EXHIBIT 10.22
SECOND CONSOLIDATED, AMENDED AND RESTATED
REVOLVING CREDIT CONSTRUCTION LOAN AGREEMENT
among
WCI COMMUNITIES, INC.
and BAY COLONY-GATEWAY, INC.
AS BORROWER,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND A LENDER,
and
BANK OF AMERICA, N.A., AMSOUTH BANK, SUNTRUST BANK,
BANK UNITED, F.S.B., GUARANTY BANK, NATIONAL CITY BANK
AND KEYBANK, NATIONAL ASSOCIATION,
AS LENDERS
and
WACHOVIA CAPITAL MARKETS, LLC, AS CO-LEAD ARRANGER
and
BANK OF AMERICA, N.A., AS SYNDICATION AGENT
and
BANC OF AMERICA SECURITIES LLC, AS CO-LEAD ARRANGER
Dated as of December 31, 2004
SECOND CONSOLIDATED, AMENDED AND RESTATED
REVOLVING CREDIT CONSTRUCTION LOAN AGREEMENT
THIS SECOND CONSOLIDATED, AMENDED AND RESTATED REVOLVING CREDIT
CONSTRUCTION LOAN AGREEMENT (this "Agreement") is made as of the 31st day of
December, 2004, by and among WCI COMMUNITIES, INC., a Delaware corporation
("WCI"), and BAY COLONY-GATEWAY, INC., a Delaware corporation ("BCG"), each
having its principal place of business at 00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx 00000, Attention: Legal Department (WCI and BCG being
hereinafter jointly and severally, collectively and singularly referred to as
"Borrower"); WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
("Wachovia"), having an address of 0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxxx, Xxxxxxx
00000, Attention: Xxxxx Xxxxxx, BANK OF AMERICA, N.A., a national banking
association ("BOA"), AMSOUTH BANK, an Alabama state chartered bank, SUNTRUST
BANK, a Georgia corporation, BANK UNITED, F.S.B., a federal savings bank,
GUARANTY BANK, a federal savings bank, NATIONAL CITY BANK, and KEYBANK NATIONAL
ASSOCIATION, a national banking association, together with certain other lending
institutions which may become parties hereto pursuant to Section 20.13 (Wachovia
and the foregoing lending institutions are collectively referred to herein as
the "Lenders" and individually as "Lender"); WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent ("Agent") for itself and the other Lenders;
WACHOVIA CAPITAL MARKETS, LLC, as Co-Lead Arranger; BANK OF AMERICA, N.A., as
Syndication Agent; and BANC OF AMERICA SECURITIES LLC, as Co-Lead Arranger.
R E C I T A L S:
WHEREAS, Fleet National Bank ("Fleet"), individually and as Agent,
Borrower and the Lenders (excluding BOA) entered into that certain Consolidated,
Amended and Restated Revolving Credit Construction Loan Agreement dated as of
March 30, 2004 (the "First Loan Agreement"), pursuant to which the Lenders
agreed to make available construction loans to the Borrower in an amount up to
$290,000,000.00; and
WHEREAS, Fleet assigned the agency under the First Loan Agreement to
Wachovia pursuant to that certain Assignment and Assumption of Agency with
respect to Consolidated, Amended and Restated Revolving Credit Construction Loan
Agreement and Other Loan Documents dated as of October 1, 2004; and
WHEREAS, Fleet assigned its Commitment under the First Loan Agreement to
BOA pursuant to that certain Assignment and Acceptance Agreement dated as of
October 1, 2004; and
WHEREAS, the First Loan Agreement makes reference in certain provisions to
the defined term "Senior Unsecured Revolving Credit Agreement" which is defined
as that certain Senior Unsecured Revolving Credit Agreement dated as of June 28,
2002, among WCI as "Borrower", Fleet National Bank and certain other lending
institutions as "Lenders", Fleet National Bank, as "Lead Agent", Wachovia Bank,
N.A., as "Syndication Agent", and Fleet
Securities, Inc., and Wachovia Bank, N.A., as "Co-Lead Arrangers", as amended,
modified, renewed or consolidated from time to time; and
WHEREAS, the Senior Unsecured Revolving Credit Agreement was replaced by
that certain Senior Unsecured Revolving Credit Agreement dated as of August 13,
2004, among WCI as "Borrower", BOA as "Administrative Agent", "Swing Line
Lender" and an "L/C Issuer", the other "Lenders" party thereto, Wachovia as
"Syndication Agent", KeyBank National Association and Bank One, NA, as
"Co-Documentation Agents" and Banc of America Securities LLC and Wachovia
Capital Markets, LLC as "Joint Lead Arrangers" and "Joint Book Managers" (the
"BOA Senior Credit Agreement"); and
WHEREAS, Agent, the Lenders and the Borrower desire to amend the First
Loan Agreement so that all references to the Senior Unsecured Revolving Credit
Agreement shall now refer to the BOA Senior Credit Agreement, and to amend
certain other provisions of the First Loan Agreement;
NOW, THEREFORE, for and in consideration of the mutual benefits to be
received by the parties hereto and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby expressly acknowledged
by the parties hereto, the parties do hereby amend and restate the First Loan
Agreement in its entirety and covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND RULES OF INTERPRETATION.
1.1 DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1.1 or elsewhere in the provisions of this Agreement or other Loan
Documents referred to below:
ACCORDION NOTE. That certain Renewal Replacement Revolving Line of Credit
Note (Accordion) dated as of March 30, 2004, made by Borrower payable to the
order of Fleet National Bank, in the face principal amount of $50,000,000.00,
transferred by Allonge to Wachovia Bank, National Association, as of October 1,
2004, and any replacement notes therefor, to be held in accordance with the
provisions of Section 2.4 of this Agreement.
ADDITIONAL COMMITMENT LENDER. See Section 4.6.4 of this Agreement.
ACT. See Article 35 of this Agreement.
ACTUAL KNOWLEDGE. See Section 20.10.1 of this Agreement.
ADA. See Section 11.10 of this Agreement.
ADJUSTED PROJECT COSTS. Project Costs less Required Equity Funds and
Escrow Deposits used in construction.
ADJUSTED TANGIBLE NET WORTH. As defined in the Senior Unsecured Revolving
Credit Agreement.
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ADVANCE. Any disbursement of the proceeds of the Loan made or to be made
by the Lenders pursuant to the terms of this Agreement.
AFFILIATE. As applied to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, or is Controlled by, or
is under common Control with the Person specified.
AGENT. See preamble.
AGENT'S OFFICE. Agent's address as set forth in Article 23, or such other
address as Agent may from time to time notify Borrower and the Lenders of.
AGREEMENT. This Second Consolidated, Amended and Restated Revolving Credit
Construction Loan Agreement, including the Exhibits and Schedules attached
hereto, as amended, modified consolidated, supplemented or restated from time to
time.
APPLICABLE RATE. At the time of determination thereof, a percentage per
annum determined by the Pricing Level in effect on such date as shown below:
Senior
Pricing Leverage Unsecured Eurodollar
Level Ratio Debt Rating Rate Base Rate Unused Fee
------- ---------- ----------- ---------- --------- ----------
1 N/A BBB-/Baa3 1.00% 0.00% 0.20%
or better
2 Less than N/A 1.05% 0.00% 0.25%
or equal
to 1.0:1
3 Greater N/A 1.25% 0.00% 0.275%
than
1.0:1 but
less than
or equal
to 1.25:1
4 Greater N/A 1.50% 0.00% 0.275%
than
1.25:1
but less
than or
equal to
1.75:1
5 Greater N/A 1.75% 0.00% 0.30%
than
1.75:1
but less
than or
equal to
2.0:1
6 Greater N/A 2.00% 0.00% 0.35%
than 2.0:1
Initially, the Applicable Rate shall be set at Level 4. Upon delivery of
the Compliance Certificate pursuant to Section 9.6.3, after the end of each
Fiscal Quarter (commencing with the Compliance Certificate delivered for the
Fiscal Quarter ending December 31, 2004), the Applicable Rate shall
automatically be adjusted to the rate corresponding to the Leverage Ratio set
forth in the table above, such automatic adjustment to take effect on the last
day that the
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Compliance Certificate was required to be delivered, and shall remain in effect
until subsequently adjusted in accordance herewith upon the delivery of each
such subsequent Compliance Certificate. If Borrower fails to deliver such
Compliance Certificate with respect to any Fiscal Quarter within the period of
time required by Section 9.6.3, then the Applicable Rate shall automatically be
adjusted to that set forth in Level 6 as of the first (1st) Business Day after
the date on which such Compliance Certificate was required to be delivered until
Borrower delivers such Compliance Certificate with respect to such Fiscal
Quarter. Notwithstanding the foregoing, (a) for so long as WCI maintains an
Investment Grade Rating, the Applicable Rate as of any date of determination
thereof shall be set at Xxxxx 0, and (b) at all times while an Event of Default
exists, the Applicable Rate shall be set at Level 6. In the event that the Debt
Ratings are not equivalent, the Applicable Rate shall be based on the two (2)
highest Debt Ratings. Each change in the Applicable Rate resulting from a
publicly announced change in the Debt Rating shall be effective, in the case of
an upgrade, during the period commencing on the date of delivery by Borrower to
Agent of notice thereof pursuant to Section 9.7.6(c) and ending on the date
immediately preceding the effective date of the next such change and, in the
case of a downgrade, during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective
date of the next such change.
APPRAISALS. Collectively, those certain MAI appraisals of the Projects,
determined on a fair market value basis, prepared in accordance with all
applicable Federal banking regulations by a qualified independent appraiser
approved by Agent.
APPRAISED VALUE. The "Discounted Bulk Sales Value" of a Project or
Proposed Project determined by the most recent Appraisal of such parcel or
update, subject, however, to such changes or adjustments to the value determined
thereby as may be required by the appraisal department of the Agent in its good
faith business judgment.
ARCHITECTS. Collectively, the architects selected by Borrower with respect
to the design of the Projects and described on Part III of the Project Schedules
attached hereto as Exhibit A.
ARCHITECTS' CONTRACTS. Collectively, the contracts between Borrower and
the Architects.
ARRANGERS. Each of BAS and WCM in its capacity as Co-Lead Arranger.
ASSIGNMENT AND ACCEPTANCE. See Section 20.13.1(e) of this Agreement.
ASSIGNMENTS OF PROJECT DOCUMENTS. Collectively, the Collateral Assignments
of Project Documents made by Borrower in favor of Agent, including, without
limitation, the Consolidated, Amended and Restated Collateral Assignment of
Project Documents, dated as of March 30, 2004, pursuant to which Borrower
assigns and grants a security interest in Borrower's right, title and interest
in and to the Architects' Contracts, the Construction Contracts, the Plans and
Specifications and the Project Approvals, as the same may be modified or
amended.
ASSIGNMENTS OF SALES CONTRACTS. Collectively, the Collateral Assignments
of Residence Purchase Agreements made by Borrower in favor of Agent, including,
without limitation, the Consolidated, Amended and Restated Collateral
Assignments of Residence Purchase Agreements, dated as of March 30, 2004,
pursuant to which Borrower assigns all of the sellers'
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rights, title and interest in and to the Sales Contracts, the Escrow Deposits
and all proceeds, issues and profits therefrom, as the same may be modified or
amended.
AUDITED FINANCIAL STATEMENTS. The audited consolidated balance sheet of
WCI and its Subsidiaries for the fiscal year ended December 31, 2003, and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for such fiscal year of WCI and its Subsidiaries, including the
notes thereto.
BAS. Banc of America Securities LLC and its successors.
BASE RATE. For any day, a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in
effect for such day as publicly announced from time to time by Agent as its
"prime rate." The "prime rate" is a rate set by Agent based upon various factors
including Agent's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in such rate
announced by Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.
BASE RATE ADVANCE. Any Advance or portion of an Advance that bears
interest based at the Base Rate.
BCG. See preamble.
BOA. See preamble.
BORROWER. See preamble.
BORROWER MATERIALS. See Section 9.6 of this Agreement.
BORROWER'S REQUEST TO ADD PROPOSED PROJECT. See Section 2.5.2(a) of this
Agreement.
BORROWER'S REQUISITION FOR ADVANCE. See Section 3.1 of this Agreement.
BORROWING BASE. At any time of determination, the sum of the following:
(a) Project Costs. One hundred percent (100%) of the aggregate
Adjusted Project Costs; provided, that on and after the date that is ninety (90)
days after the Completion Date for Improvements at a Project, the Adjusted
Project Costs for such Project shall be excluded from computation in the
Borrowing Base under this subparagraph (a) and shall thereafter be included
under subparagraph (b) or (c) below; plus
(b) Sold Units. With respect to Units subject to Sales Contracts
(but not yet closed) and as to which ninety (90) days have elapsed from the
Completion Date for the Improvements in which such Units are located,
seventy-five percent (75%) of the Adjusted Project Costs incurred by Borrower
with respect thereto; provided, that such Adjusted Project Costs shall be
excluded from computation in the Borrowing Base under this subparagraph (b) on
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and after the date that is one hundred eighty (180) days from the Completion
Date and shall thereafter be included in subparagraph (c) below; plus
(c) Unsold Units. With respect to Unsold Units as to which (90) days
have elapsed from the Completion Date for the Improvements in which such Units
are located, fifty percent (50%) of the Adjusted Project Costs incurred by
Borrower with respect thereto; provided, that such Adjusted Project Costs shall
be excluded from computation in the Borrowing Base under this subparagraph (c)
on and after the date that is one (1) year from the Completion Date;
provided, however, that:
(i) the cost basis for any Borrowing Base asset
described in subparagraphs (b) and (c) above shall not exceed its net realizable
value determined in accordance with GAAP;
(ii) for purposes of the cost calculations in the
Borrowing Base, capitalized costs such as corporate general and administrative
costs and marketing costs shall be excluded; and
(iii) the portion of the Borrowing Base attributable to
subparagraph (c) above shall not at any time exceed fifteen percent (15%) of the
total amount of the Borrowing Base.
BORROWING BASE REPORT. A report with respect to the Borrowing Base in the
form attached hereto as Exhibit G and by this reference incorporated herein, or
in such other form and substance as may be reasonably requested by Agent,
including a certificate signed by an authorized officer of Borrower showing a
calculation of the Borrowing Base and attaching all documentation used in such
calculation.
BUSINESS DAY. Any day other than a Saturday, Sunday, or other day on which
commercial banks are authorized or required to close under the Laws of the state
where the Agent's Office is located and the Laws of the United States of
America, and if the applicable day relates to a Eurodollar Rate Advance or an
Interest Period for a Eurodollar Rate Advance, the day on which dealings in
Dollar deposits are also carried on in the London interbank eurodollar market
and banks are open for business in London.
CERCLA. See Section 8.15.1 of this Agreement.
CHANGE OF CONTROL. An event or series of events by which:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) other than a Principal becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have "beneficial
ownership" of all securities that such
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person or group has the right to acquire (such right, an "option right"),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of fifty percent (50%) or more of the equity
securities of Borrower entitled to vote for members of the board of directors or
equivalent governing body of Borrower on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right); or
(b) during any period of twelve (12) consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the time
of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i)
and (ii) above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors); or
(c) any Person other than a Principal or two (2) or more
Persons other than Principals acting in concert shall have acquired by contract
or otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management or
policies of Borrower, or control over the equity securities of Borrower entitled
to vote for members of the board of directors or equivalent governing body of
Borrower on a fully-diluted basis (and taking into account all such securities
that such Person or group has the right to acquire pursuant to any option right)
representing fifty percent (50%) or more of the combined voting power of such
securities; or
(d) for any reason a "change in control" or similar event
shall occur as provided in any agreement governing any "Senior Notes", any
"Senior Subordinated Notes", or any "Subordinated Debt", as such terms are
defined in the Senior Unsecured Revolving Credit Agreement.
CLOSING DATE. December 31, 2004.
CODE. The Internal Revenue Code of 1986, as amended.
COLLATERAL. All of the property, rights and interests of Borrower that are
subject to the security interests, assignments, and Liens created by the
Security Documents, including, without limitation, the Projects and Sales
Contracts.
COMMITMENT. With respect to each Lender, the obligation to make loans to
Borrower under this Agreement up to the amount set forth on Schedule 1.1 as the
amount of such Lender's
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commitment to make loans to Borrower, as the same may be reduced from time to
time or increased from time to time in accordance with Section 2.4 hereof.
COMPLETION DATE. With respect to each Project, the date the Certificate of
the applicable surveyor that the Improvements have been completed is recorded in
the official records of the county in which the Project is located in accordance
with Fla. Stat. Sections 718.104(4)(e) (or the substantial equivalent to such
certificate in any other applicable state is filed or recorded in accordance
with such state's Requirements).
COMPLIANCE CERTIFICATE. A certificate substantially in the form of Exhibit
I.
CONDOMINIUM ACT. As to Projects located in the State of Florida, the
Florida Condominium Act, Fla. Stat. Ch. 718 (2003), as amended from time to
time, and as to Projects located outside the State of Florida, the condominium
act of such state applicable to such Project, as each such act is amended from
time to time.
CONFIDENTIAL INFORMATION. See Section 20.26 of this Agreement.
CONSOLIDATED GROUP. Collectively, Borrower and its Subsidiaries.
CONSTRUCTION CONTRACTS. Collectively, the contracts between Borrower and
each of the Contractors, providing for the construction of each of the
Improvements on their respective Land.
CONSTRUCTION INSPECTOR. At Agent's option, either a qualified officer or
employee of Agent or consulting architects, engineers or inspectors appointed by
Agent from time to time.
CONSTRUCTION SCHEDULES. Collectively, the schedules of the estimated dates
of commencement and completion of construction of each of the respective
Improvements, prepared by each of the respective Contractors, approved by Agent
and contained in Part VI of the Project Schedules attached hereto as Exhibit A.
CONTINGENCY RESERVES. Collectively, the amounts allocated as contingency
reserves in each of the Project Budgets, to be advanced only in accordance with
the provisions of Section 2.11 hereof.
CONTRACTORS. Collectively, the general contractors selected by Borrower
with respect to the construction of the Projects and described in Part II of the
Project Schedules attached hereto as Exhibit A.
CONTROL. The possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ability to exercise voting power, by contract or otherwise. CONTROLLING and
CONTROLLED have meanings correlative thereto.
CONVERT, CONVERSION and CONVERTED. The conversion of Base Rate Advances or
Eurodollar Rate Advances to another Type of Advance.
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CORE BUSINESSES. The business of planning, designing, engineering,
developing, constructing, marketing, selling, financing, managing and operating
real estate including business and commercial projects, office buildings,
residential subdivisions, condominiums (including low-, mid- and high-rise
condominiums), villa developments, single family residences, timeshares, hotels,
and related amenity improvements, which include golf clubs, marinas, tennis
facilities, and restaurants. In connection with the activities described above,
the Consolidated Group engages in planning, designing and engineering, land
development, construction/home building, marketing, real estate sales and
brokerage, mortgage brokerage and finance, title insurance, property management,
management of homeowner/condominium associations, fee based property development
and construction management services, real estate franchise brokerage business
and the operation of golf clubs, restaurants, marinas, conservation areas, rest
areas, hotels and health care facilities. The Consolidated Group may also engage
in various service business activities ancillary to and consistent with its
ownership and operation of real estate, such as pest control and security
services.
CUSTOMARY CLOSING COSTS. Reasonable and customary closing costs and
commissions paid for at the time of the closing of the sale of Units, not to
exceed in the aggregate six percent (6%) of the Total Price of each such Unit.
DEBTOR RELIEF LAWS. The Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
DEBT RATING. As of any date of determination by a Rating Agency, (a) the
rating of the Obligations under this Agreement, or (b) if such Rating Agency
does not publicly announce the rating described in clause (a) above, the rating
of the obligations under the Senior Unsecured Revolving Credit Agreement, or (c)
if such Rating Agency does not publicly announce the rating described in clauses
(a) or (b) above, such Rating Agency's rating of Borrower's non-credit-enhanced
senior unsecured long term debt, or (d) if such Rating Agency does not publicly
announce the rating described in clauses (a), (b) or (c) above, such Rating
Agency's publicly announced corporate rating of WCI.
DEFAULT. A condition or event which, with either notice or passage of time
or both, would constitute an Event of Default.
DEFAULT RATE. When used with respect to Obligations other than Eurodollar
Rate Advances, an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Advances plus (c) four percent
(4%) per annum; provided, however, that with respect to a Eurodollar Rate
Advance, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Advance plus four
percent (4%) per annum.
DEFAULTED ADVANCE. See Section 20.14.1 of this Agreement.
DEFAULTING LENDER. See Section 20.14.1 of this Agreement.
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DIRECT COSTS. With respect to each Project, the costs of the Land, the
Personal Property, and all labor, materials, fixtures, machinery and equipment
required to construct, equip and complete the Improvements in accordance with
the Plans and Specifications, including, without limitation, the line item cost
breakdown of "Direct Costs" by Construction Contract trades, job and
subcontractors, as set forth in each Project Budget.
DISTRIBUTIONS. The declaration or payment of any distribution of cash or
cash flow from the Projects to Borrower or to the shareholders of Borrower.
DOLLAR OR $. Lawful money of the United States of America.
DRAWDOWN DATE. The date on which any Advance is made or is to be made.
DRAW REQUEST. With respect to each Advance, Borrower's Requisition for
Advance for such Advance, the Draw Request Summary and the other documents
required by this Agreement to be furnished to Agent as a condition to such
Advance.
DRAW REQUEST SUMMARY. The Draw Request Summary with respect to any
applicable Project in the form attached hereto as Exhibit H and by this
reference incorporated herein.
EFFECTIVE DATE. The date upon which this Agreement shall become effective
pursuant to Article 11.
ELIGIBLE ASSIGNEE. Any of (a) a Lender; (b) an Affiliate of a Lender; and
(c) any other Person (other than a natural person) approved by (i) Agent, and
(ii) unless an Event of Default has occurred and is continuing, Borrower (each
such approval by Agent and Borrower not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible Assignee" shall not
include (A) Borrower or any of Borrower's Affiliates or Subsidiaries or (B) any
other Person that conducts (or is an Affiliate of a Person that conducts) any
businesses that are substantially similar to any of the Core Businesses and
would reasonably be deemed to be a competitor of Borrower.
ENVIRONMENTAL LAWS. See Section 8.15.1 of this Agreement.
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA AFFILIATE. Any trade or business (whether or not incorporated) under
common control with Borrower within the meaning of Section 414(b) or (c) of the
Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
ERISA EVENT. Any of (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment
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as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, upon Borrower or any ERISA Affiliate.
ESCROW ACCOUNTS. The accounts with respect to each of the Projects
described in Part IV of the Project Schedules attached hereto as Exhibit A.
ESCROW AGENT. With respect to each Project, the escrow agent(s) designated
under the Sales Contracts and not affiliated with Borrower and approved by Agent
for purposes of holding the Escrow Deposits.
ESCROW DEPOSITS. All xxxxxxx money, escrow deposits, additional deposits,
or good faith deposits required from the purchasers under Sales Contracts, to be
held in the Escrow Accounts and disbursed in accordance with applicable
Requirements and the terms hereof.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar Rate
Advance, the rate per annum equal to the British Bankers Association LIBOR Rate
("BBA LIBOR"), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by Agent from time to time) at
approximately 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the
"Eurodollar Rate" for such Interest Period shall be the rate per annum
determined by Agent to be the rate at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by Agent
and with a term equivalent to such Interest Period would be offered by Agent's
London branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two (2) Business Days prior to
the commencement of such Interest Period.
EURODOLLAR RATE ADVANCE. Any Advance or portion of an Advance that bears
interest at the Eurodollar Rate.
EVENT OF DEFAULT. See Section 13.1 of this Agreement.
EXISTING MATURITY DATE. See Section 4.6.1 of this Agreement.
EXPENSES. See Section 20.12 of this Agreement.
EXTENSION NOTICE DATE. See Section 4.6.2 of this Agreement.
EXTENSION REQUEST DATE. See Section 4.6.1 of this Agreement.
FEDERAL FUNDS RATE. For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of
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New York on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of
1%) charged to Agent on such day on such transactions as determined by Agent.
FHA. See Section 11.10 of this Agreement.
FINANCING STATEMENTS. Collectively, the Uniform Commercial Code Financing
Statements from Borrower in favor of Agent, giving notice of a security interest
in the Collateral, such financing statements to be in form and substance
satisfactory to Agent.
FIRST LOAN AGREEMENT. See recitals.
FISCAL QUARTER. The fiscal quarter of Borrower consisting of a three (3)
month fiscal period ending on each March 31, June 30, September 30 and December
31 of each Fiscal Year.
FISCAL YEAR. The fiscal year of Borrower consisting of a twelve (12) month
fiscal period ending on each December 31.
FITCH. Fitch IBCA, Duff & Xxxxxx, a division of Fitch, Inc. and any
successor thereto.
FLEET. See preamble.
FLORIDA UNIFORM LAND SALES PRACTICES LAW. The Florida Uniform Land Sales
Practices Law, Fla. Stat. Ch. 498 (2003), as amended from time to time.
GAAP. Principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessor or
successor organizations, as in effect from time to time; provided that a
certified public accountant would, insofar as the use of such accounting
principles is pertinent, be in a position to deliver an unqualified opinion
(other than a qualification regarding changes in GAAP) as to financial
statements in which such principles have been properly applied; provided, that
if any changes in GAAP with which the independent certified accountants of
Borrower concur result in a change in the basis of calculating any of the
financial covenants, standards or terms contained in this Agreement, Borrower
and Agent agree to amend such covenant calculations, standards or terms to
reflect such changes in GAAP so that the criteria for evaluating the financial
condition of Borrower shall be the same after such changes as if such changes
had not been made; and provided, further that this definition of GAAP shall not
include the application of FASB Interpretation No. 46 or similar pronouncements
issued by the Financial Accounting Standards Board in January, 2003, as such
interpretations or pronouncements may be amended or modified from time to time.
GOVERNMENTAL AUTHORITY. The United States of America, the State of
Florida, or any political subdivision thereof, any other state, county or
municipality in which any of the Projects are located, or any agency, authority,
department, commission, board, bureau, or instrumentality of any of them.
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GUARANTOR. See Section 6.2 of this Agreement.
GUARANTY. See Section 6.2 of this Agreement.
HAZARDOUS MATERIALS. See Section 8.15.2 of this Agreement.
HUD. The United States Department of Housing and Urban Development and any
successor thereto.
IMPROVEMENTS. Collectively and individually, as the context requires, the
improvements described in Part I of the Project Schedules attached hereto as
Exhibit A.
INCREASING LENDER. See Section 2.4 of this Agreement.
INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including in any event and whether or not so classified:
(a) all debt and similar monetary obligations, whether direct
or indirect;
(b) all liabilities secured by any mortgage, pledge, security
interest, lien, charge, or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and
(c) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
INDEMNITY AGREEMENTS. Collectively, the Indemnity Agreements Regarding
Hazardous Materials made by Borrower in favor of Agent and Lenders, including,
without limitation, the Consolidated, Amended and Restated Indemnity Agreement
Regarding Hazardous Materials, dated as of March 30, 2004, pursuant to which
Borrower agrees to jointly and severally indemnify Agent and Lenders with
respect to Hazardous Materials and Environmental Laws, as the same may be
modified or amended.
INDIRECT COSTS. With respect to each Project, title insurance premiums,
survey charges, engineering fees, architectural fees, real estate taxes,
appraisal costs, commitment fees and interest payable under the Loan, premiums
for other insurance, marketing, advertising and leasing costs, brokerage
commissions, legal fees, accounting fees, Construction Inspector fees, permit
and other governmental fees and charges, impact fees, utility access or
connection fees, overhead and administrative costs, and all other expenses which
are expenditures relating to such Project and are not Direct Costs, in each
instance as set forth in the applicable Project Budget.
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INSIDER SALES. Sales of Units pursuant to sales contracts with parties
affiliated with or employed by Borrower or any of its Subsidiaries or
Affiliates.
INSTALLMENT AMOUNT. See Section 4.11.1 of this Agreement.
INTEREST PAYMENT DATE. Three (3) Business Days after interest is billed by
Agent, which billing shall be made on or about the following dates:
(a) as to each Base Rate Advance, the first day of each
calendar month after the making of such Base Rate Advance; and
(b) with respect to each Eurodollar Rate Advance:
(i) with respect to any Interest Period that is either
seven (7) days, fourteen days, one (1) month, two
(2) months or three (3) months, the last day of
such Interest Period; and
(ii) with respect to any Interest Period that is six
(6) months, the last day of the third and sixth
months of such Interest Period.
INTEREST PERIOD. With respect to each Eurodollar Rate Advance:
(a) initially, the period (i) commencing on the date of such
Eurodollar Rate Advance or, in the case of a Conversion to a Eurodollar Rate
Advance pursuant to Section 4.8 of this Agreement, commencing on the date of
such Conversion, and (ii) ending on the date seven (7) days, fourteen (14) days,
or one (1), two (2), three (3) or six (6) months thereafter, as the case may be,
as determined in accordance with the provisions of this Agreement; and
(b) thereafter, each subsequent Interest Period for such
Eurodollar Rate Advance shall begin on the last day of the preceding Interest
Period for such Advance and shall end on the date seven (7) days, fourteen (14)
days, or one (1), two (2), three (3), or six (6) months thereafter as Borrower
may select pursuant to Section 4.9 of this Agreement.
The number of days in each Interest Period and the particular day on which each
Interest Period ends and the next begins shall be fixed by Agent in accordance
with Agent's generally accepted practice in the applicable London interbank
market; provided that
(i) any Interest Period which would otherwise end on a
day which is not a Business Day shall end and the
next Interest Period shall be extended to the next
succeeding Business Day unless such Business Day
falls in another calendar month, in which case
such Interest Period shall end on the next
preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such
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Interest Period) shall end on the last Business
Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for a Eurodollar Rate Advance
shall extend beyond the Maturity Date.
INTERSTATE LAND SALES FULL DISCLOSURE ACT. The Interstate Land Sales Full
Disclosure Act, 15 U.S.C.Section .1701-1720 (2003), as amended from time to
time.
INVESTMENT GRADE RATING. That at least two of the three following Debt
Ratings exist at the same time: (a) a Moody's Debt Rating of Baa3 or better; (b)
a S & P Debt Rating of BBB- or better; and (c) a Fitch Debt Rating of BBB- or
better.
IRS. The United States Internal Revenue Service.
KNOWLEDGE. With respect to Borrower, the actual knowledge (but not imputed
knowledge until known) of all executive officers of WCI, the vice president in
charge of the Florida Tower Division of WCI and the equivalent officers in
charge of tower development for WCI in any other states, and the respective
project managers for the respective Projects.
LAND. Collectively, the real property and appurtenant easements described
in the Security Instruments.
LAWS. Collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
LENDERS. The Lenders, now or hereafter parties to this Agreement pursuant
to Section 20.13, which Lenders, as of the Closing Date, are listed on Schedule
1.1 attached hereto and by this reference incorporated herein, which Schedule
1.1 may be amended from time to time by Agent in conjunction with a sale of a
Lender's Commitment by noting the change of Lenders, Loan Percentages and/or
Commitments and forwarding a copy of such revised Schedule 1.1 to Borrower and
Lenders.
LEVERAGE RATIO. As of any date, the ratio of (a) Total Debt as of such
date to (b) Adjusted Tangible Net Worth as of such date.
LIEN. Any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
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LOAN. The revolving construction loan which is the subject of this
Agreement.
LOAN AMOUNT. The aggregate amount of all of the Commitments as shown in
Schedule 1.1 hereto, as same may be modified from time to time in accordance
with the provisions of this Agreement.
LOAN AMOUNT PROJECT ALLOCATIONS. The portions of the Loan Amount allocated
to each Project as shown on the cover page for the Project Schedules, which
shall be equivalent to the Adjusted Project Costs for each Project.
LOAN CHECKING ACCOUNT. See Section 3.3 of this Agreement.
LOAN DOCUMENTS. This Agreement, the Notes, the Guaranties, the Indemnity
Agreements and the Security Documents, and all other agreements, documents and
instruments now or hereafter evidencing, securing, guaranteeing or otherwise
relating to the Loan, as the same may be modified or amended from time to time.
LOAN PERCENTAGE. The percentage interest of a Lender in the Loan
calculated by dividing such Lender's Commitment by the aggregate amount of all
the Commitments, as rounded as shown on Schedule 1.1 hereto.
MAJORITY LENDERS. As of any date of determination prior to termination of
the Commitments, Lenders (excluding Defaulting Lenders) whose aggregate Loan
Percentages constitute more than fifty percent (50%) of the Commitments held by
Non-Defaulting Lenders. As of any date of determination occurring after the
termination of the Commitments, Lenders (excluding Defaulting Lenders) holding
more than fifty percent (50%) of the outstanding principal balance of the Loan
held by Non-Defaulting Lenders.
MATERIAL ADVERSE CHANGE. Any circumstances or event of whatever nature
(including the filing of, or any adverse determination or development in, any
litigation) occurs which
(a) impairs the validity or enforceability of any Loan
Document with respect to a material term thereof;
(b) materially and adversely affects or changes the condition
(financial or otherwise), operations, business, management or assets of Borrower
and its Subsidiaries, taken as a whole, or the Projects taken as a whole; or
(c) impairs the ability of Borrower to make any payment of
principal or interest due on the Notes or to fulfill any other material
Obligation.
MATURITY DATE. Four (4) years from the Closing Date, unless extended in
accordance with Section 4.6 of this Agreement, or such earlier date as the
Obligations are accelerated or the Commitments are terminated pursuant to the
terms hereof.
MOODYS. Xxxxx'x Investors Service, Inc. and any successor thereto.
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MULTIEMPLOYER PLAN. Any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which Borrower or any ERISA Affiliate makes or
is obligated to make contributions, or during the preceding five plan years, has
made or been obligated to make contributions.
NET SALES PROCEEDS (ACTUAL). The actual sales price of each unreleased
Unit, cabana or other appurtenance thereto as reflected in the respective Sales
Contract therefor, less only Customary Closing Costs and the portion of the
Escrow Deposits for such Unit which are allowed to be used, and have been used,
in accordance with applicable Requirements to fund a portion of the Project
Costs of the applicable Improvements.
NET SALES PROCEEDS (PROJECTED). The Total Price of each unreleased Unit,
cabana or other appurtenance thereto as reflected in Part VIII of the Project
Schedules (as modified or updated from time to time pursuant to Section 9.6.4 as
Sales Contracts are entered into), less only Customary Closing Costs and the
portion of the Escrow Deposits for such Unit which are allowed to be used in
accordance with applicable Requirements to fund a portion of the Project Costs
of the applicable Improvements.
NON-DEFAULTING LENDERS. See Section 20.14.1 of this Agreement.
NON-EXTENDING LENDER. See Section 4.6.2 of this Agreement.
NON-EXTENDING LENDER TREASURY NOTE. See Section 4.6.6(j) of this
Agreement.
NON-INDEMNITOR LENDER. See Section 20.20.6 of this Agreement.
NOTES. Collectively, the Consolidated Renewal Replacement Revolving Line
of Credit Notes and the Renewal Replacement Revolving Line of Credit Notes in
the aggregate principal face amount of the Loan Amount, dated as of March 30,
2004, made by Borrower to the order of the Agent and/or the Lenders, any
substitute or replacement notes therefor and any new Notes issued in connection
with the increase of the Loan Amount pursuant to Section 2.4. Subject to the
provisions of Section 2.4 and 4.1 of this Agreement, the defined term "Notes"
shall include the Accordion Note and the Treasury Note.
NOTICE DATE. See Section 20.10.2 of this Agreement.
NOTICE OF BORROWING. See Section 4.7.1 of this Agreement.
NOTICE OF CONVERSION. See Section 4.8.2 of this Agreement.
OBLIGATIONS. All indebtedness, obligations and liabilities of Borrower to
Agent and the Lenders pursuant to this Agreement or any of the other Loan
Documents or in respect of any of the Advances or the Notes or other instruments
at any time evidencing any thereof, existing on the date of this Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of Law or otherwise, and including
interest and fees that accrue after the commencement by or against Borrower of
any proceeding under any Debtor Relief Law naming
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Borrower as the debtor in such proceeding, regardless of whether such interest
or fees are allowed claims in such proceeding.
OUTSTANDING ADVANCES. The aggregate unpaid principal of the Advances as of
any date of determination.
PAYMENT AND PERFORMANCE BONDS. Collectively, the dual-obligee payment and
performance bonds on the Contractors, naming Agent as dual-obligee, each in an
amount not less than the full contract price for each Project (unless a lesser
amount is approved by the Majority Banks) and otherwise reasonably acceptable to
Agent.
PBGC. The Pension Benefit Guaranty Corporation and any successor entity or
entities having similar responsibilities.
PENSION PLAN. Any "employee pension benefit plan" (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA
Affiliate or to which Borrower or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during
the immediately preceding five plan years.
PERMITTED LIENS. Only those Liens, security interests and other
encumbrances as permitted and defined in the Security Instruments.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any Governmental Authority.
PERSONAL PROPERTY. All materials, furnishings, fixtures, furniture,
machinery, equipment and all items of tangible personal property now or
hereafter owned or acquired by Borrower, wherever located, and either to be
located on or incorporated into the Land or the Improvements.
