FIRST AMENDMENT TO THIRD AMENDED AND
RESTATED REVOLVING LOAN AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT (this "FIRST AMENDMENT") is made as of June 30, 1999 (the "EFFECTIVE
DATE"), by and among ATLANTIC GULF COMMUNITIES CORPORATION, a Delaware
corporation, formerly known as General Development Corporation (the "COMPANY"),
DAVIDSON KEMPNER SERVICE COMPANY, LLC, a New York limited liability company,
successor to X. X. Xxxxxxxx & Co., LLC, as agent for the Banks (as defined in
the Loan Agreement) under the Loan Agreement (hereinafter defined) (hereinafter,
in such capacity, together with any successors thereto in such capacity,
referred to as "AGENT"), and DAVIDSON KEMPNER SERVICE COMPANY, LLC, a New York
limited liability company, successor to X.X. Xxxxxxxx & Co., LLC, as collateral
agent for the Banks under the Loan Agreement (hereinafter, in such capacity,
together with any successors thereto in such capacity, referred to as
"COLLATERAL AGENT").
Each of Company, Agent and Collateral Agent is sometimes referred to
herein as "PARTY" and all of them, together, are collectively referred to herein
as the "PARTIES."
W I T N E S E T H:
WHEREAS, the Parties entered into that certain Third Amended and
Restated Revolving Loan Agreement (the "LOAN AGREEMENT"), dated as of December
31, 1998; and
WHEREAS, the Company has requested certain modifications to, and Agent
has agreed to modify, the terms of Sections 7.1 and 7.15 of the Loan Agreement;
and
WHEREAS, the Parties now desire to amend the Loan Agreement, on and
subject to the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the respective covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and legal sufficiency of which are hereby acknowledged, the Parties
hereto hereby agree as follows:
1. Capitalized terms used and not defined in this First Amendment
shall have the meanings given them in the Loan Agreement.
2. The first paragraph of Section 7.1 of the Loan Agreement is
deleted in its entirety and the following new language is inserted in its place:
"Permit Consolidated Net Worth to be less than (a) $25
million so long as the aggregate outstanding principal
balance of all Loans equals or exceeds $25,000,000 and
(b) $20 million so long as the aggregate outstanding
principal balance of all Loans is less than $25,000,000;
LESS, in each case, (1) the GAAP Book Value of Homesite
Contract Receivables, Commercial Receivables and the
real property consisting of identified scattered
homesites and Eligible Tract Land, plus (2) the amount
of the GAAP book loss, if any, realized by Company in
connection with the sale of any Collateral permitted
under this Agreement, other than sales of Homesite
Contract Receivables, Commercial Receivables and the
real property consisting of identified scattered
homesites and Eligible Tract Land."
3. The second paragraph of Section 7.1 is deleted in its entirety and
the following new language is inserted in its place:
"To demonstrate compliance with the Consolidated Net
Worth covenant set forth in this Section, Company shall
furnish to Banks (i) within 45 days of the close of each
calendar quarter a certificate of a Responsible Officer
setting forth Consolidated Net Worth for such date
calculated in accordance with this Section 7.1, and the
calculation upon which it is based; and (ii) within 90
days of the close of each fiscal year, a certificate of
a Responsible Officer setting forth Consolidated Net
Worth as of such date calculated in accordance with this
Section 7.1 and the calculation upon which it is based,
reflecting in each such certificate delivered under
clause (i) and (ii) any adjustments the Company is
required to make in calculating Consolidated Net Worth
pursuant to clauses (1) and/or (2) of the first
paragraph of this Section 7.1 during the period to which
such certificate relates."
