ATLANTIC GULF COMMUNITIES CORPORATION EXHIBIT TO THE MARCH 31, 1997 FORM 10-Q
EXHIBIT 10.2 RESTATED, AMENDED AND CONSOLIDATED TRUST AGREEMENT DATED AS OF
DECEMBER 26, 1996, AMENDED AS OF DECEMBER 30, 1996.
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RESTATED, AMENDED AND CONSOLIDATED TRUST AGREEMENT
RESTATED, AMENDED AND CONSOLIDATED TRUST AGREEMENT, made and entered
into as of this 26th day of December, 1996, by and between the STATE OF FLORIDA,
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS,
AND MOBILE HOMES (the "Division"), ATLANTIC GULF COMMUNITIES CORPORATION
("Atlantic Gulf" or the "Company"), and FIRST UNION NATIONAL BANK OF FLORIDA, as
Trustee ("Trustee") (collectively with the Division and the Company, the
"Parties").
WHEREAS, the Restated Second Amended Joint Plan of Reorganization of
GDC, dated as of October 9, 1991, as modified on March 9, 1992 (the "Plan"), was
confirmed by the U.S. Bankruptcy Court for the Southern District of Florida on
March 27, 1992, and became effective on March 31, 1992;
WHEREAS, pursuant to the Plan, GDC has been renamed Atlantic Gulf
Communities Corporation;
WHEREAS, the Parties previously entered into the Homesite Program
Utility Fund Trust Agreement, dated December 8, 1992, the Class 14 Utility Fund
Trust Agreement, dated December 8, 1992, the Division Class 14 Utility Fund
Trust Agreement, dated April 6, 1993, and the Improvement Fund Trust Agreement,
dated April 6, 1993 (collectively, the "Original Trusts") all of which
Agreements were entered into pursuant to the Plan;
WHEREAS, pursuant to the letter agreement by and between Atlantic Gulf
and the Division, dated December 24, 1996, Atlantic Gulf and the Division agreed
to collapse the Original Trusts into a single, Restated, Amended and
Consolidated Trust which consolidates the assets, provisions, and obligations of
the Original Trust agreements, except that $120,000 shall be retained in the
Improvement Fund Trust, cash account #4072850907, for satisfaction of the
obligation set forth within the twelfth preamble of the Improvement Fund Trust
Agreement (the "Xxxxxx County Obligation");
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WHEREAS, by execution of this Restated, Amended and Consolidated Trust
Agreement, Atlantic Gulf and the Division deem the Original Trusts to be merged
and superseded;
WHEREAS, Atlantic Gulf and the Division entered into the Utility Lot
Trust Agreement on December 20, 1996, for the purpose of providing utility
satisfied lots to be utilized in the Lot Exchange Program;
WHEREAS, the Division and Atlantic Gulf desire to appoint and authorize
a trustee to establish and administer the Restated, Amended and Consolidated
Trust for the purposes set forth below.
NOW, THEREFORE, in consideration of the mutual promises herein
contained the Parties agree as follows:
ARTICLE I.
DEFINITIONS
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Unless the context requires otherwise, all capitalized terms used
herein and not otherwise defined shall have the meanings assigned to them in the
Plan.
ARTICLE II.
RESTATED, AMENDED AND CONSOLIDATED TRUST FUND
---------------------------------------------
Section 2.1. THE FUND. For all purposes of this Trust Agreement, the
Restated, Amended and Consolidated Trust Fund shall consist of the following
assets, and Trustee shall accept such assets subject to the terms and conditions
hereof:
(a) all stock and cash transferred from the Division Class 14 Utility
Fund Trust;
(b) all proceeds generated from the sale of stock pursuant to Section
2.3;
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(c) all moneys earned on the investment and reinvestment of the
foregoing.
(d) all stock and cash transferred from the Improvement Fund Trust,
excluding the $120,000 retained to meet the Xxxxxx County Obligation.
Section 2.2. SECURITIES. Trustee shall hold in trust the Stock and all
non-cash proceeds received in connection with the Stock (the "Stock Rights" and
the "Securities"), including without limitation all stock certificates, options
and warrants and similar rights, until such time as the Stock and the Stock
Rights are withdrawn from the Restated, Amended and Consolidated Trust pursuant
to Section 2.6 or sold pursuant to Section 2.3.
Section 2.3. SALE OF SECURITIES.
