Atlantic Gulf Communities Corporation Exhibit to the September 30, 1998
Exhibit (a)(10.4) Fourth Amendment to Second Amended and Restated Revolving Loan
Agreement Atlantic Gulf Communities Corporation, dated as of September 30, 1998
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING LOAN AGREEMENT
ATLANTIC GULF COMMUNITIES CORPORATION
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT (this "FOURTH AMENDMENT") is entered into as of September 30, 1998 by
and among ATLANTIC GULF COMMUNITIES CORPORATION, a Delaware corporation,
formerly known as General Development Corporation ("COMPANY"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (together with each financial
institution that may become a party to this Agreement as herein provided,
referred to herein individually as a "BANK" and collectively as "BANKS"),
FOOTHILL CAPITAL CORPORATION, a California corporation, as successor to Chemical
Bank as agent for Banks (hereinafter, in such capacity, together with any
successors thereto in such capacity, referred to as "AGENT"), and FOOTHILL
CAPITAL CORPORATION, a California corporation, as collateral agent for Banks
(hereinafter, in such capacity, together with any successors thereto in such
capacity, referred to as "COLLATERAL AGENT").
R E C I T A L S:
WHEREAS, Company, Banks, Agent and Collateral Agent entered into that
certain Second Amended and Restated Revolving Loan Agreement dated as of
September 30, 1996, as modified by that certain Amendment dated as of March 31,
1997, as further modified by that certain Second Amendment dated as of June 17,
1997, as further modified by that certain Third Amendment dated as of June 30,
1998 (collectively, the "Loan Agreement").
WHEREAS, the parties hereto desire to enter into this Fourth Amendment
for the purpose of modifying the Loan Agreement with respect to the dates for
mandatory principal reduction payments to be made under the Working Capital Note
dated June 30, 1998 in the original principal amount of Twenty-Five Million
WHEREAS, all terms which are capitalized but not defined herein shall
have the meaning set forth therefor in the Loan Agreement.
NOW THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Banks, Agent and Collateral
Agent agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. AMENDMENT AND RESTATEMENT OF CERTAIN DEFINED TERMS.
Subparagraph B of the definition of Borrowing Base in the Loan
Agreement is hereby
amended and restated as follows:
B. With respect to each corresponding period, the amounts set forth
on the chart below (the "Borrowing Base Limits"):
DATE BORROWING BASE LIMIT
September 1, 1998, through
October 31, 1998 $20,000,000.00
November 1, 1998, through
November 30, 1998 $12,500,000.00
December 1, 1998 $0.0
Anything to the contrary notwithstanding, the Borrowing Base shall not include,
directly or indirectly, either any asset of any Unrestricted Subsidiary, or any
of the following: (a) any Homesite Contract Receivable, Commercial Receivable,
or JV Receivable to the extent the same is sold or discounted; or (b) any Real
Property or JV Real Property to the extent the same is sold or otherwise
disposed of; or (c) any Borrowing Base Joint Venture interest to the extent the
same (or any underlying JV Real Property of the relevant Borrowing Base Joint
Venture) is sold or otherwise disposed of; in each case, whether pursuant to
Section 7.6 or otherwise.
3. AMENDMENT FEE. In consideration for the execution and delivery of
this Fourth Amendment, the Company agrees to pay Collateral Agent the sum of
Seventy-Five Thousand and No/100 Dollars ($75,000.00) (the "Amendment Fee"). The
Amendment Fee shall be delivered by the Company to Collateral Agent
simultaneously with the execution of this Fourth Amendment.
4. RATIFICATION. Except as modified by this Fourth Amendment and by
any other documents executed in connection herewith, the terms and conditions of
the Loan Agreement and all other Loan Documents are hereby ratified and
confirmed and remain in full force and effect.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Fourth Amendment.
(b) COUNTERPARTS. This Fourth Amendment may be executed by one or
more of the parties to this Fourth Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ATLANTIC GULF COMMUNITIES
Xxxx X. Xxxxxx
FOOTHILL CAPITAL CORPORATION,
as Agent and as a Bank
Senior Vice President
FOOTHILL CAPITAL CORPORATION,
as Collateral Agent
Senior Vice President
JOINDER AND CONSENT
AP-AGC, LLC, a Delaware limited liability company, consents to the
Company entering into this Fourth Amendment and agrees that the execution and
delivery of this Fourth Amendment shall not constitute a default or event of
default under that certain Investment Agreement dated February 7, 1997 (together
with any and all amendments and modifications thereto), or that certain Secured
Agreement dated as of February 7, 1997 (together with any and all amendments and
modifications thereto), or any other documents executed in connection with
either of the foregoing documents.
AP-AGC, LLC, a Delaware limited
By: KRONUS PROPERTY, INC., its