FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTMENT AGREEMENT
This First Amendment to Amended and Restated Investment Agreement,
dated as of December 31, 1998 ("AMENDMENT") is entered into by and between
ATLANTIC GULF COMMUNITIES CORPORATION, a Delaware corporation ("COMPANY"), and
AP-AGC, LLC, a Delaware limited liability company ("INVESTOR").
RECITALS
The Company and Investor are parties to that certain Investment
Agreement dated as of February 7, 1997, amended as of March 20, 1997, and
amended and restated as of May 15, 1997 (as heretofore amended, supplemented or
otherwise modified, the "INVESTMENT AGREEMENT"). Capitalized terms used and not
otherwise defined in this Amendment shall have the respective meanings assigned
to them in the Investment Agreement.
The Company is refinancing certain of its institutional indebtedness.
In connection therewith, (1) the Company, X. X. Xxxxxxxx & Co., LLC, a New York
limited liability company ("MHD") (as agent and collateral agent) and the
Revolving Loan Banks are entering into the Revolving Loan Agreement and (2) the
Company, Anglo American (as agent and a member of the Anglo American Lender
Group thereunder), the other members of the Anglo American Lender Group and MHD
(as collateral agent thereunder) are entering into the Anglo American Loan
Agreement (collectively, the "SENIOR LOAN AGREEMENTS"). The Revolving Loan Banks
and the Anglo American Lender Group are collectively referred to herein as the
"SENIOR LENDERS." It is a condition precedent to the consummation of the
transactions contemplated in the Senior Loan Agreements that the Obligee (a)
execute and deliver the Intercreditor Agreement and (b) take such other actions
and deliver such other documents, agreements and instruments as are reasonably
requested by the Company and the Senior Lenders in connection with the
consummation of the transactions contemplated in the Senior Loan Agreements.
Capitalized terms used and not otherwise defined in this Amendment or in the
Investment Agreement shall have the respective meanings assigned to them in the
Secured Agreement.
AGREEMENT
In consideration of the foregoing and the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be bound hereby, agree as follows:
A. Amendments, Acknowledgments, Consents and Waivers
1. AMENDMENT OF SECTION 1.1. The definition of Major Transaction
contained within Section 1.1 of the Investment Agreement is amended to include
as clause (xiv) thereof the Apollo
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Beach Project and the Substitute Project, each as defined in that certain
Promissory Note to be dated as of January 26, 1998, in the original principal
amount of One Million and No/100 Dollars ($1,000,000), executed by Company, as
Maker, to and for the benefit of Investor, as Holder.
2. AMENDMENT OF SECTION 6.1(a). From and after the date hereof,
Section 6.1(a) of the Investment Agreement is hereby amended and restated in its
entirety as follows:
Subject to the requirements of the Act and the Exchange Act,
all Registrable Securities, the Warrants and the Promissory
Note shall be freely transferable.
3. INCLUSION OF ADDITIONAL SHARES AS REGISTRABLE SECURITIES. The
Company hereby acknowledges that the 500,000 shares of Company common stock,
$.10 par value per share, issued to the Investor or its designee on or about the
date hereof shall constitute Registrable Securities for purposes of Article VIII
of the Investment Agreement.
4. DELETION OF SP SUBSIDIARY CONCEPT. From and after the date
hereof, (a) all references to the "SP Subsidiary" are deleted from the
Investment Agreement and (b) Section 6.14 of the Investment Agreement is amended
and restated in its entirety as follows:
"Intentionally omitted."
5. CHANGE OF NOTICE. Copies of all notices sent to the Company
pursuant to the terms of the Investment agreement shall be sent to:
Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
6. MAJOR TRANSACTION. The Investor acknowledges that all three of
the Investor Designees on the Company's Board of Directors approved the terms of
the Senior Loan Agreements and the consummation of the transactions contemplated
therein at a duly convened special telephonic meeting of the Board of Directors
of the Company held on Monday, January 25, 1999, and accordingly, the
restrictions of Section 6.7(f) of the Investment Agreement have been satisfied.
7. CONFORMING AMENDMENTS. Notwithstanding anything in the
Investment Agreement to the contrary, from and after the date hereof, the
Investment Agreement shall be interpreted consistently with the terms of this
Amendment, and all provisions contained therein
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and terms thereof that are inconsistent with the terms and provisions hereof
shall be null and void and no longer of any force and effect.
8. WAIVER OF DEFAULTS. The Investor hereby waives any and all
Defaults, including, without limitation, those Defaults under Section 6.4 of the
Investment Agreement relating to the redemption or repurchase of the Preferred
Shares, that would result under the Investment Agreement upon the execution and
delivery of the Senior Loan Agreements and the consummation of the transactions
contemplated therein.
9. RESIGNATION OF SP SUBSIDIARY DIRECTOR DESIGNATED BY THE
INVESTOR. Effective as of January 25, 1999, (a) Xx. Xxxxxxxxxxxxx agrees to
resign as a member of the board of directors of the entities identified on
Schedule A hereto (the "SP Entities") (each a "Resignation") and (b) each of the
SP Entities accepts Xx. Xxxxxxxxxxxxx'x Resignation from its board of directors.
B. Representations and Warranties.
1. After giving effect to the provisions hereof, no Defaults have
occurred and are continuing under the Investment Agreement.
2. Each party hereto represents and warrants to the other party
hereto that (a) it has the full corporate power and authority to enter into and
perform its obligations hereunder and each transaction contemplated hereby and
(b) the execution and delivery by such party of this Amendment and each other
document contemplated hereby and its performance of its obligations hereunder
and thereunder have been duly authorized by all necessary corporate proceedings
on the part of such party.
C. Miscellaneous
1. This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
2. Except as herein specifically amended, all terms, covenants
and provisions of the Investment Agreement shall remain in full force and effect
and shall be performed by the parties hereto in accordance therewith. All
references to the "Agreement" or the "Investment Agreement" contained in the
Investment Agreement or in the Schedules or Exhibits shall henceforth refer to
the Investment Agreement as amended by this Amendment.
3. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED ENTIRELY WITHIN SUCH STATE.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ATLANTIC GULF COMMUNITIES
CORPORATION, a Delaware corporation
By:________________________________
Name:___________________________
Title:__________________________
AP-AGC, LLC., a Delaware limited liability
company
By: Kronus Property, Inc., its Manager
By:__________________________
Xxxxxxx Xxxxxxxxxxxxx
Vice President
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