NINTH AMENDMENT TO AGREEMENT WITH CHI CHI RODRUGUEZ YOUTH FOUNDATION, INC AND CONTINUING AND UNCONDITION GUARANTY
NINTH AMENDMENT TO AGREEMENT WITH
CHI CHI RODRIGUEZ YOUTH FOUNDATION, INC.
THIS NINTH AMENDMENT TO AGREEMENT (the "Amendment") is made and entered
.J4A..
into on this ~ day of ~ ' 2007, by and between the City of Clearwater, Florida,
a municipal corporation, hereafter referred to as "City," and the Chi Chi Rodriguez Youth
Foundation, Inc., a Florida nonprofit corporation, whose address is Post Office Box 1521, Largo,
Florida, hereafter referred to as "Foundation," amending the Agreement between the parties dated
November 12,1985, as amended ("Original Agreement").
WHEREAS, pursuant to the Original Agreement the City leased certain property ("Golf
Course") to the Foundation; and
WHEREAS, for the construction and operation of the Golf Course, the Foundation incurred
certain liabilities to NationsBank, NA in accordance with a Reimbursement and Loan Agreement
dated August 1,1998 ("Loan Agreement"), (attached hereto as Exhibit "A"); and
WHEREAS, the Foundation is, of even date herewith, incurring alternate liabilities to Bank
of America, NA, ("Bank"), as successor in interest to NationsBank, N.A., in order to comply with its
obligations under the Loan Agreement; and,
WHEREAS, to date, the City has provided a Continuing and Unconditional Guaranty to
secure such obligations made by the Foundation to the Bank to assure that the Golf Course and all
related programs may continue to support the youth served by the programs; and
WHEREAS, the parties desire to further amend the Original Agreement to provide for the
Foundation's new obligations to the Bank and the City's Guaranty of said obligations;
NOW, THEREFORE, in consideration of the premises and of the faithful performance by
each of the parties of the covenants and agreements between each other made, it is mutually
agreed that the Agreement is hereby amended as follows:
1. Paragraph 11 is amended by deleting the language added in those certain
Amendments to the Original Agreement, the "First Amendment" dated March 5, 1987, and the Fifth
/", -
Amendment dated March 30,1992, replacing said language with the underlined language as set
forth below:
11. The Foundation shall not assign this lease or any of its rights under this
agreement, sublease any part of the leased premises except as authorized above, or
mortgage, transfer, hypothecate, pledge or dispose of the leased property in any form or
manner whatsoever. This paragraph shall not be deemed to prohibit a construction loan 9f
teaRs to the Foundation secured by the leasehold interest of the Foundation arising under
this agreement, as amended, in a principal amount not to exceed $2,500,000 $1,000.000 in
the aggregate, (the "Bank of America Loan" or "BOA Loan"), plus interest, costs, foes, ::md
:my sums ::ldvanced to protect collater::ll, which loan proceeds are to be used for
improvements ::lnd equipment rel::lted to development, upkeep ::lnd mointen::lnce of the
property, ::lnd rep::lymont to the City of $27,264 previously ::ldvanced to the Found::ltion,
satisfvina indebtedness of the Foundation due under that certain Reimbursement and Loan
Aareement dated Auaust 1,1998, nor shall this paragraph be deemed to prohibit an
assignment by a secured creditor of the Foundation of its interests in the leasehold should
the Citv fail to satisfv its obliaation under that certain Continuina and Unconditional
Guarantv of even date herewith ("Guaranty") (attached hereto and incorporated herein as
Exhibit "B").
2. Paragraph 35 is amended by deleting the language contained in Paragraph 2 of the
First Amendment, dated March 5, 1987 (which added Paragraph 35), and Paragraph 2 of
the Fifth Amendment, dated March 30, 1992, and replacing it with the underlined language
as set forth below.
35. In the event of a default by the Foundation upon any loan secured by the
leasehold interest .of the Foundation arising under this Agreement, such default shall also
constitute a default under this agreement.