PLAN. Any "employee benefit plan" (as such term is defined in Section 3(3)
of ERISA) established by Borrower or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
PLANS AND SPECIFICATIONS. Collectively, the plans and specifications for
the Improvements prepared by the Architects and more particularly identified in
Part XV of the Project Schedules attached hereto as Exhibit A.
PLATFORM. See Section 9.6.9 of this Agreement.
POST-CLOSING ESCROW DEPOSITS. The amount of any and all Escrow Deposits
due and payable under the Sales Contracts which are entered into on or after the
date of this Agreement.
PRINCIPALS. Xxxxxx Xxxxxxx, Xx., Xxx X. Xxxxxxxx, any spouse or immediate
family member of either Xxxxxx Xxxxxxx, Xx. or Xxx X. Xxxxxxxx, or any trust or
other entity Controlled by either Xxxxxx Xxxxxxx, Xx. or Xxx X. Xxxxxxxx, and
"PRINCIPAL" means any one of the Principals.
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PRO FORMA DRAW SCHEDULES. Collectively, the schedules for the Projects of
the estimated amounts of Advances anticipated to be requisitioned each month
during the term of construction of the respective Improvements (including an
itemization of Direct Costs and Indirect Costs to be included in each such
requisition), approved by the Lenders and contained in Part VII of the Project
Schedules attached hereto as Exhibit A.
PROJECTS. Collectively, the Land, Improvements and Personal Property. At
any time, the Projects shall be as described on the cover page to the Project
Schedules attached hereto as Exhibit A.
PROJECT APPROVALS. Collectively, all approvals, consents, waivers, orders,
agreements, acknowledgments, authorizations, permits and licenses required under
applicable Requirements necessary to complete, occupy, operate and use the
respective Project in accordance with its intended purpose or under the terms of
any restriction, covenant or easement affecting the Projects, or otherwise
necessary for the ownership and acquisition of the Land and the Improvements,
the construction and equipping of the Improvements, and the use, occupancy and
operation of the Projects following completion of construction of the
Improvements, whether obtained from a Governmental Authority or any other
Person.
PROJECT BUDGETS. Collectively, the budgets for total estimated Project
Costs, submitted by Borrower, approved by Agent, the Lenders and the
Construction Inspector, and contained in Part IX of the Project Schedules
attached hereto as Exhibit A, which include for each such Project: (a) Direct
Costs; (b) a line item cost breakdown for Indirect Costs; and (c) a schedule of
the sources of funds to pay Project Costs, indicating by item the portion of
Project Costs to be funded through the Loan, Required Equity Funds, any other
equity funds of Borrower and Escrow Deposits.
PROJECT COSTS. Collectively, the sum of all Direct Costs and Indirect
Costs that will be incurred by Borrower in connection with the acquisition of
the Land, the construction, equipping and completion of the Improvements, the
marketing of space in the Improvements, and the operation and carrying of the
Projects through the Maturity Date.
PROJECT SCHEDULES. Collectively, the schedules of information with respect
to each of the Projects attached hereto as Exhibit A and by this reference
incorporated herein. Agent and the Lenders acknowledge and agree that the
Project Schedules attached hereto with respect to the Projects known as
Aversana, Treviso, One Bal Harbour, Veracruz, Cambria and Grand Isle III and IV
are dated as of March 30, 2004.
PROPOSED PROJECT. See Section 2.5 of this Agreement.
PUBLIC LENDER. See Section 9.6 of this Agreement.
PURCHASE PRICE. See Section 20.10.3 of this Agreement.
RATING AGENCY. Any of Moody's, S&P, or Fitch.
REAL ESTATE. All real property at any time owned, leased (as lessee or
sublessee) or operated by WCI, BCG or any of their respective Subsidiaries.
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RECORD. The record maintained by Agent with respect to the Loan and
Advances under the Notes.
REEMPLOYMENT PERIOD. See Section 4.11.1.
RELEASE. See Section 8.15.3 of this Agreement.
REPORTABLE EVENT. Any of the events set forth in Section 4043(c) of ERISA,
other than events for which the thirty (30) day notice period has been waived.
REPRESENTATIVES. See Section 20.15 of this Agreement.
REQUESTED MATURITY DATE. See Section 4.6.1 of this Agreement.
REQUIRED EQUITY FUNDS. Collectively, the value of the Land before any
construction of any Improvements, free and clear of any Liens and encumbrances
other than the Security Documents and Permitted Liens, and such other amounts
required pursuant to Section 2.10 and as Agent and Lenders shall determine from
time to time pursuant to Section 9.15 hereof.
REQUIRED LENDERS. As of any date of determination prior to termination of
the Commitments, Lenders (excluding Defaulting Lenders) whose aggregate Loan
Percentages constitute at least sixty-six and two-thirds percent (66 2/3%) of
the Commitments held by Non-Defaulting Lenders. As of any date of determination
occurring after the termination of the Commitments, Lenders (excluding
Defaulting Lenders) holding at least sixty-six and two-thirds percent (66 2/3%)
of the outstanding principal balance of the Loan held by Non-Defaulting Lenders.
REQUIREMENTS. Any Law of any Governmental Authority required in connection
with the acquisition and ownership of the Projects, the construction of the
Improvements, or the use, occupancy and operation of the Projects following the
completion of construction of the Improvements, including those relating to
subdivision control, zoning, building, use and occupancy, fire prevention,
health, safety, sanitation, handicapped access, historic preservation and
protection, tidelands, wetlands, endangered species, flood control, access and
earth removal, and all Environmental Laws.
RESPONSIBLE OFFICER. The chief executive officer, president, chief
financial officer, treasurer or the general counsel of a Borrower or Guarantor
or any Person designated by a Responsible Officer to act on behalf of a
Responsible Officer; provided that such designated Person may not designate any
other Person to be a Responsible Officer. Any document delivered hereunder that
is signed by a Responsible Officer of a Borrower or Guarantor shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Borrower or Guarantor and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Borrower or Guarantor.
RETAINAGE. See Section 2.8.2 of this Agreement.
S&P. Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and any successor thereto.
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SALES CONTRACTS. Collectively, all the purchase and sale agreements for
the sale of Units in each Project listed in Part X of the Project Schedules
attached hereto as Exhibit A, and any additional sales contracts providing for
the sale of any Unit and appurtenances thereto in the Projects hereafter entered
into in accordance with the provisions of Section 10.1.
SEC. The Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
SECURITY DOCUMENTS. The Security Instruments, the Assignments of Project
Documents, the Assignments of Sales Contracts and the Financing Statements, and
any other agreement, document or instrument now or hereafter securing the
Obligations.
SECURITY INSTRUMENTS. Collectively, the mortgages, deeds to secure debt,
deeds of trust and/or other security instruments made by Borrower in favor of
Agent, including, without limitation, the Consolidated, Amended and Restated
Mortgage and Security Agreement, dated as of March 30, 2004, and as subsequently
modified, amended, renewed, supplemented, consolidated, extended or spread after
the date thereof, pursuant to which Borrower grants a first priority security
title or Lien and security interest in and to the Projects.
SENIOR UNSECURED REVOLVING CREDIT AGREEMENT. That certain Senior Unsecured
Revolving Credit Agreement dated as of August 13, 2004, among WCI as "Borrower",
BOA as "Administrative Agent", "Swing Line Lender" and an "L/C Issuer", the
other "Lenders" party thereto, Wachovia as "Syndication Agent", KeyBank National
Association and Bank One, NA, as "Co-Documentation Agents" and BAS and WCM as
"Joint Lead Arrangers" and "Joint Book Managers", as amended, restated, modified
or consolidated from time to time.
STORED MATERIALS. See Section 2.12.1 of this Agreement.
SUBSEQUENT LENDER. See Section 2.4 of this Agreement.
SUBSIDIARY. With respect to any Person, a corporation, partnership, joint
venture, limited liability company or other business entity (except for joint
ventures or similar arrangements which would not be considered a Subsidiary of
such Person but for the application of FASB Interpretation No. 46 or similar
pronouncements regarding consolidation issued by the Financial Accounting
Standards Board in January, 2003, as such interpretations or pronouncements may
be amended or modified from time to time) of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a "Subsidiary" or
to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of Borrower. This
definition of Subsidiary, as it relates to the Consolidated Group, shall
expressly exclude any not-for-profit golf clubs and common interest realty
associations owned by any member of the Consolidated Group.
SURVEYS. Collectively, the surveys of the Land and the Improvements
prepared in accordance with ALTA/ACSM Requirements for Land Title Surveys (1999)
(or latest revision date) and including Items 1-15, inclusive of Table "A"
thereof or their equivalents, if amended,
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and meeting or exceeding the minimum requirements/accuracy standards for a
Category I Urban Land Survey, such surveys to be reasonably satisfactory to
Agent in form and substance.
SURVEYOR CERTIFICATE. With respect to any Survey, a certificate executed
by the surveyor who prepares such Survey dated as of a recent date and
containing such information relating to the applicable Project as Agent or the
Title Insurance Company may require, such certificate to be reasonably
satisfactory to Agent and Title Insurance Company in form and substance.
TAKING. With respect to any Project, any condemnation for public use of,
or damage by reason of, the action of any Governmental Authority, or any
transfer to a Governmental Authority by private sale in lieu thereof, either
temporarily or permanently, which affects any material portion of the
Improvements on the Land, five percent (5%) or more of the parking on such
Project, or which materially, adversely affects access to such Project.
TITLE INSURANCE COMPANY. Chicago Title Insurance Company, a Missouri
corporation, with a place of business at Fairfax Center I, 0000 Xxxxx Xxxxxxx,
Xxxxx 000, Xx. Xxxxx, Xxxxxxx 00000, or such other title insurance company or
companies approved by Agent.
TITLE POLICY. With respect to each Project, an ALTA Loan Policy (1992
form) (or if such form is not available, an equivalent form of or legally
promulgated form of mortgagee title insurance policy acceptable to Agent) issued
by the Title Insurance Company (with such reinsurance or co-insurance as Agent
may reasonably require, any such reinsurance to be with direct access
endorsements), in such amount as Agent may reasonably require, and insuring the
priority of the applicable Security Instrument and that Borrower owns marketable
fee simple title to such Project, subject only to the Permitted Liens, and which
shall not contain exceptions for mechanics liens, persons in occupancy or
matters which would be shown by a survey, shall not insure over any matter
except to the extent that any such affirmative insurance is acceptable to Agent
in its reasonable discretion, and shall contain a pending disbursements clause
or endorsement and such other applicable endorsements and affirmative insurance
as Agent in its reasonable discretion may require and that are available in the
State in which such Project is located, including, without limitation (a) a
Form-9 or comprehensive endorsement, (b) a variable rate of interest
endorsement, (c) a revolver endorsement, (d) a Form 5.1 (PUD) endorsement, (e)
an environmental protection lien endorsement, (f) a navigational servitude
endorsement, (g) a same as survey endorsement, (h) a variable rate of interest
endorsement, (i) a usury endorsement, (j) a doing business endorsement, (k) an
ALTA Form 3.1 zoning endorsement, (l) a "tie-in" or "aggregation" endorsement,
(m) a "first loss" endorsement, (n) a "last dollar" endorsement, and (o) an
access endorsement. The term "Title Policy" shall also include all construction
loan update endorsements and Title Policy Endorsements thereto.
TITLE POLICY ENDORSEMENT. With respect to each Proposed Project added as a
Project pursuant to Section 2.5 and located in the State of Florida, that
certain policy endorsement issued by the Title Insurance Company in favor of
Agent with respect to the Title Policy pursuant to a Commitment to Endorse, and
providing coverage for the Proposed Project equivalent to that contained in the
Title Policy.
TOTAL DEBT. As defined in the Senior Unsecured Revolving Credit Agreement.
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TOTAL PRICE. The gross sales price for each Unit, cabana or other
appurtenance within each Project in an amount not less than the amount shown for
each Unit, cabana or other appurtenance in Part VIII of the Project Schedules
attached hereto as Exhibit A (as modified or updated from time to time pursuant
to Section 9.6.4 as Sales Contracts are entered into).
TRANSFER. See Section 20.13.1 of this Agreement.
TREASURY NOTE. That certain Renewal Replacement Revolving Line of Credit
Note (Treasury) dated as of March 30, 2004, made by Borrower payable to the
order of Fleet National Bank, in the face principal amount of $16,220,000.00,
transferred by Allonge to Wachovia Bank, National Association as of October 1,
2004, and any replacement notes therefor, to be held in accordance with the
provisions of Section 4.1 of this Agreement.
TYPE OF ADVANCE. A Base Rate Advance or a Eurodollar Rate Advance, as the
case may be.
UNFUNDED PENSION LIABILITY. The excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
UNITS. The condominium units at the Projects, whether completed or under
construction, held by the Borrower for sale in the ordinary course of business,
and in which the rights of ownership and occupancy are to be sold other than on
a time-sharing or periodic basis.
UNSOLD UNIT. A Unit with respect to which construction has begun on the
Improvements (measured by the commencement of the construction of vertical
improvements beyond the foundation), but for which a Sales Contract has not been
entered into (or has been entered into but has terminated).
UNUSED FEE. See Section 2.3 of this Agreement.
UNUSED FEE AVAILABILITY. See Section 2.3 of this Agreement.
WACHOVIA. Wachovia Bank, National Association, and its successors.
WCI. See preamble.
WCM. Wachovia Capital Markets, LLC and its successors.
1.2 RULES OF INTERPRETATION.
1.2.1 A reference to any agreement, budget, document or schedule
shall include such agreement, budget, document or schedule as revised, amended,
modified or supplemented from time to time in accordance with its terms and the
terms of this Agreement.
1.2.2 The singular includes the plural and the plural includes the
singular.
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1.2.3 A reference to any Law includes any amendment or modification
to such Law.
1.2.4 A reference to any Person includes its permitted successors
and permitted assigns.
1.2.5 The words "include", "includes" and "including" are not
limiting.
1.2.6 The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
1.2.7 Reference to a particular "Section" refers to that section of
this Agreement unless otherwise indicated.
1.2.8 The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
1.3 ACCOUNTING TERMS.
1.3.1 Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
1.3.2 Changes in GAAP. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either Borrower or the Required Lenders shall so request,
Agent, the Lenders and Borrower shall negotiate in good faith to amend such
ratio or requirement to preserve the original intent thereof in light of such
change in GAAP (subject to the approval of the Required Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) Borrower shall
provide to Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
1.4 ROUNDING. Any financial ratios required to be maintained by Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
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1.5 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
ARTICLE 2
AGREEMENT TO MAKE ADVANCES: LIMITATIONS.
2.1 AGREEMENT TO MAKE ADVANCES. Subject to the terms and conditions of
this Agreement, the Lenders, each to their respective Commitment, agree to lend
to Borrower and Borrower may borrow, prepay and reborrow from time to time after
the Effective Date and upon submission by Borrower of a Draw Request in
accordance with Section 3.1, such amounts as are requested by Borrower to pay
for Project Costs actually incurred by Borrower and reflected in and with
respect to the Project Budgets as being funded by the Loan, provided that the
sum of the Outstanding Advances (after giving effect to all amounts requested)
shall not at any time exceed the lesser of (i) the Loan Amount or (ii) the
Borrowing Base; provided, however, that Advances will be funded in the following
sequence subject to such overall limitations:
(a) the Lenders shall advance up to $240,000,000;
(b) Borrower shall fund the next $50,000,000; and
(c) after Borrower has funded $50,000,000, the Lenders shall make
additional Advances up to $50,000,000.00.
Each Draw Request for an Advance hereunder shall constitute a representation and
warranty by Borrower that, with respect to the applicable Projects, the
conditions set forth in Article 11, in the case of the initial Advance, and
Article 12, in the case of all other Advances, have been satisfied on the date
of such Draw Request. The parties hereto agree that each Lender's obligation to
make Advances under the Loan is limited to each such Lender's respective
Commitment. The Commitments shall terminate, and the Loan shall mature and
become due and payable on the Maturity Date or on such earlier date on which
Borrower terminates the Commitments hereunder or on which the maturity thereof
is accelerated pursuant to the provisions of Section 13.2. Borrower agrees to
pay all Obligations on the Maturity Date, to the extent not paid earlier as
required herein.
2.2 LOAN AMOUNT PROJECT ALLOCATIONS.
2.2.1 For the purpose of allocating the use of the Loan Amount,
Borrower and Lenders agree that the Loan Amount Project Allocations shall be as
shown in the Project Schedules attached hereto as Exhibit A. Borrower
acknowledges and agrees that, notwithstanding that the amount of the aggregate
Loan Amount Project Allocations may exceed the Loan Amount, it is anticipated
that the Projects will be in varying stages of completion at any given time and,
thus, the Loan Amount Project Allocations will not be fully funded or some will
be repaid or partially repaid as to certain Projects before the Loan Amount
Project Allocations as to certain other Projects are fully funded.
2.2.2 Borrower recognizes and agrees that the Lenders made the Loan
secured by all Projects based on the Lenders' valuation of all Projects combined
having sufficient value
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to support the Loan; therefore, it is the intention of Borrower, Agent, and
Lenders that the Loan is secured in whole by all the property described in the
Security Instruments, including all of the Projects.
2.2.3 Notwithstanding the foregoing provisions of this Section 2.2,
the parties agree that they have not "designated a portion of the construction
loan proceeds" within the meaning of Fla. Stat. Sections 713.3471 (2003), and
that any disbursement of the proceeds of the Loan shall be subject to and
conditioned on compliance with the applicable terms, covenants, conditions and
provisions of this Agreement and the other Loan Documents.
2.3 UNUSED FEE. Borrower shall pay to Agent an unused fee ("Unused Fee")
quarterly in arrears on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date. The Unused Fee shall be distributed
to the Lenders (excluding Defaulting Lenders) pro rata in accordance with their
respective Loan Percentage. The amount of the Unused Fee shall be calculated for
any Fiscal Quarter by multiplying the Applicable Rate specified for the Unused
Fee times a fraction the numerator of which is the sum of the calculations of
the Unused Fee Availability for each day in such period and the denominator of
which is the number of days in such period. For the purposes of this
calculation, the term "Unused Fee Availability" shall mean, as of any date, the
first fifty percent (50%) of the Loan Amount minus the Outstanding Advances. The
Unused Fee shall be calculated quarterly in arrears, and if there is any change
in the Applicable Rate during any quarter, the actual daily amount shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.
2.4 INCREASE IN TOTAL COMMITMENT. At any time prior to the last twelve
(12) months of the term of this Agreement, as same may be extended pursuant to
Section 4.6, Agent may in its discretion (which discretion shall not be
arbitrarily or unreasonably exercised so long as the conditions set forth below
are satisfied), from time to time at the request of Borrower, increase the Loan
Amount by (i) admitting additional Lenders hereunder (each a "Subsequent
Lender"), or (ii) increasing the Commitment of any Lender (each an "Increasing
Lender"), subject to the following conditions:
2.4.1 each Subsequent Lender is an Eligible Assignee;
2.4.2 the Borrower executes in replacement of the Accordion Note (i)
a new Note payable to the order of each Subsequent Lender, or a replacement Note
payable to the order of each Increasing Lender; and (ii) to the extent the
amount of the increase is less than the then current face amount of the
Accordion Note, a replacement Accordion Note payable to the order of the Agent;
2.4.3 each Subsequent Lender executes and delivers to Agent a
signature page to this Agreement;
2.4.4 Borrower and Agent shall have executed modifications of the
Security Instruments and other Loan Documents to reflect the increase in the
Loan Amount and Borrower shall have paid to Agent any and all documentary stamp
tax, non-recurring intangible tax or
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other taxes imposed in connection with the recording of such modifications of
the Security Instruments or increase in the Loan Amount;
2.4.5 Borrower shall have delivered to Agent endorsements to the
Title Policies increasing the amount of the Title Policies to the new Loan
Amount and insuring Agent and the Lenders that the Security Instruments, as
modified to reflect the increase in the Loan Amount, shall continue to
constitute a first priority lien on the Projects (subject to customary pending
disbursements language in such Title Policies);
2.4.6 after giving effect to the admission of any Subsequent Lender
or the increase in the Commitment of any Increasing Lender, the Loan Amount does
not exceed $340,000,000.00;
2.4.7 each increase in the Loan Amount shall be in the amount of at
least $10,000,000.00 for Subsequent Lenders, or at least $5,000,000.00 for
Increasing Lenders, or, in either case, a greater integral multiple of
$5,000,000.00;
2.4.8 no admission of any Subsequent Lender shall increase the
Commitment of any existing Lender without the written consent of such Lender;
2.4.9 no Default or Event of Default exists nor would occur after
giving effect to such increase;
2.4.10 no Lender shall be an Increasing Lender without the written
consent of such Lender; and
2.4.11 Borrower shall have executed such other modifications and
documents and made such other deliveries as Agent may reasonably require and
shall pay or reimburse Agent for all reasonable expenses and costs it incurs in
connection with the foregoing and Borrower shall also pay such Loan fees and
placement fees, if any, as may be required for such increase in the Loan Amount.
After adding the Commitment of any Increasing Lender or Subsequent Lender, Agent
shall promptly provide each Lender and Borrower with a new Schedule 1.1 to this
Agreement (and each Lender acknowledges that its Loan Percentage under Schedule
1.1 and allocated portion of the Outstanding Advances will change in accordance
with its pro rata share of the increased Loan Amount). Until the Total
Commitment has been increased in accordance with this Section 2.4, Borrower
shall not be permitted to request any Advances against the face amount of the
Accordion Note.
2.5 ADDING CONDOMINIUM PROJECTS. Borrower may request the addition, from
time to time, of other condominium projects to this Loan (a "Proposed Project")
on the following terms and conditions:
2.5.1 Subject to Section 2.5.2(c) and Section 2.5.3 below, the
Majority Lenders have agreed, in their sole and absolute discretion, to the
addition of the Proposed Project on either of the following bases: (i) a
reallocation of one or more of the Loan Amount Project Allocations in order that
the reallocated Loan Amount Project Allocations for the Projects and
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the Proposed Project are sufficient, when combined with the Required Equity
Funds, any additional equity funds of Borrower and that portion of the Escrow
Deposits which can be used for construction costs under the Sales Contracts and
the sales contracts for the Proposed Project, to cover the total Project Costs
and the project costs for such Proposed Project, or (ii) one or more of the
Projects has been completed and Borrower requests a reborrowing of all or a
portion of the funds previously allocated and disbursed for such completed
Project or Projects and repaid to Lenders by Borrower, which reborrowing shall
be for the purpose of financing the Proposed Project.
2.5.2 For the Proposed Project to be added to this Loan, such
addition shall be evidenced by, and not effective until, the following
requirements have been met:
(a) Borrower has submitted to Agent a request to add the
Proposed Project in the form of Exhibit C attached hereto and by this reference
incorporated herein (the "Borrower's Request to Add Proposed Project");
(b) if the Proposed Project is located outside of the State of
Florida, the sum of the proposed Loan Amount Project Allocation therefor and the
other Loan Amount Project Allocations with respect to the Projects located
outside of the State of Florida, if any, does not exceed thirty percent (30%) of
the aggregate Commitments;
(c) if the Proposed Project is located outside of the State of
Florida, its addition has been approved by the Required Lenders, notwithstanding
the provisions of Section 2.5.1 above;
(d) the Net Sales Proceeds (Projected) of Sales Contracts from
the Proposed Project and the remaining Projects in the aggregate are at least
ninety percent (90%) of the aggregate Loan Amount Project Allocations for the
Proposed Project and the remaining Projects;
(e) the Loan Amount as of the date of the request is at least
1.15 times the maximum projected balance of the Outstanding Advances as shown on
the Pro Forma Draw Schedules (which shall reflect that all Net Sales Proceeds
(Projected) of Sales Contracts in excess of the aggregate Loan Amount Project
Allocations shall be applied to the repayment of such projected Outstanding
Advances);
(f) the aggregate Loan Amount Project Allocations (including
the proposed Loan Amount Project Allocation for the Proposed Project) do not
exceed two hundred percent (200%) of the Loan Amount;
(g) the planned Completion Date for the Proposed Project is at
least one hundred twenty (120) days prior to the Maturity Date (as same may be
extended pursuant to Section 4.6);
(h) if the Proposed Project is owned by a Subsidiary of
Borrower rather than by Borrower, Borrower has provided Agent with the name of
the proposed Guarantor and the equivalent items for such Guarantor described in
Sections 11.6, 11.7 and 11.8 below;
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(i) Agent, Borrower and Guarantor, as applicable, shall have
executed (i) a Mortgage Modification and Spreader Agreement and Financing
Statements if the Proposed Project is located in Florida, or a new Security
Instrument and other Security Documents if the Proposed Project is located in a
state other than Florida or is owned by a Guarantor, (ii) a Guaranty and
Indemnity Agreement if the Proposed Project is owned by a Guarantor, and (iii)
such other additional Loan Documents and modifications to the existing Loan
Documents adding the Proposed Project as security for the Loan,
cross-collateralizing and cross-defaulting the Proposed Project to the other
Projects, and incorporating such other terms and conditions related to such
Proposed Project as Agent may reasonably require;
(j) Agent shall have received and approved the Project
Schedules for the Proposed Project in substantially the same format as the
Project Schedules attached hereto as Exhibit A, which will be incorporated into
the Agreement upon approval of the Proposed Project;
(k) Borrower shall have delivered the due diligence materials
and satisfied the conditions precedent with respect to the Proposed Project as
set forth in Article 11 of this Agreement (including, without limitation, the
delivery of a Title Policy Endorsement or new Title Policy with tie-in or
aggregation endorsements to existing Title Policies, as applicable); and
(l) Borrower shall have executed such other modifications and
documents and made such other deliveries as Agent may reasonably require and
shall pay or reimburse Agent for all reasonable expenses and costs it incurs in
connection with the foregoing.
2.5.3 Notwithstanding Section 2.5.1 above, but subject to
satisfaction of the requirements contained in Section 2.5.2 above, Proposed
Projects which meet all of the following criteria, as determined by Agent in the
exercise of its sole discretion, will be added to this Loan without the
requirement of approval by the Majority Lenders:
(a) The proposed Loan Amount Project Allocation for the
Proposed Project shall not exceed (i) seventy percent (70%) of the Appraised
Value of the Proposed Project; nor (ii) eighty percent (80%) of the total
Project Costs for such Proposed Project;
(b) The proposed Loan Amount Project Allocation for the
Proposed Project shall not equal or exceed $100,000,000.00;
(c) Borrower shall have entered into Sales Contracts for Units
in the Proposed Project which produce Net Sales Proceeds (Projected) in excess
of seventy-five percent (75%) of the proposed Loan Amount Project Allocation for
the Proposed Project;
(d) The Sales Contracts counted for purposes of determining
compliance with the requirement in subparagraph 2.5.3(c) above must require
Escrow Deposits of at least twenty percent (20%) of the purchase price (provided
that such requirement shall not prohibit Borrower from entering into Sales
Contracts that require less Escrow Deposits, although such Sales Contracts will
not be counted for purposes of determining compliance with pre-sales coverage
requirements in this Agreement);
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(e) The Proposed Project must be a high-rise condominium tower
located in the State of Florida;
(f) All governmental approvals and entitlements required for
the commencement of construction shall have been obtained and issued;
(g) Borrower shall have entered into a maximum guaranteed
price construction contract with a financially sound and reputable bonded
contractor;
(h) If the projected Completion Date for the Proposed Project
is in excess of twenty-two (22) months, Borrower shall have completed the
registration with HUD.
If Borrower fails to satisfy any of the criteria above, then the
consent of the Majority Lenders (or the Required Lenders if the Proposed Project
is located outside of the State of Florida) shall be required to add the
Proposed Project.
2.5.4 Upon receipt of the Borrower's Request to Add Proposed Project
and the other items described in Section 2.5.2 above in form reasonably
satisfactory to Agent, and, unless Borrower shall have satisfied the
requirements of Section 2.5.3 above, approval of such Borrower's Request to Add
Proposed Project by the Majority Lenders or Required Lenders, as applicable,
Agent will promptly notify Borrower and the Lenders in writing of same and
provide each party with a set of the Project Schedules for such Proposed
Project. For such proposed projects, Agent, Lenders and Borrower acknowledge and
agree that the Project Schedules shall be incorporated into this Agreement for
such Proposed Project and the Proposed Project shall constitute a Project
hereunder for all purposes without the necessity for any formal modification of
this Agreement.
2.5.5 With respect to Projects added after the Effective Date of
this Agreement and owned by Guarantors, all of the agreements, undertakings,
representations, warranties, and covenants of and provisions relating to or
affecting Borrower hereunder shall be equally applicable to and enforceable
against each such Guarantor regardless of whether specifically referenced in
this Agreement or in any of the other Loan Documents.
2.5.6 Borrower, Agent and the Lenders acknowledge and agree that,
with respect to the eight Projects being added to the Loan on the Closing Date
(Serano at Hammock Bay; Mosaic at Miami Beach; One Singer Island at Singer
Island; Resort at Singer Island at Singer Island; Costa Verano at Jacksonville
Beach; San Xxxxxx at Lost Key; Santa Xxxxx at Lost Key; and LaSalbadora at Lost
Key), the items, conditions or requirements described on Exhibit J attached
hereto and by this reference incorporated herein with respect to each Project
have not been provided to Agent or satisfied by Borrower as of the Closing Date;
provided that such acknowledgement on the part of Agent and the Lenders shall
not constitute a waiver of any of the requirements or conditions precedent to
the addition of a Proposed Project set forth in this Agreement. Accordingly, no
Advance shall be made by Agent and the Lenders with respect to any of such
Projects until satisfaction of each of the conditions outlined on Exhibit J with
respect to such Project, as determined by Agent, in its sole discretion, and
provided no Event of Default has occurred and is continuing. To the extent the
delivery of any such items after the Closing Date creates the need to modify any
of the legal descriptions on the Security Instruments or to
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satisfy any title or survey matters, Borrower agrees to cooperate with Agent in
reviewing, executing, delivery and recording any and all such further documents,
instruments, certificates or other writings which Agent deems necessary or
desirable in order to effectuate the provisions of this Agreement and the other
Loan Documents. Furthermore, the parties acknowledge and agree that (i) upon
review of the Appraisals for such Projects, adjustments to the respective Loan
Amount Project Allocations for such Projects may be necessary; and (ii) with
respect to complying with Section 2.10.1 below, the Project Budgets submitted to
the Lenders with the final Project Schedules shall be the operative Project
Budgets rather than any preliminary drafts of budgets provided to the Lenders.
2.6 REDUCTION OF LOAN AMOUNT. Provided that no Event of Default exists or
would exist as a result of such action, Borrower may elect, at its option and
without the consent of Agent or the Lenders, upon three (3) Business Days prior
written notice to the Agent to reduce or terminate by $5,000,000.00 or an
integral multiple of $500,000.00 in excess thereof, the unused portion of the
Loan Amount, whereupon the Commitments of the Lenders shall be reduced pro rata
in accordance with their respective Loan Percentages. Upon the effective date of
any such reduction or termination, Borrower shall pay to Agent for the account
of the Lenders the full amount of any accrued but unpaid Unused Fee.
2.7 PROJECT BUDGETS. Each of the Project Budgets reflects, by category and
line items, the purposes and the estimated amounts for which funds to be
advanced by Agent and Lenders under this Agreement are to be used. Agent and
Lenders shall not be required to disburse for any category or line item more
than the amount specified therefor in the applicable Project Budget, except as
provided in Sections 2.10 and 2.11 hereof.
2.8 AMOUNT OF ADVANCES.
2.8.1 With respect to each Project and subject to the limitations
contained in Section 2.1 above, in no event shall Agent and the Lenders be
obligated to advance more than the least of (i) the applicable Loan Amount
Project Allocation for such Project, (ii) the aggregate Adjusted Project Costs
actually incurred by Borrower for such Project, or (iii) the Borrowing Base for
such Project.
2.8.2 With respect to each Project, in no event shall any Advance
for Direct Costs of constructing the Improvements of such Project exceed an
amount equal to the total costs of the labor, materials (including Stored
Materials pursuant to Section 2.12.1 below), fixtures, machinery and equipment
completed, approved and incorporated into the Land of such Project or the
Improvements of such Project prior to the date of the Draw Request for such
Advance, less (a) retainage in the amount specified in the applicable
Construction Contract ("Retainage"), (b) the total amount of any Advances
previously made by the Lenders for such Direct Costs of such Project, and (c)
any Escrow Deposits used in the construction of such Project.
2.8.3 With respect to each Project, Retainage shall be advanced by
Agent to Borrower upon satisfaction of the conditions set forth in the
applicable Construction Contract (as approved by Agent); provided, that if no
Event of Default has occurred and is continuing, Agent shall permit disbursement
of Retainage for specific subcontractors upon Agent's receipt of the following:
(i) evidence of compliance with the subcontract; (ii) approval by the surety
under the
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applicable Payment and Performance Bond, if required thereunder; (iii)
Construction Inspector's approval; (iv) final lien waivers for work completed;
and (v) approval from any Governmental Authority required to inspect such work.
2.8.4 With respect to any other Direct Costs of any Project and all
Indirect Costs of any Project, in no event shall any Advance exceed an amount
equal to the amount of such Direct Costs and Indirect Costs approved by Agent,
incurred by Borrower prior to the date of the Draw Request for such Advance, and
theretofore paid or to be paid with the proceeds of such Advance, less the total
amount of any Advances previously made by the Lenders for such Direct Costs and
Indirect Costs.
2.9 QUALITY OF WORK. No Advance with respect to work at a Project shall be
disbursed unless, at the date the Draw Request for such Advance is submitted,
such work is completed without material defects, as confirmed by the report of
the Construction Inspector.
2.10 COST OVERRUNS; CHANGE ORDERS.
2.10.1 If Borrower becomes aware of any change in Project Costs
which will increase the corresponding Project Budget (as the Project Budgets are
revised from time to time and approved by Agent) by more than five percent (5%)
of the total of such Project Budget, Borrower shall immediately notify Agent in
writing and shall promptly submit to Agent for its approval a revised Project
Budget. In such event, no further Advances with respect to such Project need be
made by the Lenders unless and until (i) the revised Project Budget so submitted
is approved by Agent, (ii) Borrower has deposited with Agent any Required Equity
Funds or additional equity funds to offset such increase or Agent has otherwise
approved a timetable for the making of such deposits, or (iii) the Majority
Lenders have approved an adjustment to the Loan Amount Project Allocations to
offset such increase.
2.10.2 Subject to the provisions of Section 2.10.1 above, Borrower
may reallocate amounts between categories or line items in a Project Budget
without the consent of Agent or the Lenders.
2.10.3 Provided no Event of Default has occurred and is continuing,
Borrower may make change orders to any Plans and Specifications without the
consent of Agent or the Lenders. Notwithstanding the foregoing, the prior
written consent of Agent shall be required for any change orders to any Plans
and Specifications which would (i) materially and substantially change the Plans
and Specifications; (ii) increase construction costs of any Project by more than
five percent (5%) (after application of any Contingency Reserve in the
applicable Project Budget); or (iii) delay completion of any Project beyond the
Completion Date. No change orders shall be made without the prior approval of
the surety under any Payment and Performance Bond if required thereunder.
2.11 CONTINGENCY RESERVES. Upon notice to Agent and provided no Event of
Default exists, the amount allocated as Contingency Reserve in the respective
Project Budgets may be disbursed for other line items in such Project Budget.
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2.12 STORED MATERIALS; DEPOSITS.
2.12.1 Agent shall permit disbursements from the Loan for on-site
and off-site storage of materials to be used and incorporated in the
construction of the Projects ("Stored Materials"), provided that all of the
following conditions are satisfied:
(a) the Stored Materials are owned by Borrower and are
specifically identified to Agent;
(b) Agent will hold a perfected first priority security
interest in the Stored Materials for the benefit of the Lenders;
(c) the Stored Materials are insured under the Builder's Risk
Insurance Policy required under Section 8 of the Security Instruments or such
other policies as may be necessary in order to fully insure such on-site and
off-site materials for full replacement value; and
(d) all Stored Materials stored off-site shall be segregated
and held in insured warehouses and Borrower shall provide Agent with a UCC
financing statement or such other assurances as Agent may request regarding such
Stored Materials which grants Agent, for the benefit of the Lenders, a first
priority security interest in all such off-site Stored Materials.
2.12.2 Agent and Lenders shall also permit disbursement from the
Loan for deposits required in connection with furniture, landscaping and art
work for the Projects, if paid to a reputable supplier with normal safeguards
made by Borrower for such deposits.
ARTICLE 3
MAKING THE ADVANCES.
