TERM LOAN AGREEMENT
DATED AS OF DECEMBER 31, 1998
BY AND AMONG
ATLANTIC GULF COMMUNITIES CORPORATION,
THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF,
ANGLO-AMERICAN FINANCIAL,
AS AGENT
AND
X. X. XXXXXXXX & CO., LLC,
AS COLLATERAL AGENT
TERM LOAN AGREEMENT
ATLANTIC GULF COMMUNITIES CORPORATION
TABLE OF CONTENTS
SECTION 1 DEFINITIONS...........................................................................1
1.1 Certain Defined Terms.................................................................1
1.2 Other Definitional Provisions........................................................23
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS......................................................24
2.1 Term Loans...........................................................................24
2.2 Notes................................................................................24
2.3 Procedure for Borrowing..............................................................25
2.4 Use of Proceeds of Loans.............................................................25
2.5 Mandatory Prepayments of Loans.......................................................25
2.6 Optional Prepayments.................................................................25
2.7 Repayment at Maturity................................................................26
2.8 Interest Rates and Payment Dates.....................................................26
2.9 Fees.................................................................................27
2.10 Computation of Interest and Fees.....................................................27
2.11 Pro Rata Treatment and Payments......................................................27
2.12 Requirements of Law..................................................................29
2.13 Taxes................................................................................29
SECTION 3 COLLATERAL...........................................................................31
3.1 Liens in Subsidiary Stock, Contract Receivables, Real Property and Personal
Property.............................................................................31
3.2 Security Documents...................................................................31
3.3 Subordinations and Releases of Mortgage Liens........................................34
3.4 Guarantees...........................................................................35
SECTION 4 REPRESENTATIONS AND WARRANTIES.......................................................35
4.1 Financial Condition..................................................................36
4.2 No Material Adverse Change...........................................................36
4.3 Corporate Existence; Compliance with Law.............................................37
4.4 Corporate Power; Authorization; Enforceable Obligations..............................37
4.5 No Legal Bar.........................................................................38
4.6 No Material Litigation...............................................................38
4.7 No Default...........................................................................39
4.8 Ownership of Property; Liens.........................................................39
4.9 Intellectual Property................................................................39
4.10 Taxes................................................................................39
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4.11 Federal Regulations..................................................................40
4.12 ERISA................................................................................40
4.13 Investment Company Act; Other Regulations............................................40
4.14 Subsidiaries and Joint Ventures......................................................41
4.15 Environmental Matters................................................................41
4.16 Indebtedness.........................................................................42
4.17 Contingent Obligations...............................................................42
4.18 Restitution Program and Final Judgment...............................................42
4.19 Certain Fees.........................................................................42
4.20 Disclosure...........................................................................43
4.21 Insurance............................................................................43
4.22 Real Property Matters................................................................43
4.23 Reorganization Proceedings...........................................................43
4.24 Excluded Subsidiaries; Unrestricted Subsidiaries.....................................44
4.25 No Further Amounts Due Under Unsecured 1996 Notes....................................44
4.26 Bank Accounts........................................................................44
4.27 [Intentionally omitted]..............................................................44
4.28 MPUD Subsidiary Groups...............................................................44
4.29 SPUD Subsidiaries ...................................................................44
4.30 DRI and Zoning Matters ..............................................................45
4.31 Bankruptcy Matters ..................................................................45
4.32 Series A Preferred Stock ............................................................45
4.33 Series B Preferred Stock ............................................................45
SECTION 5 CONDITIONS PRECEDENT.................................................................45
5.1 Conditions to Effectiveness of this Agreement........................................45
5.2 Additional Conditions to the Loan....................................................49
5.3 Conditions Subsequent................................................................50
SECTION 6 AFFIRMATIVE COVENANTS................................................................50
6.1 Financial Statements.................................................................51
6.2 Certificates; Other Information......................................................52
6.3 Payment of Obligations...............................................................53
6.4 Conduct of Business and Maintenance of Existence.....................................53
6.5 Maintenance of Property; Insurance...................................................53
6.6 Inspection of Property; Books and Records; Appraisals................................54
6.7 Notices..............................................................................55
6.8 Environmental Laws...................................................................55
6.9 Business Plan........................................................................56
6.10 Authorizations.......................................................................56
6.11 Dividends from Subsidiaries..........................................................57
6.12 Supplemental Reports Regarding Real Property.........................................57
6.13 Compliance with Laws.................................................................57
6.14 Other Notices........................................................................57
6.15 Company Operating Account Control Agreement..........................................58
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6.16 Indemnification by Company ..........................................................58
SECTION 7 NEGATIVE COVENANTS...................................................................58
7.1 Maintenance of Consolidated Net Worth................................................58
7.2 Limitation of Indebtedness...........................................................59
7.3 Limitation on Liens..................................................................61
7.4 Limitation on Guarantee Obligations..................................................63
7.5 Limitations on Fundamental Changes...................................................63
7.6 Limitation on Sale of Assets.........................................................63
7.7 Limitation on Dividends..............................................................64
7.8 [Intentionally Omitted]..............................................................64
7.9 Limitation on Investments, Loans, and Advances.......................................64
7.10 Limitation on Optional Payments and Modifications or Renewals of Debt
Instruments..........................................................................65
7.11 Transactions with Affiliates.........................................................66
7.12 Sale and Leaseback...................................................................66
7.13 Fiscal Year..........................................................................66
7.14 Limitation on Negative Pledge Clauses................................................66
7.15 Deviation from Business Plan.........................................................67
7.16 Inter-Project Loans, Mergers, Consolidations and Investments.........................67
7.17 Limitation on Bank Accounts..........................................................67
7.18 Venture Subsidiaries and Joint Ventures..............................................67
7.19 Employee Benefits....................................................................67
7.20 Charter Documents ...................................................................68
SECTION 8 EVENTS OF DEFAULT; REMEDIES..........................................................68
8.1 Events of Default; Remedies..........................................................68
SECTION 9 AGENTS...............................................................................72
9.1 Appointment of Agent.................................................................72
9.2 Appointment of Collateral Agent......................................................72
9.3 [intentionally omitted]..............................................................73
9.4 Delegation of Duties.................................................................73
9.5 Exculpatory Provisions...............................................................73
9.6 Reliance by Agents...................................................................74
9.7 Notice of Default....................................................................74
9.8 Non-Reliance on Agents and Other Lenders.............................................75
9.9 Indemnification......................................................................75
9.10 Representations and Warranties of Collateral Agent...................................76
9.11 Agent in its Individual Capacity.....................................................77
9.12 Successor Agents.....................................................................77
9.13 Change of Agent's Office ............................................................78
SECTION 10 MISCELLANEOUS........................................................................78
10.1 Amendments and Waivers...............................................................78
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10.2 Notices..............................................................................79
10.3 No Waiver: Cumulative Remedies.......................................................79
10.4 Survival of Representations and Warranties...........................................79
10.5 Payment of Expenses and Taxes........................................................80
10.6 Successors and Assigns: Participations; Purchasing Lenders...........................81
10.7 Adjustments; Set-Off.................................................................83
10.8 Appointment of Agent as Company's Lawful Attorney....................................84
10.9 Counterparts.........................................................................84
10.10 Severability.........................................................................84
10.11 Integration..........................................................................84
10.12 Governing Law........................................................................85
10.13 Submission to Jurisdiction; Waivers..................................................85
10.14 Acknowledgments......................................................................86
10.15 Waivers of Any Jury Trial............................................................86
10.16 Confidentiality......................................................................87
10.17 Further Assurances ..................................................................87
10.18 Controlling Agreement................................................................88
SCHEDULES
Schedule 2.1 Commitments
Schedule 4.1 Financial Disclosures
Schedule 4.2 Material Adverse Events
Schedule 4.4 Consents
Scehdule 4.6 SEC Disclosures Regarding Litigation
Schedule 4.7 Defaults on Contractual Obligations
Schedule 4.9 Intellectual Property Exceptions
Schedule 4.10 Tax Claims
Schedule 4.12 ERISA Matters
Schedule 4.14(A) Subsidiaries
Schedule 4.14(B) Joint Ventures
Schedule 4.15 Environmental Matters
Schedule 4.16 Indebtedness
Schedule 4.17 Contingent Obligations
Schedule 4.21 Insurance
Schedule 4.24 Description of Assets and Business of Unrestricted Subsidiaries
Schedule 4.26 Bank Accounts
Schedule 4.28 MPUD Subsidiary Groups
Schedule 4.29 SPUD Subsidiaries
Schedule 4.30 DRI and Zoning Matters
Schedule 5.1(k) Real Property
Schedule 5.1(m) Material Adverse Effects
Schedule 5.3(c) Blocked Account Agreements
Schedule 7.3 Existing Liens
Schedule 7.9(c) Description of Loans to Xxxxxxxxxx
Schedule 7.17 Restricted Accounts
Schedule 10.6 Initial Participants
Schedule E-1 Eligible Tract Lands
Schedule E-2 Excluded Subsidiaries
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Schedule N-1 Net Cash Flow
Schedule U-1 Unrestricted Subsidiaries
EXHIBITS
Exhibit I-1 Form of Intercreditor Agreement
Exhibit J-1 Form of Assignment of Partnership Interests
Exhibit 2.2 Form of Note
Exhibit 10.6 Form of Assignment and Assumption Agreement
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TERM LOAN AGREEMENT
ATLANTIC GULF COMMUNITIES CORPORATION
THIS TERM LOAN AGREEMENT (this "AGREEMENT") is dated as of
December 31, 1998, and entered into 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
"LENDER" and collectively as "LENDERS"), ANGLO-AMERICAN FINANCIAL, a New York
limited partnership, as agent for Lenders (hereinafter, in such capacity,
together with any successors thereto in such capacity, referred to as "AGENT"),
and X. X. XXXXXXXX & CO., LLC, a New York limited liability company ("MHD") and
an Affiliate of DK Partners (as defined below), as collateral agent for Lenders
(hereinafter, in such capacity, together with any successors thereto in such
capacity, referred to as "COLLATERAL AGENT"). All capitalized terms not
otherwise defined herein have the meanings given such terms in Section 1.
R E C I T A L S:
WHEREAS, concurrently herewith, Company is entering into the
Recapitalization Transactions;
WHEREAS, Company wishes to borrow term loans in an aggregate
principal amount equal to $26,500,000 and Lenders are willing to make such loans
on the terms and conditions set forth in this Agreement; and
WHEREAS, Lenders desire to appoint Anglo-American Financial,
L.P. as Agent hereunder and under the Loan Documents and MHD to serve as
Collateral Agent for Lenders under the Loan Documents.
NOW THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Lenders, Agent,
and Collateral Agent agree as follows:
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SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"AAF FAIR VALUE" means, for each Eligible Subdivision Project
and/or Eligible Joint Venture Project, as applicable, at any time the present
value at such time of such project based on the pro forma statements of cash
flows for such project (which are included in Appendix L to the E&Y Report) or,
if so requested by the Agent or the Required Lenders (no more frequently than
annually and, if the DK Lenders have requested a subsequent report within such
annual period, then the subsequent report delivered to the DK Lenders shall
satisfy this requirement), in any subsequent report of Ernst & Young (or such
other independent consultant as may be acceptable to the Agent) provided to the
Lenders using a discount rate of the higher of (a) 20% or (b) the product of two
(2) TIMES the Prime Rate in effect at such time, and which pro forma statements
shall be updated by the Company from time to time, but no less frequently than
quarterly, for actual revenues, expenses and financings. For interim months
between quarterly updates, the pro forma statements shall be adjusted by adding
any project expenditures (contributed by financing or otherwise) less Net Cash
Proceeds from any sales.
"ADMINISTRATIVE CLAIMS" has the meaning assigned that term in
Article I of the Reorganization Plan.
"AFFILIATE" with respect to any Person, means (a) any other
Person which is a Subsidiary of such Person, (b) any other Person (and each
Subsidiary thereof) of which such Person is a Subsidiary, and (c) any other
Person which is under common control with such Person.
"AGENT" has the meaning assigned that term in the introductory
paragraph to this Agreement.
"AGREED PRIORITY" means, at any time when the DK Loan
Obligations or the Permitted Refinancing Indebtedness remains outstanding, a
second priority security interest (second only to the Liens of Collateral Agent
on behalf of the DK Lenders or any successor collateral agent on behalf of the
lenders holding the Permitted Refinancing Indebtedness), and at any time when no
DK Loan Obligation or any Permitted Refinancing Indebtedness remains
outstanding, a first priority security interest.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"ANNUAL NET INCOME" means net income as shown on the
consolidated statements of income provided by Company under Section 6.1, but in
no event less than 0.
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"APOLLO" means AP-AGC, LLC, a Delaware limited liability
company.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning assigned
that term in Section 10.6.
"BANK ACCOUNTS" means any and all deposit accounts, money
market accounts and any other deposits and investments of Company or any
Subsidiary held in any bank or other financial institution, any brokerage firm
or any other Person and all money, instruments, securities, documents and other
investments held pursuant thereto, whether now existing or owned or hereafter
created or acquired (exclusive of all but the residual, remainder or beneficial
interest of Company and its Subsidiaries in the Reserve Accounts, the Claims
Disbursement Account and all other escrow, restricted, custodial and fiduciary
accounts, the pledge of which by Company or any Subsidiary is prohibited by
agreements existing on the Effective Date or by law, as set forth in SCHEDULE
7.17, which may be amended from time to time by written notice to Agent to
include other restricted accounts).
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy" from time to time in effect, or any successor statute.
"BANKRUPTCY COURT" means the United States Bankruptcy Court
for the Southern District of Florida, or in the event that such court ceases to
exercise jurisdiction over the Reorganization Proceedings, the court that
exercises jurisdiction over the Reorganization Proceedings in lieu of the United
States Bankruptcy Court for the Southern District of Florida.
"BORROWING DATE" means any Business Day specified in a notice
pursuant to SECTION 2.3 as the date on which Company requests Lenders to make
the Loans hereunder.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day which either is a legal holiday under the laws of the State of New York
or is a day on which banking institutions located in the State of New York are
authorized or required by law or other governmental action to close.
"BUSINESS PLAN" means as of the Effective Date and until a new
Business Plan is delivered to Lenders in accordance with SECTION 6.9, the
business plan of Company and its Subsidiaries dated January 26, 1999, and
thereafter the business plan of Company and its Subsidiaries delivered to and
approved by Required Lenders in December of each year in accordance with SECTION
6.9.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
capital stock of a corporation any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"CASH COLLATERAL ACCOUNTS" means any and all accounts that
Collateral Agent for the benefit of the DK Lenders and the Lenders may from time
to time require to be established
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and maintained with financial institutions reasonably satisfactory to Collateral
Agent and pledged to Collateral Agent pursuant to cash collateral account
agreements in form and substance reasonably satisfactory to Collateral Agent.
"CASH EQUIVALENTS" means (a) securities issued or directly and
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than 90 days from the date
of acquisition, (b) time deposits and certificates of deposit having maturities
of not more than 90 days from the date of acquisition issued by any domestic
commercial bank, or non-domestic commercial bank provided that such non-domestic
commercial bank shall have offices in the United States, having capital and
surplus in excess of $500,000,000, (c) repurchase obligations with a term of not
more than 30 days for underlying securities of the types described in clauses
(a) and (b) entered into with any bank meeting the qualifications specified in
clause (b) above, and (d) commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or P-1 or the equivalent thereof by
Xxxxx'x Investors Service, Inc. or which is issued by any domestic commercial
bank having capital and surplus in excess of $500,000,000 (or any holding
company thereof) and, in any such case, maturing within 90 days after the date
of acquisition.
"CHANGE OF CONTROL" means, (i) directly or indirectly a sale,
transfer, or other conveyance of all or substantially all of the assets of the
Company, on a consolidated basis, to any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable), as an entirety or substantially as an entirety in one
transaction or series of related transactions, in each case with the effect that
the Person or group of Persons that, as of the Effective Date, are not
shareholders of the Company (or any Person or group of Persons that, as of the
Effective Date, are Affiliates of such shareholders) own more than 30% of the
aggregate number of votes of any class of Capital Stock of the Company which
ordinarily have voting power for the election of directors, managers or trustees
of the transferee entity immediately after such transaction, or (ii) any
"person" or "group" (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable), other than the
shareholders of the Company as of the Effective Date (or any Person or group of
Persons that, as of the Effective Date, are Affiliates of such shareholders), is
or becomes the "beneficial owner" (as that term is used in Rules 13d-3 and 13d-5
under the Exchange Act, whether or not applicable, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 30% of the aggregate
number of votes of any class of Capital Stock of the Company which ordinarily
have voting power for the election of directors of the Company; provided that a
sale, transfer or other conveyance to Apollo or any Affiliate of Apollo shall
not constitute a Change of Control.
"CLAIMS DISBURSEMENT ACCOUNT" means the segregated account
established for purposes of holding funds borrowed to pay Administrative Claims,
Priority Claims and Convenience Class Claims pursuant to Sections 3.2.4 and
8.1.1 of the Reorganization Plan.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
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"COLLATERAL" has the meaning assigned that term in Section
3.1.
"COLLATERAL AGENT" means MHD solely in its capacity as
collateral agent for Lenders under the Loan Documents pursuant to the terms of
this Agreement and the other Loan Documents.
"COLLECTIONS" means all cash, checks, notes, instruments, and
other items of payment (including insurance proceeds, proceeds of cash sales,
rental proceeds, and tax refunds).
"COMMERCIAL REAL ESTATE" means all Real Property of Company
and its Subsidiaries (including condominium and cooperative units), other than
Real Property reserved for sale as single family residential homes or lots.
"COMMERCIAL RECEIVABLES" means all promissory notes and
mortgages and deeds of trust payable to, or held by, Company or any Subsidiary,
and all other documents, instruments and agreements executed in connection
therewith, whether currently existing or hereafter created or acquired, arising
from the sale of single family homesites or arising from the sale of other Real
Property and all cash and non-cash proceeds thereof.
"COMMITMENT" means, as to any Lender, the obligation of such
Lender, if any, to make a Loan to Company hereunder in an aggregate principal
amount not to exceed the amount set forth opposite such Lender's name on
SCHEDULE 2.1; the Commitments of all Lenders, are collectively referred to
herein as the "COMMITMENTS."
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, which is under common control with Company within the meaning of
Section 4001 of ERISA or is part of a group which includes Company and which is
treated as a single employer under Section 414 of the Code.
"COMPANY OPERATING ACCOUNT" means that certain deposit account
number 6189189013641 maintained by Company with Sun Trust Bank, Miami, N.A. or
such other deposit account maintained by Company at a financial institution
reasonably satisfactory to Collateral Agent.
"COMPANY OPERATING ACCOUNT CONTROL AGREEMENT" means a written
agreement among Company, MHD (in its capacity as Collateral Agent), and
Operating Account Bank, with respect to the Company Operating Account, in form
and substance reasonably satisfactory to Collateral Agent, pursuant to which
Operating Account Bank acknowledges the security interests granted by Company to
Collateral Agent in the Company Operating Account, waives rights of setoff with
respect to the Company Operating Account, and agrees to act upon the
instructions of Collateral Agent with respect to the disposition of funds in the
Company Operating Account should Operating Account Bank receive such
instructions from Collateral Agent.