(a) In the event of such a default, the City shall have the right to reoccupy the
land and improvements thereto immediately upon notice to the Foundation, and without the
necessity of formal eviction proceedings. The City hereby guarantees that in such event
the City shall pay the secured creditor of the Foundation or the successors or assigns of the
secured creditor (herein, the "Lender") the outstanding balance of the GuarantyleaR, in a
prinoipal amount not to exceed $1,000,000 in the aggregate, including interest, costs, fees,
and any sums advanced to protect the collateral (unless the City agrees to pay :3 greater
amount). The City covenants and agrees to appropriate in its annual budget, by
amendment, if required, and to pay to the Lender when due under this Agreement as
promptly as money becomes available, amounts of non-ad valorem revenues of the City or
other legally available funds sufficient to satisfy the loan repayment as provided under this
Agreement. Such covenant and agreement on the part of the City to budget and
appropriate such amounts of non-ad valorem revenues or other legally available funds shall
be cumulative, and shall continue until such non-ad valorem revenues or other legally
available funds in amounts sufficient to make all required loan repayments, shall have been
budgeted, appropriated and actually paid to the Lender. /\s to the remaining outstnnding
babnce of the loan in excess of $1,000,000, but not to exceed $2,500,000, plus interest,
oosts, foes :3nd any sums advanced to protect colbteral, tlhe City shall have the option of
paying the Lender the full amount owed, in exchange for which the Lender shall release its
leasehold mortgage and the security interest in the related inventory, furnishing, fixtures
and equipment related to the project. In the event the City does not exercise said option
within thirty (30) days of written notice from the Lender, or at its next reQularly scheduled
City Council meetinQ, but in no event later than sixty (60) days after written notice from the
Lender, the Lender shall have the rights described in Subparagraph (b) below.
Any payment by the City shall be from funds available to the City from any source
or financing method not requiring the exercise of the ad valorem taxing powers of the City.
This paragraph shall not be deemed a pledge of all legally available- non-ad valorem
revenues of the City and no secured creditor or other person may compel the City to
exercise the ad valorem taxing power of the City pursuant to this paragraph.
Notwithstanding any provision of this agreement to the contrary, this agreement and the
obligations of the City hereunder shall not be construed as a limitation on the ability of the
City to pledge or covenant to pledge said revenues for other legally permissible purposes.
Notwithstanding any provisions hereof to the contrary, the City shall not be obligated to
exercise its ad valorem taxing power to maintain or continue any of the activities of the City
including those activities which generate user service charges, regulatory fees or any non-
ad valorem revenues. This paragraph shall be deemed to authorize a lien as described
herein upon the leasehold interest of the Foundation arising under this agreement, together
with inventory, furnishings, fixtures, and equipment related to the project, but not upon the
real property leased to the Foundation by this agreement.
(b) If the City does not exercise its option to pay the Lender in full within thirty (30) days of
notice, the timeframe as set forth in subparagraph (a) above, the Lender shall be permitted by the
City to assume the rights and obligations of the Foundation under this agreement, and to operate
the golf course, clubhouse, and related improvements for the unexpired term of this agreement. In
that event the lender:
i. Shall not be obligated to comply with the terms of Paragraphs 9, 14, 20, 22, 26, 28,
30 or 34 of this agreement;
ii. Shall not be required to operate the golf course or clubhouse as an educational and
rehabilitative facility as provided in Paragraphs 3 and 14 of this agreement:
iii. Shall not be subject to the financial records review provisions of Paragraph 27 of
this agreement; and
iv. Shall be entitled to the rental or other revenues from the family golf course until the
loan has been repaid.
(c) In the event that the Lender should obtain title to the leasehold interest of the
Foundation arising under this agreement, either by deed in lieu of foreclosure or as the successful
bidder at a cle~k's sale pursuant to a judgment of foreclosure, or any other way permitted by law
(including, but not limited to, an assignment of lease by the Foundation to the Lender), then the
City shall have the right of first refusal to purchase the Lender's title to said leasehold interest upon
the terms and conditions contained in any bonafide contract to sell said leasehold interest to a third
party. In such event, the City shall have thirty (30) days after receipt of notice of the proposed sale
within which to notify the Lender of its desire to purchase the leasehold interest on the same terms
and conditions as the proposed sale. In the event that the City does not notify the Lender within
said thirty-day period, the Lender may proceed to consummate the proposed sale. At any time
during which the Lender should own said leasehold interest, except during the aforementioned
thirty-day notice period, the City may at its option purchase the Lender's leasehold interest by
paying to the Lender all unpaid principal plus accrued interest, costs, fees and sums expended for
the preservation and protection of the collateral. In the event that the Lender or any third party
purchaser at judicial sale should become the owner of said leasehold interest, then the provisions
of Subparagraph (b) above shall apply to said owner or its successors and assigns.
