AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT ("Amendment"), dated as of
September 3, 1998, between CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a
Delaware limited liability company having an address at 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Lender") and CUTTER SOUND DEVELOPMENT, LTD., MONTVERDE
PROPERTY, LTD., NORTHSHORE GOLF PARTNERS, LTD., NORTHSHORE DEVELOPMENT, LTD.,
U.S. GOLF PELICAN STRAND, INC., U.S. GOLF PINEHURST PLANTATION, LTD., FSD GOLF
CLUB, LTD., RH HOLDINGS, INC. and WEDGEFIELD LIMITED PARTNERSHIP (collectively,
"Original Borrower") and ARLINGTON LAKES, L.P. ("New Borrower"), each having an
address at c/o Golf Communities of America, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx
Tower, Suite 1515, Xxxxxxx, Xxxxxxx 00000 (Original Borrower and New Borrower,
collectively, hereinafter referred to as "Borrower").
W I T N E S S E T H :
WHEREAS, Original Borrower and Lender were parties to that
certain Loan Agreement, dated as of July 2, 1998 (the "Loan Agreement");
WHEREAS, concurrently herewith, Lender has made an additional
loan to Original Borrower and New Borrower in the original principal amount of
$50,000,000 (the "New Loan");
WHEREAS, New Borrower has agreed to assume the Obligations (as
such term is defined in the Loan Agreement) under the Loan Agreement;
WHEREAS, Borrower, New Borrower and Lender have agreed to
amend the terms of the Loan Agreement in order to reflect the New Loan, the
assumption of the Obligations by New Borrower and to modify and amend certain
other terms and provisions of the Loan Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants, agreements, representations and warranties hereinafter contained, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree the Loan Agreement is hereby amended as follows:
1. All capitalized terms not otherwise defined herein shall
have the meanings provided in the Loan Agreement.
2. The New Borrower hereby jointly and severally assumes the
obligations of the Original Borrower for the performance of the Original
Borrower's obligations under the Loan Agreement.
3. The reference in the definition of "Spread Maintenance
Premium" to "four and one-half percent (4.5%)" is hereby modified to read to
"five and six tenths percent (5.6%)".
4. The definition of "Borrower" is hereby deleted in its
entirety and all references to "Borrower" shall mean, collectively, Original
Borrower and New Borrower and each of their respective successors and assigns."
5. The definition of "Individual Borrower" is hereby deleted
in its entirety and all references to "Individual Borrower" shall mean each
Original Borrower and New Borrower and their respective successors and assigns.
6. The definition of "Loan" is hereby deleted in its entirety
and all references to "Loan" shall mean the loan in the maximum principal amount
of $100,950,000 which shall be advanced by Lender in accordance with the terms
and conditions of the Loan Agreement, as hereby amended by this Amendment, and
which is evidenced by the Note and is secured by each Mortgage and all of the
other Loan Documents.
7. The definition of "Note" is hereby deleted in its entirety
and all references to "Note" shall mean those certain three (3) notes of even
date herewith in the principal amounts of $48,456,000, $26,247,000 and
$26,247,000, respectively, as the same may be amended, restated replaced
supplemented or otherwise modified from time to time.
8. The definition of "Payment Date" is hereby deleted in its
entirety and all references to "Payment Date" shall mean the eleventh (11th)
calendar day of each calendar month commencing with September, 1998.
9. The reference in Section 2.3 of the Loan Agreement to
"$1,298,250" is hereby deleted in its entirety and replaced with "$2,048,250."
10. Section 2.1 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"Section 2.1 The Loan. Subject to the terms and
conditions set forth herein, Lender hereby agrees to make the
Loan to Borrower on the Closing Date in the principal amount
not to exceed One Hundred Million Nine Hundred Fifty Thousand
And No/100 Dollars ($100,950,000)."
11. Section 2.2 of the Loan Agreement is hereby amended as to
include the following final sentence:
"Notwithstanding anything contained herein to the contrary,
the Subsequent Advance in the amount of $6,500,000 shall be
made from the Class C Note (as defined in the Note)."
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12. A new Section 8.6.6 is hereby added to the Loan Agreement
as follows:
"Section 8.6.6 No Obligation of Lender to
Provide Additional Financing. Other than as specifically
set forth in this Agreement, Lender shall have no
obligation to provide Borrower with additional financing
for all or any part of the Property or Properties."