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"CONDEMNATION AWARDS" means any and all proceeds (including
proceeds in the form of promissory notes or other agreements for the payment of
proceeds) from (a) the taking by eminent domain, condemnation or otherwise, or
acquisition pursuant to contract, of any property of Company or any Subsidiary
by the United States of America, the State of Florida or any political
subdivision thereof, or any agency, department, bureau, board, commission or
instrumentality of any of them, including any awards and/or other compensation
awarded to, or received by, the Company or GDU, whether as a result of
litigation, arbitration, settlement or otherwise, arising from the Utility
Condemnation Proceedings or (b) any sale by Company or any Subsidiary of a water
and utility system to a governmental entity in lieu of condemnation whether now
owned or hereafter created or acquired.
"CONFIRMATION ORDER" means the order issued on March 27, 1992
by the Bankruptcy Court, confirming the Reorganization Plan.
"CONSOLIDATED NET WORTH" means, at any particular date, all
amounts which, in accordance with GAAP, would be included as Shareholders'
Equity on a consolidated balance sheet of Company and its consolidated
Subsidiaries at such date.
"CONTRACTUAL OBLIGATION" means, with respect to any Person,
any provision of any security issued by that Person or of any agreement,
instrument or other undertaking to which that Person is a party or by which it
or any of its property is bound.
"CREDITORS COMMITTEE" has the meaning assigned that term in
Article 1 of the Reorganization Plan.
"DEEDS OF TRUST" means the Deeds of Trust executed from time
to time between Company or a Subsidiary and Collateral Agent substantially in
the form of (i) the Subordinate Deed of Trust and Security Agreement in
existence as of December 31, 1998 and (ii) the Junior Deed of Trust and Security
Agreement in existence as of December 31, 1998, as the same may be amended,
supplemented or otherwise modified from time to time (including any amendments
or modifications made in connection with this Agreement), pursuant to which
Company and Subsidiaries grant a security interest in the Real Property located
in Tennessee (and in such other jurisdictions where "deeds of trust" are used to
encumber real property) and related Personal Property of Company or Subsidiaries
to Collateral Agent, for the benefit of Lenders, as required by this Agreement.
"DEFAULT" means any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DEFAULT RATE" has the meaning assigned to that term in
Section 2.8(b).
"DEPOSIT ACCOUNT SECURITY AGREEMENT" means that certain Junior
Deposit Account Security Agreement, dated as of December 31, 1998, executed by
Company and each of its Subsidiaries in favor of Collateral Agent, for the
benefit of Lenders.
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"DK LENDERS"means the lenders party to the DK Loan Agreement
and their respective successors and assigns.
"DK LOAN(S)" means the loan(s) outstanding from time to time
under the DK Loan Agreement.
"DK LOAN AGREEMENT" means the Third Amended and Restated
Revolving Loan Agreement, dated as of December 31, 1998, among Company, the DK
Lenders and MHD, as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof.
"DK LOAN DOCUMENTS" means, collectively, (i) the DK Loan
Agreement and (ii) the "Loan Documents" as defined in the DK Loan Agreement,
each of the foregoing as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof.
"DK LOAN OBLIGATIONS" means (i) the DK Loans from time to time
outstanding under the DK Loan Documents; (ii) all interest, fees, prepayment
premiums and late payment fees now or hereafter payable with respect thereto;
(iii) all existing and future guaranty obligations relating to the foregoing;
and (iv) all other fees (including, without limitation, attorneys' and
paralegals' fees and expenses) and other amounts now or hereafter payable to the
DK Lenders, or any of them, or their agents under or in respect of the DK Loan
Documents.
"DK PARTNERS" means DK Acquistion Partners, L.P., a New York
limited partnership, and its successors.
"DOLLARS" and the sign "$" means the lawful money of the
United States of America.
"E & Y REPORT" means the Consultant's Report - Atlantic Gulf
Communities Corporation, October 9, 1998, prepared by Ernst & Young LLP.
"EFFECTIVE DATE" means the date, on or before February 2,
1999, upon which all of the conditions set forth in Section 5 of this Agreement
have been met or waived by the Lenders in their sole discretion and this
Agreement becomes effective.
"ELIGIBLE COMMERCIAL RECEIVABLES" means those Commercial
Receivables that comply with each and all of the representations and warranties
representing Commercial Receivables made by Company or any Subsidiary to Agent
or Lenders in the Loan Documents or in the DK Loan Documents, and that are and
at all times continue to be acceptable to Agent in all respects; provided,
however, that standards of eligibility may be fixed and revised from time to
time by Agent in Agent's reasonable credit judgment. Eligible Commercial
Receivables shall not include any of the following: (i) Commercial Receivables
that are in material default; (ii) Commercial Receivables with respect to which
the obligor is an employee, Affiliate or agent of Company or any Subsidiary;
(iii) Commercial Receivables with respect to which the obligor is a creditor of
Company or any Subsidiary, has or has asserted a right of setoff, or has
disputed its
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liability or made any claim with respect to the Commercial Receivables;
provided, however, that such Commercial Receivables only shall be deemed
ineligible under this clause to the extent of the actual or likely offsetting
amount as determined by Agent, in its reasonable credit judgment, unless Agent
believes that the dispute or claim will jeopardize the repayment of all or
substantially all of the Commercial Receivables in a timely manner; (iv)
Commercial Receivables that the obligor has failed to pay within 90 days of due
date; (v) Commercial Receivables with respect to which the obligor is the
subject of any Insolvency Proceeding, or becomes insolvent; and (vi) Commercial
Receivables the collection of which Agent, in its reasonable credit judgment,
believes to be doubtful by reason of the obligor's financial condition.
"ELIGIBLE HOMESITE CONTRACT RECEIVABLES" means those Homesite
Contract Receivables that comply with each and all of the representations and
warranties respecting Homesite Contract Receivables by Company or any Subsidiary
to Agent and Lenders in the Loan Documents or in the DK Loan Documents, and that
are and at all times continue to be acceptable to Agent in all respects;
provided, however, that standards of eligibility may be fixed and revised from
time to time by Agent in Agent's reasonable credit judgment. Eligible Homesite
Contract Receivables shall not include any of the following: (i) Homesite
Contract Receivables that are in material default; (ii) Homesite Contract
Receivables with respect to which the obligor is an employee, Affiliate or agent
of Company or any Subsidiary; (iii) Homesite Contract Receivables with respect
to which the obligor is a creditor of Company or any Subsidiary, has or has
asserted a right of setoff, or has disputed its liability or made any claim with
respect to the Homesite Contract Receivable; provided, however, that Homesite
Contract Receivables only shall be deemed ineligible under this clause to the
extent of the actual or likely offsetting amount as determined by Agent, in its
reasonable credit judgment, unless Agent believes that the dispute or claim will
jeopardize the repayment of all or substantially all of the Homesite Contract
Receivables in a timely manner; (iv) Homesite Contract Receivables that the
obligor has failed to pay within 90 days of due date; (v) Homesite Contract
Receivables with respect to which the obligor is the subject of any Insolvency
Proceeding, or becomes insolvent; and (vi) Homesite Contract Receivables the
collection of which Agent, in its reasonable judgment, believes to be doubtful
of the obligor's financial condition.
"ELIGIBLE JOINT VENTURE PROJECTS" means the Joint Ventures
initially consisting of the Sunset Lakes Project, Jupiter Ocean Grande Project
and the Falcon Trace Project, each as described in the E & Y Report, and that
certain joint venture project located in Cary, North Carolina, commonly known as
"Xxxx Xxxx", and that certain joint venture project located in Orlando, Florida,
known as the "Naval Training Center Project".
"ELIGIBLE SUBDIVISION PROJECTS" means only those projects
owned in their entirety by the Company or any of its Subsidiaries, or those
projects otherwise deemed eligible by Agent in its sole discretion from and
after the Effective Date. On the Effective Date, Eligible Subdivision Projects
shall consist of the West Bay Club Project, the Trails of West Frisco Project,
the West Xxxxxxx Project, the Aspen-Glenwood Springs Project, the Lakeside
Estates Project, the Saxon Xxxxx Project and the Riverwalk Tower Project, each
as described in the E & Y Report, and that certain condominium project located
in Xxx County, Florida, currently known as the "West Bay Club Condominium
Project".
-8-
"ENVIRONMENTAL LAWS" means any and all applicable Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or requirements of any Governmental Authority
regulating, relating to, or imposing liability or standards of conduct
concerning, environmental protection matters, including Hazardous Materials, as
now or may at any time hereafter be in effect.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time and any successor statute.
"ERISA EVENT" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan; (b) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA; (c) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA) whether or not waived; (d) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Single
Employer Plan or the withdrawal or partial withdrawal of the Company or any of
its Commonly Controlled Entities from any Single Employer Plan or Multiemployer
Plan; (f) the receipt by the Company or any Commonly Controlled Entity from the
PBGC or a plan administrator of any notice relating to the intention to
terminate any Single Employer Plan or Single Employer Plans or to appoint a
trustee to administer any Single Employer; (g) the receipt by the Company or any
Commonly Controlled Entity of any notice concerning the imposition of withdrawal
liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the
occurrence of a "prohibited transaction" with respect to which the Company or
any of the Subsidiaries is a "disqualified person" (within the meaning of
Section 4975 of the Code) or with respect to which the Company or any such
Subsidiary could otherwise by liable; and (i) any other event or condition with
respect to a Plan or Multiemployer Plan that individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
"EVENT OF DEFAULT" means any of the events specified in
Section 8; PROVIDED that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"EXCLUDED PROPERTY" means (a) the Capital Stock of General
Development Acceptance Corporation and GDV Financial Corporation, (b) 34% of the
Capital Stock of AG Asia, (c) all money or property now or hereafter deposited
into a Reserve Account pursuant to the Reorganization Plan (exclusive of the
residual, remainder or beneficial interests of Company and its Subsidiaries
therein), (d) any portions of payments made on Homesite Contracts Receivable
which are, as a matter of law or pursuant to such Homesite Contracts Receivable,
required to be placed in a restricted account for the payment of utility charges
or paid toward real estate taxes on the lots subject to the respective Homesite
Contracts Receivable giving rise to such payments and (e) the Trust Property.
-9-
"EXCLUDED SUBSIDIARIES" means the direct or indirect
subsidiaries of Company listed on SCHEDULE E-2.
"FINANCING LEASE" means any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a consolidated balance sheet of
Company and Subsidiaries.
"FUNDS FLOW MEMO" means a funds flow memorandum, in form and
substance satisfactory to Agent and Collateral Agent, documenting the sources
and applications of funds in respect of the consummation of the Recapitalization
Transactions and the payment of the amounts required to be paid hereunder to
Agent and Lenders on the Effective Date.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, that are applicable to the circumstances as of the
date of determination; PROVIDED that calculations in connection with the
definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in Section 4.1.
"GAAP BOOK VALUE" means book value as determined by the
Company and reflected on the Company's consolidated balance sheets prepared in
accordance with GAAP consistently applied, except as may be approved by the
Agent in writing, and delivered to Lenders from time to time in accordance with
this Agreement.
"GDC" means General Development Corporation, a Delaware
corporation, under which name Company was formerly known.
"GDU" means the Company's Subsidiary, General Development
Utilities, Inc., a Florida corporation.
"GOVERNMENTAL APPROVALS" has the meaning assigned to that term
in Section 6.10.
"GOVERNMENTAL AUTHORITY" means any nation or government,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or
pertaining to, government.
"GROSS ALLOWED AMOUNT" means, at any time, the sum at such
time of:
(a) an amount equal to 75% of the principal amount of
Eligible Homesite Contract Receivables and Eligible Commercial
Receivables;
-10-
(b) an amount equal to 50% of the lesser of (i) the GAAP
Book Value or (ii) the appraised value (as of the date of the most
recent appraisal of such property that Company has furnished to Agent
and Lenders) of the underlying real estate of Commercial Receivables or
Homesite Contract Receivables which are not Eligible Commercial
Receivables or Eligible Homesite Contract Receivables;
(c) an amount equal to 50% of the GAAP Book Value of Real
Property consisting of identified scattered homesites;
(d) an amount equal to 50% of the sum of (1) the GAAP
Book Value of those parcels of eligible tract land set forth in Schedule E-1 and
(2) any tract land reacquired as the result of foreclosure or a deed in lieu of
foreclosure of Commercial Receivables;
(e) an amount equal to the product of 50% TIMES 92.5% of
the sum of (A) the AAF Fair Value of Eligible Subdivision Projects MINUS (B) all
third-party Indebtedness for such project which is outstanding as of the date of
determination of the AAF Fair Value; and
(f) an amount equal to 50% of the Venture Subsidiaries'
interest in 80% of the AAF Fair Value of Eligible Joint Venture Projects other
than Xxxx Xxxx and the Naval Training Center Project.
"GUARANTEE OBLIGATION" means, as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing person or (b)
another Person (including any bank under any letter of credit) to induce the
creation of which obligation the guaranteeing person has issued a reimbursement,
counter indemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (x) for the purchase or payment of any such
primary obligation or (y) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that, as used
herein, the term "Guarantee Obligation" shall neither include endorsements of
instruments for deposit or collection in the ordinary course of business, nor
constitute Indebtedness. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing
-11-
person's maximum reasonably anticipated liability in respect thereof as
reasonably determined by Company in good faith.
"GUARANTEES" means, collectively, the guarantees of the
Obligations, made by the Subsidiaries and Unrestricted Subsidiaries pursuant to
the Subsidiary Guarantees.
"HAZARDOUS MATERIALS" means any hazardous materials, hazardous
waste, hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"HOMESITE CONTRACTS RECEIVABLES" means all contracts for deed,
promissory notes, mortgages, deeds of trust and other agreements, currently
existing or hereafter created or acquired, pursuant to which Company or any
Subsidiary has the right to receive payment in any form whatsoever for the sale
of single-family homesites (excluding Commercial Receivables), including any and
all accounts, contract rights, chattel paper, general intangibles and unpaid
seller's rights, relating to the foregoing or arising therefrom, reserves and
credit balances arising thereunder and cash and non-cash proceeds of any and all
of the foregoing.
"HOMESITE PROGRAM" has the meaning assigned that term in
Article I of the Reorganization Plan.
"INDEBTEDNESS" of any Person at any date means (but without
duplication if an item of indebtedness falls in more than one category of this
definition): (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services (other than incurred in the
ordinary course of business and payable in accordance with customary practices)
or which is evidenced by a note, bond, debenture or similar instrument, (b) all
obligations (contingent or otherwise) of such Person arising out of letters of
credit issued for the account or upon the application of such Person, (c) all
obligations of such Person under Financing Leases, (d) all obligations of such
Person in respect of acceptances issued or created for the account of such
Person, and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person may have not assumed or otherwise become
liable for the payment thereof; provided that "Indebtedness" shall not include
Guarantee Obligations.
"INSOLVENCY", means, with respect to any Multiemployer Plan,
the condition that such plan is insolvent within the meaning of Section 4245 of
ERISA.
"INSOLVENCY PROCEEDING" means any proceeding commenced by or
against any Person under any provision of the Bankruptcy Code or under any other
bankruptcy or insolvency law, assignments for the benefit of creditors, formal
or informal moratoria, compositions, extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar relief.
"INSOLVENT" means pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY" has the meaning assigned that term in
Section 4.9.
-12-
"INTERCREDITOR AGREEMENT" means that certain Intercreditor
Agreement, dated as of December 31, 1998, by and among Agent, Lenders, MHD, the
DK Lenders, the Secured Agreement Lenders and Collateral Agent and the Secured
Agreement Collateral Agent and acknowledged by Company and its Subsidiaries
(including Unrestricted Subsidiaries and Excluded Subsidiaries) and The Bank of
New York, substantially in the form of EXHIBIT I-1, as such agreement may be
supplemented, amended or otherwise modified from time to time.
"INTEREST PAYMENT DATE" means, as to any Loan, the last day of
each calendar month to occur while such Loan is outstanding and the date on
which such Loan is repaid in full.
"INVESTMENT AGREEMENT" has the meaning ascribed to such term
in the Intercreditor Agreement, but shall not refer to amendments,
modifications, supplements, or restatements thereof entered into after the
Effective Date without the prior consent of Agent and the Lenders.
"INVESTMENT INSTRUMENTS" means the Investment Agreement, the
Preferred Stock, the certificate of designation of preferences and rights
relating to the Preferred Stock, and all other documents, instruments, and
agreements executed in connection therewith, each as from time to time amended,
supplemented or otherwise modified in accordance with the terms hereof, thereof,
and of the Intercreditor Agreement.
"INVESTMENTS" means any and all promissory notes, Capital
Stock (other than Subsidiary Stock), bonds, debentures and securities, held by
Company or any Subsidiary, whether now owned or hereafter acquired.
"JOINT VENTURES" means, collectively, (a) the joint ventures
identified on Schedule 4.14(B), and (b) any other partnership, joint venture,
limited liability company, or other entity in which a Subsidiary acquires, after
the Effective Date and as permitted under Section 7.9(g) and 7.18, equity
interests therein representing 50% or less of such entity's contributed capital;
and "Joint Venture" means any one of them.
"JOINT VENTURE PLEDGE AGREEMENT" means that certain Junior
Assignment of Partnership Interests, dated as of December 31, 1998,
substantially in the form of EXHIBIT J-1, among each of the Venture Subsidiaries
and Collateral Agent, pursuant to which the Venture Subsidiaries pledge all of
their right, title, and interest in and to the Joint Ventures to Collateral
Agent for the benefit of Lenders.
"LENDERS" has the meaning assigned that term in the
introductory paragraph to this Agreement.
"LIEN" means any mortgage, security interest, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Financing Lease having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement under the
-13-
Uniform Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing).
"LOAN BORROWING DATE" means the Business Day specified in a
notice pursuant to SECTION 2.2 as the date on which Company requests Lenders to
make the Loans hereunder.
"LOAN DOCUMENTS" means this Agreement, the Notes, the
Subsidiary Guarantees, the Security Documents, the Tax Servicing Contracts, and
any other agreement entered into, now or in the future, in connection with this
Agreement.
"LOANS" has the meaning assigned that term in Section 2.1.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon
(a) the business, operations, property or condition (financial or otherwise) or
prospects of Company and its Subsidiaries taken as a whole, (b) the ability of
Company to perform its obligations under this Agreement, the Notes, the Security
Documents or other Loan Documents, or (c) the legality, validity, enforceability
of this Agreement, the Notes, the Security Documents or other Loan Documents,
the attachment, perfection or priority of any Liens created by the Loan
Documents, or the rights or remedies of Agent, Collateral Agent or Lenders
hereunder or thereunder.
"MATURITY DATE" means the earlier of February 1, 2002 or the
date that is 30 days prior to the first date on which any holders of the
Preferred Stock are entitled to require Company to purchase any shares of
Preferred Stock.
"MAXIMUM LOAN AMOUNT" means, on any date of determination
prior to the Maturity Date, the lesser of $26,500,000 or the Maximum Permissible
Loan, and on or after the Maturity Date, $0.
"MAXIMUM PERMISSIBLE LOAN" means, on any date of
determination, 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.