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(a) Beginning January 1, 1994, and continuing on each three-month
anniversary of such date until December 31, 1998 (the "Terminal Date"), the
Trustee shall determine how many shares of Stock are in Trust (the "Remaining
Stock"); PROVIDED, HOWEVER, that any Stock tendered in accordance with Section
2.3(b) shall not be deemed part of Remaining Stock for so long as such Stock
remains subject to tender. Subject to the provisions set forth in subsections
(b) to (e) below, the Trustee shall sell on the fifth (5th) business day in each
calendar quarter of such year, or as promptly thereafter as market conditions
reasonably permit, an amount of Stock (the "Quarterly Sale Amount") equal to (I)
the Remaining Stock, divided by (ii) the number of calendar quarters remaining
until the Terminal Date (E.G., in the quarter beginning on January 1, 1994, the
Trustee shall sell one-twentieth of the Remaining Stock; in the next quarter,
one-nineteenth; etc.). Subject to the provisions set forth in subparagraphs (b)
to (e) below, in the event there is any Remaining Stock as of January 1, 1999,
the Trustee shall sell all such Remaining Stock during such calendar year. The
Trustee shall deposit the proceeds from any such sales in the Division Cash
Account.
(b) The Trustee shall sell more than the Quarterly Sale Amount of Stock
for a particular quarter if there is a tender offer for such Stock and the
Division has instructed the Trustee in writing to so tender.
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(c) The Trustee shall delay or refrain from selling any Stock scheduled
to be sold in a particular quarter as provided in subsection (a) or (b) if (I)
the Division has instructed the Trustee to delay or refrain from such sale in
writing based upon a determination by the Division that such sale of Stock is
not in the interest of maximizing the Division Class 14 Utility Fund as a result
of extraordinary market conditions, or (ii) if the Trustee has determined that
such sale would violate applicable securities or other laws.
(d) The Trustee shall sell the Quarterly Sale Amount of Stock as
provided in this Section 2.3 in ordinary trading transactions, and shall be
entitled to pay a reasonable and customary brokerage commission in connection
therewith to the third-party securities broker effecting such transactions.
(e) Prior to selling any Quarterly Sale Amount and for so long as the
Stock is not registered pursuant to Section 5 of the Securities Act of 1933, the
Trustee may request an opinion from the Company that such Stock is exempt from
registration pursuant to Section 1145 of the Bankruptcy Code.
(f) If there is a tender offer for the Stock or the Notes and the
Division has not instructed Trustee to tender the Trust's Stock or Notes, as the
case may be, at least twenty (20) days prior to the deadline for holders to
tender, the Company may apply to the Bankruptcy Court for an order requiring the
Division to instruct the Trustee to so tender.
Section 2.4. [reserved]
Section 2.5. THE DIVISION CASH ACCOUNT. Trustee shall establish a
separate trust account (the "Division Cash Account"), and receive and keep in
the Division Cash Account (a) all cash deposited with the Trustee pursuant to
section 2.1, (b) all net sale proceeds from the sale of Securities deposited
with Trustee pursuant to Section 2.3, and (c) all moneys earned on the
investment and reinvestment of such amounts (collectively, the "Funds").
Section 2.6. AUTOMATIC AND ROUTINE CASH AND STOCK WITHDRAWAL.
(a) At such time as the number of non-utility satisfied lots owned by
parties eligible for the Lot Exchange Program (the "Eligible Lots") is less than
or equal to the number of utility satisfied lots held in the Utility Lot Trust,
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all assets of the Restated, Amended and Consolidated Trust shall be disbursed to
Atlantic Gulf and this trust shall terminate. As a condition precedent to said
disbursement and termination, Atlantic Gulf shall provide a certification to the
Division, based upon an independent analysis conducted by Milian, Xxxxx &
Associates, Inc., that the number of lots in the Utility Lot Trust equals or
exceeds the number of Eligible Lots.
(b) At any time, but only with the consent of the Division, Atlantic
Gulf may direct the Trustee to disburse cash or stock to Atlantic Gulf.
(c) Atlantic Gulf may withdraw funds from the Division Cash Account
from time to time upon certification of the responsible officer of the Company
to the Trustee that the Company will use the funds to purchase lots to replenish
the Utiltity Lot Trust.
Section 2.7. ACCOUNTING.