3.1 DRAW REQUEST. At such time as Borrower shall desire to obtain an
Advance for a particular Project, in addition to satisfying the conditions set
forth in Article 12 hereof on a Project-by-Project basis, and providing to Agent
and Lenders the items set forth in Section 12.5 hereof on a Project-by-Project
basis, Borrower shall complete, execute and deliver to Agent, Borrower's
Requisition for Advance in the form of Exhibit B attached hereto and by this
reference incorporated herein (hereinafter referred to as "Borrower's
Requisition for Advance"). Each Borrower's Requisition for Advance shall be
accompanied by the following items in form reasonably acceptable to Agent:
3.1.1 If Borrower's Requisition for Advance includes Direct Costs to
be paid to a Contractor under the applicable Construction Contract, a completed
and fully itemized Application and Certificate for Payment (AIA Document G702
and G703) containing the certification of Borrower, such Contractor and the
applicable Architect as to the accuracy of same, and a payment requisition and
lien affidavit signed by such Contractor and Borrower, respectively, in the
forms of Exhibits D and E attached hereto and by this reference incorporated
herein;
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3.1.2 If Borrower's Requisition for Advance includes payments for
Indirect Costs in excess of the amount described in Section 2.10.1 above, a
completed Indirect Cost statement executed by Borrower;
3.1.3 A Draw Request Summary for each applicable Project;
3.1.4 If Borrower's Requisition for Advance includes Project Costs
under subparagraphs (b) or (c) of the definition of "Borrowing Base", a current
Borrowing Base Report;
3.1.5 An affidavit and partial waiver of lien in the form of Exhibit
F attached hereto and by this reference incorporated herein from the applicable
Contractor and such laborers, subcontractors and materialmen for work done and
materials supplied by them since the previous Draw Request;
3.1.6 An inspection report and certification from Construction
Inspector, at Borrower's expense; and
3.1.7 Such other information, documentation and certification as
Agent and Lenders (acting through Agent) shall reasonably request.
3.2 NOTICE, FREQUENCY, AND AMOUNT OF ADVANCES; EFFECT OF DRAW REQUEST.
Each Draw Request shall be submitted to Agent at least five (5) Business Days
prior to the date of the requested Advance, and no more frequently than once
each month for each of the Projects. As required in Section 12.3 below, each
Draw Request submitted to Agent and Lenders as provided in Section 3.1 hereof
shall constitute an affirmation that the representations and warranties
contained in Article 8 of this Agreement and in the other Loan Documents remain
true and correct as of the date thereof; and, unless Agent and Lenders are
notified in writing to the contrary prior to the Drawdown Date of the requested
Advance or any portion thereof, shall constitute an affirmation that the same
remain true and correct in all material respects on the Drawdown Date (except to
the extent of changes resulting from transactions contemplated or permitted by
the Loan Documents and changes occurring in the ordinary course of business that
either individually or in the aggregate do not result in a Material Adverse
Change); provided, however, that (i) the representations and warranties
contained in Sections 8.3 and 8.4 below shall refer back to the date of the most
recent audited financial statements of Borrower as of the Drawdown Date rather
than December 31, 2003; (ii) the representations and warranties contained in
Section 8.30 below shall refer back to the date of the most recent sales report
for the Projects provided by Borrower pursuant to Section 9.6.4 below; and (iii)
the affirmation as to representations and warranties relating to the Projects
shall only be made with respect to Projects covered by each Draw Request.
3.3 DEPOSIT OF FUNDS ADVANCED. Except as otherwise provided for in this
Section 3.3 and Section 3.4 hereof, Agent shall deposit the proceeds of each
Advance into Borrower's general operating account with Agent and Borrower hereby
authorizes such deposits by Agent. At the request of Agent following an Event of
Default, Borrower shall open and maintain a non-interest bearing loan checking
account with Agent (the "Loan Checking Account"), and during the continuance of
such Event of Default, Agent shall deposit the proceeds of each Advance into
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the Loan Checking Account, and Borrower hereby authorizes such deposits by
Agent. Agent shall disburse any Advance from the Loan Checking Account in
accordance with the provisions of this Agreement. During the continuance of such
Event of Default, Net Sales Proceeds (Actual) paid to Agent pursuant to Section
6.3.1 and not applied against payment of the Outstanding Advances shall also be
deposited into the Loan Checking Account.
3.4 ADVANCES TO TITLE INSURANCE COMPANY OR TO OTHERS. At its option, Agent
may make any or all Advances through the Title Insurance Company and any portion
of the Loan so disbursed by Agent shall be deemed disbursed as of the date on
which Agent makes such disbursement. At its option, Agent may make Advances to
any Person to whom Agent in good faith determines payment is due and any portion
of the Loan so disbursed by Agent shall be deemed disbursed as of the date on
which Agent makes such disbursement. Agent shall endeavor to give Borrower five
(5) days prior written notice of each such Advance unless the giving of such
notice is impractical for reasons of safety or preservation of Collateral. The
execution of this Agreement by Borrower shall, and hereby does, constitute an
irrevocable authorization so to advance the proceeds of the Loan. No further
authorization from Borrower shall be necessary to warrant such direct Advances
and all such Advances shall satisfy the obligations of Agent and Lenders
hereunder and shall be secured by the Security Instruments and the other
Security Documents as fully as if made directly to Borrower.
3.5 ADVANCES DO NOT CONSTITUTE A WAIVER. No Advance made by Agent and
Lenders shall constitute a waiver of any of the conditions to the Lenders'
obligation to make further Advances nor, in the event Borrower fails to satisfy
any such condition, shall any such Advance have the effect of precluding Agent
and Lenders from thereafter declaring such failure to satisfy a condition to be
an Event of Default.
ARTICLE 4
THE NOTES; INTEREST; MATURITY AND PREPAYMENT.
4.1 THE NOTES. The obligation of Borrower to pay the Loan Amount or, if
less, the aggregate unpaid principal amount of all Advances made by Agent and
Lenders hereunder, plus accrued interest thereon, shall be evidenced by the
Notes. In the event any of the Notes is lost, destroyed or mutilated at any time
prior to payment in full of the indebtedness evidenced thereby, Borrower shall,
upon certification of such loss, destruction or mutilation by the applicable
Lender and such Lender's agreement to reimburse Borrower for any reasonable
out-of-pocket attorneys' fees and costs related thereto, execute a new note
substantially in the form of such lost, destroyed or mutilated Note and
designated as a replacement note for such lost, destroyed or mutilated Note. The
Notes shall not be necessary to establish the indebtedness of Borrower to Agent
and Lenders on account of Advances made under this Agreement. As part of any
amendment, restatement or modification of this Agreement and the issuance of the
new Notes pursuant thereto, each Lender agrees to promptly surrender its
respective Note to Agent upon request therefor. With regard to the Treasury
Note, Borrower shall not be permitted to draw any Advances with respect thereto
unless the Lenders have unanimously agreed to increase the Total Commitment
beyond the amount of the increase which Borrower is permitted to request
pursuant to Section 2.4 of this Agreement, and the other conditions described in
Section 2.4 with respect to such request have been satisfied.
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4.2 THE RECORD. Borrower irrevocably authorizes Agent to make or cause to
be made, at or about the time of the Drawdown Date of any Advance or at the time
of receipt of any payment of the principal of the Notes, an appropriate notation
on Agent's Record reflecting the making of such Advance or (as the case may be)
the receipt of such payment. The outstanding amount of the Loan set forth on
Agent's Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to Agent, but the failure to record, or any error in so
recording, any such amount on Agent's Record shall not limit or otherwise affect
the Obligations of Borrower hereunder or under the Notes to make payments of
principal or interest on the Notes when due.
4.3 INTEREST ON ADVANCES. From and after the date hereof (until maturity
or the occurrence of an Event of Default as provided hereinafter) interest shall
accrue on the principal amount of the Notes which is outstanding from time to
time at a rate per annum equal to the Base Rate or the Eurodollar Rate, as
selected by Borrower, plus the Applicable Rate for Base Rate Advances or
Eurodollar Rate Advances, as applicable, subject to and in accordance with the
provisions of this Agreement. Accrued but unpaid interest on each Base Rate
Advance and Eurodollar Rate Advance shall be due and payable in arrears on each
Interest Payment Date applicable thereto.
4.4 MATURITY. The entire outstanding principal of the Notes, together with
all accrued and unpaid interest thereon, shall be due and payable in full,
unless sooner paid, on the Maturity Date. Borrower promises to pay to the
Lenders on the Maturity Date, and there shall become absolutely due and payable
on the Maturity Date, all of the Advances outstanding on such date, together
with any and all accrued and unpaid interest thereon and all other sums and fees
due and payable to Lenders hereunder or any other Loan Documents.
4.5 REPAYMENTS. Borrower may, on any Business Day, repay the outstanding
aggregate principal amount of a Type of Advance extended to Borrower, in whole
at any time, or ratably in part from time to time; provided, however, that:
(a) With respect to a repayment of a Base Rate Advance: (i)
Borrower gives same day written notice to Agent not later than 12:00 noon of any
such repayment specifying the principal amount to be repaid; and (ii) accrued
interest to the date of such repayment on the principal amount repaid shall be
billed to Borrower by Agent and paid by Borrower on the next Interest Payment
Date; and
(b) With respect to a repayment of a Eurodollar Rate Advance,
Borrower may repay a Eurodollar Rate Advance only upon at least three (3)
Business Days prior written notice to Agent (which notice shall be irrevocable),
and unless such repayment shall occur on the last day of the Interest Period for
such Eurodollar Rate Advance, Borrower shall pay such sums as may be due
pursuant to Section 4.11 below. Subject to the provisions of this Agreement,
Amounts repaid may be reborrowed.
4.6 EXTENSION OF MATURITY DATE. The Maturity Date may be extended for
successive periods of one (1) year each so as to provide for a continuous four
(4) year term, provided the following conditions are met by Borrower:
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4.6.1 Requests for Extension. Borrower may, by notice to Agent (who
shall promptly notify the Lenders) (the "Extension Request Date") request at any
time (but not more than once during any Fiscal Year) that each Lender extend
such Lender's Maturity Date (the "Existing Maturity Date") for an additional one
(1) year period from the Existing Maturity Date (the "Requested Maturity Date");
provided that the first such Extension Request Date shall not be earlier than
August 31, 2005.
4.6.2 Lender Elections to Extend. Each Lender, acting in its sole
and individual discretion, shall, by notice to Agent given not later than the
date (the "Extension Notice Date") that is thirty (30) days after the Extension
Request Date, advise Agent whether or not such Lender agrees to such extension
(and each Lender that determines not to so extend its Maturity Date (a
"Non-Extending Lender") shall notify Agent of such fact promptly after such
determination (but in any event no later than the Extension Notice Date), and
any Lender that does not so advise Agent on or before the Extension Notice Date
shall be deemed to be a Non-Extending Lender. The election of any Lender to
agree to such extension shall not obligate any other Lender to so agree.
4.6.3 Notification by Agent. Agent shall notify Borrower of each
Lender's determination under this Section 4.6 no later than the date five (5)
days after the Extension Notice Date (or, if such date is not a Business Day, on
the next preceding Business Day).
4.6.4 Additional Commitment Lenders. Borrower shall have the right
on or before the Existing Maturity Date to replace each Non-Extending Lender
with, and add as "Lenders" under this Agreement in place thereof, one or more
Eligible Assignees (each, an "Additional Commitment Lender"), each of which
Additional Commitment Lenders shall have entered into an Assignment and
Acceptance pursuant to which such Additional Commitment Lender shall, effective
as of the Existing Maturity Date, undertake a Commitment (and, if any such
Additional Commitment Lender is already a Lender, its Commitment shall be in
addition to such Lender's Commitment hereunder on such date).
4.6.5 Minimum Extension Requirement. If (and only if) the total of
the Commitments of the Lenders that have agreed so to extend their Maturity Date
and the additional Commitments of the Additional Commitment Lenders shall
constitute the Required Lenders, then Agent shall notify Borrower and the
Lenders that the Maturity Date of each Extending Lender and of each Additional
Commitment Lender is extended to the Requested Maturity Date (except that, if
such date is not a Business Day, such Maturity Date as so extended shall be the
next preceding Business Day) and each Additional Commitment Lender shall
thereupon become a "Lender" for all purposes of this Agreement. The date of each
such notice from Agent shall constitute the effective date of each such change
in the Maturity Date (the "Extension Effective Date"). Agent shall note the
Maturity Date of each Lender on the Record.
4.6.6 Conditions to Effectiveness of Extensions. Notwithstanding the
foregoing, the extension of the Maturity Date pursuant to this Section 4.6 shall
not be effective with respect to any Lender unless:
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(a) No Default or Event of Default shall have occurred and be
continuing under this Agreement or the other Loan Documents as of the Extension
Request Date or the Extension Effective Date.
(b) The representations and warranties in the Loan Documents
shall be true and correct and in all material respects on the Extension Request
Date and on the Extension Effective Date.
(c) No mechanic's or materialmen's lien or other encumbrance
(excluding Permitted Liens) likely to result in a Material Adverse Change shall
have been filed and remain in effect against any of the Projects.
(d) The Title Policies shall have been endorsed and down-dated
in a manner satisfactory to Agent with no additional title change or exception,
except the matters permitted in Section 10.3 or specifically approved in writing
by Agent, which approval shall not be unreasonably withheld.
(e) As of the Extension Request Date and the Extension
Effective Date, there is no Material Adverse Change.
(f) As of the Extension Request Date, the Loan Amount shall
not exceed seventy percent (70%) of the aggregate Appraised Value of the
Projects (excluding any Units released from the Security Instruments) and
Borrower shall have delivered to Agent such other information, documents, and
supplemental legal opinions as may be reasonably required by Agent.
(g) Borrower shall execute such modifications and other
documents that Agent may reasonably require and shall pay or reimburse Agent for
all expenses and costs it incurs in connection with such extension.
(h) As of the Extension Request Date, the Net Sales Proceeds
(Projected) from Sales Contracts from the unreleased Projects are at least
ninety percent (90%) of the aggregate Loan Amount Project Allocations with
respect to unreleased Projects.
(i) Borrower shall pay to Agent on the Extension Effective
Date for the account of each Extending Lender and Additional Commitment Lender
any extension fee agreed to by Borrower and such Lenders.
(j) On the Maturity Date of each Non-Extending Lender,
Borrower shall prepay to each Non-Extending Lender its respective Loan
Percentage of any Advances outstanding on such date (and pay any additional
amounts required pursuant to Section 4.11) to the extent necessary to keep
outstanding Advances ratable with any revised Loan Percentages of the respective
Lenders effective as of such date. To the extent any Non-Extending Lender is not
replaced by an Additional Commitment Lender as of the Existing Maturity Date,
the Commitment and Note of the Non-Extending Lender shall be assigned to Agent
and held as a treasury note (a "Non-Extending Lender Treasury Note"). Borrower
shall not be permitted to draw any Advances with respect to any Non-Extending
Lender Treasury Note until such time as an additional Commitment Lender assumes
such Commitment from Agent and receives a replacement Note with
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respect to such Commitment. Neither the Loan Amount nor the ability of Borrower
to receive an increase in the Loan Amount pursuant to Section 2.4 shall be
affected by the withdrawal of a Non-Extending Lender.
4.7 INTEREST RATE SELECTION.
4.7.1 Borrower agrees that each Borrower's Requisition for Advance
submitted to Agent pursuant to Section 3.1 of this Agreement shall be
accompanied by a written notice of Borrower (a "Notice of Borrowing") specifying
(i) the requested Type of Advance comprising such Advance, (ii) in the case of a
Eurodollar Rate Advance, the initial Interest Period, and (iii) the amount of
each Type of Advance; provided, however, that each Eurodollar Rate Advance shall
be in an amount of $1,000,000 or whole multiple of $100,000 in excess thereof,
and each borrowing of or conversion to Base Rate Advance shall be in an amount
of $500,000 or a whole multiple of $50,000 in excess thereof. Notwithstanding
anything to the contrary herein, the obligation of Agent and Lenders to make any
and all Advances is subject to Section 4.10 of this Agreement and to the other
terms and conditions of this Agreement.
4.7.2 A Notice of Borrowing with respect to a Eurodollar Rate
Advance shall be irrevocable and binding on Borrower. If the information
described in Section 4.7.1 above is not specified by Borrower, Borrower shall be
deemed to have selected a Base Rate Advance.
4.7.3 If after giving a Notice of Borrowing, Borrower fails to
borrow any Eurodollar Rate Advance, Borrower shall indemnify Agent and Lenders
against any loss or expense incurred by Agent and Lenders as a result of such
failure as provided for in Section 4.11 below.
4.8 CONVERSION OF ADVANCES.
4.8.1 Subject to the terms and conditions of this Agreement, upon
notice given by Borrower to Agent not later than 12:00 noon (i) in the case of
Conversions into Base Rate Advances, on the date of the proposed Conversion, and
(ii) in the case of Conversions into Eurodollar Rate Advances, three (3)
Business Days prior to the date of the proposed Conversion, Borrower may
Convert, on any Business Day, one Type of Advance made to Borrower into another
Type of Advance; provided, however, that (a) any Conversion of Eurodollar Rate
Advances may be made only on the last day of the respective Interest Period for
such Advances, (b) any Advance Converted to a Base Rate Advance shall be in an
amount of $500,000 or a whole multiple of $50,000 in excess thereof, (c) any
Advance Converted to a Eurodollar Rate Advance shall be in an amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof, and (d) no Advance
may be Converted to a Eurodollar Rate Advance during the continuance of any
event which would entitle Agent to accelerate the maturity of the Notes pursuant
to Section 13.2 hereof.
4.8.2 Each such notice of Conversion (a "Notice of Conversion")
shall be by telephone, telecopy, telex or cable, in each case confirmed
immediately in writing in the manner specified in Article 23 of this Agreement,
and shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
to Eurodollar Rate Advances the duration of the initial Interest Period for such
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Advances. Each Notice of Conversion with respect to Eurodollar Rate Advances
shall be irrevocable and binding on Borrower. Any part of the Loan outstanding
which is not accruing interest at Eurodollar Rate or the Default Rate shall
accrue interest at the Base Rate.
4.9 INTEREST PERIOD SELECTION; ALTERNATIVE INTEREST RATES, ETC.
4.9.1 Borrower shall have the option to select Interest Periods (i)
in accordance with Section 4.7 of this Agreement with respect to the duration of
an initial Advance; and (ii) in accordance with Section 4.8 of this Agreement
with respect to the duration of a Converted Advance. As to subsequent Interest
Periods applicable to such Advances, Borrower may select the duration of the
Interest Period by giving notice (which may be by telephone, telecopy, telex or
cable, in each case confirmed immediately in writing in the manner specified in
Article 23 of this Agreement) to Agent not less than three (3) Business Days
prior to the first day of such subsequent Interest Period in the case of
Eurodollar Rate Advances. If no such notice is received with respect to an
outstanding Advance, Borrower shall be deemed to have elected to Convert the
Advance into a Base Rate Advance.
4.9.2 Notwithstanding anything to the contrary contained herein, in
no event may Borrower have more than six (6) Eurodollar Rate Advances in effect
at any one time, which number shall be in addition to any Base Rate Advances.
4.10 ILLEGALITY. Notwithstanding any other provision of this Agreement,
(a) if the introduction of or any change in any Law (or change in the
interpretation thereof) applicable to Agent, its Agent's Office or to a Lender
shall make it unlawful, or (b) if any central agency or other Governmental
Authority having jurisdiction over Agent, its Agent's Office or a Lender shall
assert that it is unlawful for Agent or its Agent's Office to make Eurodollar
Rate Advances to Borrower or to continue to fund or maintain Eurodollar Rate
Advances to Borrower, then, on giving notice (which may be by telephone,
telecopy, telex or cable, in each case confirmed immediately in writing in the
manner specified in Article 23 of this Agreement) thereof by Agent to Borrower,
(i) the obligation of Agent and Lenders to Borrower to make Eurodollar Rate
Advances and to Convert Advances into Eurodollar Rate Advances shall terminate,
and (ii) each Eurodollar Rate Advance will automatically, on the last day of the
then current Interest Period thereof or within such earlier period as may be
required by Law, Convert into a Base Rate Advance.
4.11 INDEMNIFICATION. If, due to payments or Conversion to Types of
Advances made by Borrower pursuant to this Agreement or due to acceleration of
the maturity of the Advances pursuant to this Agreement or due to any other
reason, including without limitation (i) the events specified in Section 4.10
above, (ii) any failure by Borrower to borrow a Eurodollar Rate Advance on the
date specified in Borrower's written notice, or (iii) any failure by Borrower to
pay a Eurodollar Rate Advance on the date for payment specified in Borrower's
written notice, Agent receives payments of principal of, or is subject to a
Conversion of a Eurodollar Rate Advance into another Type of Advance, other than
on the last day of an Interest Period relating thereto, Borrower shall, upon
demand by Agent, pay to Agent any amounts required to compensate Agent and
Lenders for any losses, costs or expenses incurred as a result of such payment
or Conversion, including, without limitation, any loss, costs or expenses
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by Agent and
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Lenders to fund or maintain such Advances. Such compensation, and the
compensation provided for elsewhere in this Agreement shall include, without
limitation, an amount calculated as follows:
4.11.1 First, Agent shall determine the amount by which (i) the
total amount of interest which would have otherwise accrued hereunder on each
installment of principal so paid or not borrowed, during the period beginning on
the date of such payment or failure to borrow and ending on the date such
installment would have been due (the "Reemployment Period"), exceeds (ii) the
total amount of interest which would accrue, during the Reemployment Period, on
any readily marketable bond or other obligation of the United States of America
designated by Agent in its sole discretion at or about the time of such payment,
such bond or other obligation of the United States of America to be in an amount
equal (as nearly as may be) to the amount of principal so paid or not borrowed
and to have a maturity comparable to the Reemployment Period, and the interest
to accrue thereon to take account of amortization of any discount from par or
accretion of premium above par at which the same is selling at the time of
designation. Each such amount is hereafter referred to as an "Installment
Amount."
4.11.2 Second, each Installment Amount shall be treated as payable
as of the date on which the related principal installment would have been
payable by Borrower had such principal installment not been prepaid or not
borrowed.
4.11.3 Third, the amount to be paid on each such date shall be the
present value of the Installment Amount determined by discounting the amount
thereof from the date on which such Installment Amount is to be treated as
payable, at the same annual interest rate as that payable upon the bond or other
obligation of the United States of America designated as aforesaid by Agent.
4.12 LATE CHARGE. Without limiting the right of Agent and Lenders to
accelerate the maturity of the Notes or to exercise any other right hereunder or
under the other Loan Documents, if any payment under the Notes or any of the
other Loan Documents is not received by Agent and Lenders within ten (10) days
of the date such payment is due, without notice or demand, Borrower shall pay to
Agent and Lenders a late charge equal to four percent (4%) of the amount of such
payment; provided, that, in connection with the acceleration of the maturity of
the Notes, the late charge shall not be collected on the aggregate amount of the
accelerated Obligations.
4.13 INTEREST AFTER DEFAULT.
4.13.1 Any amount of principal of the Notes or other amounts due
under the Loan Documents which is not paid when due (whether at stated maturity,
by acceleration or otherwise and subject to any applicable notice and/or cure
periods contained herein or in any of the Loan Documents) and, to the extent
permitted by applicable Law, any amount of interest under the Notes or other
Loan Documents which is not paid when due, subject to any applicable notice
and/or cure periods contained herein or in any of the Loan Documents, shall bear
interest, from the date on which such overdue amount shall have become due and
payable by Borrower until payment in full of the amount then due (whether before
or after judgment), payable on demand, at a rate per annum equal to the Default
Rate, or if such increased rate of interest may
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not be collected under applicable Law, then at the maximum rate of interest, if
any, which may be collected from Borrower under applicable Law.
4.14 INTEREST NOT TO EXCEED MAXIMUM ALLOWABLE AMOUNTS. Notwithstanding any
provision in this Agreement, the Notes, or in any instrument securing the Notes,
the total liability for payments legally regarded as interest shall not exceed
the maximum amounts allowed by applicable Law, and any payment of same in excess
of the amount allowed thereby shall, as of the date of such payment,
automatically be deemed to have been applied to the payment of the principal
indebtedness evidenced hereby, or, if same has been fully repaid, shall be
repaid to Borrower. Any notation or record of Agent with respect to such
required application which is inconsistent with the provisions of this Section
shall be disregarded for all purposes and shall not be binding upon either Agent
or Lenders.
4.15 UNCONDITIONAL LIABILITY. From time to time, without affecting the
obligation of Borrower or any sureties, guarantors, endorsers, accommodation
parties or other persons liable or to become liable on the Notes to pay the
outstanding principal balance of the Notes and observe the covenants of Borrower
contained herein, without giving notice to or obtaining the consent of Borrower
or any such sureties, guarantors, endorsers, accommodation parties or other
persons, and without liability on the part of Agent and Lenders, Agent and
Lenders may, at the option of Agent and Lenders, grant extensions or
postponements of the time for payment of said outstanding principal balance,
interest or any part thereof, release anyone liable on any of said outstanding
principal balance, accept a renewal of the Notes, release or accept a
substitution of all or any collateral given to secure the Notes, join in any
extension or subordination agreement, agree in writing with Borrower to modify
the rate of interest or terms and time of payment of said outstanding principal
balance or period of amortization of the Notes or change the amount of the
monthly installments payable hereunder, or grant any other indulgence or
forbearance whatsoever. No one or more of such actions shall constitute a
novation.
4.16 INABILITY TO DETERMINE RATES. If the Required Lenders determine that
for any reason in connection with any request for a Eurodollar Rate Advance or a
Conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Advance, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Advance, or
(c) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Advance does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, Agent will promptly so notify Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Advances shall be suspended until Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, Borrower
may revoke any pending request for a borrowing of, Conversion to or continuation
of Eurodollar Rate Advances or, failing that, will be deemed to have Converted
such request into a request for a Prime Base Rate Advance in the amount
specified therein.
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ARTICLE 5
PAYMENTS AND COMPUTATIONS; CAPITAL ADEQUACY.
5.1 FUNDS FOR PAYMENTS.
5.1.1 All payments of principal, interest, fees and any other
amounts due under the Notes or under any of the other Loan Documents shall be
made to Agent at Agent's Office, or at such other location in the continental
United States that Agent may from time to time designate, in each case not later
than 2:00 p.m. on the day when due in immediately available funds in lawful
money of the United States.
5.1.2 All payments by Borrower under the Notes and under any of the
other Loan Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of
any nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless
Borrower is compelled by Law to make such deduction or withholding. If any such
obligation to deduct or withhold is imposed upon Borrower with respect to any
amount payable by it under the Notes or under any of the other Loan Documents,
Borrower will pay to Agent, on the date on which such amount is due and payable
under the Notes or under such other Loan Document, such additional amount as
shall be necessary to enable the Lenders to receive the same amount which the
Lenders would have received on such due date had no such obligation been imposed
upon Borrower, subject to the provisions of Sections 5.2 and 5.3 below. Borrower
will deliver promptly to Agent certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made by
Borrower under the Notes or under such other Loan Document.
5.2 COMPUTATIONS.
5.2.1 All computations of interest hereunder shall be made by Agent
on the basis of a year of three hundred sixty (360) days for the actual number
of days (including the first day but excluding the last day) elapsed. The
outstanding amount of the Advances as reflected on Agent's records from time to
time shall be presumed to be correct and binding on Borrower unless within
twenty (20) days after receipt by Borrower of any notice from Agent of such
outstanding amount, Borrower notifies Agent to the contrary.
5.2.2 Any change in the rate of interest payable hereunder resulting
from a change in the Base Rate shall become effective as of the opening of
business on the day on which such change in the Base Rate becomes effective.
5.2.3 Each determination of an interest rate by Agent pursuant to
the Notes and this Agreement shall be conclusive and binding on Borrower in the
absence of error.
5.2.4 Whenever any payment to be made hereunder shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day (except as provided in the definition of Interest
Period), and such extension of time shall in such case be included in the
computation of payment of interest.
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5.3 ADDITIONAL COSTS. Notwithstanding anything herein to the contrary,
if any present or future applicable Law, which expression, as used herein,
includes statutes, rules and regulations thereunder and interpretations thereof
by any competent court or by any Governmental Authority charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to Agent or Lenders by any central bank or other fiscal,
monetary or other authority (whether or not having the force of Law), shall:
(a) subject Agent or Lenders to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, the Loan or the Advances (other than taxes
based upon or measured by the income or profits of such Agent or Lenders); or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to Agent or Lenders of the
principal of or the interest on any Advances or any other amounts payable to
Agent or Lenders under this Agreement or the other Loan Documents; or
(c) impose or increase or render applicable (other than to
the extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of Law) against assets held by, or
deposits in or for the account of, or loans by, or commitments of an office of
Agent or Lenders; or
(d) impose on Agent or Lenders any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the Loan,
or any of the Advances;
and the result of any of the foregoing is
(i) to increase the cost to Agent or Lenders of
making, funding, issuing, renewing, extending or maintaining any of the Advances
or the Loan; or
(ii) to reduce the amount of principal, interest or
other amount payable to Agent or Lenders hereunder on account of any of the
Advances or the Loan; or
(iii) to require Agent or Lenders to make any payment or
to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by Agent and Lenders from
Borrower hereunder;
then, and in each such case under the foregoing subparagraphs (i), (ii) and
(iii) of this Section 5.3, Borrower will, upon prompt written demand made by
Agent or Lenders at any time and from time to time and as often as the occasion
therefor may arise, pay to Agent and the Lenders such additional amounts as will
be sufficient to compensate Agent and the Lenders for such additional cost,
reduction, payment or foregone interest or other sum. Notwithstanding the
foregoing, Borrower shall not be required to reimburse any Lender organized or
formed under the Laws of any jurisdiction outside of the United States for any
such amounts imposed upon
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such Lender by virtue of its alien status and not generally imposed on Lenders
organized or formed under the Laws of the United States or any state or
jurisdiction thereof.
5.4 CAPITAL ADEQUACY. Agent or any Lender shall promptly notify Borrower
if Agent or Lenders shall have determined that the adoption of any applicable
Law, rule, regulation, guideline, directive or request (whether or not having
force of Law) regarding capital requirements for banks or bank holding companies
as a whole, or any change therein or in the interpretation or administration
thereof of any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by Agent or
Lenders with any of the foregoing imposes or increases a requirement by Agent or
Lenders to allocate capital resources to Agent or Lenders' commitment to make
Advances under this Agreement which has or would have the effect of reducing the
return on Agent and Lenders' capital to a level below that which Agent and
Lenders could have achieved (taking into consideration Agent and Lenders' then
existing policies with respect to capital adequacy and assuming full utilization
of Agent and Lenders' capital) but for such applicability, change,
interpretation, administration or compliance, by any amount deemed in good faith
by such Lender or Agent to be material, and which is not reflected in an
increase in the Base Rate or Eurodollar Rate, as the case may be. Borrower and
such Lender shall thereafter attempt to negotiate in good faith an adjustment to
the compensation payable hereunder which will adequately compensate such Lender
for such modification. If Borrower and such Lender are unable to agree to such
adjustment within ninety (90) days of the day on which Borrower shall receive
such written notice, then commencing on the date of such notice (but not earlier
than the effective date of any such applicability, change, interpretation,
administration or compliance), then the fees payable hereunder shall increase by
an amount which will, in the reasonable determination of such Lender, compensate
such Lender for such modification. In determining the amount of income, such
Lender may use any reasonable and equitable methods of averaging, allocating or
attributing such modification among its customers. The affected Lender shall
deliver to Borrower a certificate demonstrating the calculation of the amount of
such increased fees. Borrower shall be required to pay the increased amount
within fifteen (15) days after its receipt of such certificate.
5.5 RESERVES ON EURODOLLAR RATE ADVANCES. Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency funds
or deposits (currently known as "Eurocurrency liabilities"), additional interest
on the unpaid principal amount of each Eurodollar Rate Advance equal to the
actual costs of such reserves allocated to such Advance by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Advance, provided Borrower shall have received at least ten (10)
days' prior notice (with a copy to Agent) of such additional interest from such
Lender. If a Lender fails to give notice ten (10) days prior to the relevant
Interest Payment Date, such additional interest shall be due and payable ten
(10) days from receipt of such notice.
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ARTICLE 6
COLLATERAL SECURITY; GUARANTIES
6.1 COLLATERAL. The Obligations shall be secured by a perfected first
priority lien or security title and security interest in the Collateral, whether
now owned or hereafter acquired, pursuant to the terms of the Security
Documents.
6.2 GUARANTY. Each Subsidiary of Borrower owning a Project (a
"Guarantor") shall execute and deliver to Agent and the Lenders an Unconditional
Guaranty of Payment and Performance (a "Guaranty") in form reasonably acceptable
to Agent, as more particularly described in Section 2.5.2(i) above. Each
Guarantor shall be jointly and severally liable with Borrower and any other
Guarantors for the repayment of the Obligations.
6.3 PAYMENT OF PROCEEDS; RELEASE OF COLLATERAL.
6.3.1 Borrower shall pay to Agent for the benefit of Lenders one
hundred percent (100%) of the Net Sales Proceeds (Actual) of each sold Unit,
cabana or other appurtenance in a Project, which will be applied first to
payment of the Outstanding Advances with respect to such Project and any
remainder shall be applied against payment of the Outstanding Advances with
respect to the other Projects. Upon completion of a Project, consummation of the
closing of the respective Sales Contracts with respect to such Project pursuant
to the terms thereof and upon receipt by Agent of the Net Sales Proceeds
(Actual) of each such sold Unit, cabana or other appurtenance thereto in such
Project, and provided Agent has not commenced the exercise of any remedies under
this Agreement or any of the other Loan Documents, Agent shall execute a partial
release from the lien of the applicable Security Instrument for such sold Unit,
cabana or other appurtenance thereto in such Project.
6.3.2 With respect to any Project, at such time as the Net Sales
Process (Actual) received by Agent with respect to such Project exceeds the Loan
Amount Project Allocation with respect to such Project and Agent is satisfied
that:
(i) the Net Sales Proceeds (Projected) of Sales Contracts
from the remaining Projects in the aggregate are at least one hundred thirty
percent (130%) of the aggregate Loan Amount Project Allocations for the
remaining Projects;
(ii) the aggregate Loan Amount Project Allocations for the
remaining Projects are in balance with the aggregate cost to complete as
provided in the Project Budgets for the remaining Projects (taking into
consideration Required Equity Funds and any additional equity contributions by
Borrower); and
(iii) no Default or Event of Default has occurred and is
continuing;
then Agent shall, at the option of Borrower, execute partial releases from the
applicable Security Instrument for the remainder of the Units of such Project or
remove the Project in its entirety from the Loan. Calculations demonstrating
compliance with the requirements contained in clauses (i), (ii) and (iii) above
shall be current within thirty (30) days of the requested release
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date. Upon the full and complete release of a Project owned by a Guarantor,
Agent and the Lenders shall release such Guarantor from its Guaranty (but not
under its applicable Indemnity Agreement), assuming such Guarantor does not own
any other Projects at the time of such release.
6.3.3 Notwithstanding the requirement in clause (i) of Section 6.3.2
above, but subject to the requirements in clauses (ii) and (iii) of Section
6.3.2, if Borrower is requesting the release of a Project that has no value for
purposes of calculation of the Borrowing Base, Borrower shall not be required to
show compliance with the requirement contained in clause (i) of Section 6.3.2 in
order to obtain a release of the remaining Units of such Project.
6.3.4 Notwithstanding the requirement in clause (i) of Section 6.3.2
above, but subject to the requirements in clauses (ii) and (iii) of Section
6.3.2, if the Net Sales Proceeds (Projected) of Sales Contracts from the
remaining Projects do not provide the required coverage levels described in
Section 6.3.2, then Borrower may make such cash payment against the outstanding
balance of the Loan as may be necessary to comply with such required coverage
levels.
ARTICLE 7
CERTAIN RIGHTS OF AGENT.
7.1 RIGHT TO RETAIN THE CONSTRUCTION INSPECTOR. Agent shall have the
right to retain, at Borrower's cost and expense, the Construction Inspector to
perform all or any of the following services on behalf of the Lenders:
7.1.1 to review and advise the Lenders whether in the opinion of the
Construction Inspector, each of the Project Budgets accurately reflects all
applicable Project Costs;
7.1.2 to review and advise the Lenders whether, in the opinion of
the Construction Inspector, the applicable Plans and Specifications are
satisfactory for the intended purposes thereof;
7.1.3 to make periodic inspections (approximately at the date of
each Draw Request) for the purpose of assuring that construction of the
Improvements to date is in accordance with the applicable Plans and
Specifications and to approve Borrower's then current Draw Request as being
consistent with the applicable Project Budget and Borrower's obligations under
this Agreement, and to advise the Lenders of the anticipated cost of and time
for completion of construction of the Improvements and the adequacy of any
Contingency Reserve;
7.1.4 to review and advise the Lenders on any proposed change orders
or construction change directives requiring Agent's consent; and
7.1.5 to review the Construction Contracts and subcontracts, for the
purpose of providing the Lenders with an opinion as to the cost of construction
to be incurred to complete the Projects, and also for the purpose of assuring
that all such subcontracts are for work required by the applicable Plans and
Specifications to be performed.
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The reasonable fees of the Construction Inspector shall be paid by
Borrower forthwith upon billing therefor and the reasonable expenses incurred by
Agent and Lenders on account thereof shall be reimbursed to Agent and Lenders
forthwith upon request therefor, but neither Agent, the Lenders nor the
Construction Inspector shall have any liability to Borrower on account of the
services performed by the Construction Inspector, any neglect or failure on the
part of the Construction Inspector to properly perform its services, or any
approval by the Construction Inspector of construction of the Improvements.
Neither Agent, the Lenders nor the Construction Inspector assumes any obligation
to Borrower or any other Person concerning the quality of construction of the
Improvements or the absence therefrom of defects.