"MEZZANINE PROPERTY UNDER DEVELOPMENT" means, collectively,
the Real Property of any MPUD Subsidiary which is acquired for the purpose of
being developed, or which is in the process of being improved or developed,
either by the construction of roads, curb cuts, sewer and water facilities or
other improvements, or by the construction of residential units and
appurtenances thereto.
"MHD" means X. X. Xxxxxxxx & Co., LLC, a New York limited
liability company.
"MORTGAGES" means the Mortgage and Security Agreements
executed from time to time by Company or a Subsidiary in favor of Collateral
Agent, substantially in the form of the Mortgages in existence as of the
Effective Date, and as the same may be amended, supplemented,
-14-
consolidated or otherwise modified from time to time (including as any
amendments and modifications made in connection with this Agreement), pursuant
to which Company and Subsidiaries grant a security interest in the Real Property
located in Florida (or in such other jurisdictions where "mortgages" are used to
encumber real property) and related Personal Property of Company or Subsidiaries
to Collateral Agent, for the benefit of Lenders.
"MPUD HOLDING COMPANY" means a Subsidiary of Company the sole
asset of which is all of the issued and outstanding stock of an MPUD Subsidiary.
"MPUD SUBSIDIARY" has the meaning assigned that term in
Section 7.2(h).
"MPUD SUBSIDIARY GROUP(S)" means an MPUD Subsidiary, its MPUD
Holding Company and all direct and/or indirect, wholly-owned Subsidiaries of
such MPUD Subsidiary ("MPUD SUBSIDIARY SUBSIDIARIES").
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer
plan as defined in Section 4001(a) (3) of ERISA.
"NET CASH PROCEEDS" means with respect to any sale of assets
all cash payments (including any cash received by way of deferred payment
pursuant to, or monetization of, a note receivable or otherwise, but only as and
when and so received) received from such sale net of bona fide direct costs of
sale.
"NET CASH FLOW" means, with respect to any fiscal period of a
Person, on a consolidated basis, the actual consolidated pre-tax net cash flow
as determined on the basis set forth in SCHEDULE N-1.
"NOTES" has the meaning assigned that term in Section 2.2.
"OBLIGATIONS" means all obligations of every nature of Company
from time to time owed to Agent, Lenders or Collateral Agent or any of them
under the Loan Documents, whether for principal, interest (including any
interest that, but for the provisions of the Bankruptcy Code, would have
accrued), premiums (including Early Termination Fees), fees, costs, and expenses
(including any fees, costs, or expenses that, but for the provisions of the
Bankruptcy Code, would have accrued, including, without limitation, all interest
accruing after the commencement of an Insolvency Proceeding whether or not
allowed as a claim in an Insolvency Proceeding), indemnification, or otherwise.
"OFFICIAL UNSECURED CREDITORS COMMITTEE" means the official
committee of creditors appointed by the United States Trustee in the
Reorganization Proceedings.
"OPERATING ACCOUNT BANK" means Sun Trust Bank, Miami, N.A. or
such other financial institution reasonably satisfactory to Agent.
-15-
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor
thereto.
"PERMITTED SALE ASSET" has the meaning assigned that term in
Section 7.6.
"PERMITTED REFINANCING INDEBTEDNESS" has the meaning assigned
to that term in Section 7.2(b).
"PERSON" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"PERSONAL PROPERTY" means the following personal property of
Company or any Subsidiary (exclusive of Homesite Contracts Receivable and
Commercial Receivables of Company or any Subsidiary):
(a) the Bank Accounts;
(b) the Investments;
(c) any and all accounts, contract rights, chattel paper,
instruments and documents, including any right to payment for goods sold or
leased or services rendered, whether now owned or hereafter acquired;
(d) any and all machinery, apparatus, equipment,
fittings, furniture, fixtures, motor vehicles and other tangible personal
property of every kind and description, whether now owned or hereafter acquired,
and wherever located, and all parts, accessories and special tools and
replacements therefor;
(e) any and all general intangibles, whether now owned or
hereafter created or acquired, including all choses in action, causes of action,
rights in and to any and all Condemnation Awards, corporate or other business
records, deposit accounts, inventions, designs, patents, patent applications,
trademarks, trade names, trade secrets, goodwill, copyrights, registrations,
licenses, franchises, customer lists, tax refund claims, computer programs, any
other Intellectual Property, all claims under guaranties, security interests or
other security to secure payment of any accounts by an account debtor, all
rights to indemnification and all other intangible property of every kind and
nature, including (i) the interests, if any, of Company or any Subsidiary in
payments, proceeds, residuals and remainders from, or as a beneficiary of, the
Reserve Accounts, Claims Disbursement Account, or other such accounts, (ii) any
and all beneficial interests in the trusts pursuant to which title to the Trust
Property is held and (iii) any and all other proceeds, choses in action or
causes of action with respect to, or rights to receive proceeds from, any
condemnation of any Real Property or Personal Property of Company or any
Subsidiary, whether now in existence or hereafter created or acquired.
-16-
(f) any and all goods which are, or may at any time be,
goods held for sale or lease or furnished under contracts of service or raw
materials, work-in-process or materials used or consumed in business,
wheresoever located and whether now owned or hereafter created or acquired,
including all such property the sale or other disposition of which has given
rise to accounts and which has been returned to or repossessed or stopped in
transit;
(g) all monies, cash, residues and property of any kind,
now or at any time hereafter in the possession or under the control of any
Lender, any DK Lender or any Secured Agreement Obligee, or any agent or bailee
of any Lender, any DK Lender or any Secured Agreement Obligee;
(h) all accessions to, all substitutions for, and all
replacements, products and proceeds of, the foregoing, including proceeds of
insurance policies insuring the aforesaid property and documents covering the
aforesaid property, all property received wholly or partly in trade or exchange
for such property, and all rents, revenues, issues, profits and proceeds arising
from the sale, lease, license, encumbrance, correction or any other temporary or
permanent disposition of such items or any interest therein whether or not they
constitute "proceeds" as defined in the Uniform Commercial Code; and
(i) all books, records, documents and ledger receipts
pertaining to any of the foregoing, including customer lists, credit files,
computer records, computer programs, storage media and computer software used or
acquired in connection with generating, processing and storing such books and
records or otherwise used or acquired in connection with documenting information
pertaining to the aforesaid property.
"PERSONAL PROPERTY SECURITY AGREEMENT" means that certain
Junior Personal Property Security Agreement, dated as of December 31, 1998,
executed by Company and the Subsidiaries (including Unrestricted Subsidiaries
and Excluded Subsidiaries) now or hereafter party thereto in favor of Collateral
Agent, for the benefit of Lenders.
"PLAN" means, at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PREFERRED STOCK" means the Company's (1) 20% Cumulative
Redeemable Convertible Preferred Stock, Series A (the "SERIES A PREFERRED
STOCK"), the terms and conditions of which are set forth in that certain
Statement of Preferences and Rights of the Series A Preferred Stock (the "SERIES
A STATEMENT"), a copy of which is attached as Annex A to the Company's Amended
and Restated Certificate of Incorporation, and (2) 20% Cumulative Redeemable
Convertible Preferred Stock, Series B (the "SERIES B PREFERRED STOCK"), the
terms and conditions of which are set forth in that certain Statement of
Preferences and Rights of the Series B Preferred Stock (the "SERIES B
STATEMENT"), a copy of which is attached as Annex B to the Company's Amended and
Restated Certificate of Incorporation.
-17-
"PRIME RATE" means, for any day, the prime commercial lending
rate of interest for extensions of credit in U.S. Dollars by financial
institutions in the United States, as published on such day in THE WALL STREET
JOURNAL, or, for any Saturday, Sunday or other day on which said newspaper is
not published by reason of its regular publication schedule, on the next
preceding day on which such newspaper was published. If more than one such prime
commercial lending rate is so published for any day, the "Prime Rate" shall be
the arithmetic mean of the rates so published. If said newspaper ceases
publication, the Agent shall determine the Prime Rate based on the prime
commercial lending rate announced by one or more financial institutions selected
by the Agent in its sole discretion. The Prime Rate is a reference rate and not
necessarily the lowest rate of interest charged by any financial institution.
Each change in an interest rate based on the Prime Rate shall take effect as and
when the Prime Rate changes.
"PRO RATA SHARE" means, with respect to any Lender, the
percentage obtained by dividing (i) such Lender's Commitment or, if the Loans
have been made, the principal amount of such Lender's Loan, by (ii) the
Commitments of all Lenders or, if the Loans have been made, the aggregate
principal amounts of the Loans of all Lenders; PROVIDED, HOWEVER, that, in each
case, in the event all Commitments have been terminated and all Loans have been
repaid, Pro Rata Share shall be determined according to the principal amount of
the Loans in effect immediately prior to such termination and otherwise as set
forth above.
"REAL PROPERTY" means any and all real property and fixtures
and interests in real property and fixtures now owned or hereafter acquired by
Company or any Subsidiary.
"REAL PROPERTY SALE" means the sale, assignment or other
transfer for value of any Real Property by Company or any Subsidiary.
"RECAPITALIZATION TRANSACTIONS" means: (a) the assignment of
the Foothill Loan Documents (as defined in the DK Loan Documents) to MHD, as
agent for the DK Lenders, (b) the execution and delivery of this Agreement and
the DK Loan Agreement and the funding of the Loans in accordance herewith and of
the DK Loans in accordance therewith; (c) (i) the execution and delivery of the
Intercreditor Agreement, (ii) the resignation of The Bank of New York as "SP Sub
Collateral Agent", and (iii) the transition of the "SP Sub Collateral Agent"
functions from The Bank of New York to MHD; and (c) the use by Company of (i)
the proceeds of the Loans on the Effective Date, (ii) the proceeds of the DK
Loans and the Loans, and (iii) unrestricted and unencumbered cash of Company, in
each case, in accordance with the Funds Flow Memo, to finance: (A) the
retirement by Company of all of the outstanding Unsecured Cash Flow Notes in an
aggregate principal amount not greater than $39,496,400; and (B) the repurchase
by Company of Homesite Contract Receivables from (1) Litchfield Financial
Corporation in an aggregate amount not to exceed $2,300,000, and (2) BankBoston
N.A. in an aggregate amount not to exceed $8,300,000.
"REORGANIZATION" means, with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
-18-
"REORGANIZATION PLAN" means the Restated Second Amended Joint
Plan of Reorganization of General Development Corporation jointly proposed in
the Reorganization Proceedings by Company and the Official Unsecured Creditors
Committee, filed on October 9, 1991 with the Clerk of the Bankruptcy Court, as
modified by Modification filed March 9, 1992.
"REORGANIZATION PROCEEDINGS" means the cases commenced on
April 6 and April 12, 1990 under Chapter 11 of Title 11 of the United States
Code in the Bankruptcy Court by GDC (Case No. 90-12231-BKC-AJC), General
Development Financial Services, Inc. (Case No. 90-12232-BKC-AJC), General
Development Resorts, Inc. (Case No. 90-12233 BKC-AJC), Town & Country II, Inc.
(formerly Florida Residential Communities, Inc.) (Case No. 9012234- BKC-AJC),
Five Star Homes Group, Inc. (Case No. 90-12235-BKC-AJC), Five Star Homes, Inc.
(Case No. 90-12338-BKC-AJC), GDV Financial Corporation (Case No. 90-I2236BKC-MC)
and Environmental Quality Laboratory, Incorporated (Case No. 90-12237-BKC-AJC).
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC
Reg. ss.2615.
"REQUIRED LENDERS" means Lenders holding at least 66-2/3% of
the aggregate principal amount of the Commitment or, if the Loans have been
made, of the Loans.
"REQUIREMENT OF LAW" means, as to any Person, the certificate
or articles of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"RESERVE ACCOUNTS" means the Disbursement Account (as defined
in Section 8.4 of the Reorganization Plan); the Disputed Claims Reserve Account
(as defined in Section 8.7 of the Reorganization Plan); any reserve of
securities, utility-satisfied lots, cash or other assets that is established
pursuant to the Reorganization Plan, the Homesite Program, or any agreement
resolving a claim of the State of Florida in the Reorganization Proceedings, to
satisfy requests for utility service; and any reserve of securities or cash
established to fund road or other improvements pursuant to any agreement
resolving a claim of the State of Florida in the Reorganization Proceedings,
including the Utility Lot Trust Agreement, dated December 26, 1996 executed by
and between Company and the State of Florida, Department of Business Regulation,
Division of Florida Land Sales, Condominiums and Mobile Homes.
"RESPONSIBLE OFFICER" means the chief executive officer and
the president of Company, or with respect to corporate proceedings, the
secretary or any assistant secretary of Company, or, with respect to financial
matters, the chief financial officer or treasurer of Company.
"REVERSE STOCK SPLIT" has the meaning set forth in the
definition of Stock Split.
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"SALE AND LEASEBACK" means any arrangement with any Person
providing for the leasing by Company or any Subsidiary of real or personal
property which has been or is to be sold or transferred by Company or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of Company or Subsidiary
"SECURED AGREEMENT" has the meaning ascribed to such term in
the Intercreditor Agreement, but shall not refer to amendments, modifications,
supplements, or restatements thereof entered into after the Effective Date
without the prior consent of Agent and Lenders.
"SECURED AGREEMENT COLLATERAL AGENT" means MHD, in its
capacity as collateral agent for the Secured Agreement Obligees, and its
successors in such capacity.
"SECURED AGREEMENT DOCUMENTS" means the Secured Agreement, the
"Transaction Documents" as defined in the Secured Agreement, the Investment
Instruments, the Secured Notes and any and all instruments, documents and
agreements executed in connection therewith, as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof and of
the Intercreditor Agreement.
"SECURED AGREEMENT OBLIGEES" has the meaning ascribed to such
term in the Intercreditor Agreement.
"SECURED AGREEMENT OBLIGATIONS" means: (i) any indebtedness
and obligations now or hereafter owing to the Secured Agreement Obligees under
or in connection with the Secured Agreement Documents, including, without
limitation, (x) redemption and repurchase obligations with respect to the
Preferred Stock and (y) the Secured Note Obligations; (ii) all interest,
prepayment premiums and late payment fees now or hereafter payable with respect
thereto; (iii) all existing and future guaranty obligations relating to the
foregoing; and (iv) all other fees (including, without limitation, attorneys'
and paralegals' fees and expenses) and other amounts now or hereafter payable to
the Secured Agreement Obligees, or any of them, or their agents under or in
respect of the Secured Agreement Documents.
"SECURED DEBT DOCUMENTS" means, collectively, the Loan
Documents, the DK Loan Documents, and the Secured Agreement Documents, each as
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof, thereof, and of the Intercreditor Agreement.
"SECURED NOTE" means, collectively, (i) that certain $850,000
promissory note dated as of December 31, 1998 and (ii) that certain $1,000,000
promissory note dated as of December 31, 1998, each made by Company to the order
of the Secured Agreement Obligees and each having a maturity date of February 1,
2002.
"SECURED NOTE OBLIGATIONS" means all obligations of Company to
the Secured Agreement Obligees under or with respect to the Secured Note
(whether for principal, interest, fees, costs, expenses or otherwise) and all
obligations of any Subsidiary of Company with respect
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thereto (whether pursuant to a guaranty thereof, as a co-maker thereof or
co-obligor with respect thereto, or otherwise).
"SECURITY AGREEMENTS" means the Personal Property Security
Agreement, the Deposit Account Security Agreement, and any other security
agreements, between Company and/or a Subsidiary and Agent or Collateral Agent,
as the same may be amended supplemented or otherwise modified from time to time,
pursuant to which Company and Subsidiaries assign and grant a security interest
in Homesite Contracts Receivables and Commercial Receivables and Personal
Property of Company or Subsidiaries to Agent or Collateral Agent, for the
benefit of Lenders, as required by this Agreement.
"SECURITY DOCUMENTS" means the Stock Pledge Agreement, the
Joint Venture Pledge Agreement, the Security Agreements, the Mortgages, the
Deeds of Trust, the Company Operating Account Control Agreement, any cash
collateral account agreements, and any and all other agreements, instruments,
documents, financing statements, assignments, notices, mortgages and other
written matter necessary or reasonably required by Agent or Collateral Agent at
any time to create, perfect, maintain or continue Agent's and Collateral Agent's
Lien in the Collateral, together with all amendments, modifications, extensions,
substitutions and renewals thereof.
"SERIES A DOCUMENTS" has the meaning set forth in Section
4.32.
"SERIES A PREFERRED STOCK" and "SERIES B PREFERRED STOCK"
shall have the meanings specified in the definition of PREFERRED STOCK.
"SERIES A STATEMENT" has the meaning assigned to that term in
the definition of Preferred Stock.
"SERIES B STATEMENT" has the meaning assigned to that term in
the definition of Preferred Stock.
"SHAREHOLDERS' EQUITY" means, as to any corporation, an amount
equal to the excess of the assets of such corporation (including minority
interests) over its liabilities, determined in accordance with GAAP and as shown
on the most recently prepared applicable balance sheet of such corporation. The
Company's Preferred Stock shall not be treated as liabilities for purposes
hereof.
"SINGLE EMPLOYER PLAN" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"SPUD SUBSIDIARY" has the meaning assigned that term in
Section 7.2(h).
"STOCK PLEDGE AGREEMENT" means the Fourth Amended and Restated
Stock Pledge Agreement, dated as of the Effective Date, among Company, each of
its Subsidiaries and
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Collateral Agent, pursuant to which Company and Subsidiaries pledge Subsidiary
Stock to Collateral Agent for the benefit of Lenders.
"STOCK SPLIT" means a proposal to amend Company's Amended and
Restated Certificate of Incorporation to effect, if subsequently determined by
Company's board of directors, (1), a reverse stock split of Company's
outstanding common stock on the effective date of the amendment (the "REVERSE
SPLIT EFFECTIVE DATE"), pursuant to which a fixed number of shares (as
determined by the Company's board of directors in its discretion) then
outstanding will be converted into one share (the "REVERSE STOCK SPLIT"), and
all fractions created in the Reverse Stock Split will be cashed out, and (2) to
effect a forward split of the Company's common stock on the day following the
Reverse Split Effective Date, pursuant to which each share of common stock then
outstanding as of such date will be converted into a fixed number of whole
shares of the Company's common stock (as determined by the Company's board of
directors in its discretion).
"SUBSIDIARY" means, as to any Person, a corporation,
partnership, trust (exclusive of any trust created in connection with a Reserve
Account) or other entity of which shares of stock, partnership interests,
beneficial interests or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership, trust (exclusive
of any trust created in connection with a Reserve Account) or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly, through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
Company. Unless otherwise indicated, all references to a Subsidiary or
Subsidiaries of Company shall not mean, include, or refer to the Unrestricted
Subsidiaries, the Excluded Subsidiaries, or the Joint Ventures.
"SUBSIDIARY GUARANTEE" means the Subsidiary Guarantee, dated
as of the Effective Date, executed by Company and each of its Subsidiaries and
Unrestricted Subsidiaries in favor of Agent, for the benefit of Lenders.
"SUBSIDIARY PROPERTY UNDER DEVELOPMENT" means, collectively,
the Real Property of any Subsidiary which is acquired for the purpose of being
developed, or which is in the process of being improved or developed, either by
the construction of roads, curb cuts, sewer and water facilities or other
improvements, or by the construction of residential units and appurtenances
thereto.