(d) In the event of a default by the Lender which shall remain uncured after thirty (30)
days written notice of such default from the City to the Lender, the leasehold interest shall
terminate and title to the property shall be free and clear of any and all claims or liens by the
Lender; provided, however, that the period within which the Lender is required to cure a default
shall be extended in the event that the default cannot be cured within thirty (30) days and the
Lender is actively and reasonably making efforts to cure the default.
3. The City and the Foundation agree that for purposes of clarification, and in
accordance with section 2 of that certain Amendment to Agreement (the "Eighth Amendment")
dated March 8, 2000, the Foundation agrees to pay City three percent (3%) of its gross revenues
for the McMullen Booth complex annually as agreed upon rent, for the term of the extension of the
Agreement as reflected in section 1 of the Eighth Amendment, beginning on November 13, 2010,
and payable through the end of the term, or any additional extension thereof, as agreed to from
time to time. Foundation agrees to pay sales tax applicable to such mutually agreed upon rent.
Gross revenues include but are not limited to green fees, cart fees, food, beverages, and
merchandise sales, equipment rental, clubhouse rental, and any other revenues. For the purposes
of this lease donations to the Foundation are not considered revenue and are exempt from this
provision.
4. Notwithstanding any language in previous amendments to this Agreement to the
contrary, in the event that the City terminates the Lease for the reasons specified in Paragraph 32
of the Agreement, (municipal purpose), the City shall pay to the Lender all unpaid principal,
accrued interest, costs, fees, and additional sums expended for the preservation and protection of
the Lender's capital, not to exceed the then-current balance of the City's Guaranty. Any amounts
so paid to Lender shall be permitted to be setoff against and deducted from any amount due to the
Foundation for its investment in the leased property as provided for in Paragraph 32 of the of the
Original Agreement.
5. All of the terms and conditions of the Agreement which are not expressly amended
herein shall continue in full force and effect, and are incorporated herein by reference as if set forth
in full.
CHI CHI RODRIGUEZ,
YOUTH FOUNDATION, INC.
tC,^hl/(l C1k"~ Byt?)/la~-n:
~ Wilham B. Horne, "
Pn4siGigffl '. r:(. City Manager
€:::Ice. ~O M€'-t
:2A1JW ~ /~
J'......., 'rniilk V. Hibbard
Secl ~tdl y fer ORi CRi Roelri!!!ll:lCz Mayor
CR,l, 'BoNO ~,ee.
~t.1) V,)\-\~ \..~~
CITY OF CLEARWATER
By:
By:
ATTEST:
~fOrtrk
Laura Lipowski
Assistant City Attorney
CONTINUING AND UNCONDITIONAL GUARANTY
FOR VALUE RECEIVED, and to induce Bank of America, N.A., FLl-
400-07-02, 101 E. Kennedy Boulevard, ih Floor, Tampa, Florida 33602 (herein
called "Bank") to make a loan or advances or to extend credit or other financial
accommodation or benefit, with or without security, to or for the account of Chi
Chi Rodriguez Youth Foundation, Inc., a Florida not-for-profit corporation (herein
called "Borrower" or the "Foundation"), the undersigned Guarantor hereby
becomes surety for and irrevocably and unconditionally guarantees to Bank the
payment when due, whether by acceleration or otherwise, of any and all liabilities
(as hereinafter defined) of Borrower to Bank. Guarantor further covenants and
agrees as follows:
1. The term "Liability" or "Liabilities" as used herein shall include,
without limitation (except as expressly set for the herein), all liabilities and
obligations of Borrower to Bank and all obligations of the undersigned hereunder,
however and whenever incurred or evidenced, whether primary, secondary, direct,
indirect, absolute, contingent, sole, joint or several, due to become due, or which
may be herein or hereafter contracted or acquired, or incurred directly or indirectly
as a result thereof, and all extensions or renewals thereof and all sums payable
under or by virtue thereof including without limitation, all amounts of principal
and interest and all expenses (including attorneys' fees and cost of collection
incurred in the collection thereof or the enforcement of Bank's rights), whether
arising in the ordinary course of business or otherwise, and whether held or to be
held by Bank for its own account or as agent for another or others. The term
"Liability" or "Liabilities" as used herein includes, without limitation, all liabilities
and obligations of the Foundation to the Bank pursuant to that certain
Reimbursement and Loan Agreement dated as of August 1, 1998. The term
Liabilities as used herein shall include all Liabilities of any successor entity or
entities to Bank.