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(a) Trustee shall account separately for the Stock in the Trust and
shall provide the Division and the Company with a quarterly statement detailing
all trust activity in connection with the Stock, including all deposits,
withdrawals, and/or sales of the Stock and the Stock Rights and all trust
expenses attributable to the Stock and the Stock Rights.
(b) Trustee shall account separately for the Division Cash Account and
shall provide the Division and the Company with a quarterly cash statement
detailing the activity in the Division Cash Account, including all deposits and
withdrawals, principal balance, income earned on, and expenses charged to the
Division Cash Account.
ARTICLE III.
FUNDS AND INVESTMENTS
---------------------
Section 3.1. SEPARATE FUNDS. In no event shall Trustee commingle the
Funds with other assets of, or maintained by, Trustee.
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Section 3.2. INVESTMENT OF MONEYS. Subject to section 3.3, Trustee
shall have the authority to invest and reinvest the moneys in this Trust (the
"Cash Proceeds") in the following instruments: (a) bonds, notes, treasury bills,
or other securities constituting direct obligations of, or fully guaranteed by,
the United States of America (provided that such direct obligations or
guarantees, as the case may be, are entitled to the full faith and credit of the
United States of America); (b) bonds, notes, or other securities of the Federal
National Mortgage Association, Federal Home Loan Mortgage Association, Federal
Home Loan Bank Board, or other similar agencies of the United State which are of
similar financial quality; (c) certificates of deposit of or money market
accounts at any bank (I) organized under the laws of the United States of
America and having offices in the State of Florida, or (ii) organized under the
laws of the State of Florida (in either case having a combined capital and
surplus of not less than $500,000,000 whose deposits are insured by the Federal
Deposit Insurance Corporation (including the Trustee if otherwise qualified
under this Section)); (d) if the interest rates available on certificates of
deposit of or money market accounts at banks described in clause (b) of this
section are lower than could be obtained if the Trustee invested such moneys
with other financial institutions of comparable quality, certificates of deposit
of or money market accounts at any domestic commercial bank, or non-domestic
bank provided that such non-domestic commercial bank shall have offices in New
York or Florida, having a combined capital and surplus of not less than
$500,000,000; (e) commercial paper currently rated "Prime-1" or higher by
Xxxxx'x Investors Service, Inc. or "A-l" or higher by Standard & Poor's
Corporation or an equivalent investment grade rating by another nationally
recognized securities rating agency; and (f) repurchase obligations with a term
of not more than 60 days for underlying securities of the types described in
clauses (a), (b), (c) and (d). The Company will only instruct the Trustee to
invest moneys held in the Funds in the foregoing investments. Trustee shall not
be liable to the Division or the company for any losses suffered on the
investment of the Cash Proceeds as a result of the Trustee's investment of such
moneys as long as such investment has been in accordance with the provisions of
this section.
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Section 3.3. DIRECTION BY COMPANY. Subject to section 3.2, the Company
shall direct in writing the Trustee's investment and reinvestment of Cash
Proceeds. In the event that the Trustee reasonably believes that a direction by
the Company is inconsistent with section 3.2, the Trustee shall not follow such
direction, and may invest such moneys in accordance with its standard practices
using the investments specified in Section 3.2 hereof.
ARTICLE IV.
TRUSTEE
Section 4.1. COMPENSATION TO TRUSTEE. Trustee shall receive
compensation for its services in accepting this Trust Agreement. Such
compensation shall be calculated in accordance with a separate agreement among
Trustee, the Division, and the Company.
Section 4.2. LIMITATION ON DUTIES. The Trustee undertakes to perform
only such duties as are expressly set forth herein, and no implied duties or
obligations shall be read into this Agreement against the Trustee.
Section 4.3. RELIANCE. The Trustee may act in reliance upon any writing
or instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument and may assume that any person purporting to give any
writing, notice, advice, or instruction in connection with the provisions hereof
has been duly authorized to do so. The Trustee shall not be liable in any manner
for the sufficiency or correctness as to form, manner and execution, or validity
of any instrument deposited in this Trust, nor as to the identity, authority, or
right of any person executing the same; and its duties hereunder shall be
limited to the safekeeping of such certificates, moneys, instruments,
securities, or other documents received by it as Trustee, and for the
disposition of the same in accordance with the terms of this Agreement.