13. A new Section 8.16 is hereby added to the Loan Agreement
as follows:
Section 8.16 Lakes of Arlington Property. (a) The
Individual Property owned by Arlington Lakes, L.P. (the "Lakes
Property") is made up of a commercial parcel(s) (the
"Commercial Parcel"), a residential parcel(s) (the
"Residential Parcel") and a golf facility parcel(s) (the "Golf
Parcel"), each as more particularly described as set forth on
Exhibit L, attached hereto. The Allocated Loan Amount for the
Lakes Property and each of the Commercial Parcel, the
Residential Parcel and the Golf Parcel is set forth on Exhibit
M attached hereto.
(b) Lender hereby acknowledges that
Arlington Lakes, L.P., has informed Lender that it is
considering entering into a joint venture agreement with a
regional developer in connection with the development of the
Residential Parcel or portions thereof; provided, however,
that such joint venture partner, joint venture agreement and
the terms and conditions thereof are reasonably acceptable to
both Lender and Borrower.
(c) Lender and Borrower hereby also
acknowledge that, at the request of Lender, Arlington Lakes,
L.P., will contribute the Commercial Parcel or portions
thereof to a to-be-formed entity, with thirty-three percent
(33%) of the ownership interest in such entity being held by
Arlington Lakes, L.P. and sixty-seven (67%) of the ownership
interest in such entity being held by Lender or its designee
and such development partners as Lender shall determine;
provided, however, Lender shall have no obligation to make an
equity contribution in the entity owning the Commercial Parcel
and, since Lender shall not be obligated to provide any
additional financing pursuant to Section 8.6.6 hereof, if such
additional financing is required, it is expected to be
provided by the development partners of Lender or a
construction lender; provided, further, that such development
shall be subject to the approval of Lender and Borrower, which
approval with respect to Borrower shall not be unreasonably
withheld.
(d) Lender hereby further acknowledges that
Arlington Lakes, L.P., has informed Lender that it is
considering contributing the Golf Parcel to a to-be-formed
third party golf development and/or management company, with
an ownership interest in the
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newly formed entity being retained by Arlington Lakes, L.P.;
provided, however, that such development, management company
and the terms and conditions of such development shall be
approved by Lender in its sole discretion.
(e) Lender shall have, in its sole and
absolute discretion, final approval with respect to any and
all development transactions concerning the Commercial Parcel
and the Residential Parcel, including, without limitation, the
approval of all prospective partners.
(f) It is contemplated that Arlington Lakes,
L.P. shall diligently seek to develop, market and sell lots of
the Residential Parcel, the Commercial Parcel and the Golf
Parcel. In connection therewith, Arlington Lakes, L.P. shall
periodically provide Lender with such informational reports
with respect to such development, marketing and sales,
including personnel conducting same, as Lender may reasonably
request.
(g) If within any calendar year, Arlington
Lakes, L.P., has not sold at least one hundred and fifty (150)
lots, Lender shall have the option to purchase a number of
lots not to exceed an amount equal to one hundred and fifty
(150) less the number of lots actually sold in such calendar
year for a purchase price per lot equal to seventy-five
percent (75%) of the Projected Price for such lots as set
forth on Exhibit N attached hereto.
(h) Borrower shall cause there to be
established on the Closing Date an interest reserve initially
funded in the amount of $__________________ on the date
hereof, with additional fundings by Borrower to take place
within one year from the date hereof until the interest
reserve shall reach the sum of $14,353,500. The failure of the
Borrower to fund such reserve shall constitute an Event of
Default hereunder.
14. Section 8.7.3 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
"8.7.3 Application of Release Price; Credits.
(a) Upon the release of a Release Parcel or Lot from the lien
of the Mortgage, the Release Proceeds shall be deposited in the Cash Collateral
Account and an amount equal to the Release Price for such Release Parcel or Lot
shall be applied first to the Interest Reserve Account in an amount sufficient
to bring the balance of such account to the sum of $14,353,500 and, thereafter,
such remaining Release Proceeds shall, at the option of Lender, either (i) be
allocated to the Monthly Debt Service Subaccount and disbursed to Lender on the
Payment Date next following such release in accordance with the Cash Management
Agreement and, upon receipt of such Release Price, Lender shall apply such
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amount to the reduction of the outstanding principal balance of the Loan without
any prepayment premium or charge or (ii) be applied to the satisfaction of
Borrower's obligation under Section 8.12."