2. The undersigned waives notice of acceptance of this guaranty
and notice of any Liability to which it may apply, and further waives presentment,
demand for payment, protest, notice of dishonor or nonpayment of any Liabilities,
and notice of any suit or the taking of other action by Bank against Borrower and
any other notice to any party liable thereon (including the undersigned).
3. Bank may at any time and from time to time, without notice to
and without incurring responsibility to the undersigned, and without impairing,
releasing or otherwise affecting the obligations of the undersigned in whole or in
part and without the endorsement or execution by the undersigned of any
additional consent, waiver or guaranty: (a) change the manner, place or terms of
payment, and change or extend the time of, or renew or alter, any Liability or
installment thereof, or any security therefor, and the guaranty herein made shall
apply to the Liabilities as so changed, extended, renewed, or otherwise altered;
provided, however, that in no event shall the Bank advance funds such that the
principal amount outstanding exceeds $1,000,000; (b) sell, exchange, release,
surrender, realize upon or otherwise deal with in any manner and in any order any
property at any time pledged or mortgaged to secure the Liabilities and any offset
thereagainst; (c) exercise or refrain from exercising any rights against Borrower or
other (including the undersigned) or act or refrain from acting in any other manner;
(d) settle or compromise any Liability or any security therefor, and may
subordinate the payment of all or any part thereof to the payment of any Liability
(whether or not due) of Borrower to creditors of Borrower other than Bank and the
undersigned; and (e) apply any sums from any sources to any Liability without
regard to any Liabilities remaining unpaid.
4. No invalidity, irregularity or unenforceability of all or any part
of the Liabilities or of any security therefor shall affect, impair or be a defense to
this guaranty, and this guaranty is a primary and absolute obligation of the
undersigned.
5. This guaranty is a continuing one and all Liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No purported notice by Guarantor of
revocation or termination hereof shall affect in any manner rights arising under
this guaranty with respect to Liabilities that shall have been created, contracted,
assumed or incurred prior to receipt by Bank of written notice of such revocation
or termination, or Liabilities that shall have been created, contracted for, assumed
or incurred after receipt of such written notice pursuant to any agreement entered
into by Bank prior to receipt of such notice, and the sole effect of such notice of
revocation or termination hereof shall be to exclude from this guaranty Liabilities
thereafter arising that are unconnected with Liabilities theretofore arising or
transactions theretofore entered into.
6. All notices provided to be given to Bank herein shall be sent by
registered or certified mail, return receipt requested, to the address shown in the
preamble to this guaranty agreement.
7. Any and all rights and claims of the undersigned against
Borrower or any of its property shall be subordinate and subject in right of
payment to the prior payment in full of all Liabilities to Bank.
8. The undersigned shall be in default hereunder upon: (a) non-
payment of any Liability when due; (b) failure of Borrower or the undersigned to
perform any agreement creating or otherwise affecting any Liability or any
provision hereof, or to pay in full, when due, any other obligation of Borrower or
the undersigned; (c) the dissolution, termination of existence, insolvency, or
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business failure of Borrower or the undersigned, appointment of a receiver of any
part of the property of any such party, assignment for the benefit of creditors by or
the commencement of any proceedings in bankruptcy or insolvency by or against
Borrower or the undersigned; (d) the entry of a judgment against Borrower not
satisfied or transferred to bond within thirty (30) days; (e) the issuing of any
attachment or garnishment, or the filing of any lien against any property of
Borrower; (f) the merger, consolidation or reorganization of Borrower; (g) the
determination by Bank that any material, adverse change not otherwise approved
in writing by Bank has occurred in the financial condition of Borrower or the
undersigned from the conditions set forth in the financial statements of any such
party heretofore furnished to Bank in any manner; or (h) falsity in any material
respect of, or any material omission in, any representation or statement made to
Bank by or on behalf of Borrower or the undersigned in connection with any
Liability of such parties.