"SUBSIDIARY STOCK" means the Capital Stock of any and all
Subsidiaries, Excluded Subsidiaries, and Unrestricted Subsidiaries.
"TAX SERVICING CONTRACTS" means, collectively, the tax
servicing contracts required to be delivered under Section 5.3, and all
amendments, modifications, extensions, substitutions and renewals thereof.
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"TRUST PROPERTY" means the real property held in trust
pursuant to (a) Trust Agreement No. 06-01-009-6082101, dated as of January
17,1991, by and between NCNB National Bank of Florida, as Trustee for the
benefit of Company, the Beneficiary; (b) Trust Agreement No. 06-01-009-6081954,
dated as of January 17,1991, by and between NCNB National Bank of Florida, as
Trustee for the benefit of Company, the Beneficiary; (c) Trust Agreement No.
06-01-009-6082655, dated as of January 17, 1991, by and between NCNB National
Bank of Florida, as Trustee for the benefit of Company and General Development
Financial Services, Inc., the Beneficiaries; (d) Trust Agreement No. 2, dated as
of May 31, 1991, by and between Xxxx Xxxxxx, Esq., as successor Trustee for the
benefit of Company and Cumberland Cove, Inc., the Beneficiaries; and (e) Utility
Lot Trust Agreement.
"20% PROFITS INTEREST" means that certain 20% net profits
interest granted by Company to Apollo or its designee in that certain project
located in Tampa, Florida, known as the Apollo Beach Project currently under
consideration by the Company or another project hereafter acquired or to be
acquired by Company (or a subsidiary of Company) satisfactory to Apollo of
economic value equivalent to the Apollo Beach Project, which 20% net profits
interest represents an additional fee payable to Apollo in connection with the
consummation of the transactions contemplated herein and in the DK Loan
Agreement.
"UCC" means the Uniform Commercial Code as shall be in effect
from time to time in the state of New York.
"UNRESTRICTED SUBSIDIARIES" means, collectively, (a) the
direct or indirect subsidiaries of Company listed on Schedule U-1, and (b) any
other direct or indirect subsidiary of Company that is formed or acquired after
the Effective Date, that does not have or make any investment in any Joint
Venture (nor was formed or acquired for the purpose of having or making any such
investment), and that Agent agrees in writing that such entity shall constitute
an Unrestricted Subsidiary under and for all purposes of this Agreement and the
other Loan Documents, upon which Schedule U-1 automatically shall be deemed to
be amended to reflect the inclusion on such schedule of such new Unrestricted
Subsidiary; and "UNRESTRICTED SUBSIDIARY" means any one of them.
"UNSECURED CASH FLOW NOTES" means those certain Unsecured 13%
Cash Flow Notes due December 31, 1998, issued pursuant to the Indenture dated as
of March 31, 1992.
"UNSECURED 1996 NOTES" means those certain 12% Notes due
December 31, 1996, issued pursuant to the Indenture dated as of March 31, 1992.
"UTILITY LOT TRUST AGREEMENT" means the Utility Lot Trust
Agreement, dated December 26, 1996, by and between Company and the State of
Florida.
"VENTURE SUBSIDIARY" means any Subsidiary whose sole asset is
its equity interest in a Joint Venture and whose sole revenues are derived from
such sole asset.
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"WORKING CAPITAL RESERVES" has the meaning assigned that term
in Article I of the Reorganization Plan.
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have such defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in the other Loan Documents, and
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to Company and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) References to "Sections", "subsections", Exhibits and
Schedules are to Sections, Sub-sections, Exhibits and Schedules, respectively,
of this Agreement unless otherwise specifically provided.
(f) Unless the context of this Agreement clearly requires
otherwise, the term "including" is not limiting.
(g) Unless the context of this Agreement or the other
Loan Documents clearly requires otherwise, any reference in this Agreement or in
the other Loan Documents to this Agreement, any of the other Loan Documents, any
of the other Secured Debt Documents, or the Intercreditor Agreement shall
include all alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions, and supplements, thereto and thereof, as
applicable, made in accordance with the terms hereof, thereof, and of the
Intercreditor Agreement.
SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
2.1 TERM LOANS.
(a) Subject to the terms and conditions hereof, each
Lender severally agrees to make a term loan (collectively, the "Loans") to
Company on the Effective Date in an aggregate
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amount outstanding not to exceed at any one time such Lender's Pro Rata Share of
the Maximum Loan Amount.
(b) Amounts prepaid or repaid on account of the Loans,
whether voluntarily or mandatorily, may not be reborrowed.
(c) All Loans shall be made by Lenders simultaneously, it
being understood that no Lender shall be responsible for any default by any
other Lender in the other Lender's obligations to make Loans hereunder nor shall
the Commitment of any Lender be increased as a result of the default by any
other Lender in such other Lender's obligation to make Loans hereunder. The
default by any Lender in its obligations to make Loans shall not excuse any
other Lender from its obligations to make Loans.
2.2 NOTES.
The Loans made by each Lender shall be evidenced by a
promissory note of Company, substantially in the form of EXHIBIT 2.2 with
appropriate insertions as to payee, date and principal amount (a "Note"),
payable to the order of such Lender, in each case in the face amount of such
Lender's Pro Rata Share of the Maximum Loan Amount. Each Lender is hereby
authorized to record the date and amount of the Loan made by such Lender and the
date and amount of each payment or prepayment of principal thereof or of
interest on such Loan on the schedule annexed to and constituting a part of its
Note, and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded. Each Note shall (a) be dated the
Effective Date, (b) be stated to mature as provided in SECTION 2.7 and (c)
provide for the computation and payment of interest in accordance with SECTIONS
2.8 and 2.10.
2.3 PROCEDURE FOR BORROWING.
Subject to the conditions set forth in this Agreement, Company may make
a borrowing hereunder on any one Business Day during the period from the date
hereof to and including January 31, 1999. Only one borrowing may be made under
this Agreement. Company shall give Agent irrevocable notice (which notice must
be received by Agent prior to 2:00 p.m., New York time two Business Days prior
to the requested Borrowing Date), specifying (a) the amount to be borrowed and
(b) the requested Borrowing Date. Upon receipt of any such notice from Company,
Agent shall promptly (and in any event on the same Business Day) notify each
Lender thereof. The notice of a request for borrowing by Company shall be
accompanied by a certificate of a Responsible Officer of Company (a)
representing and warranting that the purpose for which the requested borrowing
is to be used is permitted by, and is in accordance with, the terms and
conditions of this Agreement, and (b) representing and warranting that the
aggregate principal amount of the Loans outstanding as of the requested
Borrowing Date, shall not exceed the Maximum Permissible Loan. Each Lender shall
make the amount of its Pro Rata Share of the borrowing available to Agent for
the account of Company at the office of Agent specified on the signature pages
hereof prior to 10:00 a.m., New York time, on the requested Borrowing Date in
funds immediately available to Agent. Such borrowing will then be made available
to Company by Agent by paying to such deposit account as Company may designate
in the notice of such
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Borrowing the aggregate of the amounts made available to Agent by Lenders and in
like funds as received by Agent; PROVIDED, HOWEVER, that if Agent or any Lender
determines that any condition precedent to such borrowing has not been met (and,
in the case of a Lender, such Lender has so notified Agent), Agent shall not
make such borrowing available to Company.
2.4 USE OF PROCEEDS OF LOANS.
The proceeds of the Loans shall be used by Company or its
Subsidiaries for the following purposes only: (i) to finance a portion of the
Recapitalization Transactions (as described in, and only to the extent set forth
in, such definition), and (ii) to pay transactional fees, costs, and expenses
incurred in connection with this Agreement; and in any event in compliance with
all applicable laws, rules, regulations and orders.
2.5 MANDATORY PREPAYMENTS OF LOANS. Company shall make the
following mandatory prepayments of the Loans:
(a) If, at any time, the aggregate principal amount of
the Loans outstanding exceeds the Maximum Permissible Loan in effect at such
time, Company shall immediately pay to Agent, in cash, the amount of such excess
for application to the prepayment of the Loans, together with accrued interest
thereon.
(b) The parties acknowledge that payments under this
Section 2.5 may be subject to the terms and conditions of the Intercreditor
Agreement.
2.6 OPTIONAL PREPAYMENTS. Company may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty, upon at
least one Business Day's irrevocable prior notice to Agent, specifying the date
and amount of prepayment. Upon receipt of any such notice Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein, together
with accrued interest and fees to such date on the amount prepaid. Partial
optional prepayments shall be in an aggregate principal amount of at least
$500,000. Optional prepayments made pursuant to this Section shall be applied in
accordance with SECTION 2.11.
2.7 REPAYMENT AT MATURITY. On the Maturity Date, all Obligations
immediately shall become due and payable without notice or demand, and Company
unconditionally agrees to repay to Agent, for the ratable account of Lenders,
the principal amount of all Loans in full, together with interest thereon and
all other amounts then payable hereunder and under the other Loan Documents.
Company shall not be relieved or discharged of Company's duties, Obligations, or
covenants hereunder, and the continuing security interests of Agent for the
benefit of Lenders in the Collateral shall remain in effect until all
Obligations have been fully and finally discharged and the Lenders' obligations
to extend credit hereunder is terminated.
2.8 INTEREST RATES AND PAYMENT DATES.
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(a) RATE OF INTEREST. Company agrees to pay interest on
the outstanding principal amount of each Loan, from and including the date on
which such Loan is made to but not including the date on which such Loan shall
be paid in full, at a per annum rate of fifteen per cent (15%) per annum.
(b) DEFAULT RATE. If any Obligation, whether for
principal or (to the maximum extent permitted by applicable law) interest or
other amounts, is, for any reason, not paid in full when due (whether at stated
maturity, by acceleration, by required prepayment, and whether by operation of
the subordination provisions of the Intercreditor Agreement or otherwise),
Company agrees to pay interest on the amount in default, from and including the
date on which such amount became due (including any applicable cure or grace
period) to but not including the date on which such amount shall be paid in
full, at a rate equal to the lesser of nineteen per cent (19%) per annum and the
maximum rate of interest allowed by applicable law (the "Default Rate"). In
addition, after the occurrence and during the continuance of an Event of
Default, Company shall pay interest on the outstanding principal amount of each
Loan at the Default Rate.
(c) INTEREST PAYMENT DATES. Accrued interest shall be
payable in arrears on each Interest Payment Date; PROVIDED, that interest
accruing pursuant to paragraph (b) of this Section also shall be payable from
time to time on demand.
(d) MAXIMUM INTEREST RATE. Anything in this Agreement or
the Notes or the other Loan Documents to the contrary notwithstanding, in no
event shall any Lender be entitled to take, charge, collect or receive interest
on the Loans or on any other Obligations at a rate in excess of the maximum
lawful rate permitted under applicable law. In the event that any Lender
inadvertently shall take, charge, collect or receive interest in excess of such
maximum lawful rate, the excess amount of such interest shall automatically be
applied to reduce the principal amount of the Loans, and any excess remaining
after such application shall be applied to any remaining Obligations (other than
such interest) hereunder or under the other Loan Documents, and any excess
remaining after the aforesaid application shall be returned to Company.
2.9 FEES.
(a) [INTENTIONALLY OMITTED]
(b) FINANCIAL EXAMINATION FEES. Company shall pay to
Agent after repayment of the DK Loan Obligations (and any Permitted Refinancing
Indebtedness): (i) a fee of $650 per day per examiner, plus reasonable
out-of-pocket expenses for each financial analysis and examination of Company or
its Subsidiaries (including Unrestricted Subsidiaries, Excluded Subsidiaries,
and Joint Ventures) performed by Agent or Lenders or their agents; (ii) a fee of
$1,000 per day per appraiser, plus out-of-pocket expenses for each appraisal of
the Collateral performed by Agent or Lenders or their agents; and (iii) the
actual charges paid or incurred by Agent if it elects to employ the services of
one or more non-Affiliates to perform such financial analyses and examinations
(i.e., audits) of Company or to appraise the Collateral.
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(a) COLLATERAL AGENT SERVICING FEE. Company shall pay to
Agent after repayment of the DK Loan Obligations (and any Permitted Refinancing
Indebtedness), for the sole and separate account of Collateral Agent, on the
first day of each month, in arrears, during the term of this Agreement, and
thereafter so long as any Obligations are outstanding, a servicing fee in an
amount equal to $5,000.00.
2.10 COMPUTATION OF INTEREST AND FEES.
(a) Interest on Loans and fees shall be calculated on the
basis of a 360-day year for a year of twelve 30-day months (e.g., 15% of the
average daily outstanding principal balance of the Loans divided by 12). Each
determination of an interest rate by Agent pursuant to any provision of this
Agreement shall be conclusive and binding on Company and Lenders in the absence
of manifest error.
(b) All payments of interest, fees, costs and expenses
and all other payments due to Agent or any Lender under this Agreement or any
other Loan Document shall be paid by Company to Agent as and when incurred
and/or payable by wire transfer in accordance with directions specified by Agent
in writing from time to time, as further provided in Section 2.11(b).
2.11 PRO RATA TREATMENT AND PAYMENTS.
(a) PRO RATA TREATMENT. Each borrowing by Company from
Lenders hereunder and each payment by Company on account of any fee payable to
the Lenders shall be made ratably according to the respective Pro Rata Shares of
Lenders.
(b) APPORTIONMENT OF PAYMENTS. Each payment (including
each prepayment) by Company on account of principal of and interest on the Loans
shall be made pro rata according to the effective outstanding principal amounts
of the Loans then held by Lenders. All payments (including prepayments) to be
made by Company hereunder and under the Notes and the other Loan Documents,
whether on account of principal, interest, fees or otherwise, shall be made
without set off or counterclaim and shall be made not later than 12:00 p.m., New
York time, on the due date thereof, to Agent, for the account of Lenders, at
Agent's office specified on the appropriate signature page hereof, in Dollars
and in immediately available funds. All such payments not relating to principal
or interest of specific Loans, or not constituting payment of specific fees
shall be applied as follows:
FIRST, to pay any fees, costs, or expense reimbursements then
due to Collateral Agent from Company;
SECOND, to pay any fees, costs, or expense reimbursements then
due to Agent from Company;
THIRD, to pay any fees, premiums, costs, or expense
reimbursements then due to Lenders from Company;
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FOURTH, ratably to pay any interest due in respect of the
Loans, until paid in full;
FIFTH, ratably to pay principal of the Loans;
SIXTH, ratably to pay any other Obligations due to Agent or
any Lender by Company.
If any payment hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. Each of the Lenders acknowledges
that Agent may be required by the terms of the Intercreditor Agreement, after
the receipt of any amount and prior to making any allocation or payment thereof
to the Lenders, to pay such amount to Collateral Agent for redistribution
pursuant to the Intercreditor Agreement.
(c) PAYMENTS BY LENDERS. Unless Agent shall have been
notified in writing prior to the Loan Borrowing Date by any Lender having a
Commitment that such Lender will not make the amount that would constitute its
Pro Rata Share of the Loans to be borrowed on the Loan Borrowing Date, available
on such date to Agent, Agent may assume that such Lender has made such amount
available to Agent on such Loan Borrowing Date, and Agent may, in its sole
discretion, but shall not be obligated to, in reliance upon such assumption,
make available to Company a corresponding amount. If such corresponding amount
is not made available to Agent on the Loan Borrowing Date, Agent shall be
entitled to recover such corresponding amount from such Lender, together with
interest thereon, for each day from such Loan Borrowing Date until the date such
amount is paid to Agent, at the customary rate set by Agent for correction of
errors among banks for three Business Days and thereafter at the Default Rate in
effect from time to time. A certificate of Agent submitted to any Lender with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. If such Lender does not pay such corresponding amount
to Agent forthwith upon demand, Agent shall promptly notify Company and Company
shall immediately pay such corresponding amount to Agent with interest thereon,
for each day from the Loan Borrowing Date until the date such amount is paid to
Agent, at the rate payable under this Agreement for the Loans.
(d) PAYMENTS BY COMPANY. Unless Agent shall have been
notified by Company in writing prior to any date on which a payment becomes due
from Company that Company will not make the available to Agent on such date the
amount then due, Agent may assume that Company has made such amount available to
Agent on such date, and Agent may, in its sole discretion, but shall not be
obligated to, in reliance upon such assumption, make available to the relevant
Lender or Lenders a corresponding amount. If such corresponding amount is not
made available to Agent on such date, then without prejudice to any claim that
Agent or any Lender may have against Company for the amount not so paid and
without prejudice to Company's obligation to pay default interest thereon, Agent
shall be entitled to recover such corresponding amount from such Lender,
together with interest thereon, for each day from such Loan Borrowing Date until
the date such amount is paid to Agent, at the customary rate set by Agent for
correction of errors among banks for three Business Days and thereafter at the
Default
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Rate in effect from time to time. A certificate of Agent submitted to any Lender
with respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error. If such Lender does not pay such corresponding amount
to Agent forthwith upon demand, Agent shall promptly notify Company and Company
shall immediately pay such corresponding amount to Agent with interest thereon,
for each day from the Loan Borrowing Date until the date such amount is paid to
Agent, at the rate payable under this Agreement for the Loans.
2.12 REQUIREMENTS OF LAW.
If any Lender shall have determined that any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof does or shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to Company (with a copy to Agent) of a written request
therefor, Company shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction. The agreements in this Section
shall survive the payment of the Notes and all other amounts due hereunder.
2.13 TAXES.
(a) PAYMENTS TO BE FREE AND CLEAR; GROSS-UP. All payments
made by Company under this Agreement and the Notes and the other Loan Documents
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, (i) in the case
of Agent and each Lender, net income taxes and franchise taxes (imposed in lieu
of net income taxes) imposed on Agent or such Lender, as the case may be, as a
result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and Agent or such Lender
(excluding a connection arising solely from Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement, the Notes or any other Loan Document) or any political
subdivision or taxing authority thereof or therein and (ii) in the case of each
Lender organized under the laws of a jurisdiction outside the United States,
United States federal withholding tax payable with respect to payments by
Company that would not have been imposed had such Lender, to the extent then
required thereunder, delivered to Company and Agent the forms prescribed by
Section 2.13(b) (all such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions and withholdings being hereinafter called "Taxes"). If any
Taxes are required by law to be withheld from any amounts payable to Agent or
any Lender hereunder or under the Notes or under the other Loan Documents, the
amounts so payable to Agent or such Lender shall be increased to the extent
necessary to yield to Agent or such Lender (after payment of all Taxes) interest
or any such other
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amounts payable hereunder at the rates or in the amounts specified in this
Agreement and the Notes and the other Loan Documents. If Company fails to pay
any Taxes when due to the appropriate taxing authority, Company shall indemnify
Agent and Lenders for any incremental taxes, interest or penalties that may
become payable by Agent or any Lender as a result of any such failure. The
agreements in this Section shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder.
(b) TAX CERTIFICATES. Each Lender that is not organized
under the laws of the United States of America or a state thereof agrees that it
will deliver to Company and Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the
case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Lender also agrees to deliver to Company and Agent
two further copies of the said Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to Company, and such extensions or renewals thereof
as may reasonably be requested by Company or Agent, unless in any such case any
change in treaty, law or regulation has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises Company
and Agent. Such Lender shall certify (i) in the case of a Form 1001 or 4224,
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes and (ii) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax.