7.2 RIGHT TO OBTAIN APPRAISALS. Agent shall have the right to obtain,
from time to time, at Borrower's cost and expense, updated Appraisals of the
Projects, provided that so long as no Event of Default shall have occurred and
be continuing, Borrower shall only be obligated to pay for the costs and
expenses associated with one such Appraisal of each of the Projects during any
twenty-four (24) month period, except for any such Appraisal obtained by Agent
in connection with the extension contemplated by Section 4.6 hereof. The
reasonable costs and expenses incurred by Agent in obtaining such Appraisals
shall be paid by Borrower forthwith upon billing or request by Agent for
reimbursement therefor.
7.3 CHARGES AGAINST LOAN CHECKING ACCOUNT. After the occurrence of an
Event of Default, Agent shall have the right, and Borrower hereby irrevocably
authorizes Agent, to charge the Loan Checking Account held with Agent without
the further approval of Borrower, for any installment of interest due under the
Notes, any reasonable costs or expenses incurred by Agent and Lenders which are
to be paid or reimbursed by Borrower under the terms of this Agreement or any of
the other Loan Documents (including, without limiting the generality of the
foregoing, all Construction Inspector, Appraisal and reasonable attorneys'
fees), and all principal and interest and all other sums due to Agent and
Lenders under the Notes, this Agreement or any of the other Loan Documents, all
to the extent that the same are not paid by the respective due dates thereof. If
the balance of the Loan Checking Account is not sufficient to satisfy the
foregoing obligations on the respective due dates thereof and so long as an
Event of Default is continuing, the Agent shall have the right, and Borrower
hereby irrevocably authorizes Agent, to fund Advances into the Loan Checking
Account to satisfy such foregoing obligations.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES.
Except as such statements may be qualified in Part XI of the Project
Schedules attached hereto as Exhibit A with respect to any Project, Borrower
represents and warrants to Agent and Lenders as follows:
8.1 ORGANIZATION; AUTHORITY; ETC.
8.1.1 Organization; Good Standing. Borrower (i) is a corporation
duly organized and validly existing and in good standing under the Laws of the
State of Delaware; (ii) has all requisite power to own its property and conduct
its business as now conducted and as presently contemplated; and (iii) is duly
authorized to do business in the State of Florida and in each other jurisdiction
where such qualification is necessary except where a failure to be so
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qualified in such other jurisdiction would not result in a Material Adverse
Change. BCG's federal taxpayer identification number is 00-0000000 and its
correct legal name is "Bay Colony-Gateway, Inc.". WCI's federal taxpayer
identification number is 00-0000000 and its correct legal name is "WCI
Communities, Inc.".
8.1.2 Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which Borrower is or is to become a
party and the transactions contemplated hereby and thereby are within the
authority of Borrower, have been duly authorized by all necessary proceedings on
the part of Borrower, do not conflict with or result in any breach or
contravention of any provision of Laws, statute, rule or regulation to which
Borrower is subject or any judgment, order, writ, injunction, license or permit
applicable to Borrower and do not conflict with any provision of the articles of
incorporation or by-laws of Borrower or any agreement or other instrument
binding upon Borrower, and do not require the approval or consent of, or filing
with, any Governmental Authority other than those already obtained and the
filing of the Security Instruments and the Financing Statements in the
appropriate public records with respect thereto.
8.1.3 Enforceability. The execution and delivery of this Agreement
and the other Loan Documents to which Borrower is or is to become a party will
result in valid and legally binding obligations of Borrower enforceable against
Borrower in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by any Debtor Relief Laws.
8.2 TITLE TO PROJECTS. Borrower makes any representations and warranties
regarding title to the Projects as provided in the Security Instruments.
8.3 FINANCIAL STATEMENTS. Borrower has furnished to Agent the Audited
Financial Statements. The Audited Financial Statements were prepared in
accordance with GAAP, are true and correct in all material respects, and fairly
represent the financial condition of WCI and its Subsidiaries as at the close of
business on the dates thereof and the results of operations for the fiscal year
or quarter, as applicable, then ended. As of the date of this Agreement and
except for the matters disclosed in writing to Agent and the Lenders or in the
Audited Financial Statements, there are no additional material contingent
liabilities of WCI and its Subsidiaries on a consolidated basis known to the
senior credit officer of WCI or any of its Subsidiaries which could reasonably
be expected to result in a Material Adverse Change if adversely determined.
8.4 NO MATERIAL ADVERSE CHANGE. Since December 31, 2003, there has
occurred no Material Adverse Change.
8.5 FRANCHISES, PATENTS, COPYRIGHTS, ETC. Borrower possesses all
franchises, patents, copyrights, trademarks, trade names, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with any rights of others.
8.6 LITIGATION. There are no actions, suits, proceedings or
investigations of any kind pending or, to the best of Borrower's Knowledge,
overtly threatened in writing against Borrower or its Subsidiaries before any
court, tribunal or administrative agency or board that, if adversely
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determined, either in any case or in the aggregate, could reasonably be expected
to result in a Material Adverse Change.
8.7 RESTRICTIONS, JUDGMENTS, CONTRACTS, ETC. Borrower is not subject to
any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to result in a
Material Adverse Change. Borrower is not a party to any contract or agreement
that has resulted or, to Borrower's Knowledge, is expected to result in a
Material Adverse Change.
8.8 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Borrower has no
Knowledge of any material violation of any provision of its organizational
documents, by-laws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in a Material Adverse Change.
8.9 TAX STATUS. Borrower has made or filed all federal and state income
and all other tax returns, extensions, reports and declarations required by any
jurisdiction to which it is subject, has paid all taxes and other governmental
assessments and charges shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and by appropriate
proceedings, and has set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply. Except for taxes being validly contested
in the manner required by the Security Instruments, there are no unpaid taxes in
any material amount claimed to be past due by the taxing authority of any
jurisdiction, and Borrower has no Knowledge of any basis for any such claim.
8.10 NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
8.11 INVESTMENT COMPANY ACT. Neither WCI nor BCG is an "investment
company," or an "affiliated company" or a "principal underwriter" of an
"investment company," as such terms are defined in the Investment Company Act of
1940.
8.12 ABSENCE OF FINANCING STATEMENTS, ETC. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage, deed to
secure debt, deed of trust or other document filed or recorded with any filing
records, registry, or other public office, that purports to cover, affect or
give notice of any present or possible future lien on, or security interest in,
any Collateral except for the Permitted Liens and any Liens being contested in
the manner required by the Security Instruments.
8.13 SETOFF, ETC. The Collateral and the Lenders' rights with respect to
the Collateral are not subject to any setoff, claims, withholdings or other
defenses of Borrower. Borrower is the owner of the Collateral free from any
Lien, security interest, encumbrance and any other claim or demand, other than
the Permitted Liens.
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8.14 ERISA COMPLIANCE.
8.14.1 Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to Borrower's
Knowledge, nothing has occurred which would prevent, or cause the loss of, such
qualification. Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
8.14.2 There are no pending or, to the Borrower's Knowledge,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that would reasonably be expected to result in a
Material Adverse Change. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has resulted
or would reasonably be expected to result in a Material Adverse Change.
8.14.3 (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
8.15 ENVIRONMENTAL COMPLIANCE. Borrower has taken all reasonably prudent
steps to investigate the past and present condition and usage of the Projects
including, without limitation, the operations conducted thereon and, based upon
such diligent investigation, makes the following representations and warranties
to Agent and the Lenders:
8.15.1 With respect to the Projects, to Borrower's Knowledge,
neither Borrower, nor any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, Law, license, rule or regulation
pertaining to environmental matters, including, without limitation, those
arising under the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control
Act, or any state or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment (hereinafter collectively, as the
same may be amended from time to time, the "Environmental Laws"), which
violation could reasonably be expected to have a material adverse effect on the
environment or result in a Material Adverse Change.
8.15.2 With respect to the Projects, Borrower has not received
notice from any third party including, without limitation, any Governmental
Authority, that (i) it has been
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identified by the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986), which could
reasonably be expected to result in a Material Adverse Change; (ii) any
hazardous waste, as defined by 42 U.S.C. Section 9601(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws (hereinafter, collectively, as such definitions may be
amended from time to time, "Hazardous Materials"), which it has generated,
transported or disposed of, have been found at any site at which a federal,
state or local agency or other third party has conducted or has ordered that
Borrower conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law, which could reasonably be expected to result
in a Material Adverse Change; or (iii) it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of any kind whatsoever in
connection with the Release of Hazardous Materials, which could reasonably be
expected to result in a Material Adverse Change.
8.15.3 That (i) no portion of the Projects has been used for the
handling, processing, storage or disposal of Hazardous Materials except in
accordance with applicable Environmental Laws; (ii) no underground tank or other
underground storage receptacle for Hazardous Materials is located on any portion
of the Projects; (iii) in the course of any activities conducted by Borrower, or
to the best of its Knowledge as to the operators of its properties, no Hazardous
Materials have been generated or are being used in or on the Projects except in
accordance with applicable Environmental Laws; (iv) there has been no past or
present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Materials on, upon, into or from the Projects,
which Release would have a material adverse effect on the environment or result
in a Material Adverse Change; (v) to the best of Borrower's Knowledge, there
have been no Releases on, upon, from or into any real property in the vicinity
of the Projects which, through soil or groundwater contamination, may have come
to be located on, and which would result in a Material Adverse Change; and (vi)
any Hazardous Materials that have been generated on the Projects have been
transported off-site only by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental Laws, which
transporters and facilities have been and are, to the best of Borrower's
Knowledge, operating in compliance with such permits and applicable
Environmental Laws.
8.15.4 No portion of the Projects is or shall be subject to any
applicable environmental clean-up responsibility Law or environmental
restrictive transfer Law or regulation, by virtue of the transactions set forth
herein and contemplated hereby.
8.15.5 Without limiting the foregoing, to the best of Borrower's
Knowledge, Borrower is operating in compliance with all applicable Environmental
Laws with respect to the Real Estate, excepting only such noncompliance as would
not result in a Material Adverse Change.
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8.16 SUBSIDIARIES. BCG is a wholly-owned Subsidiary of WCI. Borrower
shall have only the Subsidiaries not prohibited by the Senior Unsecured
Revolving Credit Agreement.
8.17 AVAILABILITY OF UTILITIES. All utility services necessary and
sufficient for the construction, development and operation of each of the
Projects for its intended purposes are presently available (or will be available
by the Completion Date) to the boundaries of the respective Projects through
dedicated public rights of way or through perpetual private easements approved
by the Agent, including, without limitation, water supply, storm and sanitary
sewer, electric and telephone facilities, cable, and drainage. The Security
Instruments create a valid and enforceable first lien on all of Borrower's
right, title and interest under any appurtenant easements benefiting the
Projects.
8.18 ACCESS. The rights of way for all roads necessary for the full
utilization of the Improvements for their intended purposes have been completed,
or are in the process of being completed by others (or will be completed by the
Completion Date), in accordance with the requirements of the appropriate
Governmental Authority, and the owners of the Projects and the Units to be
constructed thereon either have direct access to a public road or a
non-exclusive access easement over one or more private roads which are
contiguous and have access to a public road. All curb cuts and driveways shown
on the Plans and Specifications are existing, have been fully approved by the
appropriate Governmental Authority and will be installed prior to the Completion
Date.
8.19 CONDITION OF PROJECTS. None of the Projects nor any part thereof is
now damaged or injured as result of any fire, explosion, accident, flood or
other casualty or has been the subject of any Taking, and to the Knowledge of
Borrower, no Taking is pending or contemplated.
8.20 COMPLIANCE WITH REQUIREMENTS. The Plans and Specifications and
construction of the Improvements pursuant thereto and the use and occupancy of
the Projects contemplated thereby comply with all Requirements in all material
respects.
8.21 PROJECT APPROVALS. Except as set forth on Part XII of the Project
Schedules attached hereto as Exhibit A, Borrower has obtained all Project
Approvals necessary to construct, occupy and sell the Units in the Projects. All
Project Approvals to construct the Improvements which have been obtained by
Borrower are listed and described on Part XIII of the Project Schedules attached
hereto as Exhibit A, and have been validly issued and are in full force and
effect. Borrower has no reason to believe that any of the Project Approvals not
heretofore obtained by Borrower will not be obtained by Borrower in the ordinary
course following completion of the construction of the Improvements in
accordance with the Plans and Specifications. To the best of Borrower's
Knowledge, no Project Approvals will terminate, or become void or voidable or
terminable, upon any sale, transfer or other disposition of the Projects,
including any transfer pursuant to a foreclosure sale under any Security
Instrument; provided, however, that a subsequent owner may be required to apply
for new permits. In such instance, Borrower is not aware of any condition which
would preclude the reissuance of any Project Approvals issued by the applicable
Governmental Authority in due course.
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8.22 CONSTRUCTION CONTRACTS. The Construction Contracts are in full force
and effect and Borrower and the Contractors are in compliance with their
respective obligations under the Construction Contracts in all materials
respects. The work to be performed by the Contractors under the Construction
Contracts is the work called for by the applicable Plans and Specifications and
change orders approved by Agent and Lenders (to the extent such approval is
required pursuant to Section 2.10 above), and all work required to complete the
Improvements in accordance with the applicable Plans and Specifications is
provided for under the Construction Contracts and change orders approved by
Agent and Lenders (to the extent such approval is required pursuant to Section
2.10 above).
8.23 ARCHITECTS' CONTRACTS. The Architects' Contracts are in force and
effect and Borrower and the Architects are in compliance with their respective
obligations under the Architects' Contracts in all material respects.
8.24 OTHER CONTRACTS. Other than Permitted Liens, the Construction
Contracts (and subcontracts thereunder), the Architects' Contracts and
agreements with landscape architects, designers, engineers, or other
professionals providing services in connection with the construction of the
Projects, Borrower has not made any contract or arrangement of any kind or type
whatsoever (whether oral or written, formal or informal), the performance of
which by the other party thereto could give rise to a Lien or encumbrance on the
Projects.
8.25 REAL PROPERTY TAXES; SPECIAL ASSESSMENTS. There are no unpaid or
outstanding real estate or other taxes or assessments on or against the Projects
or any part thereof which are payable by Borrower (except only real estate
taxes, community development district assessments and other installments of
assessments not yet due and payable). Borrower has delivered to Agent true and
correct copies of real estate tax bills for the Projects for the past fiscal tax
year. No abatement proceedings are pending with reference to any real estate
taxes assessed against the Projects.
8.26 VIOLATIONS. Borrower has not received written notices of, nor has
any Knowledge of, any violations of any applicable Requirements or Project
Approvals which have not been corrected or are in the process of being corrected
in the manner specified in such notice.
8.27 PLANS AND SPECIFICATIONS. Borrower has furnished Agent or its
designee with true and complete sets of the Plans and Specifications. After
thorough independent investigation and consultation with all appropriate
Governmental Authorities and with the Architects and Contractors, to the best of
Borrower's Knowledge and belief, the Plans and Specifications so furnished to
Agent comply with all Requirements, all Project Approvals, and all restrictions,
covenants and easements affecting the Projects, and have been approved by the
Contractors, the Architects, and such Governmental Authorities as are required
for construction of the Improvements (except for the Project Approvals set forth
in Part XII of the Project Schedules attached hereto as Exhibit A).
8.28 PROJECT BUDGETS. Subject to adjustment as permitted in Section 2.10
above, the Project Budgets accurately reflect all Project Costs.
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8.29 FEASIBILITY. Each of the Construction Schedules and the Pro Forma
Draw Schedules is realistic and feasible.
8.30 SALES CONTRACTS; ESCROW DEPOSITS. Borrower has entered into the
Sales Contracts with bona fide third party purchasers (except for Insider Sales)
as set forth in Part X of the Project Schedules attached hereto as Exhibit A.
Such Sales Contracts are in full force and effect (any rescission periods having
expired) and Borrower and the purchasers thereunder are all in full compliance
with their respective obligations under such Sales Contracts. Borrower has not
received any notice of default of any purchaser or Borrower under any of the
Sales Contracts. Borrower makes the additional representations and warranties
regarding the Sales Contracts and Escrow Deposits set out in Part XIV of the
Project Schedules attached hereto as Exhibit A.
8.31 DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES
COMPLIANCE. Except for any minor technical deficiencies which Borrower routinely
cures in the ordinary course of business, Borrower and each of the Projects are
in compliance with the Requirements of the Division of Florida Land Sales,
Condominiums and Mobile Homes, the Condominium Act, the Florida Uniform Land
Sales Practices Law (or similar Requirements of any other state in which a
Project is located) and the Interstate Land Sales Full Disclosure Act.
8.32 COMMON ENTERPRISE AND CONSIDERATION. Borrower and any Guarantors are
collectively engaged in a common enterprise for the furtherance of the Core
Businesses. Accordingly, Borrower and any Guarantors have received good and
adequate consideration for entering into this Agreement and the Loan Documents.
Furthermore, Borrower and any Guarantors agree that an Advance to Borrower that
is subsequently disbursed by Borrower to any Guarantor for use by such entity
shall benefit all of Borrower and any Guarantors, even if the Advance is based
upon a Borrowing Base which includes assets of a Person that does not receive
the disbursement from Borrower. Borrower and any Guarantors agree that they will
each receive good and adequate benefit from this common arrangement given the
common enterprise of all of the foregoing as set forth above.
ARTICLE 9
AFFIRMATIVE COVENANTS.
Borrower covenants to and agrees with Agent and Lenders that, so
long as the Loan is outstanding or the Lenders have any obligation to make any
Advances:
9.1 PUNCTUAL PAYMENT. Borrower will duly and punctually pay or cause to
be paid the principal and interest on the Loan and all other amounts provided
for in the Notes, this Agreement and the other Loan Documents to which Borrower
is a party, all in accordance with the terms of the Notes, this Agreement and
such other Loan Documents.
9.2 COMMENCEMENT, PURSUIT AND COMPLETION OF CONSTRUCTION. Borrower will
diligently pursue construction of the applicable Improvements in accordance with
the Construction Schedules, and complete construction of the applicable
Improvements prior to the applicable Completion Date, all substantially in
accordance with the applicable Plans and Specifications in substantial
compliance with all restrictions, covenants and easements affecting the
Projects, all Requirements, and all Project Approvals, and with all terms and
conditions of
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the Loan Documents, without deviation from the applicable Plans and
Specifications unless Borrower obtains the prior approval of Agent and the
surety company or companies issuing the applicable Payment and Performance Bond
(to the extent either such approval is required hereunder or thereunder).
Borrower will pay all sums and perform all such acts as may be necessary or
appropriate to complete such construction of the applicable Improvements
substantially in accordance with the applicable Plans and Specifications and in
substantial compliance with all restrictions, covenants and easements affecting
the applicable Project, all Requirements and all Project Approvals, and with all
terms and conditions of the Loan Documents, all of which shall be accomplished
on or before the applicable Completion Date in accordance with all Requirements,
free (by bonding or otherwise) from any Liens, claims or assessments (actual or
contingent) asserted against the Projects for any material, labor or other items
furnished in connection therewith. Borrower will furnish evidence of
satisfactory compliance with this Section 9.2 to Agent on or before the
applicable Completion Date.
9.3 CORRECTION OF DEFECTS. Borrower will promptly correct or cause to be
corrected all material defects in the Improvements or any material departure
from the Plans and Specifications not previously approved by Agent or made
pursuant to a change order approved by Agent (to the extent such approval is
required hereunder). Borrower agrees that any Advance made by the Lenders,
whether before or after such defects or departures from the Plans and
Specifications are discovered by, or brought to the attention of, Agent, shall
not constitute a waiver of Agent and Lender's right to require compliance with
this Section 9.3.
9.4 MAINTENANCE OF OFFICE. Borrower will maintain its chief executive
offices in Xxx County, Florida, or at such other place in the United States of
America as Borrower shall designate upon written notice to Agent, where notices,
presentations and demands to or upon Borrower in respect of the Loan Documents
may be given or made.
9.5 RECORDS AND ACCOUNTS. Borrower will keep true and accurate records
and books of account in which full, true and correct entries will be made in
accordance with GAAP and maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation and amortization of its properties,
contingencies, and other reserves.
9.6 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. Borrower will
deliver to Agent, in form and detail satisfactory to Agent:
9.6.1 as soon as available, but in any event within ninety (90) days
after the end of each Fiscal Year of WCI, a consolidated balance sheet of WCI
and its Subsidiaries, as determined in accordance with GAAP, as at the end of
such Fiscal Year, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous Fiscal Year,
all in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to Agent,
which report and opinion shall be prepared in accordance with GAAP and shall not
be subject to any "going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit;
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9.6.2 as soon as available, but in any event within forty-five (45)
days after the end of each of the first three (3) Fiscal Quarters of each Fiscal
Year of WCI, a consolidated balance sheet of WCI and its Subsidiaries, as
determined in accordance with GAAP, as at the end of such Fiscal Quarter, and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for such Fiscal Quarter and for the portion of WCI's
Fiscal Year then ended, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the
corresponding portion of the previous Fiscal Year, all in reasonable detail,
certified by a Responsible Officer of WCI as fairly presenting the financial
condition, results of operations, shareholders' equity and cash flows of WCI and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;
9.6.3 concurrently with the delivery of the financial statements
referred to in Sections 9.6.1 and 9.6.2, a duly completed Compliance Certificate
signed by a Responsible Officer of Borrower, demonstrating compliance with the
covenants contained in Section 9.24 (provided that the covenant provided for in
Section 9.24.1 shall only be tested in the Compliance Certificate provided
concurrently with the annual financial statements referred to in Section 9.6.1)
and evidencing the calculation of the Leverage Ratio.
9.6.4 within forty-five (45) days after the end of each Fiscal
Quarter, a sales report setting forth Borrower's efforts to market and sell the
then Unsold Units and the results of such efforts;
9.6.5 within forty-five (45) days of the last day of the immediately
preceding Fiscal Quarter, a Borrowing Base Report (unless provided in connection
with a Draw Request); and
9.6.6 from time to time such other financial data and information
(including accountants' management letters obtained by Borrower) as Agent may
reasonably request.
Documents required to be delivered pursuant to this Section 9.6 (to the
extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (a) on which Borrower posts such documents, or
provides a link thereto on Borrower's website on the Internet at
xxx.xxxxxxxxxxxxxx.xxx; or (b) on which such documents are posted on Borrower's
behalf on an Internet or intranet website, if any, to which each Lender and
Agent have access (whether a commercial, third-party website or whether
sponsored by Agent); provided that: (i) Borrower shall deliver paper copies of
such documents to Agent or any Lender that requests Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given
by Agent or such Lender and (ii) Borrower shall notify Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Agent shall have no obligation to request the delivery or to maintain
copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by Borrower with any such request for
delivery, and each Lender shall be solely responsible for requesting delivery to
it or maintaining its copies of such documents.
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Borrower hereby acknowledges that (a) Agent and/or the Arrangers will make
available to the Lenders materials and/or information provided by or on behalf
of Borrower hereunder (collectively, the "Borrower Materials") by posting the
Borrower Materials on IntraLinks or another similar electronic system (the
"Platform") and (b) certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect
to Borrower or its securities) (each, a "Public Lender"). Borrower hereby agrees
that (w) all the Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum,
shall mean that the word "PUBLIC" shall appear prominently on the first page
thereof; (x) by marking Borrower Materials "PUBLIC," Borrower shall be deemed to
have authorized Agent, the Arrangers and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to Borrower or its
securities for purposes of United States Federal and state securities laws; (y)
all the Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) Agent
and the Arrangers shall be entitled to treat any Borrower Materials that are not
marked "PUBLIC" as being suitable only for posting on a portion of the Platform
not designated "Public Investor."
9.7 NOTICES.
9.7.1 Defaults. Borrower will give notice in writing to Agent
immediately upon becoming aware of the existence of any Default or Event of
Default hereunder. If any Person shall give any notice or take any other action
in respect of a claimed default (whether or not constituting an Event of
Default) under this Agreement or under any note, evidence of Indebtedness,
indenture or other obligation to which or with respect to which Borrower is a
party or obligor, whether as principal or surety, and such notice of default is
reasonably expected to result in the holder of such note or obligation or other
evidence of Indebtedness accelerating the maturity thereof, which acceleration
would result in a Material Adverse Change, Borrower shall forthwith give written
notice thereof to Agent, describing the notice or action and the nature of the
claimed default.
9.7.2 Environmental Events. Borrower will promptly give notice to
Agent (i) of any violation of any Environmental Law that Borrower reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal, state or local
environmental agency that, either individually or in the aggregate with other
similar violations, is reasonably expected to result in a Material Adverse
Change, (ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of 'potential
environmental liability, or any federal, state or local environmental agency or
board, that in either case involves the Projects and is reasonably expected to
result in a Material Adverse Change, (iii) any proposed or actual investigation
or inquiry of the Projects with regard to Hazardous Materials by any federal,
state or local Governmental Authority, (iv) upon obtaining Knowledge of any
discovery of or release of any Hazardous Material in, on, under or from the
Projects or in, on, under or from any other site owned, occupied or operated by
Borrower or by any person for whose conduct Borrower is responsible if liability
relating to such other site may result in a Lien on the Projects, (v) Borrower's
receipt of any notice to obtain a permit from any Governmental Authority, and
(vi) upon obtaining Knowledge of the incurring of any expense or loss by any
Governmental
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Authority in connection with the assessment, containment or removal of any
Hazardous Materials for which expenses or loss Borrower may be liable or for
which expense a Lien may be imposed on the Projects.
9.7.3 Notification of Claims against Collateral. Borrower will,
immediately upon becoming aware thereof, notify Agent in writing of any setoff,
claims, withholdings or other defenses to which any of the Collateral, or the
Lenders' rights with respect to the Collateral, are subject.
9.7.4 Notice of Nonpayment. Borrower will promptly notify Agent in
writing if Borrower receives any written notice from any major laborer,
subcontractor or materialman to the effect that such laborer, subcontractor or
materialman has not been paid when due any material sum for any labor or
materials furnished in connection with the construction of the Improvements.
9.7.5 Notice of Litigation and Judgments. Borrower will give notice
to Agent in writing within fifteen (15) days of becoming aware of any litigation
or proceedings overtly threatened in writing or any pending litigation and
proceedings affecting the Projects (including any complaints or other citations
from the Division of Florida Land Sales, Condominiums and Mobile Homes or
similar Governmental Authorities in any other state in which a Project is
located) or affecting Borrower or to which Borrower is or is to become a party,
in each case involving an uninsured claim against Borrower that is reasonably
expected to result in a Material Adverse Change, and stating the nature and
status of such litigation or proceedings. Borrower will give notice to Agent, in
writing, in form and detail satisfactory to Agent, within ten (10) days of any
judgment not covered by insurance, final or otherwise, against Borrower in an
amount in excess of $10,000,000.00.
9.7.6 Other Notices. Borrower will promptly give notice in writing
to Agent:
(a) of the occurrence of any ERISA Event;
(b) of any material change in accounting policies or
financial reporting practices by Borrower or any Subsidiary; and
(c) of any announcement by Xxxxx'x, S&P, or Fitch of any
change or possible change in a Debt Rating.
9.8 EXISTENCE; MAINTENANCE OF PROPERTIES. Borrower will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence as a Delaware corporation and its qualification to conduct business in
the State of Florida and in any other State in which a Project is located.
Borrower will do or cause to be done all things necessary to preserve and keep
in full force all of its rights and franchises. Borrower will cause the Projects
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment, will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
Borrower will continue to engage primarily in the Core Businesses.
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9.9 INSURANCE; BONDS.
9.9.1 Borrower will obtain and maintain insurance with respect to
the Projects as required by the Security Instruments and shall furnish Agent
certificates and policies as required by the Security Instruments. The casualty
insurance policies delivered to Agent must provide for wind, storm and flood
damage coverage, in all respects reasonably acceptable to Agent.
9.9.2 Borrower will obtain and maintain or require the Contractors
to obtain and maintain at all times during the construction of the Improvements
the insurance required by the Construction Contracts and such other insurance as
may be reasonably required by Agent (including, without limitation, commercial
general liability insurance, comprehensive automobile liability insurance,
all-risk contractor's equipment floater insurance, worker's compensation
insurance and employer liability insurance), all such insurance to be in such
amounts and form, to include such coverage and endorsements, and to be issued by
such insurers as shall be reasonably approved by Agent, and to contain the
written agreement of the insurer to give Agent not less than thirty (30) days
prior written notice of cancellation, nonrenewal, modification or expiration
(except where cancellation is due to nonpayment of premium in which case the
insurer shall give not less than ten (10) days prior written notice). Borrower
will provide or will cause the Contractors to provide Agent with certificates
evidencing such insurance.
9.9.3 Borrower will require the Architects to obtain and maintain
professional liability insurance covering any claims asserted with respect to
the Projects until the Outstanding Advances (as to that Project) are repaid,
such insurance to be in such commercially reasonable amounts and form, to
include such coverages and endorsements, and to be issued by such insurers as
shall be reasonably approved by Agent. Borrower will provide or will cause the
Architects to provide the Lenders with certificates evidencing such insurance.
In the event that any of such Architects do not have or are unable to provide
evidence of such insurance, Borrower shall, at its own cost and expense, insure
such Person for its services with respect to the Projects, and provide Agent
with evidence of such insurance.
9.9.4 Borrower will obtain and provide to Agent or will cause the
Contractor to obtain and provide to Agent the Payment and Performance Bonds.
9.9.5 To the extent Borrower intends to utilize the Escrow Deposits
in the construction of a Project, Borrower shall obtain a bond or letter of
credit with respect to such Project in an amount equal to the greater of (i) the
amount of the Escrow Deposits to be utilized in accordance with the Loan Amount
Project Allocation for such Project, or (ii) the first ten percent (10%) of such
Escrow Deposits actually used, and which bond or letter of credit otherwise
satisfies the requirements of Section 718.202(1) of the Florida Statutes (or
similar Requirements of any other State in which a Project is located), and has
provided evidence thereof to Agent, including an opinion of counsel to Agent
that Borrower has met the requirements of such Florida Statutes or other
Requirements; provided, however, that Borrower shall not be required to have any
such bond or letter of credit cover Post-Closing Escrow Deposits unless the
Borrower utilizes such Post-Closing Escrow Deposits in the construction of the
applicable Project. Borrower may phase in such bonds or letters of credit as
Escrow Deposits are utilized in Construction.
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9.10 TAXES; LIENS. Borrower will pay or cause to be paid all income taxes
imposed upon Borrower and all taxes, assessments and other governmental charges
imposed upon Borrower with respect to the Projects or imposed upon the Projects
at the time and in the manner required by the Security Instruments, subject to
Borrower's right to contest such taxes as described in the Security Instruments.
Borrower will promptly pay and discharge or cause to be paid within thirty (30)
days of notice thereof all claims for labor, material or supplies that if unpaid
might by Law become a Lien or charge against the Projects or any part thereof or
might affect the priority of the Lien or security title created by the Security
Instruments with respect to any Advance made or to be made by the Lenders under
this Agreement, subject to Borrower's right to contest such Liens as described
in the Security Instruments.
9.11 INSPECTION OF PROJECTS AND BOOKS.
9.11.1 Upon reasonable prior notice (excluding emergency
situations), Borrower shall permit Agent, its authorized agents and the
Construction Inspector, all at Borrower's expense, to visit and inspect the
Projects and all materials to be used in the construction thereof and will
cooperate with Agent and the Construction Inspector during such inspections
(including making available working drawings of the Plans and Specifications);
provided that this provision shall not be deemed to impose on Agent, the Lenders
or the Construction Inspector any obligation to undertake such inspections.
9.11.2 Upon reasonable prior notice (excluding emergency
situations), Borrower shall permit Agent, at Borrower's expense, to visit and
inspect the books of account of Borrower relating to the Projects (and to make
copies thereof and extracts therefrom) and to discuss the affairs, finances and
accounts of Borrower with respect to the Projects, and to be advised as to the
same by, each of its officers, all at such reasonable times and intervals as
Agent may reasonably request. Provided there is no Event of Default which has
occurred and is continuing, Agent shall limit such examinations to one per
calendar year.
9.12 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Except where
such noncompliance is not reasonably expected to result in a Material Adverse
Change, Borrower will comply with all applicable Laws affecting the Projects,
including all Environmental Laws and all Requirements, the provisions of its
charter documents, all agreements and instruments by which it or any of the
Projects may be bound, including the Architects' Contracts, the Construction
Contracts, and all restrictions, covenants and easements affecting the Projects,
all applicable decrees, orders and judgments affecting the Projects, and all
licenses and permits required by applicable Laws and regulations for the conduct
of its business or the ownership, use or operation of the Projects, including
all Project Approvals.
9.13 PROJECT APPROVALS. Borrower will obtain in the ordinary course of
business all Project Approvals not heretofore obtained by Borrower (being those
listed and described on Part XII of the Project Schedules attached hereto as
Exhibit A and any other Project Approvals which may hereafter become required or
necessary) and will furnish Agent with evidence that Borrower has obtained such
Project Approvals promptly upon its request. Borrower will give all such notices
to, and take all such other actions with respect to, such Governmental Authority
as may be required under applicable Requirements to construct the Improvements
and to use, occupy, operate, and sell Units following the completion of the
construction of the Improvements.
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Borrower will also obtain in the ordinary course of business all utility
installations and connections required for the operation and servicing of the
Projects for its intended purposes, and will furnish Agent with evidence
thereof. Borrower will duly perform and comply with all of the terms and
conditions of all Project Approvals obtained at any time, including all Project
Approvals listed and described in Parts XII and XIII of the Project Schedules
attached hereto as Exhibit A.
9.14 USE OF PROCEEDS. Borrower will use the proceeds of the Loan solely
for the purpose of paying for Project Costs in accordance with the Project
Budgets, as modified from time to time pursuant to Section 2.10. No portion of
the proceeds of the Loan shall be used, in whole or in part, for the purpose of
purchasing or carrying any "margin stock" as such term is defined in Regulation
U of the Board of Governors of the Federal Reserve System.
9.15 INSUFFICIENCY OF LOAN PROCEEDS. From time to time, Borrower will
deposit funds with Agent as follows. If at any time while the Loan is
outstanding or the Lenders have any obligation to make Advances hereunder, Agent
shall in its sole discretion determine that the remaining undisbursed portion of
the Loan Amount Project Allocations, together with the undisbursed portion of
the Escrow Deposits which can be utilized for construction, plus additional
equity or any other sums previously deposited by Borrower with Agent in
connection with the Loan, is or will be insufficient to fully complete and equip
the Improvements substantially in accordance with the Plans and Specifications,
to operate and carry each of such Projects covered by the Security Instruments
at such time, after completion of the Improvements until payment in full of the
Loan by Borrower, to pay all other Project Costs, to pay all interest accrued or
to accrue on the Loan during the term of the Loan from and after the date
hereof, and to pay all other sums due or to become due under the Loan Documents
(or as to any budget category or line item in the Project Budgets, but subject
to the provisions of Section 2.10 hereof, if the undisbursed funds for such
category or line item are or will be insufficient to fully pay for the costs
attributed to such budget category or line item), regardless of how such
condition may be caused, then Borrower will, within seven (7) days after written
notice of such determination from Agent, deposit into a non-interest bearing
loan checking account set up with Agent, or following the occurrence of an Event
of Default, into the Loan Checking Account, such sums of money in cash as the
Lenders may require, in an amount sufficient to remedy the condition described
in such notice, and sufficient to pay any Liens for labor and materials alleged
to be due and payable at that time in connection with the Improvements, and, at
Agent's option, no further Advances of the Loan shall be made by the Lenders
until the provisions of this Section 9.15 have been fully complied with. All
such deposited sums shall stand as additional security for the Obligations and
shall be disbursed by the Lenders in the same manner as Advances under this
Agreement before any further Advances of the Loan proceeds shall be made.
9.16 SALES CONTRACTS. Borrower will take or cause to be taken all
commercially reasonable steps within the power of Borrower to consummate the
closing of the sale of Units to such purchasers and upon such terms and
conditions as are set forth in the Sales Contracts, and shall give Agent at
least three (3) Business Days prior written notice before the date for the
consummation of the closing of such sales. Borrower will make, or cause to be
made, such amendments, modifications or additions thereto as may be required by
any Requirements or as may be necessary to qualify for any exceptions under any
applicable Requirement as requested
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by Agent. The Net Sales Proceeds (Actual) for each Unit, cabana or other
appurtenance thereto in the Projects will be paid to the Agent as provided in
Section 6.3 above.
9.17 LABORERS, SUBCONTRACTORS AND MATERIALMEN. Borrower will furnish to
Agent, upon request at any time, and from time to time, affidavits listing all
laborers, subcontractors, materialmen, and any other Persons who might or could
claim statutory or common law liens and are furnishing or have furnished labor
or material to the Projects or any part thereof, together with affidavits, or
other evidence satisfactory to Agent, showing that such parties have been paid
all amounts then due for labor and materials furnished to the Projects. Borrower
will also furnish to Agent, at any time and from time to time upon demand by
Agent, lien waivers bearing a then current date and prepared on a form
satisfactory to Agent from the Contractors and lien waivers through the date of
the prior draw from such subcontractors or materialmen as Agent may designate.
Lenders shall not be required to advance funds for any work not covered by a
satisfactory lien waiver.