9. Upon the occurrence of any default hereunder, Bank shall have
all of the remedies of a creditor and, to the extent applicable, of a secured party,
under all applicable law. Without limiting the generality of the foregoing, Bank
may at its option and without notice or demand: (a) declare any Liability
accelerated and due and payable at once; and (b) take possession of any collateral
securing any Liability wherever located, and sell, resell, assign, transfer and
deliver all or any part of said property of Borrower or the undersigned, at any
broker's board or exchange or at any public or private sale, for cash or on credit or
for future delivery, and in connection therewith Bank may grant options and may
impose reasonable conditions such as requiring any purchaser of any stock so sold
to represent that such stock is purchased for investment purposes only, and, upon
any such sale, Bank, unless prohibited by law the provisions of which cannot be
waived, may purchase all or any part of said property to be sold, free from and
discharge of all trusts, claims, right of redemption and equities of the undersigned
whatsoever.
10. The undersigned shall pay all costs of collection and reasonable
attorneys' fees, including reasonable attorneys' fees of any suit, out of court, in
trial, on appeal, in bankruptcy proceedings or otherwise, incurred or paid by Bank
in enforcing the payment of any Liability or enforcing or preserving any right or
interest of Bank hereunder, including the collection, sale or delivery of any
collateral security from time to time pledged hereunder, if any, and after deducting
such fees, costs and expenses from the proceeds of sale or collection, Bank may
apply any residue to pay any of the Liabilities, and the undersigned shall continue
to be liable for any deficiency with interest, which shall remain a Liability.
11. If claim is ever made upon Bank for repayment or recovery of
any amount or amounts received by Bank in payment or on account of any of the
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Liabilities, and Bank repays all or part of said amount by reason of any judgment,
decree or order of any court or administrative body having jurisdiction over Bank
or any of its property or any settlement or compromise of any such claim effected
by Bank with any such claimant (including Borrower), then the undersigned agree
that any such judgment, decree, order, settlement or compromise shall be binding
upon the undersigned, notwithstanding any revocation hereof or the cancellation of
any note or other instrument evidencing any Liability, and the undersigned shall be
and remain liable to Bank hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by Bank.
12. Any acknowledgement, new promise, payment of principal or
interest, or otherwise, whether by Borrower or others (including the undersigned),
with respect to any of the Liabilities shall, if the statute of limitations in favor of
the undersigned against Bank shall have commenced to run, toll the running of
such statute oflimitations and, if the period of such statute of limitations shall have
expired, prevent the operation of such statute of limitations.
13. Bank shall not be bound to take any steps necessary to preserve
any rights in any of the property of the undersigned against prior parties who may
be liable in connection therewith, and the undersigned hereby agree to take any
such steps. Bank may nevertheless at anytime: (a) take any action it may deem
appropriate for the care or preservation of such property or of any rights of the
undersigned or Bank therein; (b) demand, sue for, collect or receive any money or
property at any time due, payable or receivable on account of or in exchange for
any property of the undersigned; (c) compromise and settle with any person liable
on such property; or (d) extend the time of payment or otherwise change the terms
thereof as to any party liable thereon, all without notice to, without incurring
responsibility to, and without affecting any of the obligations of the undersigned.
14. No delay on the part of Bank in exercising any of its options,
powers or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver of any of its rights hereunder, and no modification or
amendment of this guaranty, shall be deemed to be made by Bank unless the same
shall be in writing, duly signed on behalf of Bank, and each such waiver, if any,
shall apply only with respect to the specific instance involved, and shall in no way
impair the rights of Bank or the obligations of the undersigned to Bank in any
other respect at any other time.
15. Bank shall not be required to proceed first against Borrower, or
any other person, firm or corporation, whether primarily or secondarily liable, or
against any collateral security held by it, before resorting to the undersigned for
payment, and the undersigned shall not be entitled to assert as a defense to the
enforceability of the guaranty set for the herein any defense of Borrower with
4
respect to any Liability other than the defense that payment has been made, in
whole or in part, if such is the case.