SECTION 3
COLLATERAL
3.1 LIENS IN SUBSIDIARY STOCK, CONTRACT RECEIVABLES, REAL PROPERTY
AND PERSONAL PROPERTY.
To secure the prompt payment to Lenders of the Obligations,
including the Loans, together with all costs, expenses and fees payable by
Company hereunder, Company has granted, and caused each Subsidiary to grant, to
Collateral Agent, for the benefit of Lenders, a continuing Lien in and to all of
the following property and interests in property of Company and the
Subsidiaries, except the Excluded Property, whether now owned or existing or
hereafter acquired or arising, or in which Company and Subsidiaries now or
hereafter have any rights, and wherever located, and all proceeds thereof
("COLLATERAL"):
(a) the Subsidiary Stock;
(b) the Homesite Contracts Receivable;
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(c) the Commercial Receivables;
(d) the Real Property; and
(e) the Personal Property.
At such times as any Excluded Property is freed of contractual or legal
restrictions against becoming subject to a Lien to secure the Obligations and
upon the distribution of any Trust Property to Company or a Subsidiary, such
property shall, automatically, become subject to the Liens created by the
Security Documents, and Company shall notify Agent in writing of such event and
take such further actions as may be required by Agent and/or Collateral Agent to
evidence and perfect such Liens; provided that, in no event, shall a Lien be
granted on any assets required to be placed in a Reserve Account pursuant to the
Reorganization Plan or the Homesite Program.
3.2 SECURITY DOCUMENTS.
To evidence and perfect the Liens of Collateral Agent and
Agent in the Collateral in accordance with applicable law, Company has executed
and delivered and will execute and deliver and has caused the Subsidiaries to
execute and deliver and will cause the Subsidiaries to execute and deliver to
Collateral Agent the Security Documents, which Security Documents have been or
will be filed and recorded, and Company has delivered and will deliver and has
caused the Subsidiaries to deliver and will cause the Subsidiaries to deliver to
Collateral Agent any Collateral if the perfection of a Lien against such
Collateral requires possession thereof for purposes of perfecting such Liens,
all at the cost and expense of Company. Specifically, but without limiting the
generality of the foregoing, Company has or will, and has caused or will cause
the Subsidiaries to, do the following:
(a) STOCK PLEDGE. To evidence and perfect the Liens of
Collateral Agent in the Subsidiary Stock, Company and the Subsidiaries owning
other Subsidiaries, Excluded Subsidiaries, or Unrestricted Subsidiaries have
executed and delivered the Stock Pledge Agreement and have executed and
delivered and will execute and deliver related undated stock powers executed in
blank and have delivered and will deliver the original certificates representing
the Subsidiary Stock to Collateral Agent and have caused and will cause all
issuers of Subsidiary Stock to execute and deliver pledge acknowledgments
pursuant to the Stock Pledge Agreement.
(b) HOMESITE CONTRACTS RECEIVABLES AND COMMERCIAL
RECEIVABLES. To evidence and perfect the Liens of Collateral Agent in the
Homesite Contracts Receivable and Commercial Receivables, Company and
Subsidiaries have executed and delivered, and will execute and deliver, to
Collateral Agent the Security Agreements, together with related financing
statements, which have been or will be filed and recorded in accordance with
applicable law, and Company and Subsidiaries have duly endorsed, and will duly
endorse, any and all promissory notes included in the Homesite Contracts
Receivable and Commercial Receivables to the order of Collateral Agent and have
delivered, and will deliver, such promissory notes and the related
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mortgages or deeds of trust to Collateral Agent or its designee, and have
executed and delivered, and will deliver, assignments of promissory notes and
mortgages or deeds of trust, filed and recorded in accordance with applicable
law, and, as to Commercial Receivables acquired following the Original Effective
Date, accompanied by ALTA title insurance policies naming Collateral Agent as
the insured mortgagee thereunder.
(c) REAL PROPERTY. To evidence and perfect the liens of
Collateral Agent in the Real Property, Company and Subsidiaries have executed
and delivered, and will execute and deliver, to Collateral Agent the Mortgages
and Deeds of Trust and related financing statements encumbering such Real
Property, which have been or will be filed and recorded in accordance with
applicable law, accompanied by ALTA title insurance policies (if required)
insuring Collateral Agent's Lien represented thereby, and, if requested by
Agent, surveys of such Real Property.
(d) JOINT VENTURE PLEDGE. To evidence and perfect the
Liens of Collateral Agent in the interests of the Venture Subsidiaries in the
Joint Ventures, Company has caused, and will cause, the Venture Subsidiaries to
execute and deliver the Joint Venture Pledge Agreement and all requisite
consents in respect of such Liens.
(e) PERSONAL PROPERTY. To evidence and perfect the Liens
of Collateral Agent or Agent in the Personal Property, Company and Subsidiaries
have executed and delivered, and will execute and deliver, to Collateral Agent
the Security Agreements, together with related financing statements, which have
been or will be filed and recorded in accordance with applicable law. To the
extent that the Personal Property comprises Investments or Bank Accounts,
Company and Subsidiaries shall take the following actions:
(i) with respect to any Investment or Bank
Account which is or becomes evidenced by an agreement, instrument,
certificate or document, including promissory notes, stock
certificates, bonds, debentures, securities and certificates of
deposit, Company shall deliver, or shall cause such Subsidiary to
deliver, the original thereof to Collateral Agent, together with
appropriate assignments and endorsements or other specific evidence of
assignment thereof to Collateral Agent, in form and substance
acceptable to Collateral Agent;
(ii) with respect to any Investment or Bank
Account which is not certificated or otherwise evidence as described in
clause (i) above, including uncertificated securities and depository
and other accounts maintained with financial institutions and any other
Persons, Company shall notify Agent thereof and take, or cause such
Subsidiary to take, any and all steps which are required by Agent for
purposes of perfecting Collateral Agent's Lien therein;
(iii) Company shall keep Agent and Lenders
informed of any and all Bank Accounts maintained by Company or any
Subsidiary with any financial institution or other Person and, if
requested by Agent or Required Lenders, Company or such Subsidiary
shall execute a cash collateral account agreement in form and substance
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satisfactory to Agent, pursuant to which the Lien of Collateral Agent
in such Bank Accounts is perfected and preserved; and
(iv) if deemed by Agent or Required Lenders, in
its or their sole discretion, to be necessary for purposes of
perfecting the Lien of Collateral Agent in any Bank Account, Company
shall transfer to and maintain in a cash collateral account and shall
cause the Subsidiaries to transfer to and maintain in a cash collateral
account, the funds in each such Bank Account and if deemed necessary by
Agent shall cause such Subsidiary to become party to a cash collateral
account agreement in form and substance reasonably satisfactory to
Collateral Agent, pursuant to which the Lien of Collateral Agent in
such Bank Account shall be perfected and preserved; provided, however,
Company shall not be required to deposit the residual, remainder or
beneficial interest of Company and its Subsidiaries in the Reserve
Accounts, the Claims Disbursement Accounts and other escrow,
restricted, custodial and fiduciary accounts until such time as all
amounts required to be disbursed to the intended beneficiaries thereof
have been disbursed and the residual and remainder is available to
Company or any of its Subsidiaries for deposit in an unrestricted
account.
(f) ADDITIONAL ACTS. Company shall, and shall cause the
Subsidiaries to, take all actions and execute all documents deemed necessary by
Agent or Collateral Agent to ensure that Collateral Agent, for the benefit of
Lenders, shall have a security interest in the Collateral granted by the
Security Documents having the Agreed Priority, which security interest shall
have the priority set forth in the Intercreditor Agreement. In the event that
the perfection or recordation of Collateral Agent's or Agent's Lien pursuant
hereto upon any Collateral acquired hereafter by Company or any Subsidiary
requires any additional act of possession or filing or recordation of any
Security Document, Company shall notify Agent of the acquisition of such
Collateral and at Agent's request Company shall execute and deliver and shall
cause the Subsidiaries to execute and deliver such Security Documents for filing
or recordation and deliver such items of Collateral as Agent and Collateral
Agent may reasonably request for purposes thereof and Company shall pay the cost
of any such Security Documents and the filing and recordation thereof. Without
limiting the generality of the foregoing, Company agrees to, and to cause each
Subsidiary (other than with respect to property required to be released pursuant
to Section 3.3) to, notify Agent upon the acquisition of any Real Property
acquired after the date hereof, except as provided by Section 3.3, and upon
request of Agent, to provide to Agent an appraisal and an environmental report
(each in form and substance satisfactory to Agent) covering such property, and
to cause such Real Property to be subjected to an Agreed Priority Mortgage or
Deed of Trust in favor of Collateral Agent for the benefit of Lenders, which
Mortgage, or Deed of Trust shall have the priority set forth in the
Interecreditor Agreement. With respect to any such Mortgages or Deeds of Trust,
Company or such Subsidiary shall deliver to Agent the following, all in form and
substance satisfactory to Agent: (i) executed Mortgages or Deeds of Trust and
financing statements encumbering such property and (ii) ALTA lenders' extended
coverage policies of title insurance on such property, in liability, amount and
form and issued by a title company satisfactory to Agent showing the Mortgage or
Deed of Trust as an Agreed Priority lien upon the property, subject only to
Liens permitted pursuant to Section 7.3 and such other exceptions as may be
approved by Agent in writing, together with endorsements
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reasonably required by Agent and affirmative assurances that the improvements
are wholly located within the boundaries of the insured land.
3.3 SUBORDINATIONS AND RELEASES OF MORTGAGE LIENS.
(a) [intentionally omitted]
(b) At such times as Liens are granted by Company or any
Subsidiary, as permitted pursuant to Section 7.3(n), so long as no Default or
Event of Default has occurred and is continuing or would result therefrom and
provided Agent has received a certificate of a Responsible Officer certifying
and demonstrating that all of the conditions set forth in Section 7.3(n) have
been satisfied, Agent shall instruct Collateral Agent to and Collateral Agent
shall execute documentation subordinating the Lien of the Mortgages to such
Liens, in form and substance satisfactory to Collateral Agent, unless such Real
Property qualifies for the release provisions set forth in Section 3.4(c), in
which event the provisions of Section 3.4(c) shall apply.
(c) At such time as Liens are granted by any Subsidiary,
as permitted by Section 7.3(n), so long as no Default or Event of Default has
occurred and is continuing or would result therefrom and provided Agent has
received a certificate of a Responsible Officer certifying and demonstrating
that all of the conditions set forth in Section 7.3(n) have been satisfied,
Agent shall instruct Collateral Agent to and Collateral Agent shall release the
Lien of the Mortgages on any Subsidiary Property Under Development if (i) (x)
such Real Property is financed under the acquisition and project financing
provisions of Section 7.2(e) or (h) and (y) the terms of such financing prohibit
subordinate Liens upon such Real Property or (ii) such Real Property is
contributed by Company to a Subsidiary pursuant to Section 7.9(g). Company shall
use reasonable efforts to cause any lender/seller providing the acquisition
and/or project financing on Subsidiary Property Under Development to permit the
subordination of Collateral Agent's Liens on such Subsidiary Property Under
Development, and thereby to eliminate the need for Collateral Agent to release
its Liens on such Subsidiary Property Under Development. In connection with the
release of any Liens on Subsidiary Property Under Development pursuant to this
Section 3.4(c), upon the request of Company, Agent shall instruct Collateral
Agent to, and Collateral Agent shall, release any Liens upon any Personal
Property related to and used or held for the use on the Real Property being
released; provided that Company provides a detailed list of such Personal
Property to be released in form and substance satisfactory to Agent. If such
lender/seller will permit such subordination, then, notwithstanding the
foregoing provisions of this Section 3.4(c), Collateral Agent's Liens on such
Subsidiary Property Under Development will not be released and will become
subordinate Liens pursuant to documentation in form and substance satisfactory
to Agent.
(d) At such time as any Lien is granted by a Subsidiary
pursuant to and as permitted by Section 7.3(o), so long as no Default or Event
of Default has occurred and is continuing or would result therefrom, and
provided Agent has received a certificate of a Responsible Officer certifying
and demonstrating that all of the conditions set forth in Section 7.3(o) have
been satisfied, Agent shall instruct Collateral Agent to and Collateral Agent
shall (i) release the Lien of the Mortgages on any Mezzanine Property Under
Development that is subject
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to the Lien so granted, (ii) release the stock of the MPUD Subsidiary which owns
such Mezzanine Property Under Development, and of all of such MPUD Subsidiary's
Subsidiaries from the Stock Pledge Agreement (but not the stock of the MPUD
Holding Company), (iii) release all members of the MPUD Subsidiary Group from
the Guarantees and the Security Documents and release the Lien on any Personal
Property related to and used or held for use on the Real Property being
released, but each of the foregoing actions shall be required only if and to the
extent that: (A) the Mezzanine Property Under Development is financed under the
acquisition and project financing provisions of Section 7.2(e) or Section 7.2(h)
and (B) the terms of such financing require the MPUD Subsidiary Group structure,
prohibit subordinate Liens upon such Real Property, related Personal Property
and the stock of the MPUD Subsidiary and MPUD Subsidiary Subsidiaries and
prohibit members of the MPUD Subsidiary Group from signing Guarantees.
3.4 GUARANTEES.
The payment and performance by Company of its obligations
under this Agreement, including the repayment of all Obligations by Company, and
any and all other liabilities of Company to Lenders, Agent, and Collateral Agent
whether now existing or hereafter created or acquired, shall be guaranteed by
any and all Subsidiaries, which shall be evidenced by guarantees in the form of
the Subsidiary Guarantees. Upon the formation or acquisition of any Subsidiary
(excluding all MPUD Subsidiary Group members), Company shall, and shall cause
such Subsidiary to, enter into such documents as Agent may reasonably request to
further evidence such guarantee.
SECTION 4
REPRESENTATIONS AND WARRANTIES
To induce Agent and Lenders to enter into this Agreement and
to make the Loans, Company hereby represents and warrants to Agent and each
Lender that:
4.1 FINANCIAL CONDITION.
(a) The consolidated balance sheets of Company and its
consolidated Subsidiaries as at December 31, 1997 and the related consolidated
statements of income and of cash flows for the fiscal year ended on such date,
reported on by Ernst & Young, copies of which have been furnished to each
Lender, fairly and accurately present the consolidated financial condition of
Company and its consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for the fiscal
year then ended.
(b) The unaudited consolidated balance sheets of Company
and its consolidated Subsidiaries as at September 30, 1998 and the related
consolidated statements of income and of cash flows for the nine-month period
ended on such date, copies of which have been furnished to each Lender, fairly
and accurately present the consolidated financial condition
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of Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the period then ended (subject to normal year-end audit adjustments).
(c) All such financial statements described in clause (a)
and (b) above, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except for such inconsistencies as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither
Company nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto or in Schedule 4.1. During the period from September 30,
1998 to and including the date hereof there has been no sale, transfer or other
disposition or agreement therefor by Company or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) which is material in relation to the consolidated financial
condition of Company and its consolidated Subsidiaries at September 30, 1998,
except as described in Schedule 4.1.
4.2 NO MATERIAL ADVERSE CHANGE.
Since September 30, 1998, (a) there has been no development or
event nor any prospective development or event, which has had or could
reasonably be expected to have a Material Adverse Effect, except such
developments or events or prospective developments or events as have been
disclosed by Company in filings with the Securities and Exchange Commission made
prior to the date hereof and true and correct copies of which have been
delivered to Lenders or as set forth on Schedule 4.2, and (b) no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
Company nor has any of the Capital Stock of Company been redeemed, retired,
purchased or otherwise acquired for value by Company or any of its Subsidiaries.
As of the date hereof and the Effective Date, no motion for the conversion of
the case, appointment of a trustee, or dismissal is pending or has been denied,
the reversal of which on appeal would affect the validity of this Agreement and
no appeal has been taken from the entry of the Confirmation Order in the
Reorganization Proceedings, the reversal, modification, or affirmance of which
will affect the validity or enforceability, or change the provisions, of this
Agreement or any of the other Loan Documents.
4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of Company and its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, except, in the case of any such Subsidiary, where all such
failures to be in good standing are not reasonably likely, in the aggregate, to
have a Material Adverse Effect, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign
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corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except to the extent that all such failures to be
so qualified and in good standing are not reasonably likely, in the aggregate,
to have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that any failures to comply therewith
is not reasonably likely, in the aggregate, to have a Material Adverse Effect.
4.4 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
(a) COMPANY. Company has the corporate power and
authority, and the legal right, to make, deliver and perform this Agreement, the
Notes and other Loan Documents, and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement, and the Notes and to authorize the execution,
delivery and performance of this Agreement, the Notes and other Loan Documents.
Except as set forth on Schedule 4.4, no consent or authorization of, filing with
or other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement, the Notes
or the other Loan Documents, except such consents, authorizations, filings or
other acts as have been obtained, made or performed, as the case may be, prior
to the Effective Date and as remain in full force and effect or which the
failure to obtain, make or perform, as the case may be, could not reasonably be
expected to have a Material Adverse Effect or to impose any liability whatsoever
on Agent, Collateral Agent or any Lender.
This Agreement and the other Loan Documents to which Company
is party have been, and all Loan Documents to which Company hereafter becomes a
party will be, duly executed and delivered on behalf of Company. This Agreement
has been duly executed and delivered and constitutes, and each other Loan
Document signed on the date hereof has been duly executed and delivered and
constitutes, and each other Loan Document when executed and delivered will
constitute, a legal, valid and binding obligation of Company enforceable against
Company in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
(b) SUBSIDIARIES. Each of the Subsidiaries (including
Unrestricted Subsidiaries and Excluded Subsidiaries) party to the Loan Documents
has the corporate power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party. Except as set forth on Schedule 4.4, no
consent or authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party, except such consents, authorizations, filings
or other acts as have been obtained, made or performed, as the case may be,
prior to the Effective Date and as remain in full force and effect or which the
failure to obtain, make or perform, as the case may be, could not reasonably be
expected to have a
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Material Adverse Effect. Each Loan Document to which any Subsidiary (including
Unrestricted Subsidiaries) is a party has been and all Loan Documents to which
any Subsidiary hereafter becomes a party will be duly executed and delivered on
behalf of each such Subsidiary. Each Loan Document to which any Subsidiary
(including Unrestricted Subsidiaries) is a party, executed and delivered
constitutes, or when executed and delivered will constitute, a legal, valid and
binding obligation of each such Subsidiary, enforceable against each such
Subsidiary in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting the enforcement of creditors rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 NO LEGAL BAR.
The execution, delivery and performance of this Agreement, the
Notes, the Guarantees and the other Loan Documents, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of Company or of any of its Subsidiaries, the violation
of which could reasonably be expected to have a Material Adverse Effect and will
not result in, or require, the creation or imposition of any Lien on any of its
or their respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
4.6 NO MATERIAL LITIGATION.
As of the Effective Date, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of Company, threatened by or against Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to this Agreement, the Notes or other Loan Documents or any of
the transactions contemplated hereby or thereby or (b) which, if adversely
determined, is reasonably likely to have a Material Adverse Effect, which has
not been disclosed (including, estimates of the Dollar amounts involved) in
Company's filings with the Securities and Exchange Commission made prior to the
Effective Date, true and correct copies of which have been delivered to Lenders
or on Schedule 4.6 hereto.