Section 4.4. TRUSTEE'S RESPONSIBILITY TO MAKE ADVANCES OR INCUR PAY
EXPENSES. Trustee shall have the right, but not the duty, to make any advances
or incur or pay any reasonable and necessary expenses on account of this Trust
Agreement or the Funds. If Trustee shall make any such advances or incur or pay
any such expenses on account of this Trust Agreement or the Funds, or shall
incur any expenses by reason of being a party to any litigation in connection
with this Trust Agreement or the Funds, or if Trustee shall be compelled by an
order of a court of competent jurisdiction
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to pay money on account of this Trust Agreement or the Funds, whether for breach
of contract, injury under any law, or otherwise (PROVIDED, HOWEVER, Trustee
shall not be individually liable in any manner under this Trust Agreement as set
forth in Section 4.3 hereof), the Company, on demand by Trustee, shall pay to
Trustee, with interest from the date Trustee made such advance or paid such
money through the date of payment by the Company to Trustee at the rate of the
weekly average yield on United States Treasury securities adjusted to a constant
maturity of one year, as made available by the Federal Reserve Board, the amount
of all such expenses, including reasonable attorneys' fees, incurred by Trustee
in said matters. Trustee shall have the right, but not the duty, to employ and
consult with counsel of its own choice regarding this Trust Agreement and the
Funds, and shall have full and complete authorization and protection for any
action taken by it hereunder in good faith and in accordance with the opinion of
such counsel; any and all reasonable costs and expenses incurred by Trustee by
virtue of said employment and consultation shall be deemed to be an advance or
expense made or incurred by Trustee under this Section 4.4 to be paid by the
Company on demand. The Company further agrees to indemnify and hold Trustee
harmless of and from any and all expenses, including, but not limited to, all
reasonable costs and attorneys' fees, advances, payments, or liabilities
incurred by it for any reason whatsoever as a result of this Trust Agreement,
except those resulting from Trustee's gross negligence or willful misconduct. To
the extent that the Company has failed to pay amounts due to the Trustee under
this Trust Agreement, the Trustee may retain sufficient funds to pay itself for
those amounts owed. Trustee shall not be obliged to convey, transfer, or
otherwise deal with the Funds or any part of them or to follow any instructions
of the Company unless and until all of the payments, advances, and expenses made
or incurred or paid by Trustee on account of this Trust Agreement or the Funds
shall have been paid, with interest, at the rate set forth herein.
Section 4.5. RESIGNATION OF TRUSTEE; SUCCESSOR TRUSTEE.
Trustee may at any time resign as Trustee and from its duties under this Trust
Agreement by giving at least thirty (30) days' prior written notice to both the
Company and the Division, such resignation to be effective on the acceptance of
appointment by a successor Trustee selected by the Company in consultation with
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the Division. In addition, the Company and the Division jointly may at any time
remove Trustee with or without cause (and the Company may at any time remove
Trustee as provided in Section 4.7(f)) by giving written notice to Trustee, such
removal to be effective upon the acceptance of appointment by a successor
Trustee selected by the Company in consultation with the Division. If a
successor Trustee shall not have been appointed with-in thirty (30) days of
written notice of resignation or removal, Trustee may apply to any court of
competent jurisdiction to appoint a successor Trustee to act until such time, if
any, as a successor shall have been selected and appointed by the Company in
consultation with the Division. Any successor Trustee shall be a trust company
or bank (I) organized under the laws of the State of Florida or (ii) organized
under the laws of the United States and having offices in the State of Florida
(in either case having trust powers). Any successor Trustee shall execute and
deliver to the predecessor Trustee an instrument accepting such appointment, a
copy of which shall also be delivered to the Company and the Division, and
thereupon such successor Trustee, without further act, shall become bound by the
terms of this Trust Agreement and be vested with all the estates, properties,
rights, powers, duties, and trusts of the predecessor Trustee; and such
predecessor Trustee shall duly assign, transfer, deliver, and pay over to such
successor Trustee all moneys and other property then held by such predecessor
Trustee. under this Trust Agreement, except that the Trustee may retain
sufficient funds to pay itself for amounts owed to it hereunder. Prior to
selecting any successor trustee, the Company shall inform the Division of its
selection.