9.18 FURTHER ASSURANCE OF TITLE. Except as more particularly provided in
Section 2.12.1 hereof with respect to the Stored Materials, Borrower will
further assure title as follows: If at any time Agent or Agent's counsel has
reason to believe that any Advance is not secured or will or may not be secured
by the Security Instruments as a first lien, security title or security interest
on the Projects, then Borrower shall, within ten (10) days after written notice
from Agent, do all things and matters necessary, to assure to the satisfaction
of Agent and Agent's counsel that any Advance previously made hereunder or to be
made hereunder is secured or will be secured by the Security Instruments as a
first lien, security title or security interest on the Projects, and Agent, at
its option, may decline to make further Advances hereunder until Agent has
received such assurance, but nothing in this Section 9.18 shall limit Agent's
right to require endorsements extending the effective date of the Title
Policies.
9.19 PUBLICITY. Borrower will permit Agent and the Lenders to obtain
publicity in connection with the construction of the Improvements through press
releases and participation in such events as ground breaking and opening
ceremonies. Borrower will give Agent advance notice of such events and will
cooperate with and provide to Agent as much assistance as reasonably possible in
connection with obtaining such publicity.
9.20 SIGN REGARDING CONSTRUCTION FINANCING. If Borrower permits any other
lenders to post a sign regarding financing in any location in, on, or near the
Land, and if requested by Agent, Borrower will, at its own cost and expense,
erect and maintain on a suitable location on the Land, a sign indicating that
the construction financing for the Projects is being provided by the Lenders,
such locations and signs to be subject to the approval of Agent, Lenders and
Borrower.
9.21 FURTHER ASSURANCES.
9.21.1 Regarding Construction. Borrower will furnish or cause to be
furnished to Agent and Lenders all instruments, documents, boundary surveys,
footing or foundation surveys, certificates, plans and specifications, title and
other insurance, reports and agreements and each and every other document and
instrument required to be furnished by the terms this Agreement or the other
Loan Documents, all at Borrower's expense.
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9.21.2 Regarding Preservation of Collateral. Borrower will execute
and deliver to Agent and Lenders such further documents, instruments,
assignments and other writings, and will do such other acts necessary or
desirable, to preserve and protect the Collateral at any time securing or
intended to secure the Obligations, as Agent and Lenders may require.
9.21.3 Regarding this Agreement. Borrower will cooperate with, and
will do such further acts and execute such further instruments and documents as
Agent and Lenders shall reasonably request to carry out to its satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
9.22 ESCROW DEPOSITS.
9.22.1 Escrow Deposits Generally. Borrower will deposit, and will
cause the Escrow Agent to deposit with Agent or any of the other Lenders, all
Escrow Deposits and other sums received by Borrower or Escrow Agent from
purchasers under Sales Contracts (other than amounts paid by purchasers to
reimburse Borrower for work performed by Borrower for such purchasers, the cost
of which has not been disbursed to Borrower or by the Lenders under the Loan),
in a special account, from which no funds shall be drawn by Borrower without
Agent's prior approval, except as provided in this Section 9.22 or as required
to be applied at the time of the sale of a Unit under the terms of the
applicable Sales Contract, and which sums shall stand as additional security for
the Obligations. To the extent any of the other Lenders hold any of the Escrow
Deposits, Agent shall have a first priority perfected security interest in such
Escrow Deposits and Borrower and any such Lender agree to enter into such
deposit account control agreements and other acknowledgements, financing
statements and agreements as Agent may reasonably require to create and perfect
such security interest. It is expressly agreed that such sums shall be disbursed
in the same manner as Advances before any further Advance of the Loan is made,
provided, however, that any such sums will not increase the respective Project
Budgets without the prior written approval of the Majority Lenders. If, pursuant
to applicable Requirements, such Escrow Deposits must remain with Escrow Agent,
then no disbursement of such Escrow Deposits shall be made by Escrow Agent,
except upon Borrower's compliance with the applicable Requirements and this
Agreement and Escrow Agent's receipt of written authorization by Agent to
disburse such Escrow Deposits. Any such disbursed Escrow Deposits shall only be
used for any purpose for which Loan proceeds can be used in accordance with
Section 9.14 above and in accordance with applicable Requirements and all terms
and provisions of this Agreement. With respect to any xxxxxxx money provided in
the form of a letter of credit which complies with the conditions contained in
Section 10.1.5 below, the Borrower shall deliver the original letter of credit
to the Escrow Agent for safekeeping and any and all proceeds from such letters
of credit shall constitute Escrow Deposits hereunder.
9.22.2 Post-Closing Escrow Deposits. In the event Borrower enters
into any new Sales Contracts on or after the date of this Agreement as provided
in Section 10.1 hereof, or a Proposed Project is added in accordance with
Section 2.5 hereof, any and all Escrow Deposits due shall be Post-Closing Escrow
Deposits and shall be paid as provided in this Section 9.22.2. Such Post-Closing
Escrow Deposits shall be deposited with Escrow Agent within five (5) days of
receipt by Borrower of each such additional deposits from purchasers. Escrow
Agent shall hold
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and disburse any funds deposited pursuant to this provision as provided herein
for other Escrow Deposits.
9.23 PROJECT COSTS. Borrower will fund all Project Costs in excess of the
Loan Amount Project Allocation for each Project.
9.24 FINANCIAL COVENANTS.
9.24.1 Net Sales Proceeds (Projected). Borrower will not permit the
aggregate Net Sales Proceeds (Projected) of Sales Contracts from the Projects as
of the end of any Fiscal Year to be less than ninety percent (90%) of the
aggregate Loan Amount Project Allocations; provided, that Borrower may cure any
noncompliance with this covenant in the same manner provided in Section 6.3.3
above. Compliance with this covenant shall be tested annually on or about the
date the annual financial statements of WCI and its Subsidiaries are delivered
pursuant to Section 9.6.1, and in connection with the addition of a Proposed
Project pursuant to Section 2.5.2(d).
9.24.2 Tangible Net Worth. WCI will maintain at all times a minimum
Adjusted Tangible Net Worth of at least $600,000,000.00. Compliance with this
covenant shall be determined as of the end of each Fiscal Quarter of WCI.
ARTICLE 10
NEGATIVE COVENANTS.
Borrower covenants and agrees with Agent and Lenders, that, so long
as the Loan is outstanding or the Lenders have any obligation to make any
Advances:
10.1 RESTRICTION ON LEASES AND SALES CONTRACTS.
10.1.1 Subject to Section 10.1.6 below, Borrower will not become a
party to, or agree to become a party to, any lease of or affecting any portion
of the Projects (except as allowed in Section 10.6 hereof) or any new sales
contract without the prior approval of Agent, which consent shall not be
unreasonably withheld and shall be deemed granted if the requirements of Section
10.1.2 are met. Subject to Section 10.1.6 below, Borrower will not, directly or
indirectly, cause or permit to exist any default of its obligations under any
Sales Contract which would result in the termination or cancellation of, or
which would relieve the performance of any obligations of any purchaser under,
any Sales Contract.
10.1.2 Agent's approval of a new sales contract with respect to any
Project shall be deemed granted if
(a) the sales contract is in the standard form sales
contract previously approved by Agent for such Project, which form must contain
a limitation on the assignability of the sales contract by the purchaser;
(b) the sales contract complies with the Escrow Deposit
requirements for each Project set forth in Part V of the Project Schedules
attached hereto as Exhibit A; and
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(c) the purchase price set forth in such sales contract is
not less than eighty percent (80%) of the price for such Unit on the applicable
schedule of prices provided by Borrower to Agent in Part VIII of the Project
Schedules attached hereto as Exhibit A.
10.1.3 Any required approval by Agent with respect to any sales
contract or lease shall be made in a commercially reasonable manner, except
that, with respect to the foregoing provisions of this Section 10.1 above,
immaterial and commercially reasonable modifications to the standard form of any
sales contract made in the ordinary course of Borrower's business shall be
deemed approved by Agent without Agent's prior written consent provided that the
modifications do not conflict with the foregoing provisions of this Section 10.1
above, and such modifications comply with all applicable Requirements and with
exemptions under the Interstate Land Sales Full Disclosure Act and the Florida
Uniform Land Sales Practices Law (or similar Requirements of any other state in
which a Project is located), or in the case of any Projects which are the
subject of a filing with HUD, such modifications comply with the Interstate Land
Sales Full Disclosure Act and the Florida Uniform Land Sales Practices Law (or
similar Requirements of any other State in which a Project is located).
10.1.4 In determining compliance with the pre-sale and coverage
requirements for Sales Contracts described in Sections 2.5.2(d), 4.6.6(h),
6.3.2(i), 9.24.1 and 11.4 hereof, the following guidelines shall apply:
(a) Unless such limitation is modified in connection with
the addition of a Proposed Project pursuant to Section 2.5.2, Borrower may only
count (i) up to three (3) Units for each multiple Unit buyer purchasing more
than three (3) Units in a Project; and (ii) up to five (5) Units per Project
pursuant to Sales Contracts for Insider Sales; provided, that with respect to
Projects containing more than one tower, the limitations in subparagraphs (i)
and (ii) shall be applied separately to each tower.
(b) The only Sales Contracts which will be counted shall be
those Sales Contracts that (i) comply with the terms of this Agreement; (ii) are
not in default; (iii) are beyond the rescission period set forth therein; (iv)
are not subject to termination by the purchaser thereunder without forfeiture by
the purchaser of the Escrow Deposits thereunder (excluding Sales Contracts at
any Projects which are subject to a filing with HUD or if, pursuant to
applicable Requirements, Borrower is required to refund some portion of the
Escrow Deposits to the purchaser); (v) are with bona fide third party purchasers
(except as provided in Section 10.1.4 above with regard to Insider Sales); and
(vi) which have all of the required Escrow Deposits in the applicable Escrow
Account.
10.1.5 With respect to any portion of the Escrow Deposits provided
in the form of an unconditional, irrevocable and transferable letter of credit
issued to Escrow Agent in connection with the execution of the sales contract,
the form, substance and issuer of each such letter of credit shall be
satisfactory to Agent in its reasonable discretion; provided, that xxxxxxx money
in the form of letters of credit for any particular Project shall not exceed
five percent (5%) of the aggregate Total Prices for such Project.
10.1.6 Notwithstanding the foregoing provisions of this Section 10.1
above, so long as Borrower maintains the pre-sale and coverage requirements for
Sales Contracts described
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in Sections 2.5.2(d), 4.6.6(h), 6.3.2(i), 9.24.1 and 11.4 hereof, Agent's
consent shall not be required to enter into or modify any sales contracts which
are not needed to satisfy such requirements.
10.2 RESTRICTION ON CHANGE ORDERS. Except as permitted in Section 2.10
above, Borrower will not cause, permit or suffer to exist any deviations from
the Plans and Specifications and will not approve any of them or consent to any
change order or construction change directive without the prior approval of
Agent and the surety company or companies issuing any Payment and Performance
Bonds, to the extent such approval is required thereunder.
10.3 RESTRICTION ON EASEMENTS, COVENANTS AND RESTRICTIONS. Borrower will
comply with all existing restrictions and protective covenants affecting the
Land including but not limited to those listed in the Title Policies. Except
such as are necessary to complete the construction of the Projects in the
ordinary course of business, Borrower will not create or suffer to be created or
to exist any easement, right of way, declaration, restriction, covenant,
condition, license or other right in favor of any Person which affects or might
affect title to the Projects or the use and occupancy of the Projects or any
part thereof without submitting to Agent the proposed instrument or plat
creating such easement, right of way, declaration, covenant, condition, license
or other right, accompanied by a survey showing the exact proposed location
thereof, if applicable, and such other information as Agent may reasonably
request, and obtaining the prior approval of Agent, which approval shall not be
unreasonably withheld or delayed.
10.4 RESTRICTION ON LIENS, ETC. Borrower will not create or incur or
suffer to be created or incurred or to exist any Lien, restriction or other
security interest of any kind upon the Projects or upon the income or profits
therefrom or upon any other Collateral except the Lien of the Agent for the
benefit of the Lenders, the rights of the purchasers pursuant to the Sales
Contracts, the Permitted Liens and any Liens being contested by Borrower
pursuant to and in accordance with the provisions contained in the Security
Instruments or otherwise removed from the Projects.
10.5 MERGER, AND CONSOLIDATION AND DISPOSITION OF ASSETS.
10.5.1 Borrower will not, without the prior written consent of Agent
upon written approval of the Majority Lenders, such consent not to be
unreasonably withheld, become a party to any merger or consolidation, or agree
to or effect any asset acquisition or stock acquisition prohibited under Section
7.04 of the Senior Unsecured Revolving Credit Agreement. Borrower shall provide
thirty (30) days prior written notice to Agent of any proposed permitted merger
hereunder and shall execute such documents as Agent may request in order to
continue the effectiveness of the documents and instruments executed in
connection herewith. Borrower may also create additional Subsidiaries for the
purpose of owning real property or other assets. Any Subsidiaries formed for
homeowner's associations may be owned in part by the homeowners in the
applicable community and with respect to any amenities, in part, by the owners
of equity memberships.
10.5.2 Borrower will not become a party to or agree to or effect any
disposition of the Projects or any part thereof, except for the sale of Units
pursuant to the requirements of
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Sections 6.3.1 and 9.16, without the prior written consent of Agent upon
written approval of the Majority Lenders, which consent may be granted or denied
in the Majority Lenders' sole reasonable discretion; provided, however, that the
sale, lease or other disposition of non-residential portions of a Project
intended for commercial or other non-residential use as described in the
prospectus for such Project or other underwriting information provided to Agent
and the Lenders at the time such Project is added to the Loan, and which are not
included in testing compliance with pre-sales coverage requirements contained in
this Agreement, shall only require the prior written consent of Agent, which
shall not be unreasonably withheld so long as such sale, lease or other
disposition will not result in a Material Adverse Change.
10.5.3 Except as provided in Section 10.5.2, Borrower will not
become a party to or agree to effect any disposition of assets, other than the
disposition of assets not included in the Projects in the ordinary course of
business, consistent with past practices.
10.6 SALE AND LEASEBACK. Borrower will not sell and leaseback any portion
of the Projects or enter into any arrangement directly or indirectly or become a
party to or agree to effect any other disposition of the Projects or any part
thereof which would have the result of a sale and leaseback of any portion of
the Projects; provided, however, that, unless such limitation is modified in
connection with the addition of a Proposed Project pursuant to Section 2.5.2,
Borrower may sell and leaseback no more than four (4) Units at any time at each
Project for use as models to show prospective purchasers, provided all costs for
same are reflected in the applicable Project Budgets.
10.7 COMPLIANCE WITH ENVIRONMENTAL LAWS. Borrower will not do any of the
following:
10.7.1 Use any of the Land and Improvements or any portion thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Materials;
10.7.2 Cause or permit to be located on any of the Land and
Improvements any underground tank or other underground storage receptacle for
Hazardous Materials except in full compliance with Environmental Laws;
10.7.3 Generate, store or use any Hazardous Materials on any of the
Land and Improvements except for de minimus quantities generated, stored or used
in the ordinary course of Borrower's Core Businesses and in full compliance with
Environmental Laws; or
10.7.4 Conduct any activity on the Land or use any of the Land in
any manner so as to cause a Release which would result in a material violation
of Environmental Laws.
10.8 DISTRIBUTIONS. Borrower will not make any Distributions during any
period when any Default or Event of Default has occurred and is continuing.
10.9 SUBSIDIARIES. Borrower will not have any Subsidiaries except as
reflected in and permitted by Section 10.5.1 above and Subsidiaries not
prohibited by the Senior Unsecured Revolving Credit Agreement.
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10.10 NO AMENDMENTS, TERMINATIONS OR WAIVERS.
10.10.1 Borrower will not amend, supplement or otherwise modify,
whether by change order or otherwise, any of the terms and conditions of any of
the Architects' Contracts or the Construction Contracts, without in each case
Agent's prior written approval, which approval shall not be unreasonably
withheld, and in the case of the Construction Contracts, without the prior
approval of any surety or surety companies issuing any Payment and Performance
Bonds (if required thereunder).
10.10.2 Borrower will not, directly or indirectly, terminate or
cancel, or cause or permit to exist any condition which would result in the
termination or cancellation of, or which would relieve the performance of any
material obligations of any other party under any of the Architects' Contracts
or the Construction Contracts.
10.10.3 Borrower will not, directly or indirectly, waive or agree or
consent to the waiver of, the performance of any material obligations of any
other party under any of the Architects' Contracts or the Construction
Contracts.
ARTICLE 11
CONDITIONS TO INITIAL ADVANCE.
The obligation of the Lenders to make the initial Advance shall be
subject to the satisfaction of the following conditions precedent, provided that
the conditions described in Sections 11.2, 11.3, 11.5, 11.10, 11.12, 11.13 and
11.14 with respect to any particular Project shall not be required with respect
to such Project if the initial Advance does not cover Project Costs for such
Project:
11.1 LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to Agent. Agent shall
have received a fully executed copy of each such Loan Document.
11.2 CONSTRUCTION DOCUMENTS. Each of the Architects' Contracts and the
Construction Contracts shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and effect, and shall be in
form and substance satisfactory to Agent. Agent shall have received a certified
or a fully executed copy of each such document. The Architects and the
Contractors shall have duly executed and delivered to Agent a consent to the
assignment of the Architects' Contracts and the Construction Contracts, in form
and substance satisfactory to Agent, and Agent shall have received a fully
executed copy thereof.
11.3 SUBCONTRACTS. If required by Agent, Borrower shall have delivered to
Agent a list of all major subcontractors and materialmen who have been or, to
the extent identified by Borrower will be supplying labor or materials for the
Projects.
11.4 SALES CONTRACTS. Borrower shall have provided Agent with the Sales
Contracts evidencing that the representations and warranties with respect to the
Sales Contracts and
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Escrow Deposits described on Part XIV of the Project Schedules attached hereto
as Exhibit A are true and correct.
11.5 OTHER CONTRACTS. Borrower shall have delivered to Agent correct and
complete photocopies of all other executed contracts with contractors, engineers
or consultants for the Projects, and of all development, management, brokerage,
sales or leasing agreements for the Projects.
11.6 CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS. Agent shall have
received from Borrower its articles of incorporation and any other
organizational documents as in effect on such date of certification, certified
as of a recent date by the Secretary of State for the State of Delaware, and
good standing certificates for Borrower from the Secretary of State for the
State of Delaware and the Secretary of State for the State of Florida.
11.7 RESOLUTIONS. All action necessary for the valid execution, delivery
and performance by Borrower of this Agreement and the other Loan Documents to
which each is or is to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to Agent shall have been provided to
Agent. Agent shall have received from Borrower true copies of the resolutions
adopted authorizing the transactions described herein, each certified as of a
recent date to be true and complete.
11.8 INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. Agent shall have received
from Borrower an incumbency certificate dated as of the Closing Date, signed by
a duly authorized officer of Borrower, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign, in
the name and on behalf of Borrower each of the Loan Documents to which Borrower
is or is to become a party; (b) to make Draw Requests; and (c) to give notices
and to take other action on its behalf under the Loan Documents.
11.9 VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Lenders a legal, valid and enforceable first lien and
security interest in the Collateral. All filings, recordings, deliveries of
instruments, payment of intangible taxes, documentary stamp taxes and other
recording fees and costs, and other actions necessary or desirable in the
opinion of Agent to protect and preserve such lien and security interest shall
have been duly effected. Agent shall have received evidence thereof in form and
substance satisfactory to Agent.
11.10 AMERICANS WITH DISABILITIES ACT. Agent, at Agent's sole option, may
obtain, at Borrower's expense, a report from a reputable consultant of Agent's
choice, regarding the compliance of the Projects with all requirements of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
sections 12101-12213 (1994) (the "ADA") and with the Fair Housing
Amendments Act of 1988, 42 U.S.C. sections 3601-3619 (1994) ("FHA"), as
the same may be amended from time to time. Agent shall also be entitled to
contact all applicable regulatory agencies, at any time, to confirm Borrower's
adherence to the provisions of this Agreement and the Security Documents. Agent,
during the term of the Loan, at Agent's sole option, may require that all
violations or non-compliance with the ADA be corrected, and that Borrower shall
obtain all necessary permits and certifications before Lenders shall be
obligated to make any Advance under the Loan. Borrower covenants and agrees to
abide by all applicable governmental directives, rules and regulations
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regarding the compliance with the ADA and FHA, as the same may be amended from
time to time.
11.11 DELIVERIES. The following items or documents with respect to each
Project shall have been delivered to Agent or its designee by Borrower prior to
closing and shall be in form and substance reasonably satisfactory to Agent (to
the extent that any of the following items with respect to any Project have not
been delivered in form and substance reasonably satisfactory to Agent by the
Closing Date, no Advance shall be made hereunder by the Lenders with respect to
such Project until the satisfaction of such outstanding requirements, as
determined by Agent in the exercise of its reasonable discretion):
11.11.1 Plans and Specifications. One complete set of each of the
Plans and Specifications sealed by the applicable Architect and approval thereof
by any necessary Governmental Authority, with a certification from the
applicable Architect that the applicable Improvements to be constructed comply
with all Requirements and Project Approvals and that each of the applicable
Construction Contracts satisfactorily provides for the construction of the
applicable Improvements.
11.11.2 Title Policy. The Title Policy, together with proof of
payment of all fees and premiums for the Title Policy and true and accurate
copies of all documents listed as exceptions under the Title Policy.
11.11.3 Other Insurance. Duplicate originals or certified copies of
all policies of insurance required by the Security Instruments to be obtained
and maintained during the construction of the Improvements, and certificates of
insurance evidencing the insurance required by Sections 9.9.2 through 9.9.3 to
be obtained and maintained by the Contractors and the Architects.
11.11.4 Evidence of Sufficiency of Funds. With respect to each
Project, evidence that the Loan Amount Project Allocation, together with
Required Equity Funds and the Escrow Deposits under the Sales Contracts, will be
sufficient to cover all Project Costs reasonably anticipated to be incurred to
complete the Improvements prior to the applicable Completion Date, and to
satisfy the obligations of Borrower to Agent and Lenders under this Agreement.
11.11.5 Evidence of Access, Availability of Utilities, Project
Approvals. Evidence as to:
(a) the methods of access to and egress from each of the
Projects, and nearby or adjoining public ways, meeting the reasonable
requirements of each of the Projects and the status of completion of any
required Improvements to such access;
(b) the availability of water supply and storm and sanitary
sewer facilities meeting the reasonable requirements of each of the Projects;
(c) the availability of all other required utilities, in
location and capacity sufficient to meet the reasonable needs of each of the
Projects; and
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(d) the obtaining of all Project Approvals which are required
or necessary for the construction of the applicable Improvements and the access
thereto, together with copies of all such Project Approvals.
11.11.6 Environmental Report. An environmental site assessment
report or reports of one or more qualified environmental engineering or similar
inspection firms approved by Agent, which report or reports shall indicate the
condition of the Land and any existing improvements thereon in all respects
satisfactory to Agent in its sole discretion, and upon which report or reports
Agent and Lenders are expressly entitled to rely.
11.11.7 Soils Report. A soils report for the Land prepared by a
soils engineer approved by Agent, which report shall indicate that, based upon
actual surface and subsurface examinations of the Land, the soils conditions are
fully satisfactory for the proposed construction and operation of the
Improvements in accordance with the Plans and Specifications.
11.11.8 Survey and Taxes. A Survey of the Land and all appurtenant
easements (and any existing improvements thereon) and Surveyor's Certificate,
and evidence of payment of all real estate taxes and municipal charges on the
Land (and any existing improvements thereon) which were due and payable prior to
the Closing Date.
11.11.9 Required Equity Funds. Evidence of Borrower's Required
Equity Funds shall have been delivered to Agent.
11.11.10 Bonds. The Payment and Performance Bonds and, if
applicable, the bonds with respect to the Escrow Deposits described in Section
9.9.5 above.
11.11.11 Draw Request. A Draw Request complying with the provisions
of Section 3.1 hereof.
11.11.12 Construction Inspector Report. A report or written
confirmation from the Construction Inspector that (i) the Construction Inspector
has reviewed the Plans and Specifications, (ii) the Construction Contracts
satisfactorily provide for the construction of the Improvements, and (iii) in
the opinion of the Construction Inspector, construction of the applicable
Improvements can be completed on or before the applicable Completion Date for an
amount not greater than the amount allocated for such purpose in the applicable
Project Budget.
11.11.13 Legal Opinions. Favorable legal opinions from counsel to
Borrower in form and substance satisfactory to Agent and Agent's counsel,
addressed to Agent and Agent's counsel and dated as of the Closing Date, as to
such matters as Agent shall reasonably request.
11.11.14 Lien Search. A certification from Title Insurance Company
or counsel satisfactory to Agent (which shall be updated from time to time at
Borrower's expense upon request by Agent) that a search of the public records
disclosed no conditional sales contracts, security agreements, chattel
mortgages, leases of personalty, financing statements or title retention
agreements which affect the Collateral.
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11.11.15 Appraisals. Appraisals for each of the Projects, which
Appraisals, when taken together, reflect a sufficient amount so that the
aggregate Loan Amount Project Allocations do not exceed seventy percent (70%) of
such aggregate Appraised Value of the combined Projects.
11.11.16 Escrow Agent. An accounting from Escrow Agent of all Escrow
Deposits received and disbursed, in form and substance acceptable to Agent.
11.11.17 Borrowing Base Report. A Borrowing Base Report dated as of
the Closing Date, provided, however, that Borrower shall notify Agent in writing
on the Effective Date of any material deviation from the values reflected on the
Borrowing Base Report and shall provide Agent with such supplementary
documentation as Agent may reasonably request.
11.12 NOTICES. All notices required by any Governmental Authority under
applicable Requirements to be filed prior to commencement of construction of the
Improvements shall have been filed.
11.13 PERFORMANCE; NO DEFAULT. Borrower shall have performed and complied
with all terms and conditions herein required to be performed or complied with
by it on or prior to the Drawdown Date of the initial Advance, and on the
Drawdown Date of the initial Advance, there shall exist no Default or Event of
Default.
11.14 REPRESENTATIONS AND WARRANTIES. The representations of warranties
made by Borrower in the Loan Documents or otherwise made by or on behalf of
Borrower in connection therewith or after the date thereof shall have been true
and correct in all material respects when made and shall also be true and
correct in all material respects on the Drawdown Date of the initial Advance.
11.15 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory to Agent, Lenders and Agent's counsel in form and substance, and
the Lenders shall have received all information and such counterpart originals
or certified copies of such documents and such other certificates, opinions or
documents as Agent, Lenders and Agent's counsel may reasonably require.
ARTICLE 12
CONDITIONS OF SUBSEQUENT ADVANCES.
The obligation of the Lenders to make any Advance after the initial
Advance shall be subject to the satisfaction of the following conditions
precedent, provided that the conditions described below with respect to any
particular Project shall not be required with respect to such Project if such
Advance does not cover Project Costs for such Project:
12.1 PRIOR CONDITIONS SATISFIED. All conditions precedent to the initial
Advance and any prior Advance shall continue to be satisfied as of the Drawdown
Date of such subsequent Advance.
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12.2 PERFORMANCE; NO DEFAULT. Borrower shall have performed and complied
with all terms and conditions herein required to be performed or complied with
by it on or prior to the Drawdown Date of such Advance, and on the Drawdown Date
of such Advance there shall exist no Default or Event of Default.
12.3 REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by Borrower in the Loan Documents or otherwise made by or on
behalf of Borrower in connection therewith after the date thereof shall have
been true and correct in all material respects on the date on when made and
shall also be true and correct in all material respects on the Drawdown Date of
such Advance (except to the extent of changes resulting from transactions
contemplated or permitted by the Loan Documents and changes occurring in the
ordinary course of business that either individually or in the aggregate do not
result in a Material Adverse Change); provided, however, that (i) the
representations and warranties contained in Sections 8.3 and 8.4 above shall
refer back to the date of the most recent audited financial statements of
Borrower as of the Drawdown Date rather than December 31, 2003; (ii) the
representations and warranties contained in Section 8.30 above shall refer back
to the date of the most recent sales report for the Projects provided by
Borrower pursuant to Section 9.6.4 above; and (iii) representations and
warranties relating to the Projects shall only be made with respect to Projects
covered by such Advance.
12.4 NO DAMAGE. The Improvements shall not have been injured or damaged by
fire, explosion, accident, flood, windstorm or other casualty, unless the
Lenders shall have received insurance proceeds and/or cash deposits from
Borrower sufficient in the reasonable judgment of Agent to effect the
satisfactory restoration of the Improvements and to permit the completion
thereof on or prior to the applicable Completion Date and all Requirements with
respect thereto have been satisfied.
12.5 RECEIPT BY AGENT. Agent shall have received the following items or
documents which shall be in form and substance satisfactory to Agent:
12.5.1 Draw Request. A Draw Request complying with the requirements
hereof, including those set forth in Section 3.1 hereof.
12.5.2 Endorsement to Title Policy. A "date down" endorsement to the
Title Policies indicating no change in the state of title and containing no
exceptions not approved by the Lenders, which endorsement shall, expressly or by
virtue of a proper "pending disbursements" clause or endorsement in the Title
Policies, increase the coverage of the Title Policies to the aggregate amount of
all proceeds of the Loan advanced on or before the effective date of such
endorsement; provided, that only one such endorsement per calendar quarter shall
be required.
12.5.3 Partial Lien Waiver. Partial lien waivers from the
Contractors and all subcontractors having performed work on the applicable
Project in accordance with the requirements of Section 9.17 hereof; provided,
that Borrower's failure to provide a lien waiver as to work covered by a portion
of the Advance for a Project shall not prevent the entire Advance from being
disbursed, just the applicable amount of the Advance not covered by the lien
waiver.
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12.5.4 Current Survey. An updated Survey if required by the Title
Insurance Company or Agent.
12.5.5 Approval by Construction Inspector. Approval of the Draw
Request for such Advance by the Construction Inspector, accompanied by a
certificate or report from the Construction Inspector to the effect that in its
opinion, based upon on-site observations and submissions by the Contractors, the
construction of the applicable Improvements to the date thereof was performed in
a good and workmanlike manner and in accordance with the applicable Plans and
Specifications, stating the estimated total cost of construction of the
applicable Improvements, stating the percentage of in-place construction of the
applicable Improvements, and stating that the remaining non-disbursed portion of
the Loan and Required Equity Funds allocated for such purpose in the applicable
Project Budget is adequate to complete the construction of the applicable
Improvements.
12.5.6 Contracts. Evidence that one hundred percent (100%) of the
cost of the remaining construction work is covered by firm fixed price or
guaranteed maximum price contracts or subcontracts, or orders for the supplying
of materials, with contractors, subcontractors, materialmen or suppliers
satisfactory to the Lenders.
12.5.7 Zoning. If applicable to the work covered by the Advance, a
Survey showing the locations of the foundation(s), an affidavit from the
surveyor that set backs comply with current zoning requirements and deed
restrictions, and a first floor elevation certificate.
ARTICLE 13
EVENTS OF DEFAULT AND REMEDIES.
13.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following
conditions or events shall constitute an "Event of Default":
13.1.1 Borrower fails to pay (i) as of the due date thereof, any
amount of principal payable under the Notes; provided that to the extent such
failure is caused by an error or omission of an administrative or operational
nature and funds are available on such due date to enable Borrower to make such
payment, then such failure shall not constitute an Event of Default unless such
failure continues for three (3) Business Days after such due date, or (ii)
within three (3) Business Days from the due date stated on the applicable
invoice delivered by Agent to Borrower for any Unused Fees, any interest on any
Advance or any other fee or amount payable hereunder or under any other Loan
Document; or
13.1.2 any failure by Borrower to deposit with Agent any funds
required by Section 9.15 hereof to be deposited with Agent, at the time and
otherwise in accordance with Section 9.15; or
13.1.3 title to the Collateral is or becomes unsatisfactory to Agent
in the exercise of its reasonable judgment by reason of any lien, charge,
encumbrance, title condition or exception (including, without limitation, any
mechanic's, materialman's or similar statutory or common law lien or notice
thereof), and such matter causing title to be or become unsatisfactory
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is not cured or removed (including by bonding) within ten (10) Business Days
after notice thereof from Agent to Borrower; or
13.1.4 any refusal by the Title Insurance Company to insure any
Advance as being secured by a Security Instrument as a valid first lien and
security interest on the Projects and continuance of such refusal for a period
of ten (10) Business Days after notice thereof by Agent to Borrower; or
13.1.5 the Improvements are not completed by the applicable
Completion Date or, after fifteen (15) days notice to Borrower, Agent
determines, in the reasonable judgment of Agent, that construction of the
Improvements will not be completed by the applicable Completion Date; or
13.1.6 any of the Projects or any part thereof is injured by fire,
explosion, accident, flood or other casualty, unless Agent shall have received
or be solely and unconditionally entitled to receive insurance proceeds and sums
deposited from Borrower in an amount sufficient in the reasonable judgment of
Agent to effect the satisfactory restoration of the Projects and to permit the
completion of the applicable Improvements on or prior to the applicable
Completion Date; or
13.1.7 the Projects or any part thereof is subject to a Taking; or
13.1.8 any cessation at any time in construction of any of the
Improvements for more than fourteen (14) consecutive days except for strikes,
acts of God, fire or other casualty or as necessary in order to comply with
prudent and commercially reasonable condominium construction practices; or
13.1.9 any failure by Borrower to duly observe or perform any term,
covenant, condition or agreement contained in Section 9.16 or Article 10 hereof,
which shall not be cured to Agent's satisfaction within fifteen (15) days after
written notice thereof to Borrower from Agent; or
13.1.10 any representation or warranty made or deemed to be made by
or on behalf of Borrower in this Agreement or in any of the other Loan
Documents, or in any report, certificate, financial statement, Draw Request,
document or other instrument delivered pursuant to or in connection with this
Agreement, any Advance or any of the other Loan Documents, shall prove to have
been false or incorrect in any material respect upon the date when made or
deemed to be made or repeated; or
13.1.11 any dissolution, termination, partial or complete
liquidation, merger or consolidation of Borrower, or any sale, transfer or other
disposition of all or substantially all of the assets of Borrower, other than as
permitted under the terms of Section 10.5.1 of this Agreement; or
13.1.12 any failure by Borrower to obtain any Project Approvals as
required by Section 9.13, or the revocation or other invalidation of any Project
Approvals previously obtained and the lapse of all applicable contest periods
with respect thereto; or
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13.1.13 except with the prior written consent of Agent upon written
approval the Majority Lenders, which consent shall not be unreasonably withheld,
or as permitted under Section 10.5.1 hereof, any change in the legal or
beneficial ownership of BCG or the occurrence of a Change of Control with
respect to WCI; or
13.1.14 Borrower shall file a voluntary petition in bankruptcy under
any Debtor Relief Law, or an order for relief shall be issued against Borrower,
in any involuntary petition in bankruptcy under any Debtor Relief Law, or
Borrower shall file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief for itself under Debtor Relief Law, or Borrower shall seek or
consent to or acquiesce in the appointment of any custodian, trustee, receiver,
conservator or liquidator of Borrower respectively, or of all or any substantial
part of its properties, or Borrower shall make an assignment for the benefit of
creditors, or Borrower shall fail generally to pay its debts as such debts
become due, or Borrower shall give notice to any Governmental Authority of
insolvency or pending insolvency or suspension of operations; or
13.1.15 a court of competent jurisdiction shall enter any order,
judgment or decree approving a petition filed against Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation or any
modification or alternation of the rights of its creditors or similar relief
under any Debtor Relief Law, or appointing any custodian, trustee, receiver,
conservator or liquidator of all or any substantial part of its property, which
order, judgment or decree remains undischarged and unstayed for more than thirty
(30) days; or
13.1.16 there is entered against any member of the Consolidated
Group (i) a final judgment or order for the payment of money in an aggregate
amount exceeding the $10,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or
(ii) any one or more non-monetary final judgments that have, or would reasonably
be expected to result in, individually or in the aggregate, a Material Adverse
Change and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of thirty (30)
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or
13.1.17 any of the Loan Documents shall be modified, canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior approval of the Lenders, or any action at Law,
suit in equity or other legal proceeding to modify, cancel, revoke or rescind
any of the Loan Documents shall be commenced by or on behalf of Borrower, or any
court or any other Governmental Authority of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
in accordance with the terms thereof and no further appeal may be made regarding
such judgment, order, decree or ruling; or
13.1.18 Borrower shall be indicted for a federal crime, a punishment
for which could include the forfeiture of any of its assets which would
reasonably be expected to result in a Material Adverse Change; or
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13.1.19 any failure by Borrower to duly observe or perform any other
term, covenant, condition or agreement under this Agreement and continuance of
such failure for a period of ten (10) Business Days after notice thereof from
Agent to Borrower; or
13.1.20 the occurrence of a Material Adverse Change; or
13.1.21 an ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000,
or Borrower or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of $10,000,000; or
13.1.22 any "default", "Default", "event of default" or "Event of
Default", as defined in any of the other Loan Documents (other than this
Agreement), shall occur and be continuing after the expiration of any applicable
cure period, if any, contained therein or in this Agreement.
