WAIVER AND FIRST AMENDMENT TO TERM LOAN AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO TERM LOAN AGREEMENT (this "WAIVER
AND FIRST AMENDMENT") is made as of this 28th day of October, 1999, by and among
ATLANTIC GULF COMMUNITIES CORPORATION, a Delaware corporation, formerly known as
General Development Corporation (the "COMPANY"), ANGLO-AMERICAN FINANCIAL, a New
York limited partnership, as agent for the Lenders (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
the "AGENT"), and DAVIDSON KEMPNER SERVICE COMPANY, LLC, a New York limited
liability company and successor to X. X. XXXXXXXX & CO., LLC, a New York limited
liability company, as collateral agent for the Lenders under the Loan Agreement
(hereinafter, in such capacity, togther with any successors thereto in such
capacity, referred to as "COLLATERAL AGENT").
Each of the Company, the Agent and the 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 S E T H:
WHEREAS, the Parties and the Lenders (as defined in the Loan Agreement)
entered into that certain Term Loan Agreement (the "LOAN AGREEMENT"), dated as
of December 31, 1998; and
WHEREAS, the Company has requested certain modifications to, and the
Agent has agreed to modify, the terms of (1) Section 7.1 of the Loan Agreement,
(2) Section 7.15 of the Loan Agreement and (3) the definitions of "Gross Allowed
Amount" and "Maximum Permissible Loan" in Section 1.1 of the Loan Agreement; and
WHEREAS, the Company also has requested a waiver from the Agent and the
Collateral Agent of the Maximum Loan Amount "cap" in Section 2.1 of the Loan
Agreement and/or the mandatory prepayment obligation in Section 2.5(a) of the
Loan Agreement with respect to any violations thereof by the Company occurring
at any time after June 30, 1999, and before January 1, 2000; and
WHEREAS, the Parties now desire to amend the Loan Agreement, and the
Agent and the Collateral Agent have agreed to provide the waiver requested by
the Company, 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 Waiver and 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 the sum of
the amounts set forth below (hereinafter referred to as
the "Minimum Consolidated Net Worth"): (a)(i) $25 million
so long as the aggregate outstanding principal balance of
the DK Loans equals or exceeds $25,000,000 and (ii) $20
million so long as the aggregate outstanding principal
balance of the DK Loans is less than $25,000,000, MINUS
the sum of (b)(i) the GAAP Book Value of Homesite Contract
Receivables, Commercial Receivables and the real property
consisting of identified scattered homesites and Eligible
Tract Land, plus (ii) the amount of the GAAP book loss, if
any, realized by the 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 of the Loan Agreement 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, the Company shall
furnish to Lenders (i) within 45 days of the close of each
calendar quarter a certificate of a Responsible Officer
setting forth Minimum 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 Minimum 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 Minimum Consolidated Net Worth
pursuant to clauses (b)(i) and/or (ii) of the first
paragraph of this Section 7.1 during the period to which
such certificate relates."
4. The definition of "Gross Allowed Amount" in Section 1.1 of the Loan
Agreement is deleted in its entirety and the following new language is inserted
in its place:
"Gross Allowed Amount' means the sum of:
(a) an amount equal to $10,328,000 with respect to Eligible
Homesite Contract Receivables and Eligible Commercial Receivables
("Receivables") MINUS 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
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Receivables that are foreclosed on, terminated by reason of a deed in lieu or
canceled after June 30, 1999;
(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"), MINUS 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;
(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;
(d) an amount equal to the sum of (i) $3,232,000 with respect to
Real Property consisting of identified Eligible Tract Land (as defined
in the DK Loan Agreement) 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;
(e) an amount equal to the sum of the following values for the
following Eligible Subdivision Projects: (i) $2,512,000 for the West
Xxxxxxx Project, (ii) $1,374,000 for the Lakeside Estates Project,
(iii) $1,136,000 for the Saxon Xxxxx Project, (iv) $1,719,000 for the
Trails of West Frisco Project, (v) $3,829,000 for the West Bay Club
Project, (vi) $4,011,000 for the West Bay Club Condominium Project,
(vii) $13,475,000 for the Aspen Springs Project and (viii) $551,000 for
the Natures Cove Project; and
(f) an amount equal to the sum of the following values for the
Venture Subsidiaries' interests in the following Eligible Joint Venture
Projects: (i) $2,184,000 for the Falcon Trace Project, (ii) $4,068,000
for the Sunset Lakes Project and (iii) $877,000 for the Jupiter Ocean
Grande Project."