Section 4.6. TRUSTEE'S RESPONSIBILITY WITH RESPECT TO LEGAL
PROCEEDINGS. Subject to the provisions of Section 6.9 of this Trust Agreement,
Trustee shall be under no duty to take any action, to pay any money, or to incur
any expenses in regard to any legal proceeding involving this Trust Agreement or
the Funds. If Trustee is served with process or notice of legal proceedings or
of any other matters concerning this Trust Agreement or the Funds, the sole duty
of Trustee shall be to forward the process or notice to the Company and the
Division as provided herein. In such case, the Company may defend said action in
the name of Trustee with counsel reasonably acceptable to Trustee; PROVIDED,
HOWEVER, that if the Trustee determines that such counsel selected by the
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Company has a conflict in representing the interests of the Company and the
Trustee, the Trustee may represent its own interests; and PROVIDED FURTHER, that
Trustee may at any time resign as such under this Trust Agreement (but only in
accordance with the provisions of Section 4.5 hereof) or personally appear in
said proceeding.
Section 4.7. TAXES AND TAX RETURNS.
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(a) The Trustee shall obtain an employer identification number for the
Restated, Amended and Consolidated Trust.
(b) The Trustee, or an agent of the Trustee that is acceptable to the
Company, shall be responsible for filing all appropriate federal, state, and
local tax returns, including U.S. Form 1041, with respect to the Restated,
Amended and Consolidated 14 Trust.
(c) The Company, the Division and the Trustee shall cooperate, when
necessary, with regard to the filing of tax returns and payment of taxes, if
any.
(d) To the extent that the Restated, Amended and Consolidated Trust is
determined to have taxable income and any taxes thereon shall be due, Trustee
shall pay out of the Division Cash Account any federal, state, and local taxes
required to be paid, and any estimated tax liabilities, with respect to such
taxable income.
(e) In furtherance and not in limitation of Section 4.4, the Company
further agrees to indemnify and hold Trustee harmless of and from any and all
income taxes and associated costs, including, but not limited to, all reasonable
attorneys' fees, advances, payments, or liabilities incurred by it as a result
of any dispute with the Internal Revenue Service related to the Trustee's
payment of the Trust's income taxes, except those resulting from Trustee's gross
negligence or willful misconduct.
(f) If the Company objects to the amount of the Tax Reserve, and if
Trustee and the Company cannot thereafter mutually agree on the amount of such
Reserve, the Company shall have the right to seek the removal of the Trustee
pursuant to Section 4.5.
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Section 4.8. VOTING. In the event that a vote of the holders of the
Stock is scheduled which requires approval of 50 percent or more of the
outstanding Stock entitled to vote thereon under applicable law, Trustee shall
vote or cause to be voted (by executing a proxy or otherwise) one-hundred
percent (100%) of the Stock held in this Trust (the "Trust Stock") with the
majority of the Stock voting that is not held in this Trust (the "Non-Trust
Stock"); PROVIDED, HOWEVER, that if the scheduled vote does not so require
approval of 50 percent or more of the outstanding Stock entitled to vote
thereon, Trustee shall vote or cause to be voted (by executing a proxy or
otherwise) the Trust Stock in the same proportions as the Non-Trust Stock is
voted.
ARTICLE V.
DIVISION REVIEW
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Section 5.1. ANNUAL AUDIT. The company shall cause to be prepared, and
shall provide to the Division and the Trustee, one audit per calendar year (the
"Annual Audit") of the records related to this Agreement. Such Annual Audit
shall be performed in accordance with a separate agreement between the Company
and the Division for purposes of ensuring the Company's compliance with the
terms and provisions of this Agreement.
Section 5.2. AUDIT ADJUSTMENTS.
-----------------
(a) If, as a result of any Annual Audit, the Division determines that
the records reflect any inaccuracies requiring entry of an Audit Adjustment,
including, without limitation, the disbursement of any amount that is
inconsistent with any provision of the Agreement ("Ineligible Disbursement"),
the Division shall give written notice thereof to the Company and the Trustee (a
"Notice of Audit Adjustment").
(b) If the Company disputes an asserted Audit Adjustment, it may submit
the dispute to the Bankruptcy Court as provided in Section 6.8 and shall notify
the Trustee of its doing so.
(c) If the Company does not dispute an asserted Audit Adjustment, or if
the Bankruptcy Court confirms a proposed Audit Adjustment over the Company's
objection, (I) the Company will pay to the account in question the amount
required to restore such account to where it would have been absent the
Ineligible Disbursement
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Section 5.3. AGREEMENT BETWEEN TRUSTEE AND THE COMPANY. The Company
shall provide a copy of the separate agreement between Trustee and the Company,
and any amendments thereto, to the Division.