4.7 NO DEFAULT.
As of the Effective Date, neither Company nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which is reasonably likely to have a Material Adverse
Effect, except as disclosed, including estimates of the Dollar amounts involved,
in Company's filings with the Securities and Exchange Commission, true and
correct copies of which have been delivered to Lenders or on Schedule 4.7. As of
the Effective Date, no Default or Event of Default has occurred and is
continuing. As of the Effective Date, no default has occurred and is continuing
under the Secured Agreement Documents.
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4.8 OWNERSHIP OF PROPERTY; LIENS.
As of the Effective Date, each of Company and its
Subsidiaries, as the case may be, has good record and marketable title in fee
simple to, or a valid leasehold interest in, or a first mortgagee interest in,
all of the Collateral and all its other real property, and good title to all its
other property necessary for the operation of its business, and none of such
property of Company or such Subsidiaries is subject to any Lien except as
permitted by Section 7.3.
4.9 INTELLECTUAL PROPERTY.
Except as disclosed on Schedule 4.9, as of the Effective Date,
Company and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary
for the conduct of its business as currently conducted except for those the
failure to own or license which is not reasonably likely to have a Material
Adverse Effect (the "Intellectual Property"). No claim has been asserted and is
pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does Company know of any valid basis for any such claim. The use
of such Intellectual Property by Company and its Subsidiaries does not infringe
on the rights of any Person, except for such claims and infringements that, in
the aggregate, do not have a Material Adverse Effect. To the knowledge of
Company, there exists no infringement upon the Intellectual Property rights of
Company and Subsidiaries by any other Person.
4.10 TAXES.
As of the Effective Date, each of Company and its Subsidiaries
(including Unrestricted Subsidiaries and Joint Ventures) has filed or caused to
be filed all tax returns which, to the knowledge of Company, are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental
Authority (other than any taxes, fees or other charges the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of Company or its Subsidiaries (including Unrestricted Subsidiaries and
Joint Ventures), as the case may be) except tax claims which are to be paid on a
deferred basis pursuant to the Reorganization Plan; no tax Lien has been filed,
and, to the knowledge of Company, no claim is being asserted, with respect to
any such tax, fee or other charge, except as disclosed on Schedule 4.10.
4.11 FEDERAL REGULATIONS.
No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation T, U or X of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter in effect or
for any purpose which violates the provisions of the Regulations of such Board
of Governors.
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4.12 ERISA.
Except as disclosed on Schedule 4.12, no Reportable Event has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan. Company and each Commonly
Controlled Entity are in substantial compliance with the applicable provisions
of ERISA with respect to each Plan. The present value of all accrued benefits
under each Single Employer Plan (based on the reasonable assumptions used by the
independent actuary for such Plan for purposes of establishing the minimum
funding requirements under Section 412 of the Code) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits, individually or in the aggregate for all Single Employer Plans
(excluding for purposes of such computation any Single Employer Plans with
respect to which the value of the assets exceed the present value of the accrued
benefits), by more than $4,600,000. Neither Company nor any Commonly Controlled
Entity is liable under Title IV of ERISA by reason of the termination of a
Single Employer Plan or the withdrawal from a Single Employer Plan in which it
was a "substantial employer" within the meaning of Section 4001(a)(2) of ERISA.
Each Plan intended to be qualified under Section 401(a) of the Code, including
each Single Employer Plan, is qualified in operation under Section 401(a) of the
Code and is qualified in form under Section 401(a) of the Code, except with
respect to any required amendments with respect to which the remedial amendment
period under Section 401(b) of the Code has not expired. Neither Company nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan with respect to which there remains any unpaid liability, and
neither Company nor any Commonly Controlled Entity would become subject to any
liability under ERISA if Company or any such Commonly Controlled Entity were to
withdraw from all Multiemployer Plans in complete withdrawals within the meaning
of Section 4203 of ERISA as of the valuation dates for such plans most closely
preceding the date on which this representation is made or deemed made. No
Multiemployer Plan is in Reorganization or Insolvent. Neither the Company nor
any Commonly Controlled Entity is liable for fines, penalties, taxes or related
charges under Chapter 43 of the Code or under Sections 409, 502(c), 502(i),
502(1) or 4071 of ERISA in an amount exceeding $50,000 in the aggregate at any
time. There are no material claims (other than routine claims for benefits)
against any Plan (other than a Multiemployer Plan) or against Company or any
Commonly Controlled Entity in connection with any such Plan. Neither Company nor
any Commonly Controlled Entity is liable for post retirement benefits to be
provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA) except as required by
Section 4980B of the Code and Section 601 of ERISA.
4.13 INVESTMENT COMPANY ACT; OTHER REGULATIONS.
Company is not an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended. Company is not subject to regulation under any
Federal or state statute or regulation which limits its ability to incur
Indebtedness or Guarantee Obligations.
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4.14 SUBSIDIARIES AND JOINT VENTURES.
As of the Effective Date, (a) the Subsidiaries (including
Unrestricted Subsidiaries and Excluded Subsidiaries) listed on Schedule 4.14(A)
constitute all of the Subsidiaries (including Unrestricted Subsidiaries and
Excluded Subsidiaries) and such schedule identifies the shareholders of such
Subsidiary, (b) the Joint Ventures listed on Schedule 4.14(B) constitute all of
the Joint Ventures and such schedule identifies all owners of the Joint Venture
interests thereof and the percentage equity ownership of such owners, and (c)
neither Company nor any Subsidiary (including Unrestricted Subsidiaries,
Excluded Subsidiaries, and Joint Ventures) other than a Venture Subsidiary owns
any Joint Venture interest.
4.15 ENVIRONMENTAL MATTERS.
Each of the representations and warranties set forth in
paragraphs (a) through (g) of this Section is true and correct, except as
disclosed on Schedule 4.15 or in the certificate regarding environmental matters
required pursuant to Section 5.1(i) or to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct is not
reasonably likely to have a Material Adverse Effect and could not reasonably be
expected to impose any liability whatsoever on Agent, Collateral Agent or any
Lender:
(a) The Real Property does not contain, and has not
previously contained, therein, thereon, or thereunder, including the soil and
groundwater thereunder, any Hazardous Materials in violation of any
Environmental Law.
(b) Company, its Subsidiaries, the Real Property, and all
operations and facilities at the Real Property, are in compliance with all
Environmental Laws, and there are no Hazardous Materials or violations of any
Environmental Law which could interfere with the continued operation of any of
the Real Property or impair the fair saleable value of any thereof.
(c) Neither Company nor any of its Subsidiaries has
received any complaint or any notice of violation, alleged violation or
investigation or of potential liability or designating any of such Persons as a
potentially responsible party under any Environmental Law regarding
environmental protection matters or environmental permit compliance with regard
to the Real Property, nor is Company aware that any Governmental Authority is
contemplating delivering to Company or any of its Subsidiaries any such notice.
Neither Company nor any of its Subsidiaries has reported any releases of
Hazardous Materials to any Governmental Authority.
(d) Hazardous Materials have not been generated, treated,
stored or disposed of, at, on or under any of the Real Property in violation of
any Environmental Law, nor have any Hazardous Materials been transferred from
the Real Property to any other location in violation of any Environmental Law
nor have there been any treatment, storage or disposal operations on any of the
Real Property requiring any approval or permit from any Governmental Authority.
Neither Company nor any of its Subsidiaries has ever owned or operated or
currently owns or operates any waste disposal or storage facilities, underground
storage tanks or surface impoundments.
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(e) There are no governmental or administrative actions
or judicial proceedings pending or, to the knowledge of Company, contemplated
under any Environmental Laws to which Company or any of its Subsidiaries is or,
to the knowledge of Company, will be named as a party with respect to the Real
Property, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to Company or
any of its Subsidiaries or to any of the Real Property.
(f) There is no environmental condition associated with
any of the Real Property which would impede the development thereof, including
the presence of endangered or threatened species, or ecologically sensitive
habitat or water rights or quality issues.
(g) Copies of all permits, authorizations and
environmental reports for or with respect to the Real Property have been made
available to Agent.
4.16 INDEBTEDNESS.
Schedule 4.16 lists all Indebtedness (including available
commitments) of Company and its Subsidiaries as existing on the Effective Date.
4.17 CONTINGENT OBLIGATIONS.
Schedule 4.17 lists all guarantees by Company and all
guarantees by any of its Subsidiaries.
4.18 RESTITUTION PROGRAM AND FINAL JUDGMENT.
As of the Effective Date, Company and its Subsidiaries have
fully complied with the "Restitution Program" and have been released from the
"Final Judgment," as defined in the Reorganization Plan.
4.19 CERTAIN FEES.
Other than fees payable pursuant to Section 2.9 above, no
broker's or finder's fee or commission will be payable with respect to this
Agreement or any of the transactions contemplated hereby, and Company hereby
indemnifies Agent, Collateral Agent and Lenders against, and agrees that it will
hold Lenders harmless from, any claim, demand or liability for any such broker's
or finder's fees alleged to have been incurred in connection herewith or
therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand or
liability.
4.20 DISCLOSURE.
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No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company (other than
matters of an economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and have not been
disclosed herein or in such other written documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
4.21 INSURANCE.
Company and each of its Subsidiaries maintain, with
financially sound and reputable insurers, insurance with respect to its
properties and business and the properties and business of its Subsidiaries,
against loss and damage of the kinds customarily insured against by corporations
of established reputation engaged in the same or similar business of such types
and in such amounts as are customarily carried under similar circumstances by
such other corporations. Attached as Schedule 4.21 is a complete and accurate
description of all policies of insurance that will be in effect as of the
Effective Date for Company and each of its Subsidiaries.
4.22 REAL PROPERTY MATTERS.
Company and each of its Subsidiaries (including the Joint
Ventures) is in compliance with all development orders obtained by Company and
its Subsidiaries (including the Joint Ventures) with respect to any Real
Property, except to the extent noncompliance could not reasonably be expected to
have a Material Adverse Effect.
4.23 REORGANIZATION PROCEEDINGS.
Company has delivered to Agent and Lenders true, correct and
complete copies of the Reorganization Plan and Confirmation Order, together with
copies of any modifications thereto or subsequent proceedings with the
Bankruptcy Court.
4.24 EXCLUDED SUBSIDIARIES; UNRESTRICTED SUBSIDIARIES.
(a) The Excluded Subsidiaries do not have, nor are they
anticipated to have, any assets or revenues. The Excluded Subsidiaries do not
currently conduct, nor are they anticipated to begin to conduct, any business.
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(b) The Unrestricted Subsidiaries do not have, nor are
they anticipated to have, any asset or revenues other than the assets disclosed
on Part A of Schedule 4.24 as being owned by them and the revenues arising
therefrom. The Unrestricted Subsidiaries do not currently conduct, nor are they
anticipated to begin to conduct, any business other than the businesses
disclosed on Part A of Schedule 4.24 as being conducted by them.
4.25 NO FURTHER AMOUNTS DUE UNDER UNSECURED 1996 NOTES.
There are no further amounts due from Company under the
Unsecured 1996 Notes and any unclaimed funds disbursed by The United States
Trust Company of New York to Company are owned free and clear of claims which
may be asserted by third parties, including, without limitation, claims by any
state or other Governmental Authority that such unclaimed funds are "abandoned
property" under state escheat or other applicable laws.
4.26 BANK ACCOUNTS.
Schedule 4.26 (as amended from time to time by written notice
to Agent) is a true and correct list of all Bank Accounts of Company and its
Subsidiaries.
4.27 [INTENTIONALLY OMITTED].
4.28 MPUD SUBSIDIARY GROUPS.
Except as disclosed on Schedule 4.28, no Subsidiary is a
member of an MPUD Subsidiary Group.
4.29 SPUD SUBSIDIARIES.
Except as disclosed on Schedule 4.29, no Subsidiary is a SPUD
Subsidiary.
4.30 DRI AND ZONING MATTERS.
The representations and warranties set forth in Schedule 4.30
are by this reference incorporated herein as though fully set forth and made in
this Section 4.30.
4.31 BANKRUPTCY MATTERS.
Neither the Company nor any of its Subsidiaries has any
continuing liabilities arising out of or in connection with the Reorganization
Proceedings or the Reorganization Plan which individually or in the aggregate
would have a Material Adverse Effect.
4.32 SERIES A PREFERRED STOCK.
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The rights, obligations and duties of Company, its
Subsidiaries and the holders of the Series A Preferred Stock are set forth
exclusively in the Series A Statement, theSecured Agreement and the Investment
Agreement, both as amended through the Effective Date, and the other documents
described therein (the "Series A Documents"), and there is no note, debt
instrument or other security or collateral of any kind whatsoever given by
Company or any Subsidiary, other than as described in the Series A Documents, to
secure the repayment or performance of any of the obligations of Company or any
Subsidiary with respect to the Series A Preferred Stock.
4.33 SERIES B PREFERRED STOCK.
The rights, obligations and duties of Company, its
Subsidiaries and the holders of the Series B Preferred Stock are set forth
exclusively in the Series B Statement and the Securities Purchase Agreement
dated as of June 24, 1997. There is no note, debt instrument or other security
or collateral of any kind whatsoever given by Company or any Subsidiary to
secure the repayment or performance of any of the obligations of Company or any
Subsidiary with respect to the Series B Preferred Stock.
SECTION 5
CONDITIONS PRECEDENT
The effectiveness of this Agreement and the obligations of
Lenders to make Loans hereunder are subject to the prior or concurrent
satisfaction of all the following conditions:
5.1 CONDITIONS TO EFFECTIVENESS OF THIS AGREEMENT.
(a) LOAN DOCUMENTS. Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of Company, with
a counterpart for each Lender, (ii) for the account of each Lender, a Note,
(iii) each other Loan Document, required to be delivered hereunder, conforming
to the requirements hereof and executed and delivered by a duly authorized
officer of Company or each of its Subsidiaries (including, the Unrestricted
Subsidiaries and the Excluded Subsidiaries, in each case as to their respective
acknowledgments under the Stock Pledge Agreement), as the case may be, which are
parties to such Loan Document, with a counterpart for each Lender, (iv) the
Funds Flow Memo, executed and delivered by a duly authorized officer of each
party thereto, and (v) copies, certified as true and correct copies by a
Responsible Officer, of the Security Documents, as amended through the Effective
Date.
Agent and Collateral Agent shall have received (vi) in form
and substance satisfactory to Agent and Collateral Agent, a duly executed
agreement with Annis, Mitchell, Xxxxxx, Xxxxxxx & Xxxxx, P.A. of Tampa, Florida
with respect to certain services to be provided thereby to Agent and Collateral
Agent, respectively, and (vii) the Funds Flow Memo.
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(b) CORPORATE PROCEEDINGS OF COMPANY. Agent shall have
received, with a counterpart for each Lender, a copy of the resolutions, in form
and substance satisfactory to Agent, of the Board of Directors of Company
authorizing the execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which it is a party, certified by the Secretary
or an Assistant Secretary of the Company as of the Effective Date, which
certificate shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded and are in full force and effect and
shall be in form and substance satisfactory to Agent.
(c) CORPORATE PROCEEDINGS OF THE SUBSIDIARIES. Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to Agent, of the Board of
Directors of each Subsidiary of Company which is a party to any Loan Document
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party, certified by the secretary or an assistant secretary of
each Subsidiary as of the Effective Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and are in full force and effect.
(d) CORPORATE DOCUMENTS. Agent shall have received, with
a counterpart for each Lender, true and complete copies of (i) the certificate
or articles of incorporation of the Company and each of its Subsidiaries which
is a party to any Loan Document certified by the Secretary of State of their
respective jurisdictions of incorporation as of a recent date prior to the
Effective Date, (ii) the Bylaws of the Company and each of its Subsidiaries
which is a party to any Loan Document certified as of the Effective Date by its
secretary or an assistant secretary, (iii) good standing certificates,
including, in states which provide such certificates, certification of tax
status, of the Company and each of its Subsidiaries which is a party to any Loan
Document certified by the Secretary of State of their respective jurisdictions
of incorporation and of each jurisdiction in which they are qualified to do
business as a foreign corporation dated as of a recent date prior to the
Effective Date and (iv) incumbency and signature certificates for Company and
each Subsidiary executing any Loan Documents as of the Effective Date.
(e) OTHER DOCUMENTS. Agent shall have received, with a
counterpart for each Lender, copies, certified as true, correct, and complete by
a Responsible Officer, of (i) the DK Loan Agreement and the other DK Loan
Documents, (ii) the Secured Agreement and the Investment Instruments, (iii) the
Secured Note, and (iv) the Business Plan, together with evidence satisfactory to
the Agent that the DK Loan Agreement and the Secured Agreement have become fully
effective and available for utilization or will become so effective and
available simultaneously with the effectiveness of this Agreement.
(f) NO VIOLATION. The consummation of the transactions
contemplated hereby and by the other Loan Documents shall not contravene,
violate or conflict with, nor involve Agent or any Lender in any violation of,
any Requirement of Law.
(g) CONSENTS, AUTHORIZATIONS, AND FILINGS. Agent shall
have received, with a counterpart for each Lender, a certificate of a
Responsible Officer (i) attaching copies of all consents, authorizations, and
filings referred to in Section 4.4, and (ii) stating that such consents,
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authorizations, and filings are in full force and effect and each such consent,
authorization, and filing shall be in form and substance satisfactory to Agent.
(h) LEGAL OPINIONS. Agent shall have received, with a
counterpart for each Lender, opinions of the several counsel of Company and its
Subsidiaries, in each case, in form and substance satisfactory to Lenders in
their sole discretion.
(i) CERTIFICATION AS TO ENVIRONMENTAL MATTERS. Agent
shall have received, with a counterpart for each Lender, a certificate of a
Responsible Officer (i) stating that Company is not aware of any environmental
matters in connection with any of the Real Property which could reasonably be
expected to result in a liability to Company or any Subsidiary in excess of
$200,000 except as listed on a schedule attached to such certificate and (ii)
certifying that Company has made, and agreeing that Company will continue to
make, available to Agent, promptly after receipt thereof, copies all notices,
citations, requests for information and reports from the Environmental
Protection Agency, Florida Department of Environmental Regulation or other
Federal, state or local environmental regulatory agency having jurisdiction over
any of the Real Property, and any report or audit prepared by a private company
with respect thereto.
(j) CONTINUED PERFECTION OF SECURITY INTERESTS. Company
and its Subsidiaries party to any of the Security Documents shall have taken or
cause to be taken all such actions deemed necessary or desirable by Collateral
Agent to ensure that Collateral Agent or Agent has and continues to have a valid
and perfected security interest in the Collateral granted by the Security
Documents (which security interest shall have the priority set forth in the
Intercreditor Agreement) subject to the Liens permitted pursuant to this
Agreement and the Security Documents (and Agent and Collateral Agent shall have
received satisfactory evidence thereof). Such action shall include: (i) the
delivery by Company pursuant to the Stock Pledge Agreement of certificates
(which certificates shall be registered in the name of Collateral Agent or
properly endorsed in blank for transfer or accompanied by irrevocable undated
stock powers duly endorsed in blank, all in form and substance satisfactory to
Collateral Agent and Agent) representing all Subsidiary Stock; (ii) the delivery
to Collateral Agent of Uniform Commercial Code financing statements, executed by
each of Company and each of its Subsidiaries as to the Collateral granted by
each such party for all jurisdictions as may be necessary or desirable to
perfect or continue the perfection of Collateral Agent's security interest in
such Collateral; (iii) the delivery by Company and its Subsidiaries of original
documents relative to Homesite Contract Receivables and Commercial Receivables,
including appropriate endorsements or assignments, all in form and substance
satisfactory to Collateral Agent and Agent, as may be necessary or desirable to
perfect or continue the perfection of Collateral Agent's security interest in
such Collateral; and (iv) evidence reasonably satisfactory to Collateral Agent
and Agent that all other filings, recordings and other actions Collateral Agent
and Agent deems necessary or advisable to establish, preserve and perfect the
Liens and the priority thereof granted to Collateral Agent and Agent hereunder
shall have been made.