Notwithstanding any other provisions of this Agreement to the contrary, the
occurrence of any one or more of the conditions, events or circumstances
described in Sections 13.1.3, 13.1.5, 13.1.6, 13.1.7, 13.1.8, 13.1.9, 13.1.10,
13.1.12, 13.1.19 or 13.1.22 solely with respect to any particular Project shall
not constitute a Default or an Event of Default provided the following
conditions are satisfied at such time:
(i) such condition, event or circumstance either individually
or together with other conditions, events or circumstances shall not constitute
a Material Adverse Change as determined by Agent in its sole discretion;
(ii) Borrower is in compliance with the covenants contained in
Section 9.2 above; and
(iii) the Loan Amount Project Allocation for the Project in
question is in balance with the cost to complete such Project as provided in the
applicable Project Budget;
provided, further, however, that Borrower shall not be entitled to request an
Advance with respect to such Project so long as such condition, event or
circumstance is continuing.
13.2 TERMINATION OF COMMITMENT AND ACCELERATION.
13.2.1 If any one or more of the Events of Default shall occur and
not be cured within the applicable cure period, if any, Agent may, and shall if
directed by the Required Lenders, by notice to Borrower declare Lenders'
obligations to make Advances hereunder to be terminated, whereupon the same
shall terminate and Agent and Lenders shall be relieved of all obligations to
make Advances to Borrower, and/or declare all unpaid principal of and accrued
interest on the Notes, together with all other amounts owing under the Loan
Documents, to be immediately due and payable, without further notice or demand,
whereupon same shall become
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and be immediately due and payable, anything in the Loan Documents to the
contrary notwithstanding, and without presentment, protest, demand or other
notice of any kind, all of which are hereby expressly waived by Borrower;
provided that if any one or more of the Events of Default specified in Section
13.1.14 or Section 13.1.15 hereof shall occur with respect to Borrower, the
Lenders' obligations to make Advances hereunder automatically shall so terminate
and all unpaid principal of and accrued interest on the Notes, together with all
other amounts owing under the Loan Documents, automatically shall become and be
immediately so due and payable, without any declaration or other act on the part
of Agent or Lenders. Failure to exercise such option shall not constitute a
waiver of the right to exercise such option in the future upon the occurrence
and during the continuance of an Event of Default.
13.2.2 Notwithstanding anything in this Agreement or any other Loan
Document to the contrary, any reference in this Agreement or in any other Loan
Document that an "Event of Default is continuing" or to "the continuance of an
Event of Default" or any similar phrase shall not create or be deemed to create
any right on the part of the Borrower, any Guarantor or any other party to cure
any default following the expiration of any applicable grace or notice and cure
period.
13.3 COMPLETION OF PROJECTS. If any one or more of the Events of Default
shall have occurred and be continuing, and whether or not Agent shall have
terminated Lenders' obligations to make Advances and accelerated the maturity of
the Loan pursuant to Section 13.2, Agent, if the construction of the
Improvements has not been fully completed, may cause the Projects to be
completed and may enter upon the Land and construct, equip and complete the
Projects in accordance with the Plans and Specifications, with such changes
therein as Agent may, from time to time, and in its sole discretion, deem
appropriate. In connection with any construction of the Projects undertaken by
Agent pursuant to the provisions of this Section 13.3, Agent may:
13.3.1 use any funds of Borrower which may be held by Agent as
security or in escrow in connection with this Loan to the extent such are
allowed to be used under applicable condominium Laws, and any funds remaining
unadvanced under the Loan;
13.3.2 employ existing contractors, subcontractors, agents,
architects, engineers, and the like, or terminate the same and employ others;
13.3.3 employ security watchmen to protect the Projects;
13.3.4 make such additions, changes and corrections in the Plans and
Specifications as shall, in the judgment of Agent, be necessary or desirable;
13.3.5 take over and use any and all Personal Property contracted
for or purchased by Borrower, if appropriate, or dispose of the same as Agent
sees fit;
13.3.6 execute all applications and certificates on behalf of
Borrower which may be required by any Governmental Authority or Requirements or
contract documents or agreements;
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13.3.7 pay, settle or compromise all existing or future bills and
claims which are or may be liens against the Projects, or may be necessary for
the completion of the Improvements or the clearance of title to the Projects;
13.3.8 complete the marketing of Units, enter into Sales Contracts,
and modify or amend existing Sales Contracts, all as Agent shall deem to be
necessary or desirable;
13.3.9 prosecute and defend all actions and proceedings in
connection with the construction of the Improvements or in any other way
affecting the Land or the Improvements and take such action and require such
performance as Agent deems necessary under any Payment and Performance Bonds;
and
13.3.10 take such action hereunder, or refrain from acting
hereunder, as Agent may, in its sole and absolute discretion, from time to time
determine, and without any limitation whatsoever, to carry out the intent of
this Section 13.3.
Borrower shall be liable to Agent and Lenders for all reasonable
costs paid or incurred for the construction, equipping and completion of the
Projects, whether the same shall be paid or incurred pursuant to the provisions
of this Section 13.3 or otherwise, and all payments made or liabilities incurred
by Agent and Lenders hereunder of any kind whatsoever shall be deemed Advances
made to Borrower under this Agreement and shall be secured by the Security
Instruments and the other Security Documents. To the extent that any reasonable
costs so paid or incurred by Agent or Lenders, together with all other Advances
made by the Lenders hereunder, exceed the Loan Amount, the amount of such excess
costs shall be added to the Loan Amount, and Borrower's obligation to repay the
same, together with interest thereon at the Default Rate, shall be deemed to be
evidenced by this Agreement and secured by the Security Instruments and the
other Security Documents. In the event Agent takes possession of the Projects
and assumes control of such construction as aforesaid, it shall not be obligated
to continue such construction longer than it shall see fit and may thereafter,
at any time, change any course of action undertaken by it or abandon such
construction and decline to make further payments for the account of Borrower
whether or not the Projects shall have been completed. For the purpose of this
Section 13.3, the construction, equipping and completion of the Projects shall
be deemed to include any action necessary to cure any Event of Default by
Borrower under any of the terms and provisions of any of the Loan Documents.
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13.4 OTHER REMEDIES. If any one or more of the Events of Default shall
have occurred, and whether or not Agent shall have terminated Lenders'
obligations to make Advances or accelerated the maturity of the Loan pursuant to
Section 13.2 hereof, Agent may proceed to protect and enforce its and the
Lenders' rights and remedies under this Agreement, the Notes or any of the other
Loan Documents by suit in equity, action at Law or other appropriate proceeding,
whether for the specific performance of any covenant or agreement contained in
this Agreement and the other Loan Documents or any instrument pursuant to which
the Obligations are evidenced, including as permitted by applicable Law the
obtaining of the ex-parte appointment of a receiver, and, if any amount owed to
the Lenders shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of Agent and
Lenders. No remedy conferred upon Agent, the Lenders or the holder of the Notes
in this Agreement or in any of the other Loan Documents is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or thereunder or now
or hereafter existing at Law or in equity or by statute or any other provision
of Law. Upon the occurrence and during the continuance of an Event of Default,
the Obligations shall bear interest at the Default Rate.
13.5 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following the
occurrence or during the continuance of any Event of Default, Agent receives any
monies in connection with the enforcement of any the Security Documents, or
otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
13.5.1 First, to the payment of, or (as the case may be) the
reimbursement of the Lenders for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or sustained
by Agent and Lenders in connection with the collection of such monies by Agent
and Lenders, for the exercise, protection or enforcement by the Lenders of all
or any of the rights, remedies, powers and privileges of Agent and Lenders under
this Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to Agent and
Lenders against any taxes or liens which by Law shall have, or may have,
priority over the rights of Agent and Lenders to such monies, provided, however,
that any distribution to Agent and Lenders under this Section 13.5.1, shall be
first made to Agent for costs incurred by Agent on behalf of Lenders, then pro
rata to each Lender based on its respective Loan Percentage;
13.5.2 Second, to all other Obligations in such order or preference
as Agent may determine; provided, however, that Agent may in its discretion make
proper allowance to take into account any Obligations not then due and payable,
and provided, however, that any distribution to the Lenders shall be made pro
rata to each Lender based on its respective Loan Percentage;
13.5.3 Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to Agent and Lenders of all of the
Obligations, to the payment of any obligations required to be paid pursuant to
revised Section 9-615(a)(3) of the Uniform Commercial Code of the State of
Florida provided that all distributions to the Lenders shall be made pro rata to
each Lender based on its respective Loan Percentage; and
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13.5.4 Fourth, the excess, if any, shall be returned to Borrower or
to such other Persons as are entitled thereto.
13.6 POWER OF ATTORNEY. For the purposes of carrying out the provisions
and exercising the rights, remedies, powers and privileges granted by or
referred to in this Article 13, Borrower hereby irrevocably constitutes and
appoints Agent its true and lawful attorney-in-fact, with full power of
substitution, to execute, acknowledge and deliver any instruments and do and
perform any acts which are referred to in this Article 13, in the name and on
behalf of Borrower. The power vested in such attorney-in-fact is, and shall be
deemed to be, coupled with an interest and irrevocable.
13.7 WAIVERS. Except to the extent required by the provisions hereof or of
any of the other Loan Documents, Borrower hereby waives to the extent not
prohibited by applicable Law all presentments, demands for performance, notices
of nonperformance, protests, notices of protest, and notices of dishonor, any
requirement of diligence or promptness on Agent's and Lenders' part in the
enforcement of their rights (but not fulfillment of its obligations) under the
provisions of this Agreement or any of the other Loan Documents, and any and all
notices of every kind and description which may be required to be given by any
statute or rule of Law and any defense of any kind which Borrower may now or
hereafter have with respect to its liability under this Agreement, the Notes, or
under any of the other Loan Documents.
ARTICLE 14
SETOFF
Regardless of the adequacy of any Collateral, but subject to the provisions of
Section 20.7 below, during the continuance of any Event of Default, any deposits
(general or specific, time or demand, provisional or final, regardless of
currency, maturity, or the branch of Agent where such deposits are held) or
other sums credited by or due from Agent to Borrower and any securities or other
property of Borrower in the possession of Agent may be applied to or set off
against the payment of the Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of Borrower to Agent and Lenders.
ARTICLE 15
EXPENSES
Borrower agrees to pay:
(a) the reasonable out-of-pocket costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein;
(b) any taxes (including any interest and penalties in respect
thereto) payable by Agent and Lenders (other than taxes based upon Agent's and
Lenders' net income), including any recording, documentary stamp taxes, mortgage
or intangibles taxes in connection with the Security Instruments, or other taxes
payable on or with respect to the transactions contemplated by this Agreement,
including any taxes payable by Agent and Lenders after the
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Closing Date (other than taxes based upon Agent and Lenders' net income) and
Borrower hereby agrees to indemnify Agent and Lenders with respect thereto;
(c) all title insurance premiums;
(d) the reasonable fees, expenses and disbursements of Agent's
counsel or any local counsel to Agent incurred in connection with (i) the
preparation, administration or interpretation of the Loan Documents and other
instruments mentioned herein, (ii) the making of each Advance hereunder, and
(iii) amendments, modifications, approvals, consents or waivers hereto or
hereunder;
(e) the reasonable out-of-pocket fees, expenses and
disbursements of Agent incurred by Agent in connection with the preparation,
administration, or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each Advance hereunder (including all fees
paid to the Construction Inspector, Appraisal fees, attorneys' fees, and
surveyor fees), and all reasonable out-of-pocket expenses, including costs of
collection, court costs, reasonable attorneys' fees, disbursements and costs,
and the fees and costs of consultants, engineers, environmental engineers,
accountants, auctioneers, receivers, brokers, property managers, appraisers,
investment bankers or other experts retained by Agent in connection with the
enforcement of or preservation of rights under any of the Loan Documents against
Borrower or the administration thereof after the occurrence of a Default or
Event of Default and any litigation, proceeding or dispute whether arising
hereunder or under any other Loan Document; in addition, after the occurrence
and during the continuance of an Event of Default, Borrower shall also be
responsible for all of such reasonable out-of-pocket fees, expenses and
disbursements of the Lenders; and
(f) all reasonable out-of-pocket fees, expenses and
disbursements of Agent incurred in connection with UCC searches, UCC filings,
title rundowns, title searches, mortgage recordings, attorneys' fees and costs,
and environmental audits.
The covenants of this Article 15 shall survive payment or
satisfaction of payment of all amounts owing with respect to the Notes. There
shall be specifically excluded from the foregoing indemnification any claims,
actions, suits, liabilities, losses, damages and expenses arising from disputes
among Lenders with respect to the Loans or the Loan Documents. In the event that
any such claims, actions, suits, liabilities, losses, damages and expenses
involve both a dispute among Lenders and other matters covered by this
indemnification provision, Agent shall make a reasonable good faith allocation
of all losses, damages and expenses incurred between Lenders' dispute and the
other matters covered by this indemnification provision, which allocation by
Agent shall be final and binding upon the parties hereto.
ARTICLE 16
INDEMNIFICATION
Except to the extent of liability arising from the gross negligence
or willful misconduct of Agent or any Lender (and their respective officers,
directors and employees), Borrower agrees to indemnify and hold harmless Agent
and Lenders (and their respective officers, directors and employees) from and
against any and all claims, actions and suits, whether
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groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Agreement
or any of the other Loan Documents or the transactions contemplated hereby and
thereby including, without limitation:
(a) any brokerage, leasing, finders or similar fees;
(b) any disbursement of the proceeds of any of the Advances;
(c) any condition of the Projects whether related to the
quality of construction or otherwise;
(d) any actual or proposed use by Borrower of the proceeds of
any of the Advances;
(e) any actual or alleged violation of any Requirements or
Project Approvals;
(f) Borrower entering into or performing this Agreement or any
of the other Loan Documents; and
(g) with respect to Borrower or its properties and assets, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Materials or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Materials (including, without
limitation, claims with respect to wrongful death, personal injury or damage to
property); provided, that indemnification obligations hereunder shall not apply
to any costs incurred by or imposed upon Agent or the Lenders which arise solely
as a consequence of a condition coming into existence on any Project subsequent
to the time Agent or its nominee takes both title to such Project by foreclosure
or deed in lieu of foreclosure and possession of such Project, unless such costs
are incurred in connection with an event related to a condition existing at such
Project prior to or at the time of transfer of title and possession to Agent or
its nominee through such foreclosure or deed in lieu of foreclosure; provided,
however, Borrower shall bear the burden of proof that the events (i) occurred
subsequent to the transfer of title and possession and (ii) did not occur as a
result of any action of Borrower;
in each case including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding relating thereto. In litigation, or the
preparation therefor, Agent and Lenders shall be entitled to select its own
counsel and, in addition to the foregoing indemnity, Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. The obligations of
Borrower under this Article 16 shall survive the repayment of the Loan, or if
earlier, the foreclosure of any Security Instrument or any deed given in lieu of
foreclosure, and shall continue in full force and effect so long as the
possibility of such claim, action or suit exists. If, and to the extent that the
obligations of Borrower under this Article 16 are unenforceable for any reason,
Borrower hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable Law.
There shall be specifically excluded from the foregoing indemnification any
claims, actions, suits, liabilities, losses, damages and expenses arising from
disputes among Lenders with respect to the Loans or the Loan Documents. In the
event that any such claims, actions, suits, liabilities, losses, damages and
expenses involve both a dispute
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among Lenders and other matters covered by this indemnification provision, Agent
shall make a reasonable good faith allocation of all losses, damages and
expenses incurred between Lenders' dispute and the other matters covered by this
indemnification provision, which allocation by Agent shall be final and binding
upon the parties hereto.
ARTICLE 17
AGENT.
17.1 EMPLOYEES AND AGENTS. Agent may exercise its powers and execute its
duties by or through employees or agents and shall be entitled to take, and to
rely on, advice of counsel concerning all matters pertaining to its rights and
duties under this Agreement and the other Loan Documents. Borrower shall be
permitted to rely on the authority of the Agent to act for the Banks and shall
have no obligation to inquire into the extent of such authority. Agent may
utilize the services of such Persons as Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by Borrower in accordance with Article 15 hereof. Agent may from
time to time appoint such Persons as it desires to act on its behalf under this
Agreement in such capacities and with such powers as it may specify. Agent shall
promptly notify Borrower of the appointment of any such Person and the capacity
in which they are authorized to act on behalf of Agent. Agent may, upon giving
written notice to Borrower, revoke the appointment of any such Person.
17.2 NO LIABILITY. Neither Agent nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor
any agent or employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken, in good faith by it
or them hereunder or under any of the other Loan Documents, or in connection
herewith or therewith, or be responsible for the consequences of any oversight
or error of judgment whatsoever except as set forth in the first sentence of
Section 20.9 hereof.
17.3 REMOVAL OF AGENT. Provided no Event of Default has occurred and is
continuing, Borrower shall have the right to replace the Agent in its capacity
as "Agent" under this Agreement (without affecting such Lender's obligations
under this Agreement as "Lender") on the following terms and conditions:
(a) Borrower may appoint any "titled" Lender appearing on the
cover page or preamble of this Agreement or its banking Affiliate as Agent
without the approval of the other Lenders, but the appointment of any other
Lender as Agent must be approved by a vote of the Majority Lenders.
(b) Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the removed Agent,
and the removed Agent shall be discharged from its duties and obligations
hereunder. After the removal of any Agent as "Agent" pursuant to this Section
17.3, the provisions of this Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent. The removed Agent shall cooperate
with the successor Agent in the turning over of all records, information and
other administrative matters regarding the Loan.
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ARTICLE 18
RIGHTS OF THIRD PARTIES.
18.1 NO THIRD PARTY BENEFICIARY. All conditions to the performance of the
obligations of Agent and Lenders under this Agreement, including the obligation
to make Advances, are imposed solely and exclusively for the benefit of Agent,
Lenders and Borrower and no other Person shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Agent and Lenders will refuse to make Advances in the absence of
strict compliance with any or all thereof and no other Person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by Agent at any time if in its
sole discretion it deems it desirable to do so. In particular, Agent and Lenders
make no representations and assume no obligations as to third parties concerning
the quality of the construction by Borrower of the Improvements or the absence
therefrom of defects.
18.2 SUBORDINATION OF THIRD-PARTY CONTRACT. The rights of all contractors,
subcontractors, sub-subcontractors, laborers, suppliers and materialmen
performing any work in connection with the Improvements, or furnishing any
services, labor or materials thereto or to the Projects, shall be subordinate
and inferior to the Security Instruments and the rights of Agent and Lenders.
Agent and Lenders shall not be liable to materialmen, contractors,
subcontractors, sub-subcontractors, laborers, suppliers or others for goods or
services delivered by them in or upon the Projects or employed in the
construction of the Improvements, or for any debts or claims accruing to any of
said parties against Borrower or against the Projects, and it is distinctly
understood and agreed that there is no contractual relation, either express or
implied, between Agent and Lenders and any materialmen, contractors,
subcontractors, sub-subcontractors, craftsmen, suppliers, laborers or any person
supplying any work, labor or material. Borrower is not, nor shall be, an agent
of Agent or Lenders for any purpose, nor shall Agent or Lenders be an agent of
Borrower for any purpose, except, as to both, as may be specifically set forth
herein. It is specifically understood and agreed that no party shall be a third
party beneficiary of the terms, covenants and agreements set forth in the Loan
Documents, except and unless it is specifically provided herein that any
provision shall operate or inure to the use and benefit of a particular Person.
No purchaser under any of the Sales Contracts and no contractor, subcontractor,
sub-subcontractor or materialman, laborer or supplier shall have any rights
hereunder against Agent or Lenders, or be entitled to have any benefit of or the
protection of any of the terms, covenants and agreements herein contained.
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ARTICLE 19
SURVIVAL OF COVENANTS
All covenants, agreements, representations and warranties made
herein, in the Notes, in any of the other Loan Documents or in any documents or
other papers delivered by or on behalf of Borrower or any of them pursuant
hereto and thereto shall be deemed to have been relied upon by Agent, the
Lenders, their successors and assigns, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of the Advances, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or the Lenders have any
obligation to make any Advances. All statements contained in any certificate or
other paper delivered to Agent or Lenders at any time by or on behalf of
Borrower or any of them pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by Borrower
or any of them hereunder.
ARTICLE 20
AGENT AND LENDERS RELATIONSHIP
The provisions of this Article 20 are included in the Agreement to
govern the relationship among the Lenders and Agent. Borrower hereby
acknowledges and agrees (i) to the foregoing sentence; (ii) that, except with
respect to certain rights of Borrower set forth in Sections 20.13.1, 20.14.4,
20.24 and 20.26 and provisions regarding Advances to Borrower set forth in
Sections 20.3.1 and 20.3.2, Borrower is not a beneficiary of any of the
covenants, conditions, rights and obligations set forth in this Article 20; and
(iii) that without any consent, approval or agreement from Borrower and without,
in any way, changing or modifying any of the other terms and provisions of this
Agreement, Agent and Lenders, from time to time, may modify and amend this
Article 20 either by an amendment to this Agreement or by another document that
does not include Borrower as a signatory thereto, except that any modification
or amendment of the rights of Borrower described in Sections 20.3.1, 20.3.2,
20.13.1, 20.14.4, 20.24 or 20.26 shall require the Borrower's prior written
consent.
20.1 APPOINTMENT. Subject to the terms hereof, the Lenders hereby appoint
Agent as their agent to administer and enforce the obligations of Borrower under
the Loan, the Agreement, and the Loan Documents, and authorize Agent to take
such actions on Lenders' behalf as are delegated to Agent by the terms of this
Article 20 or any of the Loan Documents, together with such powers as are
reasonably incidental to Agent's authority. Agent agrees to perform in such
capacity upon the express conditions contained in this Article 20. Subject to
the terms of this Article 20, and except with regard to the rights and powers
expressly granted to Agent, Lenders hereby agree to perform the obligations and
duties of the "lender", "bank", "mortgagee", "secured party" or other similar
designation for a Lender under this Agreement. No Lender shall have any priority
of ownership or interest over the other in the Loan, Loan Documents or the
Collateral. The relationship between Agent and the Lenders is and shall be that
of agent and principal only, and nothing contained in this Agreement or any of
the other Loan Documents shall be construed to constitute Agent as a trustee or
fiduciary for any Lender.
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20.2 POWERS. Agent shall have and may exercise such powers as are
available to the Lenders under the Loan Documents, subject to the provisions of
this Article 20, together with such powers as are reasonably incidental to
Agent's authority. Lenders hereby authorize Agent to act on behalf of Lenders to
exercise such powers as are reasonably incidental to Agent's exercise of its
rights hereunder and under the Loan Documents, including the receipt of all
payments of principal, interest, fees and expenses reimbursed or payable under
or in connection with the Loan and/or the Loan Documents.
20.3 ADVANCES.
20.3.1 Subject to the terms hereof, each Lender shall make its Loan
Percentage of the Advances called for under this Agreement and of all Advances
required by the Lenders under the Loan Documents to preserve or protect the
Property or the continued perfection and priority of Agent's security title and
lien on the Property or to enforce Agent's rights under the Loan Documents.
Agent shall notify Lenders, by telephone, facsimile or electronic email
transmission, of each Advance and the date on which such deposit is required to
be made, and shall deliver, or cause to be delivered, to each Lender a complete
copy of Borrower's Requisition for Advance and all supporting documentation no
later than two (2) Business Days prior to the scheduled date of the Advance.
20.3.2 Lenders shall deposit by wire transfer their respective Loan
Percentage of each Loan Advance in the loan account designated by Agent, on the
date of, and not later than 12:00 noon on the scheduled date of the Advance.
Interest shall accrue from the date the same is deposited with Agent. Upon such
deposit by each Lender, Agent shall deliver to each Lender a certificate as to
such Advance. Agent will disburse funds so deposited by Lenders for the purposes
and in accordance with the terms and conditions set forth in this Agreement.
20.3.3 Unless Agent shall have received notice from a Lender prior
to 11:00 a.m. on the date of any Advance that such Lender will not make
available to Agent such Lender's ratable portion of such Advance, Agent may
assume that such Lender has made or will make such portion available to Agent on
the date of such Advance and Agent may, in its sole discretion and in reliance
upon such assumption, make available to Borrower on such date a corresponding
amount. If and to the extent such Lender shall not have so made such ratable
portion available to Agent, such Lender agrees to repay to Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to Borrower until the date such
amount is repaid to Agent, (i) for the first two (2) Business Days, at the
Federal Funds Rate, and (ii) thereafter, at the interest rate then in effect
with respect to such Advance. If such Lender shall repay to Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
portion of the applicable Advance for purposes of this Agreement, and if both
such Lender and Borrower shall pay and repay such corresponding amount, Agent
shall promptly relend to Borrower such corresponding amount. If such Lender does
not repay such corresponding amount immediately upon Agent's demand therefor,
Agent shall notify Borrower, and Borrower shall immediately repay such
corresponding amount to Agent. The failure of any Lender to fund its portion of
any Advance shall not relieve any other Lender of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date of such
borrowing, but no Lender shall be responsible for any such failure of any other
Lender and no Lender shall be required to fund any amounts in excess of its
Commitment.
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20.4 PAYMENTS. Agent will receive all payments made by Borrower and by
others on account of principal, interest, expenses, and fees, holding each
Lender's share thereof in trust (but subject to the express provisions of this
Agreement and subject to Agent's rights of setoff provided herein) for the
benefit of such Lender. Whenever Agent shall receive a payment of principal,
interest, late charges, yield maintenance charges, or the extension fee
contemplated by Section 4.6.6(i) hereof, if any, Agent agrees to promptly
distribute to each Lender, by federal reserve wire transfer to each Lender in
accordance with the wire instructions furnished to Agent by such Lender, in
lawful money of the United States of America and in the kind of funds so
received, an amount equal to such Lender's Loan Percentage thereof. If any such
payment received by Agent or any such application made by Agent is rescinded or
must otherwise be returned or released by Agent, upon notice from Agent, each
Lender shall promptly pay to Agent the amount such Lender received of the amount
to be returned. In no event shall Agent be required to fund any amounts
hereunder on any day which is a Saturday, Sunday or legal holiday on which
banking institutions in the state in which the Agent's Office is located are
authorized by Law to close. Without limitation of each Lender's obligation to
pay the Expenses as defined in Section 20.12 hereof, it is agreed that Agent
shall be entitled to deduct from each Lender's interest in such payments (before
remitting any remaining amount of such payments to such Lender) such Lender's
pro rata share of the Expenses (as hereinafter defined), if any, which has not
been paid by such Lender to Agent within thirty (30) days after written request
for payment has been made by Agent, without prejudice to such Lender's rights to
recover the amount so deducted if not in fact owed by such Lender.
20.5 SHARING.
20.5.1 If any Lender shall obtain any repayment (whether voluntary
or involuntary, through the exercise of any right of setoff, off-set, banker's
lien, counterclaim, or under Article 9 of the Uniform Commercial Code or
otherwise) on account of the Loan to Borrower in excess of that Lender's Loan
Percentage of payments to which it is entitled, such Lender agrees that it shall
share such excess amount pro rata with the other Lenders in accordance with
their Loan Percentage.
20.5.2 Agent shall promptly forward to each Lender any written
financial information, appraisals and sales information, and any other material
information specifically relating to the Projects that it shall receive from
Borrower in connection with the Loan to the extent the same are not delivered
directly to each Lender by Borrower. Upon written request from any Lender, but
no more often than monthly, Agent shall provide to each Lender information with
respect to the status of principal and interest payments, lien status and any
written factual information in the possession of Agent bearing on the credit
worthiness of Borrower; provided, however, that Agent shall not be obligated to
provide Lenders with any Confidential Information about Borrower set forth in
reports of bank examiners from regulatory authorities having jurisdiction over
Agent. Agent shall not be required to provide any particular information more
than one time and subsequent requests by Lenders shall only be deemed to include
information obtained by Agent from and after the date of the last submission by
Agent. All reasonable out-of-pocket expenses incurred by Agent incident to the
submission of information so specially requested by a Lender shall be deemed an
"Expense" as defined in Section 20.12 below. If any Lender shall receive any
document or other delivery from Borrower
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in connection with the Loan that the Lender actually knows has not also been
delivered to Agent, the Lender shall deliver a copy thereof to Agent.
20.6 LOAN DOCUMENTS AND COLLATERAL. Agent shall hold the Loan Documents,
the Collateral and security therefor and any other documents or instruments
delivered by Borrower in connection with the Loan (but only to the extent that
Agent is the holder thereof) and all payments or proceeds received in connection
therewith for the undivided benefit and protection of the Lenders in accordance
with the terms and conditions of this Agreement. Each Lender shall receive a
copy of each Loan Document requested by it in writing.
20.7 NO INTEREST. No Lender shall have any interest in any property taken
as security for any other loans or extensions of credit made to or for Borrower
by any other Lender or in any property in such other Lender's possession or
control or in any deposit held or other indebtedness owing by any other Lender
which may be or become collateral for or otherwise available for payment of any
other loan by reason of the general description of a secured obligation
contained in any security instrument or other agreement or instrument held by
such other Lender by reason of the right of setoff, counterclaim, off-set,
banker's lien or under Article 9 of the Uniform Commercial Code, except that if
such property, deposit, indebtedness or the proceeds thereof shall be applied in
reduction of amounts outstanding under this Loan, then the Lenders shall be
entitled to their Loan Percentage of such application as set forth above. Each
Lender and its respective Subsidiaries and Affiliates may accept deposits from,
lend money to, act as trustees under indentures of, and generally engage in any
kind of business with Borrower or any Affiliate of Borrower and any Person which
may do business with Borrower, all as if the Lenders were not lenders under the
Loan and without any duty to account therefor to the other Lenders.
20.8 STANDARD OF CARE. Agent shall service the Loan in accordance with its
customary practices in servicing similar loans for its own account, and as
provided in this Agreement. Agent shall not be required to take any action which
violates the terms of this Agreement or any of the Loan Documents or violates
any Laws now existing or hereafter created.
20.9 DUTIES AND OBLIGATIONS. No Lender (nor Agent in its capacity as
Agent) nor any of its respective directors, officers, employees, agents,
Affiliates or Subsidiaries shall be liable to the other Lenders for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement or any other Loan Document except for its or their own gross
negligence or willful or illegal misconduct. Without limitation of the
generality of the foregoing, among the Lenders, each Lender (including Agent in
its capacity as Agent)
(a) may treat the other Lenders as the holders of their
respective Loan Percentages of the Loan unless and until such Lender receives
written notice of the assignment thereof signed by such assignor and the written
agreement of the assignee that such assignee is bound by this Agreement as it
would have been if it had been an original lender party to this Agreement, in
each case in a form satisfactory to the other Lenders and made in compliance
with the provisions of Section 20.13 hereof;
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(b) shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties or by acting upon any statement made by any other Lender or
deemed to have been made by any other Lender;
(c) shall make no warranty or representation to the other
Lenders and shall not be responsible to the other Lenders for any statements,
warranties or representations (whether written or oral) made by Borrower in or
in connection with this Agreement or any other Loan Document;
(d) shall not have any duty, beyond its usual and customary
loan administration and servicing procedures, to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
this Agreement or any other Loan Document on the part of Borrower or to inspect
the books and records of Borrower;
(e) shall not be responsible to the other Lenders for the due
execution, legality, validity, enforceability, genuineness, perfection,
priority, condition, sufficiency or value of this Agreement or any other Loan
Document, or any Collateral provided thereunder (including the Projects), or any
other instrument or document furnished pursuant hereto; and
(f) shall not be responsible for the financial condition or
credit worthiness of Borrower.
20.10 NOTICE OF EVENT OF DEFAULT, EXERCISE OF REMEDIES, FORECLOSURE, ETC.
20.10.1 In the event that Agent or any Lender acquires Actual
Knowledge (as herein defined) of the occurrence of an Event of Default, Agent or
the Lender acquiring such knowledge will notify the other Lenders thereof as
soon as is reasonably practical. Thereafter, Agent shall provide the Lenders
with prior written notice of any actions or omissions proposed to be taken by
Agent with respect thereto unless the giving of such notice is impractical for
reasons of safety or preservation of Collateral. For purposes of this Agreement,
"Actual Knowledge" shall mean actual knowledge of any officer of Agent or any
Lender having primary, day-to-day responsibility for administration of the Loan.
20.10.2 Upon the giving of any notice required under Section 20.10.1
above, Agent shall take such action or actions, assert such rights, exercise
such remedies and/or waive such Event(s) of Default or refrain from taking such
actions with respect thereto as allowed hereunder, but only as agreed to in
writing by the Required Lenders, which can include Agent, in its capacity as a
Lender. In the event that the Required Lenders agree on the foregoing within ten
(10) Business Days after the date (the "Notice Date") of Lenders' receipt of
Agent's recommendations, Agent may promptly thereafter exercise such action or
omission as proposed including, without limitation, acceleration of the Loan
and/or foreclosure of any Security Instrument, as Agent reasonably determines
necessary, to protect and enforce the interests and rights of the Lenders
thereunder and the Lenders will cooperate fully in connection therewith. Agent
shall promptly thereafter provide written notice to the Lenders of the action
taken or to be taken by Agent. In particular, the Lenders, upon consent of the
Required Lenders, or Agent, if
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there is no such consent as set forth above and Agent reasonably determines
payment is in best interest of all the Lenders, may pay taxes and insurance
premiums, spend money for maintenance, repairs, capital improvements, tenant
improvements or other expenses which may be necessary to be incurred.
Notwithstanding the foregoing sentence, Agent's decision to expend monies to
complete construction of the Improvements pursuant to the provisions of this
Agreement shall require consent of the Required Lenders (including Agent, in its
capacity as a Lender). Each Lender shall, within thirty (30) days of request
therefor, pay to Agent in the manner set forth in Section 20.12 below, its Loan
Percentage of the costs incurred by Agent in taking any such actions hereunder
to the extent that such costs shall not be promptly reimbursed to Agent by
Borrower or out of the Collateral and such costs shall be deemed an "Expense" as
defined under Section 20.12 of this Agreement.
When Agent is authorized or permitted to take any action under this
Section 20.10.2 and such action requires signature by the Lenders on any
documents, writings or pleadings in order to carry out such action, then each
Lender shall either (i) execute and return such documents, writings or pleadings
to Agent within ten (10) Business Days following receipt thereof by such Lender
or (ii) deliver to Agent within such period a written response detailing
specific changes in the language of such documents, writings or pleadings which
must be made in order for such Lender to execute the same. If Agent makes such
changes and resubmits such documents, writings or pleadings to such Lender, then
such Lender shall execute and return the same within five (5) Business Days
following receipt thereof by such Lender.
20.10.3 In the event that all Lenders do not agree pursuant to
Section 20.10.2 above within ten (10) Business Days after such Notice Date, any
Lender may purchase the interest of the non-consenting Lender in the Loan,
without recourse, for a price equal to the sum of the non-consenting Lender's
Loan Percentage in the then outstanding principal balance (together with
unreimbursed Expenses, if any, in the case of a purchase of Agent's interest in
the Loan) plus accrued interest and fees to the date of purchase (the "Purchase
Price"). If any Lender should desire to exercise their option to purchase the
interest of another in the Loan, such non-consenting Lender shall sell its
interest in the Loan to the purchasing Lender for the Purchase Price within
thirty (30) days. If no Lender elects to purchase the interest of the
non-consenting Lender in the Loan within said ten (10) Business Day period, the
provisions of Section 20.10.2 above shall govern. All sales of interests
hereunder shall be without recourse or any warranties or representations except
as to the unencumbered ownership of the interest sold.
20.10.4 If Agent shall take possession of any of the Collateral
after the occurrence of any Event of Default (upon institution of foreclosure
proceedings or otherwise) as and to the extent provided by the Loan Documents,
Agent shall collect all sales proceeds, rents or other operating revenues and
pay all expenses incurred by it in connection with the management of the
Collateral in question and such expenses shall be deemed Expenses as defined in
Section 20.12 below. Upon the unanimous consent of the Lenders, the Lenders may
employ an outside management firm; provided, however, notwithstanding the
foregoing, if Lenders cannot agree as to the employment of a management firm
within ten (10) days of request therefor by Agent, Agent shall be entitled to
employ such management firm as Agent deems necessary to protect and enforce the
interests and rights of all the Lenders. All management and other fees and
expenses paid by Agent shall be deducted from rents and/or sales proceeds
collected, or if such rents and sales proceeds are insufficient, such fees and
expenses shall be
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paid by Agent and such fees and expenses shall be deemed Expenses as defined in
Section 20.12 below; and each Lender shall within thirty (30) days of request
therefor pay to Agent such Lender's Loan Percentage thereof.
20.10.5 If there shall be a foreclosure sale of all or a portion of
the Collateral, Agent shall bid at the foreclosure sale on behalf of Lenders to
raise any bid made by others at said sale, up to the highest price agreed upon
by the Required Lenders (not to exceed the outstanding principal balance of the
Loan and all accrued interest thereon), or if the Required Lenders are unable to
agree, then an amount not to exceed the indebtedness outstanding under the Loan
Documents. Upon completion of a foreclosure sale and the conveyance of said
Collateral to the highest bidder, Agent shall render an accounting for monies
received and monies expended between the date of taking possession of such
Collateral and the date of conveyance to the highest bidder, including without
limitation expenses of foreclosure. If the highest bidder shall be someone other
than Agent, then, upon receipt from the highest bidder of the amount of the bid,
Agent will remit each Lender's Loan Percentage of the net amount received from
the foreclosure sale to such Lender, which amount shall exclude all Expenses
incurred by Agent and not previously reimbursed. If the highest bidder shall be
Agent, then, Agent will cause to be executed, delivered and recorded an
appropriate deed(s) of such Collateral to the Lenders or their nominees, as
tenants in common, as soon as is practicable (but not earlier than ten (10)
Business Days after the foreclosure sale). If the highest bidder shall be Agent,
then this Agreement shall continue in full force and effect during such
ownership of the Collateral and this Agreement shall govern the rights and
obligations of the parties in connection with such ownership. Should Agent or
any of the Lenders receive an offer for the purchase of any portion of the
Collateral acquired pursuant to a foreclosure sale, then such party shall
provide written notice of such offer, together with a copy of such offer, to the
other Lenders and Agent, if applicable. If the Required Lenders do not agree on
whether to accept or reject such offer within ten (10) Business Days after the
date of receipt of notice of such offer by the other Lender and Agent, if
applicable, then Agent may either accept or reject such offer on behalf of
Lenders if Agent, in the exercise of its good faith business judgment,
determines that the decision to accept or reject such offer is in the best
interests of the Lenders. Agent shall promptly thereafter provide written notice
of its actions with respect to such offer to the Lenders.