ARTICLE VI.
MISCELLANEOUS
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Section 6.1. INQUIRIES. Written inquiries, legal and other notices, tax
statements, and all other documents and writings received by Trustee and
relating to this Trust Agreement or the Funds shall be sent and forwarded within
a reasonable time after receipt by Trustee to the Division and the Company at
the address set forth on the signature page hereto or as changed from time to
time in writing.
Section 6.2. LAW GOVERNING. This Trust Agreement shall be construed in
accordance with, and governed by, the laws of the State of Florida.
Section 6.3. NOTICES. All notices or other writings required or
permitted to be given by either party to this Trust Agreement shall be in
writing, and shall be (a) hand delivered, (b) sent by certified or registered
mail, return receipt requested, or (c) sent by overnight courier service to the
address set forth on the signature page hereof. Such notice shall be deemed to
be given in the case of hand delivery or overnight courier, when received, and
in the case of mailing by certified or registered mail, return receipt
requested, five (5) days after said notice has been deposited in the United
States Mail, postage prepaid. Any Party may change its address to which said
notices are to be sent by giving notice of same to the other Parties in
accordance with the provisions hereof.
Section 6.4. NO OTHER BENEFICIARIES. This Trust Agreement is solely for
the benefit of the Company, the Trustee, the Division, lot owners eligible for
the lot exchange program, and their successors. No other person or persons shall
have any rights or privileges under this Trust Agreement either as a third-party
beneficiary or otherwise.
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Section 6.5. TERM.
----
(a) This Trust Agreement shall terminate upon the earlier of (I) full
disbursement of the cash and other assets in this Trust; or (ii) receipt by the
Trustee of a notice of revocation executed Jointly by the Company and the
Division (or executed by (1) either the Company or the Division and (2)
accompanied by order of the Court as described in subsection (b) of this Section
6.5), which notice shall direct the Trustee as to the disposition of the
remaining assets. The Trust Agreement shall otherwise be irrevocable during its
term.
(b) In the event that either the Company or the Division shall desire
to terminate this Agreement but is unable to secure the consent of the other to
termination, pursuant to subsection (a) of this Section 6.5, the party desiring
to terminate this Agreement shall submit a written request for consent to
termination to the other Party (with a copy to the Trustee) by certified mail,
return receipt requested (the "Termination Request"). Such request shall state
conspicuously, and in bold-face type, that such request contains
"Time-Sensitive" matters. The Party receiving the Termination Request shall
notify the Party making such request of its response to the Termination Request
within 30 days of the former's receipt of the Termination Request, which notice,
in the event of disapproval of the Termination Request, shall specify the basis
of such disapproval. In the event that the Party receiving the Termination
Request does not consent thereto or fails to respond within the time period
specified, the Party making such request may petition the Bankruptcy Court for
an order finding that, notwithstanding the other party's lack of consent (or
objection) to termination, the Trust should be terminated.
Section 6.6. AMENDMENT.
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(a) With the prior written approval of the Division, which approval
shall not be unreasonably withheld, the Company may at any time by written
instrument delivered to Trustee amend this Trust Agreement; PROVIDED, HOWEVER,
that any amendment which would increase the responsibilities of the Trustee
shall require the consent of the Trustee. The Company shall furnish to Trustee
the
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written form of said amendment as executed by the Company along with proper
verification of the Division's prior written approval. Upon the execution of
said amendment by Trustee, said amendment shall be considered to be an amendment
to this Trust Agreement and shall be binding upon all parties hereto and upon
any beneficiaries hereof. The Trustee shall not be obligated to execute any
amendment hereof that it believes may result in it incurring liability or that
would delete any protection or benefit to it provided hereunder.
(b) In the event that the Division withholds approval of a proposed
amendment, the Amendment shall not become effective until (1) the Company, the
Division, and the Trustee agree in writing to such amendment, or (2) the Company
obtains an order from a court of competent jurisdiction approving the amendment.
Section 6.7. OTHER TERMS. The captions for the paragraphs contained
herein are solely for the convenience of the Parties and do not, in themselves,
have any legal significance. Time is of the essence in this Trust Agreement. In
this Trust Agreement, the plural includes the singular and vice versa. This
Trust Agreement constitutes the complete agreement between the Parties hereto
and there are no representations, agreements, or understandings other than as
set forth herein. This Trust Agreement may not be amended, changed, or modified
except by a writing signed by the Division and the Company and in accordance
with the procedures set forth in Section 6.6 hereof.