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5. The definition of "Maximum Permissible Loan" in Section 1.1 is
deleted in its entirety and the following new language is inserted in its place:
"Maximum Permissible Loan' means, on any date of
determination, (1) during the period prior to April 1,
2000, the Gross Allowed Amount LESS the aggregate
outstanding principal amount of the DK Loans and (2)
during the period from and after April 1, 2000, the Gross
Allowed Amount LESS the sum of the aggregate outstanding
principal amount of the DK Loans and the aggregate stated
amount of all outstanding letter of credit guarantees
under the DK Loan Agreement."
6. The text of Section 7.15 is deleted in its entirety and the
following new language is inserted in its place:
"[RESERVED]"
7. The Agent and the Collateral Agent hereby waives any violations by
the Company of the Maximum Loan Amount "cap" in Section 2.1 of the Loan
Agreement and/or the mandatory prepayment obligation in Section 2.5(a) of the
Loan Agreement with respect to any violations by the Company thereof occurring
at any time after June 30, 1999, and before January 1, 2000.
8. The Company hereby agrees to pay the following amounts by wire
transfer to (or such method as instructed in writing by) the Agent for the
ratable benefit of the Agent and the Lenders:
a. an amount, payable in good funds upon the execution and
delivery by the Parties of this Waiver and First Amendment, equal to one-quarter
percent (0.25%) of the outstanding principal balance of the Loans on the
Effective Date hereof; and
b. an amount, payable in good funds on March 31, 2000, equal to
one-half percent (0.50%) of the outstanding principal balance of the DK Loans on
March 31, 2000.
9. This Waiver and 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 Waiver and First
Amendment to the Agent and the Collateral Agent; and
b. the Agent and the Collateral Agent have executed and
delivered this Waiver and First Amendment to the Company.
10. The Company hereby represents and warrants that there exist no
causes of action, offsets, claims, counterclaims or defenses with respect to (a)
its obligations under the Loan Agreement or any of the other Loan Documents and
(b) the obligations of any of the entities set forth on EXHIBIT A under any of
the Loan Documents.
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11. The Company hereby represents and warrants to and covenants with
the Agent and the Collateral Agent that (a) the Company has full power,
authority and legal right to execute this Waiver and First Amendment and to keep
and observe all of the terms of this Waiver and First Amendment on the Company's
part to be observed and performed, (b) each and every representation and
warranty contained in Article 4 of the Loan Agreement is true and correct as of
the date hereof and (c) so long as the Commitments remain in effect or any
Obligations remain outstanding and unpaid or any other amount is owing to any
Lender or the Agent under the Loan Agreement, without the prior written consent
of the Agent, the Company shall not, and shall not permit any of its
Subsidiaries, to use any proceeds received, directly or indirectly, from any
SPUD, MPUD or Venture Subsidiary for any purpose other than (i) payment of
Indebtedness permitted under Section 7.2 of the Loan Agreement, (ii) payment of
reasonable overhead expenses of the Company and/or its Subsidiaries, (iii)
payment of reasonable severance obligations of the Company and/or its
Subsidiaries and (iv) reinvestment, directly or indirectly, in other Collateral
of the Company and/or its Subsidiaries.
12. 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 Waiver and First Amendment.
13. This Waiver and First Amendment shall be binding upon and inure to
the benefit of the Parties and their respective successor and assigns.
14. Time is strictly of the essence of this Waiver and First Amendment
and full and complete performance of each and every provision hereof.
15. This Waiver and 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.
16. This Waiver and 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.
17. This Waiver and First Amendment may be executed in multiple
counterparts, wich of which shall be deemed an original and all of which
together will constitute one and the same instrument.
18. This Waiver and First Amendment may be executed by facsimile
signature page. Each Party agrees to be bound by its own facsimile page hereto
and to accept the facsimile signature page hereto of any other Party, in each
case as if each such facsimile signature were a manually executed original
signature page, provided each Party shall promptly thereafter deliver its
original manually executed signature page.
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IN WITNESS WHEREOF, the Parties have caused this Waiver and First
Amendment to be duly executed and delivered as of the Effective Date.
ANGLO-AMERICAN FINANCIAL
as Agent
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
DAVIDSON KEMPNER SERVICE COMPANY, LLC,
as Collateral Agent
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ATLANTIC GULF COMMUNITIES CORPORATION, on
behalf of itself and, with respect to
Sections 10 and 11 only, the Entities
listed on Exhibit A hereto
By:
-----------------------------------
Name:
-----------------------------------
Title:
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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. Country Lakes Development Corporation (Florida)
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, 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. Miramar Rock, Inc. (Florida)
47. NT Development Corporation (Florida)
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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