(k) REAL PROPERTY MATTERS. Agent shall have received: (i)
such new Mortgages and Deeds of Trust or such amendments to the existing
Mortgages and Deeds of Trust as may be requested by Agent, in each case in form
and substance satisfactory to Agent and its
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local counsel, to protect and preserve the Lien and priority of the Mortgages
and Deeds of Trust as they secure the Loans and other amounts due hereunder,
together with new ALTA lender's extended coverage policies of title insurance or
amendments of the existing ALTA lender's extended coverage policies of title
insurance on the Real Property encumbered by the Mortgages and Deeds of Trusts
in liability, amount and form issued by a title company satisfactory to Agent
showing the Mortgages and Deeds of Trust as first Liens upon the respective Real
Property, subject only to Liens permitted hereunder and thereunder and such
other exceptions or exclusions as may be approved by Agent in its sole
discretion, together with any endorsements reasonably required by Agent, and
affirmative assurance that the improvements are fully located within the
boundaries of the insured land; and (ii) in respect of the Real Property listed
on Schedule 5.1(k), copies of such appraisals, surveys, environmental audit
reports, satisfactory evidence of entitlements (including so-called "zoning
letters"), and other documents as Agent may request, each as specified or
contemplated on Schedule 5.1(k), and each prepared by consultants or other
experts satisfactory to Agent.
(l) EVIDENCE OF INSURANCE. Company shall have delivered
to Agent certificates of insurance naming Collateral Agent on behalf of Lenders
as loss payee under the casualty and surety policies required pursuant to
Section 6.5.
(m) NO MATERIAL ADVERSE EFFECT. On the Effective Date,
Agent shall have received an officer's certificate executed by a Responsible
Officer stating that no Material Adverse Effect has occurred since September 30,
1998, except as disclosed in Company's Form 10-Q for the quarter ended as of
September 30, 1998 or except as disclosed on Schedule 5.1(m).
(n) INTERCREDITOR AGREEMENT. The Intercreditor Agreement
shall have been executed and delivered by each of the parties thereto, and Agent
shall have received a fully executed copy thereof in form and substance
satisfactory to Agent.
(o) FEES, COSTS, AND EXPENSES. As of the Effective Date,
Company shall have paid: (i) to the Agent all fees, costs, and expenses of Agent
and its counsel incurred in connection with the preparation, negotiation, and
execution of this Agreement, the Intercreditor Agreement, and any other
documents executed in connection herewith and therewith; and (ii) to Collateral
Agent all fees, costs, and expenses thereof and of counsel thereof incurred in
connection with the preparation, negotiation, and execution of the Secured Debt
Documents and the Intercreditor Agreement, and any other documents executed in
connection herewith and therewith.
(p) RECAPITALIZATION TRANSACTIONS. Each of the
Recapitalization Transactions shall have been consummated in accordance with all
applicable law, the underlying transaction documents and the Funds Flow Memo,
and Agent shall have received evidence of such consummation satisfactory to
Agent.
(q) AMENDMENT OF CERTAIN LOAN DOCUMENTS.The Security
Documents and other Loan Documents shall have been amended in form and substance
satisfactory to Agent.
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(r) [INTENTIONALLY OMITTED].
(s) [INTENTIONALLY OMITTED].
(t) [INTENTIONALLY OMITTED].
(u) BUSINESS PLAN. Agent shall have received (i)
Company's Business Plan as of the Effective Date, which shall be in form and
substance satisfactory to Lenders, and (ii) evidence, satisfactory to Lenders,
that Company has sufficient funds, or availability to sufficient funds,
necessary to carry out such Business Plan.
(v) EFFECTIVE DATE. The Effective Date shall have
occurred on or before January 29, 1999.
(w) REORGANIZATION PROCEEDINGS. Agent shall have received
copies of the Reorganization Plan and Confirmation Order, together with copies
of any modifications thereto, in each case, certified by the Secretary of the
Company as true, correct and complete as of the Effective Date.
(x) OTHER MATTERS. All other documents and legal matters
in connection with the transactions contemplated by this Agreement shall have
been executed, delivered, or recorded, and shall be in form and substance
satisfactory to Agent, the Lenders, and their respective counsel.
5.2 ADDITIONAL CONDITIONS TO THE LOAN.
The effectiveness of this Agreement and the agreement of each
Lender to make the Loan requested to be made by it on the Loan Borrowing Date is
subject to the satisfaction of the further conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Company and its Subsidiaries in or
pursuant to each of the Loan Documents shall be true, correct and complete on
and as of the date of such Loans, with such exceptions, amendments or
modifications as may be approved in writing by Agent. For the purposes hereof
with respect to any request for a Loan, any and all representations and
warranties made by Company or any of its Subsidiaries which are made "as of the
Effective Date" shall be required to be true and correct "as of the Loan
Borrowing Date," rather than "as of the Effective Date."
(b) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing as of the date of such extension of credit, as the
case may be, after giving effect to the Loans requested to be made on such date.
(c) ADDITIONAL SECURITY DOCUMENTS; OTHER DOCUMENTS. Agent
shall have received each additional Security Document as may be required
pursuant to Section 3.2 and each additional Guarantee required by Section 3.5,
in each case with a counterpart for each Lender,
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and each additional document, instrument, legal opinion or item of information
reasonably requested by it or the Required Lenders, with a counterpart for each
Lender, including a copy of any debt instrument, security agreement or other
material contract to which Company may be a party.
(d) OFFICER'S CERTIFICATE. In the case of any Loan
requested by Company, Agent shall have received the certificate required by
Section 2.3 with a counterpart for each Lender.
(e) ADDITIONAL MATTERS. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be satisfactory in form and substance to Agent, and Agent
shall have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or thereby as it
or the Required Lenders shall reasonably request, with a counterpart for each
Lender.
The borrowing by Company hereunder shall constitute a representation and
warranty by Company, as of the date of such borrowing, that the conditions
contained in this Section 5.2 have been satisfied.
5.3 CONDITIONS SUBSEQUENT.
As a condition subsequent to the making of the Loans, Company
shall perform or cause to be performed the following (and the failure by Company
to so perform or so cause to be performed shall constitute an Event of Default):
(a) TAX SERVICING CONTRACTS. No later than 60
days after the Effective Date, Agent and Collateral Agent shall have
received a tax servicing contract in respect of such portion of the
Real Property located in Florida as shall be satisfactory to Agent and
Collateral Agent, in form and substance satisfactory to Agent and
Collateral Agent, among Company, Agent, Collateral Agent, and a tax
servicing firm satisfactory to Agent and Collateral Agent.
(b) COMPANY OPERATING ACCOUNT CONTROL AGREEMENT.
Within 30 days following the Effective Date, Company, Collateral Agent,
and Operating Account Bank shall have executed and delivered the
Company Operating Account Control Agreement.
(c) OTHER ACCOUNT CONTROL AGREEMENTS. Within 30
days following the Effective Date, Company shall have furnished to
Collateral Agent and Agent such additional control agreements in form
and substance satisfactory to Collateral Agent and Agent and shall have
taken all such other actions as Collateral Agent or Agent deems
necessary or desirable to ensure that Collateral Agent, on behalf of
Agent and Lenders, holds a perfected Agreed Priority security interest
in all of the deposit accounts of Company identified on Schedule 5.3(c)
hereof.
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SECTION 6
AFFIRMATIVE COVENANTS
Company hereby agrees that, 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 Agent hereunder, Company shall, and shall cause each
of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS.
Furnish to each Lender:
(a) as soon as available, but in any event not later than
90 days after the end of each fiscal year of Company, a copy of the consolidated
balance sheet of Company and its consolidated Subsidiaries (including
Unrestricted Subsidiaries) as at the end of such year and the related
consolidated statements of income and retained earnings and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by Ernst &
Young or other independent certified public accountants of nationally recognized
standing acceptable to the Required Lenders;
(b) as soon as available, but in any event not later than
90 days after the end of each fiscal year of Company, a copy of the
consolidating balance sheet of Company and its consolidated Subsidiaries
(including Unrestricted Subsidiaries) as at the end of such year and the related
consolidating statements of income and retained earnings and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in all
material respects;
(c) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of each
fiscal year of Company, the unaudited consolidated and consolidating balance
sheet of Company and its consolidated Subsidiaries (including Unrestricted
Subsidiaries) as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and retained earnings and of
cash flows of Company and its consolidated Subsidiaries (including Unrestricted
Subsidiaries) for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the figures
for the previous year, certified by a Responsible Officer as being fairly stated
in all material respects when considered in relation to the consolidated and
consolidating financial statements of Company and its consolidated Subsidiaries
(subject to normal year-end audit adjustments);
(d) as soon as available, but in any event not later than
30 days after the end of each calendar month, the unaudited consolidated balance
sheet of Company and its consolidated Subsidiaries (including Unrestricted
Subsidiaries) as at the end of such month and the related unaudited consolidated
statements of income and retained earnings and of cash flows
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of Company and its consolidated Subsidiaries (including Unrestricted
Subsidiaries) for such month, setting forth in each case in comparative form the
figures for such month as set forth on the Business Plan and, with a comparison
to the same calendar month of the preceding fiscal year, certified by a
Responsible Officer as being fairly stated in all material respects when
considered in relation to the consolidated financial statements of Company and
its consolidated Subsidiaries (including Unrestricted Subsidiaries) (subject to
nominal year-end audit adjustments); and
(e) as soon as available, but in any event not later than
45 days after the end of each fiscal quarter, projections by Company of the
operating cash flow budget of Company and its Subsidiaries for (i)the following
two fiscal quarters, prepared on a monthly basis and (ii) the two fiscal
quarters thereafter, prepared on a quarterly basis, certified by a Responsible
Officer as being prepared in good faith on the basis of the assumptions stated
therein, which assumptions were reasonable in light of conditions existing at
the time of delivery thereof and represented, at the time of delivery, Company's
best estimate of its future financial performance;
in each case, all such financial statements to be complete and correct in all
material respects and to be prepared in reasonable detail and (except in the
case of cash flows in (d) and (e) above) in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein).
6.2 CERTIFICATES; OTHER INFORMATION.
(a) Furnish to each Lender:
(i) concurrently with the delivery of the
financial statements referred to in Section 6.1(a), a certificate of
the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary
therefor such accounting firm has obtained no knowledge that a Default
or Event of Default has occurred and is continuing, except as specified
in such certificate;
(ii) concurrently with the delivery of the
financial statements referred to in Sections 6.1(a), (b) and (c), a
certificate of a Responsible Officer stating that, to the best of such
Responsible Officer's knowledge, Company and each Subsidiary during
such period has observed or performed the covenants of Sections 7.1,
7.2, 7.3, 7.6, 7.8, 7.9, 7.15, 7.16, and 7.17 and all other of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and in the Notes and in the other Loan
Documents to which it is a party to be observed, performed or satisfied
by it, and that such Officer has obtained no knowledge that a Default
or Event of Default has occurred and is continuing except as specified
in such certificate, and, if a Default or Event of Default exists,
stating the details thereof and what actions Company proposes to take
with respect thereto;
(iii) within five Business Days after the same are
sent, copies of all financial statements and reports which Company
sends to its stockholders and all
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financial statements and reports which Company sends to the holders or
trustee of any public debt securities, and within five Business Days
after the same are filed, copies of all financial statements and
reports which Company may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority;
(iv) within 10 Business Days after the same are
delivered, copies of all financial statements and all material reports,
management letters or other financial information prepared for its
Board of Directors;
(v) promptly upon request therefor, new
appraisals (no more frequently than annually) and detailed ongoing
information as to the real estate underlying any Commercial Receivables
which are not Eligible Commercial Receivables, absorption, sales and
other related matters; and
(vi) promptly, such additional financial and
other information as any Lender may from time to time reasonably
request.
(b) Furnish to Agent:
(i) on a monthly basis and, in any event, by no
later than the 30th day of each month: (w) a detailed calculation of
the Gross Allowed Amount and the Maximum Permissible Loan; (x) a
summary listing of the Real Property included directly or indirectly in
the Gross Allowed Amount, with, in each case, a summary reconciliation
to such listing provided in respect of the prior month; (y) a detailed
aging, by total, of the Homesite Commercial Receivables and of the
Commercial Receivables; and (z) a summary aging, by vendor, of
Company's accounts payable and any book overdraft and a monthly lot
closing report with respect to each project; in each case, in form
satisfactory to Agent; and
(ii) promptly, such additional financial and
other information as any Lender may from time to time reasonably
request.
6.3 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, and reserves in conformity
with GAAP with respect thereto have been provided on the books of Company or its
Subsidiaries, as the case may be or where the terms of this Agreement or the
Reorganization Plan would prohibit such payment, discharge, or satisfaction.
6.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Subject to Sections 7.5, 7.6, 7.7 and 7.9: (a) continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect
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its corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business; and (b) to comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith is not reasonably
likely to, in the aggregate, have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all property useful and necessary in its business in good
working order and condition; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to
each Lender, upon written request, full information as to the insurance carried.
Such insurance in any event shall include, without limitation, all replacement
costs associated with building collapse, whether caused by earthquake or
structural defects or otherwise, on all Real Property of the Borrower and each
of its Subsidiaries. Each such policy of insurance shall name Collateral Agent
as a loss payee thereunder and shall provide for at least thirty days prior
written notice to Agent of any material modification or cancellation of such
policies. On the Effective Date and on each anniversary thereafter, Company and
its Subsidiaries shall submit to Agent certificates of insurance evidencing
compliance with this Section 6.5.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; APPRAISALS.
Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of Agent, and each Lender, with respect
to Company and its Subsidiaries, to visit and inspect any of the Collateral and
related properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of Company and its Subsidiaries with officers and employees of Company and such
Subsidiaries and with its independent certified public accountants. From time to
time, if Agent determines that obtaining appraisals is necessary or appropriate,
Agent will either cause its personnel to appraise, or obtain appraisal reports
from appraisers satisfactory to Agent, stating the then current fair market
values of all or any portion of the Real Property. Anything herein to the
contrary notwithstanding, Company shall not be obligated to reimburse Agent with
respect to appraisals of the same particular item of Real Property that occur
more frequently than once in any 6 consecutive month period, unless an Event of
Default has occurred and is continuing or there has occurred a material adverse
change in the value of the Collateral, in which case Company shall be obligated
to reimburse Agent with respect to as many appraisals as Agent deems necessary
to conduct.
6.7 NOTICES.
Promptly give notice to Agent and each Lender of:
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(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of Company or, to the knowledge of Company, any of its
Subsidiaries or (ii) litigation, investigation or proceeding which may exist at
any time between Company or, to the knowledge of Company, any of its
Subsidiaries and any Governmental Authority, which in either case, if not cured
or if adversely determined, as the case may be, would have a Material Adverse
Effect;
(c) any litigation or proceeding affecting Company or, to
the knowledge of Company, any of its Subsidiaries in which the amount involved
is $250,000 or more and, not covered by insurance or in which injunctive or
similar relief is sought;
(d) as soon as possible and in any event within 30 days
after Company knows or has reason to know thereof, the occurrence or expected
occurrence of any event or condition described in Section 4.12 which could
reasonably be expected to result in liability of Company or any Commonly
Controlled Entity in excess of $100,000 and which is not reflected in the
financial statements most recently delivered to Lenders pursuant to Section 6.1;
and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Company proposes to take with respect thereto.
6.8 ENVIRONMENTAL LAWS.
(a) Comply with, and use its best efforts to insure
compliance by all tenants and subtenants, if any, with, all Environmental Laws
and obtain and comply with and maintain, and insure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses, approvals,
registrations or permits required by Environmental Laws, except in each case to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities respecting Environmental Laws, except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not reasonably be expected to have a
Material Adverse Effect, and develop and maintain a system, satisfactory to
Agent, for performing periodic environmental compliance reviews with respect to
all of its properties, and for reporting such reviews to Agent and Lenders; and
(c) Defend, indemnify and hold harmless Agent and
Lenders, and their respective employees, agents, officers and directors, from
and against any and all claims,
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demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to, the violation of or noncompliance with any
Environmental Laws applicable to the real property owned or operated by Company
or any of its Subsidiaries, or any orders, requirements or demands of
Governmental Authorities related thereto, including attorney's and consultant's
fees, investigation and laboratory fees, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross negligence
or willful misconduct of the party seeking indemnification therefor. The
agreements in this Section shall survive the payment of the Notes and all other
amounts payable hereunder.
6.9 BUSINESS PLAN.
Furnish to each Lender on or before the tenth day following
approval by Company's Board of Directors, but in no event later than December 31
of each fiscal year and within 10 days (after approval by Company's Board of
Directors, if applicable) of any amendment, modification or update thereto, a
Business Plan of Company and its Subsidiaries for the next succeeding fiscal
year in a form and in substance satisfactory to the Required Lenders setting
forth in reasonable detail a projected statement for such fiscal year's income
and cash flow with a projected balance sheet as of the close of the succeeding
fiscal year end, accompanied by a statement of a Responsible Officer that the
Business Plan projected statements of income, cash flow and balance sheet for
the succeeding fiscal year have been adopted by the Board of Directors of
Company. Company and its Subsidiary shall at all times conduct their business
substantially in accordance with the Business Plan and shall not materially
modify or deviate from such Business Plan without the prior written approval of
Agent and the Required Lenders.
6.10 AUTHORIZATIONS. Company will, and will cause each of its
Subsidiaries to use its good faith diligent best efforts to promptly obtain and
maintain in full force and effect, all licenses, consents, permits,
authorizations and filings (collectively, "Governmental Approvals") necessary to
develop, lease or own all of its properties, and, upon obtaining the foregoing,
Company will, and will cause each of its Subsidiaries to, maintain the
Governmental Approvals in full force and effect and comply with the terms
thereof, except only to the extent that failure to maintain the Governmental
Approvals and comply therewith is not reasonably likely to have a Material
Adverse Effect or result in any liability to Agent, Collateral Agent or any
Lender (at any time prior to Agent, Collateral Agent or any Lender taking title
to any of the Collateral pursuant to any exercise of remedies provided for
herein or in the other Loan Documents).