20.10.6 If all Lenders agree to take a purchase money obligation and
security instrument or security interest in part payment for the sale of any of
the Collateral acquired by Lenders or their nominees, as the case may be, such
Lenders or nominees agree to enter into an agreement with respect to that
obligation and security instrument or security interest, defining Lenders' or
their nominees' rights in the same in accordance with Lenders' or their
nominees' Loan Percentage, which agreement shall be in all material respects
similar to this Agreement, to the extent this Agreement is appropriate or
applicable. In the absence of such an agreement, the obligation and security
instrument or security interest shall be held by the mortgagee or security
interest holder for the ratable benefit of Lenders and nominees and shall be
subject to the terms of this Agreement to the extent applicable.
20.10.7 Agent and Lenders acknowledge and agree that Agent will not
take any of the following actions unless and until all Lenders shall have given
their consent thereto in writing:
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(a) any change in or waiver of any required payments of
principal, interest, expenses, or fees payable under this Agreement or any
changes of applicable interest rates or fees payable on the Loan except as
provided in this Agreement;
(b) any release of Collateral except as provided by Section
6.3 of this Agreement;
(c) any change to required release payments;
(d) any release of Borrower or any Guarantor (except as
provided in Section 6.3.2 above) from its Obligations;
(e) any extension of the Maturity Date, except as contemplated
pursuant to Section 4.6 of this Agreement; or
(f) any change to any provision of this Section or the
definitions of "Required Lenders" or "Majority Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder.
20.10.8 Notwithstanding anything contained herein to the contrary,
Agent may, without consent of Lenders, and in its reasonable discretion if it
determines such action is in the best interest of all Lenders:
(a) waive any non-material condition precedent under this
Agreement for making Advances;
(b) approve non-material changes in the Plans and
Specifications;
(c) permit non-material modifications and reallocations in the
Project Budgets so long as such modifications and reallocations are made in
accordance with Section 713.3471 of the Florida Statutes (or similar
Requirements of other states where Projects are located);
(d) make routine releases of any portion of the Collateral in
connection with a sale of such Collateral as provided in this Agreement; and
(e) upon repayment in full of the Loan, release the balance of
the Collateral and satisfy the Security Instruments encumbering the Collateral.
Agent shall promptly provide written notice of any of the foregoing
actions to the Lenders.
20.10.9 Agent shall not be required to obtain the consent of Lenders
to its taking any action with respect to the Loan if immediate action is
required to be taken in the best interest of Lenders to preserve or protect the
Collateral or the continued perfection or priority of the Lenders' security
title and lien on the Collateral or the continued enforceability of the Loan
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Documents; provided however, that Agent shall endeavor to notify the Lenders of
any such actions as soon as practical.
20.10.10 Subject to the provisions of Section 20.10.2 hereof and
Section 20.12 hereof, Agent may engage and consult with legal counsel,
independent public accountants and other experts in connection with the
performance of its administration and servicing under this Article 20. Agent
shall not be liable for actions taken or omitted to be taken in good faith by
Agent in accordance with the advice of such experts so long as such action or
omission does not violate another provision of this Article 20 and such action
taken or omitted to be taken does not constitute willful misconduct or gross
negligence.
20.10.11 If written consent is required for some action under this
Article 20 or otherwise under this Agreement, each Lender agrees to give Agent
or the other Lenders, within ten (10) Business Days of receipt of the request
for action together with all reasonably requested information related thereto
(or such lesser period of time required by the terms of the Loan Documents),
notice in writing of its approval or disapproval (collectively "Directions") in
respect of any action requested or proposed in writing pursuant to the terms
hereof. If written consent is required for the requested action, any Lender's
failure to respond to a request for Directions within the required time period
shall be deemed to constitute a Direction to take such requested action. Each
Lender shall be entitled to assume that any officer of the other Lenders
delivering any notice, consent, certificate or other writing is authorized to
give such notice, consent, certificate or other writing unless such Lender has
otherwise been notified.
20.11 CREDIT DECISION. It is understood and agreed by each Lender that
each Lender has itself been and will continue to be solely responsible for
making its own independent appraisal of and investigations into the financial
condition, credit worthiness, condition, status, nature and affairs of Borrower.
Agent shall furnish to each Lender a copy of any written notice hereafter
furnished to Agent by Borrower under the Loan Documents as soon as reasonably
practical, but in any event, within five (5) Business Days after the date on
which Agent shall receive the same. In the event that any Lender shall breach or
fail to perform any of its duties or obligations hereunder or be liable
hereunder for its gross negligence or willful misconduct, such party shall be
liable to the aggrieved party only for actual direct damages that would put the
aggrieved party in the same position it would have been in if the breach,
failure, gross negligence or willful misconduct had not occurred, and shall not
be otherwise liable for any punitive, special, indirect or consequential
damages.
20.12 COST AND EXPENSE SHARING. Within thirty (30) days of request
therefor from Agent and in the manner set forth within Section 20.3 above, each
Lender will pay its pro rata share (equal to its Loan Percentage) of all
reasonable out-of-pocket costs and expenses (including, without limitation,
reasonable attorneys' fees, appraisers' fees and consultants' fees) which are
incurred by Agent (i) in connection with the administration of the Loan and the
Loan Documents or enforcement of the obligations of Borrower under the Loan and
the Loan Documents, (ii) in connection with the foreclosure of the Loan
Documents, or (iii) which by the terms of this Agreement are deemed to be
expenses (hereinafter collectively referred to as the "Expenses"). The Lenders
shall pay their Loan Percentage of Expenses for attorneys, appraisers, and
consultants, provided that: (x) Agent shall retain such attorney, appraiser or
consultant after approval of each Lender and (y) such attorney, appraiser or
consultant shall have provided a
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budget for the matter or representation, to be updated quarterly if the matter
or representation shall exceed three (3) months in duration, in form and content
acceptable to all Lenders. In the event Agent later receives reimbursement from
Borrower or another source for such costs and expenses, Agent shall refund to
each Lender its ratable share of such reimbursement. Except as provided in
Section 15(e) above, each Lender shall bear the cost of its own attorneys' fees
in connection with this Agreement.
20.13 TRANSFERS.
20.13.1 No Lender shall transfer its interest in the Loan or the
Loan Documents without the prior written consent of Agent and, provided no Event
of Default shall have occurred and be continuing, Borrower, which consent of
Agent and Borrower shall not be unreasonably withheld or delayed, provided that
each such transfer ("Transfer") shall comply with the following:
(a) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Agreement;
(b) each assignment shall be in an amount that is at least
$10,000,000.00 and is a whole multiple of $1,000,000.00, unless otherwise
consented to by Agent;
(c) each Lender which does not transfer one hundred percent
(100%) of its Commitment shall retain, free of any such assignment, a Commitment
of not less than $10,000,000.00;
(d) the transferee shall be an Eligible Assignee; and
(e) the parties to such assignment shall execute and deliver
to Agent, for recording in the Register (as hereinafter defined), an Assignment
and Acceptance, substantially in the form established by Agent (an "Assignment
and Acceptance"), together with any Notes subject to such assignment.
Notwithstanding the foregoing, any Lender may transfer its interest
in the Loan and the Loan Documents to its parent company or its parent company's
wholly-owned Subsidiary or a wholly-owned Subsidiary of such Lender without the
prior consent of Agent and Borrower provided that such transferee shall remain a
parent company of the transferring Lender or a wholly-owned Subsidiary of the
transferring Lender's parent company, or a wholly-owned Subsidiary of the
transferring Lender and, provided further, that each Lender (or any guarantor
thereof) shall not be relieved of any liability it may have under this
Agreement. The consent by Agent and Borrower to a Transfer shall not waive the
right of Agent and Borrower to consent to subsequent Transfers. Upon each
assignment by a Lender approved by Agent and Borrower, except for assignment to
an Affiliate of any such Lender and any assignments by the Lender serving as
Agent at the time of such assignment, the assigning Lender agrees to pay to
Agent a registration fee in the sum of $5,000.00.
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20.13.2 Agent shall not transfer or assign any of its rights and
duties under this Agreement and shall not delegate such rights and duties, or
the execution thereof, without the prior written consent of all Lenders, except
to a wholly-owned Subsidiary of Agent, provided that such transferee shall
remain a wholly-owned Subsidiary of Agent and, provided further that Agent shall
not be relieved of any liability it may have under this Agreement.
20.13.3 Each Lender represents to and covenants with the other that
its interest in the Loan is not and during the term of this Agreement shall not
be subject to any lien or monetary encumbrance.
20.13.4 Each Lender may at any time pledge or assign all or any
portion of its rights under the Loan Documents to any of the twelve (12) Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
Section 341. No such pledge or assignment or enforcement thereof shall release
such Lender from its obligations under any of the Loan Documents.
20.13.5 Each Lender may sell participations to one or more Eligible
Assignees in all or a portion of such Lender's rights and obligations under this
Agreement and the other Loan Documents; provided that
(a) any such sale or participation shall not affect the rights
and duties of the selling Lender hereunder to the Borrower;
(b) such participation shall not entitle such participant to
any rights or privileges under this Agreement or the Loan Documents, including,
without limitation, the right to approve waivers, amendments or modifications,
unless the unanimous consent of the Lenders is required for such waiver,
amendment or modification;
(c) such participant shall have no direct rights against the
Borrower;
(d) such sale is effected in accordance with all Laws
applicable to such selling Lender; and
(e) such sale or participation shall otherwise comply with the
requirements for a transfer or assignment set forth in Section 20.13.1 above.
20.14 LENDER'S DEFAULT.
20.14.1 Any Lender failing to advance any funds as required in this
Agreement shall constitute a "Defaulting Lender." Upon the failure of a
Defaulting Lender to advance any funds as required in this Agreement (the
"Defaulted Advance"), the other Lenders (collectively, the "Non-Defaulting
Lenders"), or any of them, may, but shall not be obligated to, make such
Defaulted Advance on behalf of the Defaulting Lender, which shall in no way
relieve the Defaulting Lender from its obligation to deposit its share of
Advances on the Loan as provided above. In such event, the Defaulting Lender
shall immediately be obligated to repay the Defaulted Advance to the
Non-Defaulting Lenders making such Defaulted Advance, together with accrued
interest thereon from the date of such funding until repaid to such
Non-Defaulting Lenders as provided in Section 20.3.3 above.
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20.14.2 Until such time as such Defaulting Lender has funded its
portion of such Advance, such Defaulting Lender shall have no right to vote
regarding any issue on which voting is required or advisable under this
Agreement or any other Loan Document (and the Loan Percentages of the
Non-Defaulting Lenders shall be grossed up on a pro rata basis to reflect the
suspension of the Defaulting Lender).
20.14.3 If a Defaulting Lender fails to advance any funds as
required in this Agreement and such Non-Defaulting Lenders advance funds on the
Defaulting Lender's behalf, until full repayment of the foregoing amount, Agent
shall pay to such Non-Defaulting Lenders for application on account of the
Defaulting Lender's obligation to repay the amounts advanced by such
Non-Defaulting Lenders, any sums, collections or recoveries otherwise payable to
the Defaulting Lender.
20.14.4 Agent or, if Agent is the Defaulting Lender, any of the
Non-Defaulting Lenders shall be entitled to purchase such Defaulting Lender's
entire interest for the Purchase Price (as defined in Section 20.10.3 above)
pursuant to the procedure provided for in Section 20.10.3 above, which right of
purchase may be exercised by Agent or the Non-Defaulting Lenders for so long as
such Defaulting Lender does not cure such default. If neither Agent nor any of
the Lenders elects to purchase such Defaulting Lender's interest within ten (10)
Business Days after notice from Agent of such option, Borrower shall have the
right, provided no Event of Default shall have occurred and be continuing, to
seek a replacement for such Defaulting Lender, subject to Agent's prior approval
of same, which approval may be given or withheld in Agent's sole and unfettered
discretion.
20.14.5 In the event Agent is a Defaulting Lender, the Required
Lenders may vote to remove Agent and may vote to appoint a successor Agent upon
a vote of a majority of Non-Defaulting Lenders (based on their Loan
Percentages), as set forth in Section 20.24 hereof.
20.14.6 In the event that any Lender fails to make any payment to
the other Lenders or to Borrower (other than the funding of an Advance) in
accordance with this Agreement or the Loan Documents, or otherwise fails to
comply with the terms of this Article 20 within ten (10) days after receipt of
written notice from the other Lenders or Agent, the party so failing shall also
be deemed a "Defaulting Lender" under this Article 20, but shall have the right
at all times to cure such default.
20.15 PERFORMANCE THROUGH REPRESENTATIVES. Agent may perform any of its
duties hereunder by or through officers, directors, employees, attorneys, or
agents (collectively "Representatives").
20.16 NO RELIANCE BY OTHERS. Except as provided above in the introductory
paragraph to this Article 20, none of the provisions of this Article 20 shall
inure to the benefit of any person other than Lenders and Agent; consequently,
neither Borrower nor any other person, shall be entitled to rely upon or raise
as a defense, in any manner whatsoever, the failure of any one of Lenders or
Agent to comply with the provisions of this Article 20. None of the Lenders or
Agent shall incur any liability to Borrower or any other person for any act or
omission of the Lenders or Agent.
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20.17 LEGAL FEES. If any legal or equitable action or proceeding is
brought by a Lender to enforce or construe a provision of this Article 20, the
unsuccessful party in such action or proceeding, whether such action or
proceeding is settled or prosecuted to final judgment, shall pay all of the
reasonable attorneys' fees and costs incurred by the prevailing party.
20.18 TERMINATION. Unless otherwise agreed to by Agent and Lenders, the
rights and obligations of Agent and Lenders shall terminate when the Loan has
been paid and finally discharged in full and the obligations of the Lenders to
advance funds to Borrower under this Agreement are terminated, or if the Lenders
or the Lenders' nominees take title to the Projects by foreclosure or conveyance
in lieu of foreclosure, when the Projects are thereafter sold to a third party
purchaser. The provisions of Section 20.12 of this Agreement shall survive
repayment of the Loan and termination of this Agreement.
20.19 LITIGATION UNDER LOAN DOCUMENTS. Each Lender is a necessary party to
any litigation of Borrower against any Lender under the Loan Documents. In the
event suit is brought by Borrower or by an Affiliate of Borrower against any
Lender or Agent, Agent or any such Lender shall be entitled to join the other
Lenders in such suit.
20.20 WITHHOLDING TAX.
20.20.1 If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption from, or
a reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code,
such Lender agrees with and in favor of Agent, to deliver to Agent:
(a) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly completed IRS
Forms 1098 W8-BEN or Form 1098 W8-ECI before the payment of any interest in the
first calendar year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid under this Agreement;
(b) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively
connected with a United States trade or business of such Lender, two (2)
properly completed and executed copies of IRS Form 4224 before the payment of
any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid under
this Agreement, and IRS Form W-9;
(c) such other form or forms as may be required under the Code
or other Laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax; and
(d) in the case of any Lender claiming exemption from U.S.
Withholding Tax under Section 871(b) or 881(c) of the Code, with respect to
payments of "Portfolio Interest", a Form W-8, or any subsequent versions thereof
or successors thereto and if the Lender delivers a Form W-8, a certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not a ten percent (10%) shareholder (within the
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meaning of Section 871(h)(3)(b) of the Code) of Borrower, and is not a
controlled foreign corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code).
Each such certificate and form shall be properly completed and duly
executed by such Lender claiming complete exemption from a reduced rate of U.S.
Withholding Tax on payments by Borrower under this Agreement and other Loan
Documents. Each Lender agrees to promptly notify Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
20.20.2 If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1098
W8-BEN or Form 1098 W8-ECI and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
Borrower to such Lender, such Lender agrees to notify Agent of the percentage
amount in which it is no longer the beneficial owner of Obligations of Borrower
to such Lender. To the extent of such percentage amount, Agent will treat such
Lender's IRS Form 1098 W8-BEN or Form 1098 W8-ECI as no longer valid.
20.20.3 If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
20.20.4 If any Lender is entitled to a reduction in the applicable
withholding tax, Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by above Section
20.20.1 are not delivered to Agent, then Agent may withhold from any interest
payment to such Lender not providing such forms or other documentation an amount
equivalent to the applicable withholding tax.
20.20.5 If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify Agent fully for all amounts paid, directly
or indirectly, by Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
Agent under this Section 20.20, together with all costs and expenses (including
reasonable attorney's fees and legal expenses). The obligation of the Lenders
under this Section 20.20.5 shall survive the payment of all Obligations and the
resignation or replacement of Agent.
20.20.6 The indemnity provision of Section 20.20.5 above may be
suspended or waived by Agent with respect to any Lender at its sole election
("Non-Indemnitor Lender"). In addition to any other rights of offset contained
in this Agreement or under any applicable Law, or so long as a Non-Indemnitor
Lender is a Lender, in the event that any amounts would otherwise be covered by
an indemnity under Section 20.20.5 of this Agreement from a Non-
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Indemnitor Lender, such as U.S. Withholding Tax due and payable and any
penalties or interest with respect thereto and fees and expenses of collection,
then in such event, Agent shall be authorized to offset any such amounts against
the amounts payable to a Non-Indemnitor Lender hereunder until otherwise
indemnified amounts are fully paid. The right of offset contained herein shall
be in addition to and shall not limit or otherwise waive or diminish any right
or remedy that Agent may have against a Non-Indemnitor Lender under any
applicable Law.
20.21 NO REPRESENTATIONS. Agent shall not be responsible for the execution
or validity or enforceability of this Agreement, the Notes, any of the other
Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
Borrower or any of its Subsidiaries, or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes. Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by
Borrower or any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Lenders, with respect to the credit worthiness or financial
condition of Borrower or any of its Subsidiaries. Each Lender acknowledges that
it has, independently and without reliance upon Agent or any other Lender, and
based upon such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
20.22 INDEMNITY. The Lenders, as to their respective Loan Percentage,
agree hereby to indemnify and hold harmless Agent from and against any and all
claims, actions and suits (whether groundless or otherwise), losses, damages,
costs, expenses (including any expenses for which Agent has not been reimbursed
by Borrower as required by Article 15), and liabilities of every nature and
character arising out of or related to this Agreement, the Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or Agent's actions taken hereunder or thereunder, in good faith, except
to the extent that any of the same shall be caused by Agent's willful misconduct
or gross negligence.
20.23 AGENT AS LENDER. In its individual capacity, Agent shall have the
same obligations and the same rights, powers and privileges in respect to its
Commitment and the portion of the Loan made by it, and as the holder of a Note
as it would have were it not also Agent.
20.24 RESIGNATION AND REMOVAL OF AGENT. Agent may resign at any time by
giving sixty (60) days' prior written notice thereof to the Lenders and
Borrower. In addition, the Required Lenders may remove the Agent from its
capacity as agent in the event of the Agent's willful misconduct or gross
negligence or in the event that the Agent is in receivership, conservatorship or
other similar proceeding in which the day-to-day activities of the Agent are
controlled or subject to approval by any applicable Governmental Authority
having jurisdiction over the Agent. Upon any such resignation or upon removal of
Agent as set forth in the preceding sentence or in Section 20.14.5 hereof, the
Majority Lenders shall have the right to
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appoint a successor Agent. If no successor Agent shall have been so appointed by
the Lenders and shall have accepted such appointment within thirty (30) days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a
financial institution having a rating of not less than A-2 or its equivalent by
S&P. In either case, unless an Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to Borrower
(such notice and time to cure will be provided by Agent only in the event of a
pending appointment of successor Agent, and applies only for the purposes of
this Section 20.24). Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
or the removed Agent, and the retiring or replaced Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation, or the removal of any Agent pursuant to this Section 20.24 or
Section 20.14.5 hereof, the provisions of this Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
20.25 BANKRUPTCY. In the event a bankruptcy or other insolvency proceeding
is commenced by or against Borrower, Agent shall have the sole and exclusive
right to file and pursue a joint proof of claim on behalf of all Lenders. Each
Lender irrevocably waives its right to file or pursue a separate proof of claim
in any such proceedings so long as Agent is prosecuting a joint proof of claim
on behalf of all Lenders.
20.26 CONFIDENTIALITY. Each Lender agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as "confidential" or "secret" by the Borrower (including,
without limitation, business plans, prospective financial information,
litigation claims and other non-public information) and provided to it by the
Borrower, or by the Agent on Borrower's behalf, under this Agreement or any
other Loan Document (collectively, "Confidential Information"), and neither it
nor any of its Affiliates shall use any such Confidential Information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents, except to the extent such Confidential Information (i) was or becomes
generally available to the public other than as a result of disclosure by the
Lender, or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Lender; provided,
however, that any Lender may use such Confidential Information in the
underwriting of any other loans requested by Borrower and/or its Subsidiaries
and Affiliates or disclose such Confidential Information as follows:
(a) at the request or pursuant to any requirement of any
Governmental Authority to which the Lender is subject or in connection with an
examination of such Lender by any such Governmental Authority;
(b) pursuant to subpoena or other court process;
(c) when required to do so in accordance with the provisions
of any applicable Requirements;
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(d) to the extent reasonably required in connection with any
litigation or proceeding to which the Agent, any Lender or their respective
Affiliates may be party;
(e) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan Document;
(f) to such Lender's independent auditors and other
professional advisors;
(g) to any participant or assignee first approved by Borrower
in accordance with Section 20.13 above (provided no Event of Default shall have
occurred and be continuing), provided that such Person agrees in writing to keep
such Confidential Information confidential to the same extent required of the
Lenders hereunder; and
(h) as to any Lender, as expressly permitted under the terms
of any other document or agreement regarding confidentiality to which the
Borrower is a party or is deemed a party with such Lender.
ARTICLE 21
NO ASSIGNMENT BY BORROWER.
Without the prior approval of the Agent and the Required Lenders, Borrower
shall not assign or transfer any of its rights or obligations under any of the
Loan Documents.
ARTICLE 22
RELATIONSHIP
The relationship between the Lenders and Borrower is solely that of a
lender and borrower, and nothing contained herein or in any of the other Loan
Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lenders and
borrower.
ARTICLE 23
NOTICES
23.1 NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in Section 23.2 below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
If to Agent:
See address, telecopier number, electronic mail address and
telephone number on Schedule 1.1 attached hereto and by this
reference incorporated herein;
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with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Electronic Mail: xxxxxx@xxxxxx.xxx
If to any of the Lenders:
See address, telecopier number, electronic mail address and
telephone number on Schedule 1.1 attached hereto and by this
reference incorporated herein;
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Electronic Mail: xxxxxx@xxxxxx.xxx
If to Borrower:
WCI Communities, Inc.
Bay Colony-Gateway, Inc.
00000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Senior Vice President & Treasurer
Telephone No: (000) 000-0000
Telecopier No.: (000) 000-0000
Electronic Mail: xxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Attn: Xxxxxx Xxxxxxxx, General Counsel
Telephone No: (000) 000-0000
Telecopier No.: (000) 000-0000
Electronic Mail: xxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Web Address: xxxxxxxxxxxxxx.xxx
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With a copy to:
Xxxxxx & Xxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Belt, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Electronic Mail: xxxxx@xxxxxx-xxx.xxx
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in Section 23.2 below, shall be effective as provided in such Section
23.2.
23.2 ELECTRONIC COMMUNICATIONS. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by Agent, provided that the foregoing shall not apply to notices to any
Lender pursuant to Section 3.1 if such Lender has notified Agent that it is
incapable of receiving notices under such Article by electronic communication.
Agent or Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
23.3 CHANGE OF ADDRESS, ETC. Each of Borrower and Agent may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications
hereunder by notice to Borrower and Agent.
23.4 RELIANCE BY AGENT AND LENDERS. Agent and the Lenders shall be
entitled to rely and act upon any notices purportedly given by or on behalf of
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed
- 105 -
by any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. Borrower
shall indemnify Agent and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of Borrower. All telephonic notices to and
other telephonic communications with Agent may be recorded by Agent, and each of
the parties hereto hereby consents to such recording.
ARTICLE 24
GOVERNING LAW.
This Agreement and each of the other Loan Documents are contracts under
the Laws of the State of Florida and shall for all purposes be construed in
accordance with and governed by the Laws of said State (excluding the Laws
applicable to conflicts or choice of Law). Although the Notes are not being
amended and restated in connection with this Agreement, and currently provide
that they are governed by Georgia law, the parties intend that they shall
hereafter be governed by the law of the State of Florida.
ARTICLE 25
CONSENT TO JURISDICTION; WAIVERS.
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO
PERSONAL JURISDICTION IN THE STATE OF FLORIDA OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY
STATE (I) TO OBJECT TO JURISDICTION WITHIN THE STATE OF FLORIDA OR VENUE IN ANY
PARTICULAR FORUM WITHIN THE STATE OF FLORIDA, AND (II) TO THE RIGHT, IF ANY, TO
CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN ACTUAL FINANCIAL DAMAGES. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT AGENT OR LENDERS FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING OR EXERCISING ANY RIGHTS AGAINST BORROWER OR AGAINST ANY COLLATERAL
OR PROPERTY OF BORROWER IN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION OR
PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE STATE OF FLORIDA
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF BORROWER, AND AGENT AND LENDERS
HEREUNDER OR THE SUBMISSION HEREIN BY BORROWER TO PERSONAL JURISDICTION WITHIN
THE STATE OF FLORIDA.
BORROWER, AGENT AND LENDERS HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR IN
EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
- 106 -
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR LENDERS ENTERING INTO THIS AGREEMENT.
FURTHER, BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF AGENT OR
LENDERS, NOR THE AGENT'S OR LENDERS' COUNSEL, HAVE REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT AGENT OR LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE
OR AGENT OF AGENT OR LENDERS, NOR AGENT'S OR LENDERS' COUNSEL HAS THE AUTHORITY
TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
ARTICLE 26
HEADINGS
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
ARTICLE 27
COUNTERPARTS
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
ARTICLE 28
ENTIRE AGREEMENT.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated, except as provided in Article 29.
ARTICLE 29
CONSENTS, AMENDMENTS, WAIVERS, ETC.
Subject to the provisions of Article 20 and except as otherwise provided
in this Agreement, any term of any of the Loan Documents (other than this
Agreement) may be amended, and the performance or observance by Borrower of any
terms of this Agreement or such other Loan Documents may be waived (either
generally or in a particular instance and either retroactively or prospectively)
with, but only with, the written consent of Agent, provided however, that (i)
any modification of this Agreement requires the approval of the Required
Lenders, including Agent, and (ii) the waiver of any Event of Default shall
require the approval of the Majority Lenders. Lenders hereby authorize and
direct Agent to take any and all such actions to be taken by Agent under this
Agreement and the Loan Documents subject to the provisions of this Article 29
and of Article 20 hereof. Nothing contained in this Article 29 shall prohibit
Agent from undertaking actions in administering the Loan in a commercially
reasonable
- 107 -
manner. No waiver shall extend to or affect any obligation not expressly waived
or impair any right consequent thereon. No course of dealing or delay or
omission on the part of Agent and Lenders in exercising any right shall operate
as a waiver thereof or otherwise be prejudicial thereto. No Advance made by the
Lenders hereunder during the continuance of any Default or Event of Default
shall constitute a waiver thereof. No notice to or demand upon Borrower shall
entitle Borrower to any other or further notice or demand in similar or other
circumstances.
ARTICLE 30
TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant, agreement
and obligation of Borrower under this Agreement, the Notes and the other Loan
Documents.
ARTICLE 31
SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
ARTICLE 32
SEPARATE TRANSACTION.
Borrower hereby acknowledges and agrees that nothing in this Agreement or
the other Loan Documents shall in any way modify, amend, restrict, or otherwise
change the terms and conditions of any other contract or agreement between any
of the Lenders and Borrower, including, without limitation, the Senior Unsecured
Revolving Credit Agreement.
ARTICLE 33
SUCCESSORS AND ASSIGNS.
Whenever used herein or in the other Loan Documents, the words "Agent",
"Borrower", and "Lenders" shall be deemed to include their respective heirs,
legal representations, successors and assigns.
ARTICLE 34
SENIOR UNSECURED REVOLVING CREDIT AGREEMENT.
Borrower hereby covenants and agrees that, in the event the Senior
Unsecured Revolving Credit Agreement shall terminate or no longer be in full
force and effect prior to the payment and performance by Borrower of its
obligations hereunder, any provisions of the Senior Unsecured Revolving Credit
Agreement referred to herein as in effect immediately prior to such termination
shall for the purposes hereof continue in full force and effect as if the same
had not been terminated and the Senior Unsecured Revolving Credit Agreement
remained in full force and effect.
- 108 -
ARTICLE 35
USA PATRIOT ACT NOTICE.
Each Lender that is subject to the Act (as hereinafter defined) and Agent
(for itself and not on behalf of any Lender) hereby notifies Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow
such Lender or Agent, as applicable, to identify Borrower in accordance with the
Act.
ARTICLE 36
STATUTORY NOTICE.
Effective October 1, 2003, Section 713.3471 of the Florida Statutes
requires a lender to provide written notice to borrowers prior to making any
loan disbursement directly to the owner or jointly to the owner and any other
party, as follows:
WARNING
YOUR LENDER IS MAKING A LOAN DISBURSEMENT DIRECTLY TO YOU AS THE BORROWER, OR
JOINTLY TO YOU AND ANOTHER PARTY. TO PROTECT YOURSELF FROM HAVING TO PAY TWICE
FOR THE SAME LABOR, SERVICES, OR MATERIALS USED IN MAKING THE IMPROVEMENTS TO
YOUR PROPERTY, BE SURE THAT YOU REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN
RELEASES FROM EACH LIEN OR WHO HAS SENT YOU A NOTICE TO OWNER EACH TIME YOU MAKE
A PAYMENT TO THE CONTRACTOR.
[SIGNATURES ON THE FOLLOWING PAGE]
- 109 -
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
BORROWER:
WCI COMMUNITIES, INC., a
Delaware corporation
By:___________________________
Xxxxxx X. Xxxxxxx,
Senior Vice President
BAY COLONY-GATEWAY, INC., a
Delaware corporation
By:___________________________
Xxxxxx X. Xxxxxxx,
Senior Vice President
[EXECUTION CONTINUED ON FOLLOWING PAGES]
WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, individually and as Agent
By: ___________________________________________
Name:__________________________________________
Title:_________________________________________
[EXECUTION CONTINUED ON FOLLOWING PAGES]
BANK OF AMERICA, N.A., a national banking
association
By: __________________________________________
Name:_________________________________________
Title:________________________________________
[EXECUTION CONTINUED ON FOLLOWING PAGES]
AMSOUTH BANK, an Alabama state chartered bank
By: __________________________________________
Name:_________________________________________
Title:________________________________________
[EXECUTION CONTINUED ON FOLLOWING PAGES]
SUNTRUST BANK, a Georgia corporation
By: ________________________________
Name:_______________________________
Title:______________________________
[EXECUTION CONTINUED ON FOLLOWING PAGES]
GUARANTY BANK, a federal savings bank
By: ________________________________
Name:
Title:
[EXECUTION CONTINUED ON FOLLOWING PAGES]
BANKUNITED, F.S.B., a federal savings bank
By: _________________________________
Name:
Title:
[EXECUTION CONTINUED ON FOLLOWING PAGES]
NATIONAL CITY BANK
By: __________________________________
Name:_________________________________
Title:________________________________
[EXECUTION CONTINUED ON FOLLOWING PAGE]
KEYBANK NATIONAL ASSOCIATION,
a national banking association
By:___________________________________
Name:_________________________________
Title:________________________________
SCHEDULE 1.1
LENDERS AND COMMITMENTS
LOAN
NAME AND ADDRESS COMMITMENT PERCENTAGE
---------------- ---------------- ----------
Wachovia Bank, National Association $ 95,000,000.00 32.7586206%
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Xxx.xxxxxx@xxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Bank of America, N.A. $ 40,000,000.00 13.7931034%
000 X. XxXxxxx Xxxxxx
Mail Code: IL1-231-10-35
Xxxxxxx, Xxxxxxxx 00000
Attn: Kelley Prentiss
Xxxxxx.x.Xxxxxxxx@xxxxxxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000)000-0000
AmSouth Bank $ 30,000,000.00 10.3448276%
Feather Sound Xxxxxxxxx Xxxxxx
Xxxxxxxx 0, Xxxxx 000
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx
xxxxxx@xxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
SunTrust Bank $ 30,000,000.00 10.3448276%
00000 Xxx Xxxxxxxx Xxxx.
0xx Xxxxx
Xx. Xxxxx, Xxxxxxx 00000
Mail Code: Fl-Fort Xxxxxx-3011
Attn: Xxxxxxx X. Curran
Xxxxxxx.xxxxxx@xxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Guaranty Bank $ 30,000,000.00 10.3448276%
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxx
xxxxx.xxx@xxxxxxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
BankUnited, F.S.B. $ 25,000,000.00 8.6206897%
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
xxxxxxxx@xxxxxxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
KeyBank National Association $ 20,000,000.00 6.8965517%
0000 Xxxxxxxxx Xxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Jeff v xxxxxx@xxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
National City Bank $ 20,000,000.00 6.8965517%
Investment Real Estate-Florida
0000 X. Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Mincey
xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Total ---------------- ----------
$ 290,000,000.00 100.0%
- 2 -
EXHIBIT A
PROJECT SCHEDULES
RECORD LOAN AMOUNT
NAME OF PROJECT COUNTY STATE OWNER PROJECT ALLOCATION
--------------- ---------- ----- ------ ------------------
Veracruz at Cape Xxxxx Xxxxxxx FL BCG $ 39,811,596.00
Cambria at Hammock Dunes Flagler FL WCI $ 31,756,852.00
Grande Isle Towers III & IV at Prosperity Xxx FL WCI $ 37,600,000.00
Point at Burnt Store Marina
One Bal Harbour Miami-Dade FL WCI $ 182,267,298.00
Serano At Hammock Bay Xxxxxxx FL $ 37,051,826.00
Mosaic, Miami Beach Miami-Dade FL $ 46,471,457.00
One Singer Island Palm Beach FL $ 18,008,704.00
Resort at Singer Island Palm Beach FL $ 116,427,136.00
Costa Verano, Jacksonville Beach Xxxxx FL $ 31,936,224.00
San Xxxxxx at Lost Key Escambia FL $ 11,624,861.00
Santa Xxxxx at Lost Key Escambia FL $ 11,682,307.00
LaSalbadora at Lost Key Escambia FL $ 12,238,644.00
TOTAL: $ 576,876,904.00
================
INDEX OF INFORMATION PROVIDED FOR EACH PROJECT:
PART DESCRIPTION
---- -----------
I Description of Improvements
II Contractor
III Architect
IV Escrow Account
V Requirements for Escrow Deposits
VI Construction Schedule
VII Pro Forma Draw Schedule
VIII Total Prices
IX Project Budget
X Sales Contracts
XI Qualifications to Representations and Warranties
XII Project Approvals Needed
XIII Project Approvals Obtained
XIV Representations and Warranties Regarding Sales Contracts and Escrow
Deposits
XV Description of Plans and Specifications
TABLE OF CONTENTS
PAGE NO.