4. The text of Section 7.15 is deleted in its entirety and the
following new language is inserted in its place:
"[RESERVED]"
5. The definition of the "Borrowing Base" in Section 1.1 of the Loan
Agreement shall be deleted in its entirety and the following new language is
inserted in its place:
"Borrowing Base' means the sum of
A. an amount equal to $10,328,000 with respect to
Eligible Homesite Contract Receivables and Eligible
Commercial Receivables ("Receivables") less the sum
of (i) 75% of the aggregate net cash proceeds from
the sales or other dispositions of Receivables
closing after June 30, 1999, (ii) 75% of the
principal payments received with respect to
Receivables after June 30, 1999 and (iii) 75% of the
principal amount (as of June 30, 1999) of any
Receivables that are foreclosed on, terminated by
reason of a deed in lieu or canceled after June 30,
1999;
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plus
B. an amount equal to $2,260,000 with respect to
Commercial Receivables or Homesite Contract
Receivables which are not Eligible Commercial
Receivables or Eligible Homesite Contract
Receivables, as the case may be ("Ineligible
Receivables"), less the sum of (i) 50% of the
aggregate net cash proceeds from the sales or other
dispositions of Ineligible Receivables closing after
June 30, 1999, (ii) 50% of the principal payments
received with respect to Ineligible Receivables after
June 30, 1999 and (iii) 50% of the principal amount
(as of June 30, 1999) of any Ineligible Receivables
that are foreclosed on, terminated by reason of a
deed in lieu or canceled after June 30, 1999;
plus
C. an amount equal to the sum of (i) $8,865,000 with
respect to Real Property consisting of identified
scattered homesites owned by the Company as of June
30, 1999, plus (ii) 50% of the "value" of any
identified scattered homesites reacquired after June
30, 1999 as the result of foreclosure, deed in lieu
or cancellation of Ineligible Receivables (which
value for purposes hereof shall be equal to the
principal amount of such Ineligible Receivables) plus
(iii) $1,194 with respect to each identified
scattered homesite release from the Class 14 Utility
Reserve after June 30, 1999, less, in all three
cases, 50% of the aggregate net cash proceeds from
the sales or other dispositions of such identified
scattered homesites closing after June 30, 1999;
plus
D. an amount equal to the sum of (i) $3,232,000 with
respect to Real Property consisting of identified
Eligible Tract Land owned by the Company as of June
30, 1999, plus (ii) 50% of the "value" of any
identified Eligible Tract Land reacquired after June
30, 1999, as the result of foreclosure, deed in lieu
or cancellation of Ineligible Receivables (which
value for purposes hereof shall be equal to the
principal amount of such Ineligible Receivables),
less 50% of the aggregate net cash proceeds from the
sales or other dispositions of such Eligible Tract
Land closing after June 30, 1999;
plus
E. an amount equal to 20% of the sum of (i) Net Equity
of the West Meadow project, the Lakeside Estates
project, the Saxon Xxxxx project, the Trails of West
Frisco project and the Riverwalk Tower project and
(ii) Fair Market of the Falcon Trace project and the
Sunset Lakes project."
6. The Company hereby agrees to pay:
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a. the following amounts by wire transfer to (or such
other method as instructed in writing by) the Agent for the ratable benefit of
the Agent and the Banks:
i. $98,750 (the "INITIAL FEE") in good funds
upon the execution and delivery by the Parties of this First Amendment;
ii. an amount in good funds on February 28,
2000, equal to 1% of the aggregate outstanding principal balance of the Loans on
February 28, 2000, exclusive of the outstanding amount of Letter of Credit Usage
on such date;
iii. an amount in good funds on March 31, 2000,
equal to 1% of the aggregate outstanding principal balance of the Loans on March
31, 2000, exclusive of the outstanding amount of Letter of Credit Usage on such
date;
iv. an amount in good funds on May 31, 2000,
equal to 1.25% of the aggregate outstanding principal balance of the Loans on
May 31, 2000, exclusive of the outstanding amount of Letter of Credit Usage on
such date; and
v. an amount in good funds on June 30, 2000,
equal to 0.75% of the aggregate outstanding principal balance of the Loans on
June 30, 2000, exclusive of the outstanding amount of Letter of Credit Usage on
such date.
7. This First Amendment shall become effective as of June 30, 1999,
upon the satisfaction of all of the following conditions:
a. the Company has executed and delivered this Agreement
to the Agent and Collateral Agent;
b. the Agent and Collateral Agent have executed and
delivered this Agreement to the Company; and
c. the Company has paid (i) the Initial Fee to the Agent
for the benefit of the Agent and the Banks, and (ii) all legal fees and expenses
incurred by the Agent and the Banks in connection with this First Amendment.
8. The Company hereby represents and warrants that there exist no
causes of action, offsets, claims, counterclaims or defenses with respect to (i)
its obligations under the Loan Agreement or any of the other Loan Documents and
(ii) the obligations of any of the entities set forth on EXHIBIT A, under any of
the Loan Documents.
9. The Company hereby ratifies and confirms that the outstanding
principal balance of the Loans as of the Effective Date is $27,000,000.
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10. The Company hereby represents and warrants to and covenants with
Agent that Company has full power, authority and legal right to execute this
First Amendment and to keep and observe all of the terms of this First Amendment
on Company's part to be observed and performed, and that each and every
representation and warranty contained in Article 4 of the Loan Agreement is true
and correct as of the date hereof.
11. The Loan Agreement, as modified hereby, and the Loan Documents are
hereby ratified and confirmed in all respects, and the Loan Agreement, as so
modified, and the Loan Documents shall continue in full force and effect in
accordance with their respective terms. From and after the Effective Date, all
references in any of the Loan Documents to the Loan Agreement shall be to the
Loan Agreement as amended by this First Amendment.
12. This First Amendment shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns.
13. Time is strictly of the essence of this First Amendment and full
and complete performance of each and every provision hereof.
14. This First Amendment constitutes the entire agreement of the
Parties with respect to the subject matter hereof and cannot be modified or
amended except in writing signed by the Parties hereto.