Section 6.8. INTERPRETATION. If any of the Parties hereto shall be in
disagreement about the interpretation of this Trust Agreement, or about the
rights and obligations of or the propriety of any action contemplated by Trustee
hereunder, any Party may (but need not), at its sole discretion, file a motion
in the Bankruptcy Court to resolve said disagreement. Trustee shall be
indemnified for all costs, including reasonable attorney's fees, in connection
with the aforesaid motion, and shall be fully protected in suspending all or a
part of its activities under this Trust Agreement until the Bankruptcy court
resolves such disagreement. The Division and the Company shall each bear its own
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costs and expenses under this Agreement; provided, however, that if either seeks
Bankruptcy Court intervention as a result of egregious conduct on the part of
the other, the movant may seek to have the Bankruptcy Court assess attorneys'
fees and costs against the party whose action necessitated such proceeding.
Section 6.9. BANKRUPTCY COURT JURISDICTION. The Restated, Amended and
Consolidated Trust Agreement and all assets of the trust created thereby, shall
remain subject to subject to the continuing jurisdiction of the Bankruptcy Court
pursuant to paragraph 3(f) of The Final Decree of GDC, IN RE GENERAL DEVELOPMENT
CORPORATION, ET AL., Case No. 90-12231-BKC-AJC (Bankr. S.D. Fla. Mar. 15, 1995),
and Trustee shall comply with the orders of the Bankruptcy Court. In the absence
of an order of the Bankruptcy Court to the contrary, Trustee shall have no
affirmative duty to seek further authority from the Bankruptcy Court to take any
actions necessary under and pursuant to this Agreement.
Section 6.10. INTEREST OF CERTAIN LENDERS. The Company and the Division
acknowledge that the lenders (the "Lenders") under the Working Capital and Term
Loan Agreement dated as of March 31, 1992 (the "Term Loan Agreement"), have an
interest, and the note holders (the "Note Holders") under the Secured Floating
Rate Note Agreement dated as of March 31, 1992 (the "Note Agreement"), have a
subordinated interest in any distributions made to the Company pursuant to
Section 2.6 hereof, and the Company has informed the Trustee of the existence of
such interests. If a default has occurred and is continuing under either the
Term Loan Agreement or the Note Agreement (a "Default"), the Lenders' agent
under the Term Loan Agreement (the "Lenders' Agent") or the Note Holders' agent
under the Note Agreement (the "Note Holders' Agent"), as the case may be, may
give the Trustee notice of such fact. From the Trustee's receipt of such notice
until (a) informed otherwise by the Lenders' Agent or the Note Holders' Agent,
as the case may be, or (b) ordered to do otherwise by a final order of a court
of competent jurisdiction, any distributions pursuant to Section 2.6 hereof
shall be made: (i) so long as any obligations are outstanding under the Term
Loan Agreement, to the Lenders' Agent, and (ii) thereafter and so long as any
obligations are outstanding under the Note Agreement, to the Note Holder's
Agent. Providing notice to the Trustee of a Default shall be the sole
responsibility of the Lenders' Agent and/or the Note Holders' Agent, and the
Trustee shall have no obligation to determine whether there has been a Default
prior to making any distributions under this Agreement.
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Section 6.11. ENTIRE AGREEMENT. This Trust Agreement, together with the
Utility Lot Trust Agreement, constitutes the entire agreement between the
Parties. This Trust Agreement, and the Utility Lot Trust Agreement, supersede
any prior agreements or understandings, oral or written, with respect to the
subject matter of this Trust Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Restated,
Amended and Consolidated Trust Agreement as of the day and year first above
written.
ATLANTIC GULF COMMUNITIES CORPORATION
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx, Esq.
Vice-President - CFO
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
STATE OF FLORIDA, DEPARTMENT OF BUSINESS
REGULATION, DIVISION OF FLORIDA LAND SALES,
CONDOMINIUMS, AND MOBILE HOMES
By: /s/ XXXXXX X. XXXXXX, XX.
----------------------------
Xxxxxx X. Xxxxxx, Xx.
Director, Division of
Florida Land Sales, Condominiums,
and Mobile Homes
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
FIRST UNION NATIONAL BANK OF FLORIDA,
AS TRUSTEE
By:
----------------------------
Corporate Trust Department
Fourteenth Floor
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