ARTICLE 1 DEFINITIONS AND RULES OF INTERPRETATION...................................... 2
1.1 DEFINITIONS.......................................................... 2
1.2 RULES OF INTERPRETATION.............................................. 23
1.3 ACCOUNTING TERMS..................................................... 24
1.4 ROUNDING............................................................. 24
1.5 TIMES OF DAY......................................................... 25
ARTICLE 2 AGREEMENT TO MAKE ADVANCES: LIMITATIONS...................................... 25
2.1 AGREEMENT TO MAKE ADVANCES........................................... 25
2.2 LOAN AMOUNT PROJECT ALLOCATIONS...................................... 25
2.3 UNUSED FEE........................................................... 26
2.4 INCREASE IN TOTAL COMMITMENT......................................... 26
2.5 ADDING CONDOMINIUM PROJECTS.......................................... 27
2.6 REDUCTION OF LOAN AMOUNT............................................. 31
2.7 PROJECT BUDGETS...................................................... 31
2.8 AMOUNT OF ADVANCES................................................... 31
2.9 QUALITY OF WORK...................................................... 32
2.10 COST OVERRUNS; CHANGE ORDERS......................................... 32
2.11 CONTINGENCY RESERVES................................................. 32
2.12 STORED MATERIALS; DEPOSITS........................................... 33
ARTICLE 3 MAKING THE ADVANCES.......................................................... 33
3.1 DRAW REQUEST......................................................... 33
3.2 NOTICE, FREQUENCY, AND AMOUNT OF ADVANCES; EFFECT OF DRAW REQUEST.... 34
3.3 DEPOSIT OF FUNDS ADVANCED............................................ 34
3.4 ADVANCES TO TITLE INSURANCE COMPANY OR TO OTHERS..................... 35
3.5 ADVANCES DO NOT CONSTITUTE A WAIVER.................................. 35
ARTICLE 4 THE NOTES; INTEREST; MATURITY AND PREPAYMENT................................. 35
4.1 THE NOTES............................................................ 35
4.2 THE RECORD........................................................... 36
4.3 INTEREST ON ADVANCES................................................. 36
4.4 MATURITY............................................................. 36
- i -
4.5 REPAYMENTS........................................................... 36
4.6 EXTENSION OF MATURITY DATE........................................... 36
4.7 INTEREST RATE SELECTION.............................................. 39
4.8 CONVERSION OF ADVANCES............................................... 39
4.9 INTEREST PERIOD SELECTION; ALTERNATIVE INTEREST RATES, ETC........... 40
4.10 ILLEGALITY........................................................... 40
4.11 INDEMNIFICATION...................................................... 40
4.12 LATE CHARGE.......................................................... 41
4.13 INTEREST AFTER DEFAULT............................................... 41
4.14 INTEREST NOT TO EXCEED MAXIMUM ALLOWABLE AMOUNTS..................... 42
4.15 UNCONDITIONAL LIABILITY.............................................. 42
4.16 INABILITY TO DETERMINE RATES......................................... 42
ARTICLE 5 PAYMENTS AND COMPUTATIONS; CAPITAL ADEQUACY.................................. 43
5.1 FUNDS FOR PAYMENTS................................................... 43
5.2 COMPUTATIONS......................................................... 43
5.3 ADDITIONAL COSTS..................................................... 44
5.4 CAPITAL ADEQUACY..................................................... 45
5.5 RESERVES ON EURODOLLAR RATE ADVANCES................................. 45
ARTICLE 6 COLLATERAL SECURITY; GUARANTIES.............................................. 46
6.1 COLLATERAL........................................................... 46
6.2 GUARANTY............................................................. 46
6.3 PAYMENT OF PROCEEDS; RELEASE OF COLLATERAL........................... 46
ARTICLE 7 CERTAIN RIGHTS OF AGENT...................................................... 47
7.1 RIGHT TO RETAIN THE CONSTRUCTION INSPECTOR........................... 47
7.2 RIGHT TO OBTAIN APPRAISALS........................................... 48
7.3 CHARGES AGAINST LOAN CHECKING ACCOUNT................................ 48
ARTICLE 8 REPRESENTATIONS AND WARRANTIES............................................... 48
8.1 ORGANIZATION; AUTHORITY; ETC......................................... 48
8.2 TITLE TO PROJECTS.................................................... 49
8.3 FINANCIAL STATEMENTS................................................. 49
8.4 NO MATERIAL ADVERSE CHANGE........................................... 49
8.5 FRANCHISES, PATENTS, COPYRIGHTS, ETC................................. 49
8.6 LITIGATION........................................................... 49
- ii -
8.7 RESTRICTIONS, JUDGMENTS, CONTRACTS, ETC.............................. 50
8.8 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC......................... 50
8.9 TAX STATUS........................................................... 50
8.10 NO EVENT OF DEFAULT.................................................. 50
8.11 INVESTMENT COMPANY ACT............................................... 50
8.12 ABSENCE OF FINANCING STATEMENTS, ETC................................. 50
8.13 SETOFF, ETC.......................................................... 50
8.14 ERISA COMPLIANCE..................................................... 51
8.15 ENVIRONMENTAL COMPLIANCE............................................. 51
8.16 SUBSIDIARIES......................................................... 53
8.17 AVAILABILITY OF UTILITIES............................................ 53
8.18 ACCESS............................................................... 53
8.19 CONDITION OF PROJECTS................................................ 53
8.20 COMPLIANCE WITH REQUIREMENTS......................................... 53
8.21 PROJECT APPROVALS.................................................... 53
8.22 CONSTRUCTION CONTRACTS............................................... 54
8.23 ARCHITECTS' CONTRACTS................................................ 54
8.24 OTHER CONTRACTS...................................................... 54
8.25 REAL PROPERTY TAXES; SPECIAL ASSESSMENTS............................. 54
8.26 VIOLATIONS........................................................... 54
8.27 PLANS AND SPECIFICATIONS............................................. 54
8.28 PROJECT BUDGETS...................................................... 54
8.29 FEASIBILITY.......................................................... 55
8.30 SALES CONTRACTS; ESCROW DEPOSITS..................................... 55
8.31 DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES
COMPLIANCE........................................................... 55
8.32 COMMON ENTERPRISE AND CONSIDERATION.................................. 55
ARTICLE 9 AFFIRMATIVE COVENANTS........................................................ 55
9.1 PUNCTUAL PAYMENT..................................................... 55
9.2 COMMENCEMENT, PURSUIT AND COMPLETION OF CONSTRUCTION................. 55
9.3 CORRECTION OF DEFECTS................................................ 56
9.4 MAINTENANCE OF OFFICE................................................ 56
9.5 RECORDS AND ACCOUNTS................................................. 56
- iii -
9.6 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION................... 56
9.7 NOTICES.............................................................. 58
9.8 EXISTENCE; MAINTENANCE OF PROPERTIES................................. 59
9.9 INSURANCE; BONDS..................................................... 60
9.10 TAXES; LIENS......................................................... 61
9.11 INSPECTION OF PROJECTS AND BOOKS..................................... 61
9.12 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS............... 61
9.13 PROJECT APPROVALS.................................................... 61
9.14 USE OF PROCEEDS...................................................... 62
9.15 INSUFFICIENCY OF LOAN PROCEEDS....................................... 62
9.16 SALES CONTRACTS...................................................... 62
9.17 LABORERS, SUBCONTRACTORS AND MATERIALMEN............................. 63
9.18 FURTHER ASSURANCE OF TITLE........................................... 63
9.19 PUBLICITY............................................................ 63
9.20 SIGN REGARDING CONSTRUCTION FINANCING................................ 63
9.21 FURTHER ASSURANCES................................................... 63
9.22 ESCROW DEPOSITS...................................................... 64
9.23 PROJECT COSTS........................................................ 65
9.24 FINANCIAL COVENANTS.................................................. 65
ARTICLE 10 NEGATIVE COVENANTS.......................................................... 65
10.1 RESTRICTION ON LEASES AND SALES CONTRACTS............................ 65
10.2 RESTRICTION ON CHANGE ORDERS......................................... 67
10.3 RESTRICTION ON EASEMENTS, COVENANTS AND RESTRICTIONS................. 67
10.4 RESTRICTION ON LIENS, ETC............................................ 67
10.5 MERGER, AND CONSOLIDATION AND DISPOSITION OF ASSETS.................. 67
10.6 SALE AND LEASEBACK................................................... 68
10.7 COMPLIANCE WITH ENVIRONMENTAL LAWS................................... 68
10.8 DISTRIBUTIONS........................................................ 68
10.9 SUBSIDIARIES......................................................... 68
10.10 NO AMENDMENTS, TERMINATIONS OR WAIVERS............................... 69
ARTICLE 11 CONDITIONS TO INITIAL ADVANCE............................................... 69
11.1 LOAN DOCUMENTS....................................................... 69
11.2 CONSTRUCTION DOCUMENTS............................................... 69
- iv -
11.3 SUBCONTRACTS......................................................... 69
11.4 SALES CONTRACTS...................................................... 69
11.5 OTHER CONTRACTS...................................................... 70
11.6 CERTIFIED COPIES OF ORGANIZATIONAL DOCUMENTS......................... 70
11.7 RESOLUTIONS.......................................................... 70
11.8 INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS........................... 70
11.9 VALIDITY OF LIENS.................................................... 70
11.10 AMERICANS WITH DISABILITIES ACT...................................... 70
11.11 DELIVERIES........................................................... 71
11.12 NOTICES.............................................................. 73
11.13 PERFORMANCE; NO DEFAULT.............................................. 73
11.14 REPRESENTATIONS AND WARRANTIES....................................... 73
11.15 PROCEEDINGS AND DOCUMENTS............................................ 73
ARTICLE 12 CONDITIONS OF SUBSEQUENT ADVANCES........................................... 73
12.1 PRIOR CONDITIONS SATISFIED........................................... 73
12.2 PERFORMANCE; NO DEFAULT.............................................. 74
12.3 REPRESENTATIONS AND WARRANTIES....................................... 74
12.4 NO DAMAGE............................................................ 74
12.5 RECEIPT BY AGENT..................................................... 74
ARTICLE 13 EVENTS OF DEFAULT AND REMEDIES.............................................. 75
13.1 EVENTS OF DEFAULT.................................................... 75
13.2 TERMINATION OF COMMITMENT AND ACCELERATION........................... 78
13.3 COMPLETION OF PROJECTS............................................... 79
13.4 OTHER REMEDIES....................................................... 81
13.5 DISTRIBUTION OF COLLATERAL PROCEEDS.................................. 81
13.6 POWER OF ATTORNEY.................................................... 82
13.7 WAIVERS.............................................................. 82
ARTICLE 14 SETOFF...................................................................... 82
ARTICLE 15 EXPENSES.................................................................... 82
ARTICLE 16 INDEMNIFICATION............................................................. 83
ARTICLE 17 AGENT....................................................................... 85
17.1 EMPLOYEES AND AGENTS................................................. 85
17.2 NO LIABILITY......................................................... 85
- v -
17.3 REMOVAL OF AGENT..................................................... 85
ARTICLE 18 RIGHTS OF THIRD PARTIES..................................................... 86
18.1 NO THIRD PARTY BENEFICIARY........................................... 86
18.2 SUBORDINATION OF THIRD-PARTY CONTRACT................................ 86
ARTICLE 19 SURVIVAL OF COVENANTS....................................................... 87
ARTICLE 20 AGENT AND LENDERS RELATIONSHIP.............................................. 87
20.1 APPOINTMENT.......................................................... 87
20.2 POWERS............................................................... 88
20.3 ADVANCES............................................................. 88
20.4 PAYMENTS............................................................. 89
20.5 SHARING.............................................................. 89
20.6 LOAN DOCUMENTS AND COLLATERAL........................................ 90
20.7 NO INTEREST.......................................................... 90
20.8 STANDARD OF CARE..................................................... 90
20.9 DUTIES AND OBLIGATIONS............................................... 90
20.10 NOTICE OF EVENT OF DEFAULT, EXERCISE OF REMEDIES, FORECLOSURE, ETC... 91
20.11 CREDIT DECISION...................................................... 95
20.12 COST AND EXPENSE SHARING............................................. 95
20.13 TRANSFERS............................................................ 96
20.14 LENDER'S DEFAULT..................................................... 97
20.15 PERFORMANCE THROUGH REPRESENTATIVES.................................. 98
20.16 NO RELIANCE BY OTHERS................................................ 98
20.17 LEGAL FEES........................................................... 99
20.18 TERMINATION.......................................................... 99
20.19 LITIGATION UNDER LOAN DOCUMENTS...................................... 99
20.20 WITHHOLDING TAX...................................................... 99
20.21 NO REPRESENTATIONS................................................... 101
20.22 INDEMNITY............................................................ 101
20.23 AGENT AS LENDER...................................................... 101
20.24 RESIGNATION AND REMOVAL OF AGENT..................................... 101
20.25 BANKRUPTCY........................................................... 102
20.26 CONFIDENTIALITY...................................................... 102
ARTICLE 21 NO ASSIGNMENT BY BORROWER................................................... 103
- vi -
ARTICLE 22 RELATIONSHIP................................................................ 103
ARTICLE 23 NOTICES..................................................................... 103
23.1 NOTICES GENERALLY.................................................... 103
23.2 ELECTRONIC COMMUNICATIONS............................................ 105
23.3 CHANGE OF ADDRESS, ETC............................................... 105
23.4 RELIANCE BY AGENT AND LENDERS........................................ 105
ARTICLE 24 GOVERNING LAW............................................................... 106
ARTICLE 25 CONSENT TO JURISDICTION; WAIVERS............................................ 106
ARTICLE 26 HEADINGS.................................................................... 107
ARTICLE 27 COUNTERPARTS................................................................ 107
ARTICLE 28 ENTIRE AGREEMENT............................................................ 107
ARTICLE 29 CONSENTS, AMENDMENTS, WAIVERS, ETC.......................................... 107
ARTICLE 30 TIME OF THE ESSENCE......................................................... 108
ARTICLE 31 SEVERABILITY................................................................ 108
ARTICLE 32 SEPARATE TRANSACTION........................................................ 108
ARTICLE 33 SUCCESSORS AND ASSIGNS...................................................... 108
ARTICLE 34 SENIOR UNSECURED REVOLVING CREDIT AGREEMENT................................. 108
ARTICLE 35 USA PATRIOT ACT NOTICE...................................................... 109
ARTICLE 36 STATUTORY NOTICE............................................................ 109
- vii -
EXHIBITS AND SCHEDULES TO CONSTRUCTION LOAN AGREEMENT
Schedule 1.1 - Designation of Lenders
Exhibits
A Project Schedules
I Description of Improvements
II Contractor
III Architect
IV Escrow Account
V Requirements for Escrow Deposits
VI Construction Schedule
VII Pro Forma Draw Schedule
VIII Total Prices
IX Project Budget
X Sales Contracts
XI Qualifications to Representations and Warranties
XII Project Approvals Needed
XIII Project Approvals Obtained
XIV Representations and Warranties Regarding Sales
Contracts and Escrow Deposits
XV Description of Plans and Specifications
B Borrower's Requisition for Advances
C Borrower's Request to Add Proposed Project
D Payment Requisition and Lien Affidavit - Contractor
E Payment Requisition and Lien Affidavit - Borrower
F Affidavit and Partial Waiver of Lien
G Borrowing Base Report
H Draw Request Summary
I Compliance Certificate
J Post-Closing Items
- viii -
EXHIBIT "B"
FORM OF BORROWER'S REQUISITION FOR ADVANCES
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Re: Borrower: WCI Communities, Inc. and Bay Colony-Gateway, Inc.
Requisition #: #__________________
Requisition Amount: $__________________
Ladies and Gentlemen:
Pursuant to the terms of our Second Consolidated, Amended and Restated Revolving
Credit Construction Loan Agreement, dated as of December 31, 2004 ("Loan
Agreement"), the undersigned hereby requests and authorizes Wachovia Bank,
National Association, as Agent ("Lender") to advance Loan proceeds from the
above-referenced Loan and disburse the Requisition Amount specified above to
fund costs associated with the construction of the Projects. Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
In order to induce Lender to make the requested advance and with knowledge that
Lender will rely hereon, the undersigned hereby certifies, represents and
warrants to Lender as follows:
1. No changes have been made in the Plans and Specifications which require
and have not received the prior approval of (a) Lender under the terms of
the Loan Agreement, (b) any Governmental Authority having jurisdiction
over the Projects, or (c) any other parties from whom such approval is
required.
2. To Borrower's Knowledge, construction of the Improvements to date has been
performed in accordance with the Plans and Specifications.
3. As of the date hereof, Borrower has executed change orders increasing the
cost of the Improvements for _______________ by $____________________ in
the aggregate, and has received any and all necessary approvals from
Lender.
4. Funding by Lender of this requisition shall be in accordance with and
subject to Sections 2, 3 and 12 of the Loan Agreement.
5. All monies requisitioned by Borrower for construction and disbursed by
Lender under previously approved requisitions have been paid to the
Contractors and, to Borrower's Knowledge, all subcontractors, vendors and
suppliers; all other funds requisitioned by Borrower and disbursed by
Lender under previously approved requisitions have been expended for the
purpose for which they were requisitioned.
B-1
6. The representations and warranties set forth in Article 8 of the Loan
Agreement are true and correct as of the date hereof with the same effect
as if made on this date (except to the extent of changes resulting from
transactions contemplated or permitted by the Loan Documents and changes
occurring in the ordinary course of business that either individually or
in the aggregate do not result in a Material Adverse Change; provided,
however, that (i) the representations and warranties contained in Sections
8.3 and 8.4 of the Loan Agreement shall refer back to the date of the most
recent audited financial statements of Borrower as of the Drawdown Date
rather than December 31, 2003; and (ii) the representations and warranties
contained in Section 8.30 of the Loan Agreement shall refer back to the
date of the most recent sales report for the Projects provided by Borrower
pursuant to Section 9.6.4 of the Loan Agreement).
7. Borrower is not in default of any of its obligations to Lender or any
other party in connection with the Projects, including, without
limitation, its obligations under the terms of the Loan Documents.
8. Borrower has not received notice from or been informed by any Governmental
Authority, the Construction Inspector or any Architect, of any alleged
deficiencies in the work performed to date or any deviation of such work
from any of the Plans and Specifications, or notice of any assertion of a
claim that the Improvements are not being constructed in accordance with
all applicable legal requirements.
9. With the exception of any Permitted Liens, there are no liens against any
portion of the Projects or any other asset of Borrower except for liens of
which Borrower has notified Lender and which have been bonded or are
otherwise being contested as permitted in the Loan Documents.
10. The Loan Documents are in full force and effect and Borrower asserts no
failure on the part of Lender to perform its obligations under the Loan
Documents.
11. Any notice(s) required under Florida Statute Section 713.3471 has/have
been given.
12. This Requisition is in identical form to the certificate which is annexed
to the Loan Agreement as Exhibit B and that there have been no changes or
modifications thereto except (a) the blanks appearing in Section 3 hereof
has been completed, and (b) to the extent the form of this Requisition has
been modified to reflect the matters set forth on Schedule A attached
hereto and made a part hereof.
13. The funds now requested for the Improvements are to be used for the sole
purpose of paying for materials used and/or labor or services performed in
the construction of the Improvements for the Projects, and all related
lien waivers will be submitted to Lender.
14. The undisbursed amount for the Loan is sufficient to satisfactorily
complete the construction of the Improvements free and clear of all liens
and encumbrances, except Lender's first mortgage lien and the Permitted
Liens. There have been no instruments filed of record and no incident has
occurred, to the date of this advance, which in any way disturbs the
priority of Agent's first mortgage lien on the encumbered property; and
there exists no default or breach of any kind whatsoever in connection
with the Loan Agreement, the Security
B-2
Instrument, or the permanent commitment covering the structure, if
applicable, for which this advance is sought.
In support of this requisition, the undersigned has attached the updated Project
Budgets which reflect the request for disbursement of Loan proceeds against the
appropriate line items. Also included are lien waivers and other items, as
required under the Loan Agreement.
Effective October 1, 2003, Section 713.3471 of the Florida Statutes requires a
lender to provide written notice to borrowers prior to making any loan
disbursement directly to the owner or jointly to the owner and any other party,
as follows:
WARNING
YOUR LENDER IS MAKING A LOAN DISBURSEMENT DIRECTLY TO YOU AS THE BORROWER, OR
JOINTLY TO YOU AND ANOTHER PARTY. TO PROTECT YOURSELF FROM HAVING TO PAY TWICE
FOR THE SAME LABOR, SERVICES, OR MATERIALS USED IN MAKING THE IMPROVEMENTS TO
YOUR PROPERTY, BE SURE THAT YOU REQUIRE YOUR CONTRACTOR TO GIVE YOU LIEN
RELEASES FROM EACH LIEN OR WHO HAS SENT YOU A NOTICE TO OWNER EACH TIME YOU MAKE
A PAYMENT TO THE CONTRACTOR.
Borrower hereby acknowledges receipt of such notice required by Section 713.3471
of the Florida Statutes.
The undersigned hereby certifies that the undersigned is authorized on behalf of
Borrower to request this Loan advance and authorizes Lender to disburse funds as
requested above, this ____ day of , 200_.
WCI COMMUNITIES, INC.
By: ____________________
Name: ____________________
Title: ____________________
BAY COLONY-GATEWAY, INC.
By: ____________________
Name: ____________________
Title: ____________________
B-3
EXHIBIT "C"
FORM OF BORROWER'S REQUEST TO ADD PROPOSED PROJECT
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Re: Borrower: WCI Communities, Inc. and Bay Colony-Gateway, Inc.
Proposed Project to be added: __________________
__________________
Ladies and Gentlemen:
Pursuant to Section 2.5 of our Second Consolidated, Amended and Restated
Revolving Credit Construction Loan Agreement, dated as of December 31, 2004
("Loan Agreement"), the undersigned hereby requests the addition of Proposed
Project to the above-referenced Loan. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Loan Agreement.
In order to induce Lender to add the Proposed Project, as defined below, and
with knowledge that Lenders will rely hereon, the undersigned hereby certifies,
represents and warrants to Lender as follows:
1. Description and location of Proposed Project: ____________________________
__________________________________________________________________________
__________________________________________________________________________
2. Any reborrowing or reallocation of the Loan Amount shall be for the
purpose of financing the Proposed Project described above.
3. All monies requisitioned by Borrower for construction and disbursed by
Lenders under previously approved requisitions have been paid to the
Contractors and, to Borrower's best knowledge, all subcontractors, vendors
and suppliers; all other funds requisitioned by Borrower and disbursed by
Lenders under previously approved requisitions have been expended for the
purpose for which they were requisitioned.
4. The representations and warranties set forth in Article 8 of the Loan
Agreement are true and correct as of the date hereof with the same effect
as if made on this date (except to the extent of changes resulting from
transactions contemplated or permitted by the Loan Documents and changes
occurring in the ordinary course of business that either individually or
in the aggregate do not result in a Material Adverse Change; provided,
however, that (i) the representations and warranties contained in Sections
8.3 and 8.4 of the Loan Agreement shall
C-1
refer back to the date of the most recent audited financial statements of
Borrower as of the Drawdown Date rather than December 31, 2003 ; and (ii)
the representations and warranties contained in Section 8.30 of the Loan
Agreement shall refer back to the date of the most recent sales report for
the Projects provided by Borrower pursuant to Section 9.6.4 of the Loan
Agreement).
5. Borrower is not in default of any of its obligations to Lenders or any
other party in connection with the Projects, including, without
limitation, its obligations under the terms of the Loan Documents.
6. The Loan Documents are in full force and effect and Borrower asserts no
failure on the part of Lenders to perform their obligations under the Loan
Documents.
7. This Request is in identical form to the certificate which is annexed to
the Loan Agreement as Exhibit C and that there have been no changes or
modifications thereto except (a) the blanks appearing in Section 1 hereof
has been completed, and (b) to the extent the form of this Request has
been modified to reflect the matters set forth on Schedule A attached
hereto and made a part hereof.
8. The funds now requested for the Improvements are to be used for the sole
purpose of paying for materials used and/or labor or services performed in
the construction of Improvements for the Projects, and all related lien
waivers and/or paid bills will be submitted to Agent.
The undersigned hereby certifies that the undersigned is authorized on behalf of
Borrower to request this Loan advance and authorizes Lenders to disburse funds
as requested above, this ____ day of , 200_.
WCI COMMUNITIES, INC.
By: ____________________
Name: ____________________
Title: ____________________
BAY COLONY-GATEWAY, INC.
By: ____________________
Name: ____________________
Title: ____________________
C-2
EXHIBIT "D"
FORM OF PAYMENT REQUISITION AND LIEN AFFIDAVIT - CONTRACTOR
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Borrower: WCI Communities, Inc. and Bay Colony-Gateway, Inc.
Property Address:
Stage of Construction:
The undersigned certifies that construction of the properties encumbered by the
$290,000,000 loan from Wachovia Bank, National Association, as Agent ("Agent")
and certain other lenders, has progressed to the extent indicated in the
following summary. Borrower, therefore, has requested an advance of funds as
follows:
DISBURSEMENT REQUESTED
Funds
LOt/Block advanced to
Metes / Contract Requested % Work* date including
Bounds Amount Draw No. Amount Completed this advance
--------- -------- -------- --------- --------- -------------
_________ $_______ ________ $________ _________ $_____________
*to be verified by Bank representative
NOTE: An inspection by Agent must be made prior to each advance on any type
loan. Agent reserves the right to deduct from any advance, accrued interest
and/or any other charges due.
A F F I D A V I T
STATE OF FLORIDA
COUNTY OF _________________
BEFORE ME, the undersigned authority duly authorized to administer oaths in the
State of Florida, personally appeared ________________________________ who,
being by me first duly sworn, deposes and says:
1. that ___________________________ is the Builder of the improvements now
being constructed upon that certain real estate in _______________County,
Florida described above;
D-1
2. that _/he is the _______________________ of said corporation and makes
this affidavit as such officer and individually;
3. that (a) the funds now requested for improvements are to be used for the
sole purpose of paying for materials used and/or labor or services
performed in the construction of improvements on the property described
above, and all related lien waivers and/or paid bills will be submitted to
Agent; (b) all costs of construction completed prior to this advance have
been paid in full and all related lien waivers and/or paid bills have been
received by Agent; (c) the undisbursed amount of the construction costs
set forth on the Budget as to the specific Project is sufficient to
satisfactorily complete the construction of the Improvements on the
property.
4. that _/he approves the disbursement of the funds as set forth above and
acknowledges receipt thereof; and
5. this affidavit is made to induce the Lenders to make the disbursement
hereby applied for, knowing that it relies hereon, and with knowledge of
the statutes of the State of Florida relating to false affidavits and the
penalties provided therefor.
FURTHER AFFIANT SAYETH NOT.
___________________________
Contractor
SWORN to and subscribed before me this ______ day of ______________________ ,
200_. Personally known to me or has produced _________________________ as
identification.
My commission expires: ______________ __________________________
Notary Public
I/WE HEREBY AUTHORIZE FLEET NATIONAL BANK, AS AGENT, TO DISBURSE FUNDS AS
REQUESTED ABOVE.
"CONTRACTOR"
Date: ________________ By: _________________
Name: _______________
Title: ______________
Address of Contractor:
_______________________________
_______________________________
_______________________________
D-2
EXHIBIT "E"
FORM OF PAYMENT REQUISITION AND LIEN AFFIDAVIT - BORROWER
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Borrower: WCI Communities, Inc. and Bay Colony-Gateway, Inc.
Property Address: _____________________________________________________
Stage of Construction: _____________________________________________________
The undersigned certifies that construction of the properties encumbered by the
$290,000,000 loan from Wachovia Bank, National Association, as Agent ("Agent")
and certain other lenders, has progressed to the extent indicated in the
following summary. Borrower, therefore, has requested an advance of funds as
follows:
Funds
Lot/Block advanced to
Metes / Contract Requested % Work* date including
Bounds Amount Draw No. Amount Completed this advance
--------- -------- -------- --------- --------- -------------
_________ $_______ ________ $________ _________ $_____________
*to be verified by Bank representative
NOTE: An inspection by Agent must be made prior to each advance on any type
loan. Agent reserves the right to deduct from any advance, accrued interest
and/or any other charges due.
A F F I D A V I T
STATE OF FLORIDA
COUNTY OF _________________
BEFORE ME, the undersigned authority duly authorized to administer oaths in the
State of Florida, personally appeared ________________________________ who,
being by me first duly sworn, deposes and says:
1. that WCI Communities, Inc. is the Owner of the improvements now being
constructed upon that certain real estate in ______________County, Florida
described above;
2. that _/he is the _______________________ of said corporation and makes
this affidavit as such officer and individually;
E-1
3. that (a) the funds now requested for improvements are to be used for the
sole purpose of paying for materials used and/or labor or services
performed in the construction of improvements on the property described
above, and all related lien waivers and/or paid bills will be submitted to
Agent; (b) all costs of construction completed prior to this advance have
been paid in full and all related lien waivers and/or paid bills have been
received by Agent; (c) the undisbursed amount of the loan is sufficient to
satisfactorily complete the construction of the proposed structure, if
applicable, on the property, free and clear of all liens and encumbrances,
except Agent's first mortgage lien; (d) there have been no instruments
filed of record and no incident has occurred, to the date of this advance,
which in any way disturbs the priority of Agent's first mortgage lien on
the encumbered property and the Permitted Liens; (e) there exists no
default or breach of any kind whatsoever in connection with the Second
Consolidated, Amended and Restated Revolving Credit Construction Loan
Agreement, the Security Instrument and Security Agreement, or the
permanent commitment covering the structure, if applicable, for which this
advance is sought;
4. that _/he approves the disbursement of the funds as set forth above and
acknowledges receipt thereof; and
5. this affidavit is made to induce the Lenders to make the disbursement
hereby applied for, knowing that it relies hereon, and with knowledge of
the statutes of the State of Florida relating to false affidavits and the
penalties provided therefor.
FURTHER AFFIANT SAYETH NOT.
_______________________
Owner
SWORN to and subscribed before me this ______ day of _______________, ______.
Personally known to me or has produced ______________________________________ as
identification.
My commission expires: ___________________ _____________________
Notary Public
I/WE HEREBY AUTHORIZE FLEET NATIONAL BANK, AS AGENT, TO DISBURSE FUNDS AS
REQUESTED ABOVE.
BORROWER:
WCI COMMUNITIES, INC.
BY: _______________________________
Title: ____________________________
E-2
BAY COLONY-GATEWAY, INC.
BY: _______________________________
Title: ____________________________
THE UNDERSIGNED CERTIFIES that the improvements have reached the state of
construction required by the Second Consolidated, Amended and Restated Revolving
Credit Construction Loan Agreement, and that this Payment Requisition is hereby
approved for payment.
Date: _________________ __________________________________________
for Wachovia Bank, National Association,
as Agent
E-3
EXHIBIT "F"
FORM OF AFFIDAVIT AND PARTIAL WAIVER OF LIEN
STATE OF FLORIDA Date:_________________________
COUNTY OF ____________________
OWNER: WCI Communities, Inc. / Bay Colony-Gateway, Inc.
CONTRACTOR: ________________________
We, the undersigned owner, contractor, subcontractor, materialman or laborer,
having performed labor or furnished material or services in construction,
alteration or improvement of the building or buildings located at:
LEGAL DESCRIPTION: _______________, __________________, County, Florida
STREET ADDRESS: ____________________________________, ____________, FL _____
Notice of Commencement recorded on _____________________________, in Official
Records Book ______ at Page _____ of the Public Records of County, Florida, do
hereby, in consideration of the payment to us of the sums set opposite our
names, release and discharge any claim, lien or otherwise, which we might have
against the above-described property, having been paid in full to the date of
this Affidavit and Waiver of Lien, and all parties performing labor, furnishing
material or services on the site of improvement at our order or request have
been paid in full as of the date set forth above. We do hereby release,
discharge and waive any claim, lien or otherwise, in consideration of receipt of
payment of the below amount.
DESCRIPTION OF WORK, SERVICES OR MATERIAL FURNISHED:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
AMOUNT: LIENOR:
$_________________________ _____________________________
Title:_______________________
_____________________________
(Witness)
_____________________________
(Witness)
X-0
XXXXX XX XXXXXXX
XXXXXX OF _____________
Sworn to and subscribed before me, the undersigned authority, this ____
day of _____________, ______. Personally known to me or has produced
___________________ ________________________ as identification.
______________________
Notary Public
My commission expires:
F-2
EXHIBIT "G"
FORM OF BORROWING BASE REPORT
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to that certain Second Consolidated, Amended and
Restated Revolving Credit Construction Loan Agreement dated as of December 31,
2004, as from time to time in effect (the "Loan Agreement") among WCI
Communities, Inc. ("WCI"), Bay Colony-Gateway, Inc. ("BCG") (WCI and BCG
collectively herein, the "Borrower"), Wachovia Bank, National Association, for
itself and as Agent ("Agent"), and the other Lenders from time to time parties
thereto ("Lenders"). Terms defined in the Loan Agreement and not otherwise
defined herein are used herein as defined in the Loan Agreement. The undersigned
hereby certifies on behalf of Borrower as follows:
1. Pursuant to the Loan Agreement, Borrower is furnishing to you
the attached calculation of the Borrowing Base Report, which
sets forth the Outstanding Advances and the Borrowing Base
assets, including, as applicable, the Adjusted Project Costs,
the Sold Units and the Unsold Units.
2. To the best knowledge of the undersigned officer, the
information contained on the attached Borrowing Base
calculation sheets is true and correct in all respects and
does not omit any material fact.
3. The undersigned officer has caused the provisions of the Loan
Agreement to be reviewed and has no knowledge of any Default
or Event of Default [Note: If signer does have knowledge of
any Default or Event of Default, the form of certificate
should be revised to specify the Default or Event of Default,
the nature thereof, the actions taken, being taken or proposed
to be taken by Borrower with respect thereto in order to cure
such Default or Event of Default and the time period required
to cure such Default or Event of Default.]
This certificate is submitted in compliance with the requirements of
Section [3.1.4], [9.6.5] or[ 11.11.17] of the Loan Agreement. The undersigned
officer of Borrower is a Responsible Officer.
G-1
IN WITNESS WHEREOF, WCI and BCG have hereunto set their hands and seals
this ____ day of ___________, 200__.
WCI COMMUNITIES, INC., a Delaware
corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
BAY COLONY-GATEWAY, INC., a
Delaware corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
G-2
EXHIBIT "H"
DRAW REQUEST SUMMARY
[TO BE INSERTED MANUALLY]
H-1
EXHIBIT "I"
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date:
_________________________
Wachovia Bank, National Association, as Agent
0000 Xxxxxxx Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Ladies and Gentlemen:
Reference is made to that certain Second Consolidated, Amended and Restated
Revolving Credit Construction Loan Agreement dated as of December 31, 2004, as
from time to time in effect (the "Loan Agreement") among WCI Communities, Inc.
("WCI"), Bay Colony-Gateway, Inc. ("BCG") (WCI and BCG collectively herein, the
"Borrower"), Wachovia Bank, National Association, for itself and as Agent
("Agent"), and the other Lenders from time to time parties thereto ("Lenders").
Terms defined in the Loan Agreement and not otherwise defined herein are used
herein as defined in the Loan Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the _______________ of WCI, and that, as such he/she is authorized to
execute and deliver this Certificate to the Agent on the behalf of the Borrower,
and that:
[Use following paragraph 1 for Fiscal Year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 9.6.1 of the Loan Agreement for the Fiscal Year
of WCI and its Subsidiaries ended as of the above date, together with the report
and opinion of an independent certified public accountant required by such
section.
[Use following paragraph 1 for Fiscal Quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 9.6.2 of the Loan Agreement for the Fiscal Quarter of WCI
and its Subsidiaries ended as of the above date. Such financial Statements
fairly present the financial condition, results of operations and cash flows of
WCI and its Subsidiaries in accordance with GAAP as at such date and for such
period, subject only to normal year-end audit adjustments and the absence of
footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Loan
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
I-1
3. A review of the activities of the Borrower during such fiscal period has
been made under the supervision of the undersigned with a view to determining
whether during such fiscal period the Borrower performed and observed all its
Obligations under the Loan Documents, and
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED AND
THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The representations and warranties of the Borrower contained in Article 8
of the Loan Agreement, and any representations and warranties of the Borrower or
any Guarantor that are contained in any document furnished at any time under or
in connection with the Loan Documents, are true and correct on and as of the
date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that, for purposes of this Compliance
Certificate, (i) the representations and warranties contained in Sections 8.3
and 8.4 of the Loan Agreement shall refer back to the date of the most recent
audited financial statements of Borrower; and (ii) the representations and
warranties contained in Section 8.30 of the Loan Agreement shall refer back to
the date of the most recent sales report for the Projects provided by Borrower
pursuant to Section 9.6.4 of the Loan Agreement.
5. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this Certificate.
I-2
IN WITNESS WHEREOF, Borrower has caused this Certificate to be executed
and delivered on this ___ day of _________, 200__.
WCI COMMUNITIES, INC., a Delaware
corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
BAY COLONY-GATEWAY, INC., a
Delaware corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
I-3
For the Quarter/Year ended ______________________ ("Statement Date")
SCHEDULE 1
Financial Statements
I-4
For the Quarter/Year ended ______________________ ("Statement Date")
SCHEDULE 2
To the Compliance Certificate
($ in 000's)
I. SECTION 9.24.1 - NET SALES PROCEEDS (PROJECTED)
(Fiscal Year-end only)
A. Net Sales Proceeds (Projected) [all Projects] $________________
B. Aggregate Loan Amount Project Allocations $________________
C. 90% of Line I.B. $________________
D. Line I.A. shall not be less than Line I.C. Yes ___ No ___
II. SECTION 9.24.2 - MINIMUM ADJUSTED TANGIBLE NET WORTH.
A. Tangible Net Worth at Statement Date: $________________
B. Adjusted Tangible Net Worth at Statement Date:
1. 50% of the outstanding balance of the Senior
Subordinated Notes: $________________
2. $150,000,000: $________________
3. 20% of Tangible Net Worth: $________________
4. Adjusted Tangible Net Worth (Line II.A + the lesser of Lines
II.B.1, II.B.2 or II.B.3): $________________
C. Line II.B.4 shall not be less than $600,000,000 Yes ___ No ___
III. LEVERAGE RATIO.
A. Total Debt: $________________
B. Adjusted Tangible Net Worth (Line II.B.4 above): $________________
C. Leverage Ratio (Line A / Line B): _________ to 1
I-5
EXHIBIT "J"
POST-CLOSING ITEMS
1. Completed Project Schedules
2. Items required in Sections 11.2, 11.4, 11.5 and 11.11.
J-1