15. Exhibit A to the Loan Agreement is amended to include
Exhibit A attached hereto.
16. Exhibit E to the Loan Agreement is hereby deleted in its
entirety and replaced with Exhibit E attached hereto.
17. Exhibit K to the Loan Agreement is hereby deleted in its
entirety and replaced with Exhibit K attached hereto.
18. A new Exhibit L is hereby added to the Loan Agreement in
the form of Exhibit L attached hereto.
19. A new Exhibit M is hereby added to the Loan Agreement in
the form of Exhibit M attached hereto.
20.. A new Exhibit N is hereby added to the Loan Agreement in
the form of Exhibit N attached hereto.
21. As hereinabove amended, the Loan Agreement is hereby
ratified and remains in full force and effect.
22. This Amendment may be signed in any number of counterparts
by the parties hereto, all of which taken together shall constitute one and the
same instrument.
23. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
26. At the request of Lender, Borrower shall execute such new
Notes, consolidations of the Notes and modifications and amendments to the Notes
and the other Loan Documents as may be requested by Lender provided that the
Borrower shall not be required to modify or amend any Loan Document if such
modification or amendment would change the interest rate or the stated maturity
date of the Loan. Borrower hereby agrees that Lender shall have the right to
unilaterally adjust the interest rate payable under the Notes so long as the
weighted average interest rate payable by Borrower under the Notes shall at all
times equal five and six tenths percent (5.6%) over LIBOR. Borrower's failure to
execute any such documents shall constitute an Event of Default.
27. Notwithstanding anything to the contrary contained in the
Notes, he Borrwer and Lender agree that the weighted average interest rate
payable by Borrower under the Notes shall at all times equal five and six tenths
percent (5.6%) over LIBOR.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
LENDER:
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
a Delaware limited liability company
By:
-------------------------------------------
Name:
Title:
BORROWER:
CUTTER SOUND DEVELOPMENT, LTD.,
a Florida limited partnership
By: U.S. Golf (Cutter Sound), Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
MONTVERDE PROPERTY, LTD.,
a Florida limited partnership
By: U.S. Golf (Montverde), Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
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NORTHSHORE GOLF PARTNERS, LTD.,
a Texas limited partnership
By: Northshore U.S. Golf, Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
NORTHSHORE DEVELOPMENT, LTD.,
a Texas limited partnership
By: Northshore U.S. Golf, Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
U.S. GOLF PELICAN STRAND, INC.,
a Florida corporation
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
U.S. GOLF PINEHURST PLANTATION, LTD.,
a Florida limited partnership
By: U.S. Golf (Plantation), Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
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FSD GOLF CLUB, LTD.,
a Florida limited partnership
By: U.S. Golf (FSD), Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
RH HOLDINGS, INC., a Utah corporation
By:_______________________________
Name: Xxxxxx Xxxxxxxxx
Title: President
WEDGEFIELD LIMITED PARTNERSHIP,
a Michigan limited partnership
By: U.S. Golf (Wedgefield), Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
ARLINGTON LAKES, L.P.,
a Texas limited partnership
By: GCA Texas Development, Inc.,
its General Partner
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
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Exhibit A
Allocated Loan Amount, Appraised Values, Minimum Release Prices
(See Attached)
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Exhibit E
Structure of Borrower
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Exhibit K
Reserve Data
At Closing By 1/1/2000
Initial Advance (Section 1.1): $44,450,000
Construction Escrow Account (Section 2.8.1) $ 3,232,861.36 $4,267,138.64
Tax and Insurance Deposit (Section 8.1.1) $ 223,784.08
Replacement Reserve Contribution (Sec. 8.2.1) $ 4,863.73
Replacement Reserve Cap (Section 8.2.1) $ 58,367.09
Interest Reserve (Section 8.3.1) $ 6,000,000
Working Capital Reserve (Section 8.5.1) $ 1,500,000
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Exhibit L
(See attached)
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Exhibit M
Allocated Loan Amount
Commercial Parcel $30,000,000
Residential Parcel $ 8,500,000
Golf Parcel $ 3,000,000
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Exhibit N
Projected Price
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