time to time and
all future advances made thereunder, (4) confirmation as to Borrower's satisfaction of
all conditions which might give rise to Lease termination, and (5) confirmation as to
City approval of all documents, permits and other items as to which the City is given
a right of consent or approval under the Lease.
25. Additional Documents: This Commitment is contingent upon Lender receiving prior to
closing such other documents that Lender and/or Lender's counsel reasonably deem necessary
to carry out the provisions and intent of this Commitment.
26. Lender's Counsel: Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Attorneys at Law
215 North Eola Drive, Orlando, Florida 32801 (Attention: Michael Ryan) shall prepare the
necessary loan documentation including the Notice of Commencement. All matters pertaining
to commitment requirements and the loan documents must be satisfactory to Lender's counsel.
All legal costs and expenses shall be the responsibility of Borrower and must be paid in full on
or before closing.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 12
27. Standard Loan Terms and Conditions: Except as otherwise provided below, this
Commitment is subject to all the Standard Loan Terms and Conditions of Exhibit A and all the
Additional Standard Terms and Conditions for Construction Loan Commitments of Exhibit B,
attached hereto and made a part hereof. Exceptions from Standard Loan Terms and Conditions
(Exhibit A) are as follows:
(a) The "Mortgage Deed" referred to in Section 2A of Exhibit A shall be a leasehold
mortgage; the titlepolicyreferred to in Section 11 of Exhibit A shall insure Fee Simple
title to the City of Ocoee, and the Borrower's leasehold interest in the leased property
that is the Mortgaged Premises.
(b) Sections 23E and 24 of Exhibit A do not apply and are hereby deleted from Exhibit
A.
28. Commitment Modifications and Amendments: This Commitment supersedes any and all
prior commitments, agreements, provisions, offers and statements, whether written or oral, made
by Lender or anyone acting with its authorization. No change, amendment, or modification
hereof shall be valid unless made in writing and signed by a duly authorized officer of the
Lender.
29. Expiration of Commitment: The loan must be closed in accordance with the terms and
conditions of this Commitment no later than April 15, 1993, or this Commitment shall expire
and shall be without further force and effect.
30. Acceptance: An accepted copy of this Commitment, together with one-half of the
Commitment Fee ($13,100), must be received by the undersigned no later than the close of
business April 1, 1993, or the offer shall be deemed to have lapsed and Lender shall have no
further obligation under this Commitment.
31. WAIVER OF JURY TRIAL: THE BORROWER, GUARANTORS (IF ANY) AND
LENDER KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
TO A TRIAL BY JURY WITH REGARDS TO ANY LITIGATION BASED ON THIS
COMMITMENT, OR ANY OBLIGATION RESULTING FROM OR RELATED TO ANY
LOAN OR GUARANTY RELATING TO THIS COMMITMENT, OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF BORROWER, ANY GUARANTOR OR
LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER
ENTERING INTO THIS COMMITMENT.
March 10, 1993
Forest Lake Golf Club, Ltd.
Page 13
If the Bank chooses to waive any covenant, paragraph, or provision of this Commitment, or if
any covenant, paragraph, or provision of this Commitment is construed by a court of competent
jurisdiction to be invalid, it shall not affect the applicability, validity, or enforceability of the
remaining covenants, paragraphs, or provisions.
If you have any questions, please feel free to call me at (407) 649-5375. We appreciate the
opportunity to offer you this fmancing, and we look forward to an ongoing mutually beneficial
business relationship.
Sincerely,
FIRST UNION NATIONAL BANK OF FLORIDA
Randy J. Ko•orc 0
Assistant Vice Preside
RJK:hob
cc: Regional RECAD
Michael Ryan, Esquire
Attachments:
Schedule C/Sources and Uses of Funds Budget
Environmental Schedule
Specifications for Phase I Environmental Site Assessments
Standard Loan Terms and Conditions, Exhibit A
Additional Standard Terms & Conditions for Construction Loan Commitments, Exhibit B