16. The term "undersigned" wherever used herein shall mean the
undersigned or anyone or more of them. Anyone executing this guaranty shall be
bound by the terms hereof without regard to execution by anyone else. This
guaranty is binding upon the undersigned, his, their or its executors,
administrators, successors and assigns, and shall inure to the benefit of Bank, its
successors, endorsees or assigns.
17. This agreement has been delivered in the State of Florida and
shall be construed in accordance with the laws of Florida. Wherever possible,
each provision of this agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this agreement. To the
extent permitted by applicable law, the undersigned herby waive any provision of
law that renders any provision hereof prohibited or unenforceable in any respect.
Any litigation arising hereunder or related hereto shall be tried by the state courts
for the county or the federal court of the United States federal district where the
branch office of Bank stated in the preamble hereto is located, whichever is
applicable.
18. The following special provisions shall apply to this Guaranty. In
the event of any contlict between the body of the Guaranty and these special
provisions, these special provisions shall control.
A. Duration and Assignability of Guaranty. This Guaranty
shall remain in full force and effect so long as Bank, or its successors or assigns, is
the holder of the underlying obligation guaranteed hereby. Notwithstanding the
above language, the City's Guaranty shall be limited to a total aggregate sum not
to exceed One Million Dollars ($1,000,000.00) through July 31, 2008. Thereafter,
so long as the underlying obligation is not in default, Guarantor's obligation
hereunder shall decrease on the first day of August of each year commencing
August I, 2008, by an amount equal to One Hundred Eleven Thousand One
Hundred Eleven Dollars and Eleven Cents ($111,111.11), it being the intent of the
parties that Guarantor's guaranty hereunder shall decrease by One Hundred Eleven
Thousand One Hundred Eleven Dollars and Eleven Cents ($111,111.11) per year
until August 1,2016, whereupon Guarantor no longer shall be obligated.
B. Ground Lease Terms. Guarantor acknowledges that it
is the owner of certain real property subject to a ground lease in favor of Borrower,
which property is more paliicularly described in that certain Agreement dated
November 12, 1985, which Agreement was amended on March 5, 1987, February
5
16, 1988, November 12, 1985, which Agreement was amended on March 5, 1987,
February 16, 1988, November 20, 1989, November 1, 1990, Mttr<i~ 30, 1992,
May 21, 1993, August 1, 1998 and March 8, 2000 ( the Agreement, as amended,
shall hereafter be referred to as the "Ground Lease"). The City understands that
Borrower has delivered to the Pinellas County Industry Council (the "Issuer") and
the Bank, as additional security in connection with the issuance of $2,100,000
principal amount of Pinellas County Industry Council Variable Rate Demand
Revenue Bonds (Chi Chi Rodriguez Youth Foundation Project) Series 1998, a
Mortgage and Security Agreement dated August 1, 1998. Although the City is not
willing to subordinate its fee simple interest in the Property to Bank, the City is
willing to give Bank certain additional rights, which rights currently may not exist
under the terms of the Ground Lease. The City understands that Bank would not
extend financing to the Borrower in the absence of such additional consideration
and these additional provisions are a necessary condition for the loan from Bank to
Borrower These provisions shall remain in full force and effect so long as this
Guaranty is in effect.
1. Notwithstanding any language in the Ground Lease, the
City shall provide to Bank written notice of any default by Borrower under the
Ground Lease. In addition to any cure period contained in the Ground Lease, if
any, Bank shall be entitled to an additional thirty (30) days to cure any alleged
defaults. In the event of a default which, because of its nature, cannot be cured
within the additional 30-day period, but which can be cured within a reasonable
time, the Bank shall be entitled to such additional time so long as it is actively
attempting to cure the default.
2. Notwithstanding any language in the Ground Lease, the
Ground Lease shall not be terminated based upon a default by Borrower without
the prior written consent of Bank.
3. Notwithstanding any language in the Ground Lease to
the contrary, in the event of a default under the Ground Lease by Borrower, Bank
shall have the right to assume Borrower's rights and obligations under the Ground
Lease if Guarantor has not satisfied the Bank's written demand for payment under'
this Guaranty within the greater of thirty (30) days or the next regularly scheduled
City Council Meeting, but in no event to exceed sixty (60) days, and City hereby
approves Bank as a successor lessee under the Ground Lease. In such event, the
City's guaranty shall remain in full force and effect until fully satisfied.
4. The Ground Lease shall not be amended without the
prior written consent of Bank.