15. This First Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
16. This First Amendment may be executed in multiple counterparts,
which shall be deemed an original and all of which together will constitute one
and the same instrument.
17. This First Amendment may be executed by facsimile signature page.
Each party agrees to be bound by its own facsimile signature page hereto and to
accept the facsimile signature page hereto of any other Party, in each case as
if each such facsimile signature page were a manually executed signature page;
provided each Party shall promptly thereafter deliver its original manually
executed signature page.
[The remainder of this page left blank intentionally.]
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
duly executed and delivered as of the Effective Date.
DAVIDSON KEMPNER SERVICE
COMPANY, LLC, as Agent and Collateral Agent
By: X.X. Xxxxxxxx & Co.,
Managing Member
By: ____________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: General Partner
ATLANTIC GULF COMMUNITIES CORPORATION,
on behalf of itself and, with
respect to Sections 8 AND 10 only, the Entities listed
on Exhibit A hereto
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
EXHIBIT A
1. AG Sanctuary of Orlando, Inc. (Florida)
2. AG Title Corporation (Florida)
3. AG-NTC, Inc. (Florida)
4. AGC CL Limited Partner, Inc. (Florida)
5. AGC Homes, Inc. (Florida)
6. AGC Sanctuary Corporation (Florida)
7. AGC-SP, Inc. (Delaware)
8. AGC-SP4, Inc. (Florida)
9. AGC-SP5, Inc. (Florida)
10. Atlantic Gulf C.C. Corp. (Florida) - f/k/a C.C. Village Development
Corporation
11. Atlantic Gulf Commercial Realty, Inc. (Florida)
12. Atlantic Gulf Communities Management Corporation (Florida)
13. Atlantic Gulf Communities Service Corporation (Florida)
14. Atlantic Gulf Development, Inc. (Florida)
15. Atlantic Gulf Engineering Company (Florida)
16. Atlantic Gulf of Tampa, Inc. (Florida)
17. Atlantic Gulf Realty, Inc. (Florida)
18. Atlantic Gulf Receivables Corporation (Florida)
19. Atlantic Gulfshore Natures Cove, Inc. (Florida)
20. Atlantic Gulf Utilities, Inc. (Florida)
21. Atlantic Gulf Water's Edge, Inc. (Florida)
22. Community Title Agency, Inc. (Florida)
23. [Intentionally Omitted]
24. Cumberland Cove, Inc. (Tennessee)
25. Environmental Quality Laboratory, Incorporated (Florida)
26. EQL Environmental Services, Inc. (Florida)
27. Five Star Homes, Inc. (Florida)
28. Fox Creek Development Corporation (Florida)
29. FRC Investments, Inc. (Florida)
30. GDV Financial Corporation (Florida)
31. General Development Acceptance Corporation (Delaware)
32. General Development Air Service, Inc. (Florida)
33. General Development Commercial Credit Corp. (Florida)
34. General Development Headquarters Corp. (Florida)
35. General Development Resorts, Inc. (Florida)
36. General Development Sales Corporation (Florida)
37. General Development Service Corporation (Florida)
38. General Development Utilities, Inc. (Florida)
39. Grand Oaks Development Corporation (Florida)
40. Grand Oaks Holding Company (Florida)
41. Hunter Trace Development Corporation (Florida)
42. Lakeside Development of Orlando, Inc. (Florida)
43. Las Olas Tower at River Walk, Inc. (Florida) - f/k/a AGC-SP2, Inc.
44. Longwood Utilities, Inc. (Florida)
45. Maplewood Development Corporation (Florida)
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46. [Intentionally Omitted]
47. [Intentionally Omitted]
48. Ocean Grove, Inc. (Florida)
49. Panther Creek Corp. (North Carolina)
50. Regency Island Dunes, Inc. (Florida)
51. Sabal Trace Development Corporation (Florida)
52. Saxon-DeBary, Inc. (Florida)
53. Spring Valley Acquisition Corp. (Colorado) - f/k/a Aspen Springs Valley
Acquisition Corp.
54. Spring Valley Holding Company (Florida) - f/k/a Aspen Springs Ranch
Holding Company
55. Spring Valley Development, Inc. (Colorado) - f/k/a Aspen Springs Ranch,
Inc.
56. Summerchase Development Corporation (Florida)
57. Sunset Lakes Development Corporation (Florida)
58. Town & Country II, Inc. (Florida)
59. Waterford-Orlando, Inc. (Florida) f/k/a AGC-SP1, Inc.
60. West Bay Club Development Corporation (Florida) f/k/a Estero Pointe
Development Corp.
61. West Bay Holding Corporation (Florida)
62. West Bay Realty, Inc. (Florida)
63. West Frisco Development Corporation (Florida) - f/k/a AGC-SP3, Inc.
64. Windsor Palms Corporation (Florida)
65. XYZ Insurance, Inc. (Florida)
66. Atlantic Gulf Asia Holdings N.V. (Netherlands Antilles)
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