5. In the event that Bank assumes or otherwise acquires
Borrower's interest in the Ground Lease, through judicial foreclosure or otherwise,
Bank shall be entitled to any rental proceeds and all other revenues derived from
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the Property including, but not limited to, greens fees, cart fees, professional golf
lessons, and any rental income from the portion of the Property currently operated
as the PGA Family Golf Center.
6. Notwithstanding any language in the Ground Lease to
the contrary, Bank may appoint a receiver or trustee to operate the Property in the
event that Bank assumes or otherwise acquires Borrower's interest in the Ground
Lease, (or is in the process of assuming or acquiring Borrower's interest) through
judicial foreclosure or otherwise. Furthermore, upon the happening of such an
event, Bank shall have the right to assign its rights under the Ground Lease and
this Guaranty pursuant to paragraph 18A above.
7. In the event that the City terminates the Ground Lease
for "superior public purposes", as provided in paragraph 32 of the Ground Lease,
and in addition to any compensation which the City may owe to the Borrower, and
notwithstanding any limitation otherwise contained herein, the City shall fully
satisfy the entire outstanding debt owed to Bank by Borrower.
8. Through its execution of this Guaranty, and
notwithstanding any language in the Ground Lease to the contrary, the City hereby
acknowledges and confirms that Borrower has met all conditions imposed upon it
by the City with respect to the leasehold financing for which this Guaranty is
given, including any and all construction and equity contribution requirements,
and that the City approves the use of Bank's loan proceeds for the purposes set
forth in Bank's commitment letter to Borrower dated February 19, 1992. By its
execution hereof, the City acknowledges and confirms that Borrower is not in
default under the Ground Lease and that borrower has performed all obligations
currently due under the Ground Lease including, but not limited to, development
and construction of certain educational and rehabilitative facilities, a
supplementary PGA tour family golf center and driving range and all other
improvements required under the Ground Lease.
9. Notwithstanding anything in this Guaranty to the
contrary, the City shall have the greater of thirty (30) days or the next regularly
scheduled City Council Meeting, but in no event to exceed sixty (60) days,
following written demand from Bank to pay under this Guaranty.
C. Limitations.
I. As set forth in subparagraph 18 (A) above, the
City's guaranty shall be limited to One Million Dollars ($1,000,000.00). This
figure shall include interest, collection costs, attorneys' fees, etc., such that,
regardless of what Borrower may owe, the City's liability shall not exceed the sum
of One Million Dollars; provided, however, that the City shall be responsible for
any costs of collection, including reasonable attorneys' fees and costs, in the event
it becomes necessary for Bank to pursue collection efforts against the City.
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2. The obligations of the City hereunder shall not
constitute a general obligation or a pledge of the full faith and credit or the taxing
power of the city of Clearwater, or a lien upon any property owned by the City.
Any obligation of the City hereunder shall be a limited special obligation payable
solely from funds of the City, excluding ad valorem tax revenues, available for
such payment under the annual operating budget of the City in the fiscal year in
which payment is to be made. No person shall have the right to require or compel
the levy by the City of ad valorem taxes on any property to pay any obligation of
the City hereunder. Nothing herein shall be deemed a covenant or agreement of
any officer, agent, or employee of the City in his or her individual capacity.
D. Financial Statements.
1. The City of Clearwater aggress to provide the Bank
with a copy of the City's annual audited financial statements for each fiscal year of
the City, within 30 days after receipt thereof by the City, for so long as any
Liability (as defined herein) exists.
Dated:O?/I'/ I "'l,.tJo7
GUARANTOR:
CITY OF CLEARWATER
~e,,;gned ~____R~--U:
~ r ~ ity Manager
"---'NIayor-~ NameWi11 iam B. Horne, IJ"
Frank V. Hibbard
. -
,
APpwved,,= ~'
GerrBElti81'13:
Assistant Cl Attorney Attest:
Laura Lipowski
Goudeau
8
This Guaranty is joined in by the Borrower to acknowledge and consent to the
terms of Guaranty, especially those terms c contained in paragraph 18 which
concern the Ground Lease agreement between the Borrower and Guarantor.
CHI CHI RODRIGUEZ YOUTH FOUNDATION, INC.
~~,,~:~~~~~~
[Seal]
9