6.11 DIVIDENDS FROM SUBSIDIARIES.
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Cause the Subsidiaries to pay dividends to Company from the
Net Cash Proceeds of any sales of assets (including Real Property Sales) to the
extent not prohibited by law, including the proceeds of any utility
condemnations; provided that proceeds from the sale of residential units, lots
or tracts by Subsidiaries (a) from developed phases of a multi-phase project
comprising Subsidiary Property Under Development or Mezzanine Property Under
Development may be used to pay all costs associated with development of the same
phase or additional phases of the same project, including reasonable reserves
for such anticipated costs during the period commencing on the date of sale to
the date 180 days after the date of sale (excluding any costs which are an
allocated share of corporate general and administrative expenses of Company or
any Subsidiary), and (b) from single phase projects comprising Subsidiary
Property Under Development or Mezzanine Property Under Development to the extent
units, lots or tracts may be sold in accordance with applicable laws and
regulations prior to completion of the projects may be used to pay all costs
associated with development of such project (excluding any costs which are an
allocated share of corporate general and administrative expenses of Company or
any other Subsidiary), in either case until the conclusion of the project, at
and following which time all such proceeds shall be distributed to Company. For
purposes hereof, "conclusion of the project" shall mean the completion of
structure or infrastructure development of the project (or, with multi-phase
projects: (i)(y) the final phase of the project, or (z) the sale of
substantially all units thereon; and (ii) the payment of the Indebtedness and
Guarantee Obligations in respect of Subsidiary Property Under Development or
Mezzanine Property Under Development that prohibits such distributions) in
accordance with the requirements of applicable laws and regulations.
6.12 SUPPLEMENTAL REPORTS REGARDING REAL PROPERTY.
(a) Furnish to Agent such supplemental title reports on
the Real Property subject to the Deeds of Trust and Mortgages as Agent and
Required Lenders may reasonably request from time to time; provided Company
shall not be required to provide such supplemental reports more than once per
quarter.
(b) No later than 60 days after the Effective Date,
Company shall deliver to Agent such third party appraisals, environmental
reports, surveys, and ALTA title policies, as would have complied with the
provisions of Section 5.1(k) if delivered on the Effective Date with respect to
all Real Property to the extent such reports were not required by Lenders to be
delivered on or prior to the Effective Date.
(c) Without limiting the generality of Section 4.10,
Company shall cause all assessments and taxes, whether real, personal or
otherwise, due or payable by, or imposed, levied, or assessed against any Real
Property located in Tennessee and Texas to be paid in full before delinquency or
before the expiration of any extension period and promptly shall execute and
deliver to Agent and Collateral Agent appropriate certificates attesting to the
payment thereof or deposit with respect thereto; provided, however, that in the
case of Real Property with a fair market value less than or equal to the
assessments or taxes with respect thereto, the Company may decide not to pay
such assessments or taxes. At any time during the existence of an Event of
Default, Agent and Collateral Agent shall have the right to require the
execution and delivery of
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a tax servicing contract in respect of the Real Property located in Tennessee
and Texas, in form and substance satisfactory to Agent and Collateral Agent,
among Company, Agent, Collateral Agent, and a tax servicing firm satisfactory to
Agent and Collateral Agent.
6.13 COMPLIANCE WITH LAWS.
Company shall, and shall cause each of its Subsidiaries to
comply with the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, noncompliance with which would or could be
reasonably expected to cause a Material Adverse Effect.
6.14 OTHER NOTICES.
Promptly give notice to Agent of:
(a) the creation of any new deposit account; and
(b) the organization or formation of any new Venture
Subsidiary, any other Subsidiary, any Unrestricted Subsidiary, or any Joint
Venture; or the disposition or dissolution of any Excluded Subsidiary;
in each case, together with such information related thereto as Agent may
request.
6.15 COMPANY OPERATING ACCOUNT CONTROL AGREEMENT.
At all times from and after the date of its execution and
delivery, maintain in full force and effect the Company Operating Account
Control Agreement. At all times from and after the Effective Date, Company shall
continue to maintain Company's cash management system substantially as such
system exists on the Effective Date after giving effect to the consummation of
the transactions contemplated to occur on such date, and shall continue to
concentrate the funds of Company into the Company Operating Account except to
the extent that such funds reasonably are required to be held in other accounts
for permitted uses by Company, and except to the extent that such funds are
invested in investments permitted by Section 7.9.
6.16 INDEMNIFICATION BY COMPANY. Company agrees to and does hereby
indemnify, hold harmless and defend Lenders from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever which are imposed
on, incurred by, or asserted against Lenders in any way relating to or arising
out of any failure of Company to comply with the terms of, or complete, the
Reorganization Plan.
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SECTION 7
NEGATIVE COVENANTS
Company hereby agrees that, 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 Agent hereunder, Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly:
7.1 MAINTENANCE OF CONSOLIDATED NET WORTH.
Permit Consolidated Net Worth at any time to be less than the
amounts set forth below (hereinafter referred to as the "Minimum Consolidated
Net Worth") the sum of: (a) (i) from the Effective Date through December 31,
1999, $35,000,000; and (ii) at any time thereafter, $35,000,000; and (b) 50% of
the Annual Net Income for the prior fiscal year; provided, however, that the
amount determined under this clause (b) shall never be less than zero.
To demonstrate compliance with the Minimum Consolidated Net Worth covenant set
forth in this Section, 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 the such
date calculated in accordance with this Section 7.1 and the calculation upon
which it is based, reflecting in such annual certificate any addition to the
Minimum Consolidated Net Worth that Company is required to maintain resulting
from the Annual Net Income for the fiscal year then ended, but only as
calculated under clause (b) of this Section 7.1.
7.2 LIMITATION OF INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness in respect of the Loans;
(b) Indebtedness in respect of the DK Loans pursuant to
the DK Loan Documents as in effect on the date hereof, or any renewal, extension
or replacement of such Indebtedness but only to the extent that (1) the
aggregate principal amount of the loans so renewed, extended or replaced does
not at any time exceed the principal amount of the DK Loans in effect prior to
such renewal, extension or replacement, (2) any and all letters of credit and
letter of credit guarantees that remain outstanding under or in connection with
the DK Loan Agreement may remain outstanding under the new facility or may be
replaced by new letters of credit or letter of credit guarantees, but only to
the extent that the aggregate stated amount of any and all letters of credit and
letter of credit guarantees under the renewed, extended or replacement credit
facility do not exceed the aggregate stated amount of all letters of credit and
letter of credit guarantees that were outstanding under the DK Loan Agreement,
as the same may have been
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reduced, (3) the final maturity of all such loans as so renewed, extended or
replaced is no later than the Maturity Date, as defined herein (the expiry date
of the letters of credit and letter of credit guarantees under or in connection
with the DK Loan Agreement may not be renewed), (4) the internal rate of return
of such renewal, extension or replacement facility is no greater than the
internal rate of return of the DK Loans as in effect prior to such renewal,
extension or replacement (calculated at the ordinary, pre-default interest
rate), (5) such renewed, extended or replacement credit facility is otherwise on
commercially reasonable terms, and (6) the Intercreditor Agreement remains in
full force and effect with respect to the renewed, extended or replacement
credit facility (any such renewal, extension or replacement of the DK Loans
complying with the foregoing requirements being called "PERMITTED REFINANCING
INDEBTEDNESS");
(c) secured Indebtedness in respect of the Secured Note;
(d) Indebtedness of Company in respect of Apollo's 20%
Profits Interest;
(e) Indebtedness of Company not otherwise permitted
hereunder and Indebtedness of its Subsidiaries which is recourse to the Company,
at any time outstanding, whether incurred in connection with Subsidiary Property
Under Development, Mezzanine Property Under Developmeent or otherwise, not
exceeding $90,000,000 (less the face amount of all outstanding Guarantee
Obligations permitted under Section 7.4(c) in respect of Indebtedness of any
Unrestricted Subsidiary or Joint Venture) in the aggregate;
(f) Indebtedness of Company to any Subsidiary or of any
Subsidiary to Company; provided that (i) such inter-company Indebtedness shall
not be evidenced by any promissory notes or other instruments, and (ii) all
Indebtedness of Subsidiaries to Company shall not exceed an aggregate principal
amount of $10,000,000 at any time, of which no more than $5,000,000 in the
aggregate may be Indebtedness of MPUD Subsidiary Group members, SPUD
Subsidiaries, Venture Subsidiaries and Unrestricted Subsidiaries.
(g) [intentionally omitted]
(h) The limitations otherwise imposed by Section 7.2(e)
notwithstanding, Indebtedness of any Subsidiary to Persons extending acquisition
or project development financing in connection with Subsidiary Property Under
Development of the Subsidiary (any Subsidiary incurring such Indebtedness shall
be referred to in this Section 7.2(h) as a "SPUD SUBSIDIARY") or in connection
with Mezzanine Property Under Development of the Subsidiary (any Subsidiary
incurring such Indebtedness shall be referred to in this Section 7.2(h) as an
"MPUD SUBSIDIARY"); provided that (i) neither Company nor any Subsidiary other
than that SPUD Subsidiary or MPUD Subsidiary, as the case may be, is liable for
such Indebtedness in respect of that Subsidiary Property Under Development or
Mezzanine Property Under Development, as the case may be, directly or pursuant
to a Guarantee Obligation or otherwise, (ii) such outstanding Indebtedness
permitted pursuant to this Section 7.2(h) shall not exceed in the aggregate
$180,000,000 minus other outstanding Indebtedness of Company and Subsidiaries
permitted pursuant to Section 7.2(e), and (iii) the shares of capital stock and
other ownership
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interests of such MPUD Subsidiary shall at all times be owned solely by a single
MPUD Holding Company;
(i) [intentionally omitted]
(j) [intentionally omitted];
(k) Indebtedness of Subsidiaries for the development of
infrastructure, common areas, or recreational facilities owing to
quasi-governmental entities such as community development and special districts
to the extent financed through the issuance of industrial revenue bonds or other
similar public financing; provided that (except for Liens permitted pursuant to
Section 7.3(q)) there is no direct or indirect recourse to Company with respect
to such Indebtedness (other than inchoate Liens arising by operation of law in
respect of such Indebtedness) and such Indebtedness shall not exceed $75,000,000
in the aggregate at any one time outstanding; provided further that Company
shall give Agent prior written notice of the incurrence of any such Indebtedness
under this Section 7.2(k); and
Anything to the contrary notwithstanding, in no event shall Company or any
Subsidiary co-make, endorse, guarantee (except to the extent permitted under
Section 7.4(c)), or otherwise become liable or have any recourse with respect to
any Indebtedness of any of the Unrestricted Subsidiaries.
7.3 LIMITATION ON LIENS.
Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
except for:
(a) Liens securing Indebtedness permitted by Section
7.2(a);
(b) Liens in favor of Collateral Agent securing
Indebtedness permitted by Section 7.2(b), so long as the Intercreditor Agreement
remains in full force and effect;
(c) Liens in favor of Collateral Agent securing the
Secured Agreement Obligations, so long as the Intercreditor Agreement remains in
full force and effect
(d) Liens in favor of Apollo securing Indebtedness
permitted by Section 7.2(d);
(e) Liens for taxes (i) which are not yet delinquent or
(ii) which are, not in an aggregate amount, as to Company and all Subsidiaries,
of greater than $1,000,000 or (iii) which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect thereto
are maintained on the books of Company or its Subsidiaries, as the case may be,
in conformity with GAAP;
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(f) carriers, warehousemen's, mechanics's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
do not remain unsatisfied or undischarged for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(g) pledges or deposits in connection with workers
compensation, unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(h) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(i) easements, rights-of-way, restrictions, development
orders, plats, and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and which do not
in any case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of Company or
such Subsidiary;
(j) Liens granted by Company or any Subsidiary, as
lessee, in the ordinary course of business on leased equipment, leasehold
improvements and furnishings;
(k) Liens created, incurred or assumed in connection with
the acquisition of, or the refinancing or any subsequent refinancing of
Indebtedness incurred in connection with property, plant and equipment acquired
after the date hereof and attaching only to the property, plant and equipment
being acquired or refinanced;
(l) other Liens in existence on the Effective Date,
listed on Schedule 7.3; provided that no such Lien is spread to cover any
additional property after the Effective Date and that the amount of any
Indebtedness or other obligations secured thereby is not increased;
(m) Liens granted pursuant to Section 7.7 of the
Reorganization Plan;
(n) Liens granted by Company or Subsidiaries upon Real
Property and related Personal Property which is Subsidiary Property Under
Development and which is either financed by Indebtedness incurred by
Subsidiaries pursuant to Section 7.2(e) or 7.2(h), or contributed by Company to
a Subsidiary pursuant to Section 7.9(g);
(o) Liens granted by Company or Subsidiaries upon Real
Property and related Personal Property which is Mezzanine Property Under
Development and which is either financed by Indebtedness incurred by
Subsidiaries pursuant to Section 7.2(e) or (h), or contributed by Company to a
Subsidiary pursuant to Section 7.9(g); and
(p) [INTENTIONALLY OMITTED]
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(q) inchoate Liens solely arising by operation of law in
respect of Indebtedness incurred pursuant to Section 7.2(k).
7.4 LIMITATION ON GUARANTEE OBLIGATIONS.
Create, incur, assume or suffer to exist any Guarantee
Obligation, except: (a) the Guarantee Obligations listed on Schedule 4.17; (b)
Guarantee Obligations made in the ordinary course of its business by Company of
obligations (other than Indebtedness) of any of its Subsidiaries, which
obligations are otherwise permitted under this Agreement; (c) Guarantee
Obligations by Company of Indebtedness of any Subsidiary, Unrestricted
Subsidiary, or Joint Venture; provided, however, that any outstanding Guarantee
Obligations permitted under this Section 7.4(c) in respect of Indebtedness of
any Unrestricted Subsidiary or Joint Venture shall reduce on a dollar-for-dollar
basis the $90,000,000 limitation otherwise available for Indebtedness permitted
under Section 7.2(e) and that the sum of all Indebtedness permitted under
Section 7.2(e) and all Guarantee Obligations permitted pursuant to this Section
7.4(c) shall not exceed $90,000,000 in the aggregate; provided further, that
Company may not incur any Guarantee Obligation with respect to Indebtedness of
any Subsidiary permitted pursuant to Section 7.2(h); and (d) Guarantee
Obligations of the Subsidiaries of Company in respect of the DK Loan Obligations
and the Secured Agreement Obligations, so long as the Intercreditor Agreement
remains in full force and effect.
7.5 LIMITATIONS ON FUNDAMENTAL CHANGES.
Except to the extent such merger, consolidation, or
amalgamation is of a Subsidiary with and into Company, or between or among
wholly owned Subsidiaries, enter into any merger, consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets; provided that
Company or any Subsidiary may convey, sell, assign, transfer or have condemned
or otherwise dispose of assets to the extent permitted by Section 7.6 so long as
the proceeds of any such sale are applied in accordance with this Agreement.
7.6 LIMITATION ON SALE OF ASSETS.
So long as no Default or Event of Default has occurred and is
continuing or would result therefrom (unless the Permitted Sale Asset is the
subject of a binding written contract of sale with an unaffiliated third party
entered into prior to the first date on which the applicable Default or Event of
Default occurred)), convey, sell, lease, assign, transfer or otherwise dispose
of any of its property, business or assets (including receivables and leasehold
interests), whether now owned or hereafter acquired, except the following
("Permitted Sale Assets"):
(a) raw land;
(b) homes or homesites in the ordinary course of its
business;
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(c) obsolete or worn out property disposed of in the
ordinary course of business;
(d) Commercial Real Estate;
(e) the sale or discount without recourse of Commercial
Receivables or Homesite Contract Receivables in the ordinary course of business;
(f) [intentionally omitted];
(g) sales or other transfers of any partnership interests
or joint venture interests in entities that are not wholly owned, collectively,
by Company and its Subsidiaries; and
(h) transactions permitted under Section 7.5.
Upon any permitted sale as aforesaid, Collateral Agent shall execute releases of
Collateral Agent's Lien upon the Collateral included in any such sale; provided
that there exists no Default or Event of Default hereunder and no Default or
Event of Default would result therefrom; and provided further, that Collateral
Agent's Lien shall continue against the proceeds of such sale, as evidenced by
any and all documents and filings as may be required by Agent.
7.7 LIMITATION ON DIVIDENDS.
Declare or pay any dividend (other than dividends payable
solely in common stock or preferred stock of Company) on, or, except for the
Reverse Stock Split, make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of Company including the
Preferred Stock, whether now or hereafter outstanding, or make any other
distributions in respect thereof, either directly or indirectly, whether in cash
or property (other than distributions or dividends in the form of common stock
or preferred stock of Company) or in obligations of Company or any Subsidiary,
except for: (a) dividends declared and paid by any Subsidiary to Company or any
Subsidiary, and (b) dividends to the extent permitted by Section 4.14 of the
Intercreditor Agreement.
7.8 [INTENTIONALLY OMITTED.]
7.9 LIMITATION ON INVESTMENTS, LOANS, AND ADVANCES.
Except to the extent of assets in the Reserve Accounts, make
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other Investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
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(b) investments in Cash Equivalents;
(c) (i) loans and advances to employees of Company or its
Subsidiaries for travel, entertainment and relocation expenses and for advances
on salary prior to, and otherwise payable during, an employee's vacation, in the
ordinary course of business in an aggregate amount for Company and its
Subsidiaries not to exceed $500,000 at any one time outstanding and (ii) the
loans to J. Xxxxx Xxxxxxxxxx, the President and Chief Executive Officer of the
Company, evidenced by the obligations described on Schedule 7.9(c);
(d) investments by Company in any Subsidiary (other than
Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and
Unrestricted Subsidiaries) or by any Subsidiary in Company or any other
Subsidiary (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary
Group members and Unrestricted Subsidiaries) in connection with cash management
procedures in the ordinary course of business;
(e) (i) loans by Company to its Subsidiaries (other than
Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and
Unrestricted Subsidiaries) or by any Subsidiary to Company to the extent such
Indebtedness is permitted pursuant to Section 7.2(f); and (ii) capital
contributions to Subsidiaries (other than Venture Subsidiaries, SPUD
Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) so
long as Company or its Subsidiary making the capital contribution receives stock
equal to the value of the capital contributed as determined in accordance with
GAAP; provided, that Collateral Agent's Lien shall continue against such stock
received by Company or its Subsidiary as aforesaid, which Lien shall be
evidenced by any and all documents and filings as may be required by Collateral
Agent and Agent;
(f) extensions of credit to purchasers in connection with
sales of assets permitted under this Agreement; and
(g) capital contributions to Venture Subsidiaries for the
purpose of making investments in Joint Ventures, to SPUD Subsidiaries, to MPUD
Group members and to Unrestricted Subsidiaries so long as Company or its
Subsidiary making the capital contribution receives stock, partnership
interests, joint venture interests, or beneficial interests, respectively, equal
to the value of the capital contributed as determined in accordance with GAAP
(and upon any permitted capital contribution as aforesaid, Collateral Agent
shall execute releases of Collateral Agent's Lien upon any Collateral
contributed); provided, (i) that no Default or Event of Default exists hereunder
or would result therefrom, (ii) that Collateral Agent's Lien shall continue
against such stock or other interests received by Company or its Subsidiary as
aforesaid, which Lien shall be evidenced by any and all documents and filings as
may be required by Collateral Agent and Agent, and (iii) from and after the
Effective Date, the aggregate "net amount" of such capital contributions shall
be limited to $35,000,000 in the aggregate for all enterprises and projects, and
$15,000,000 for any single enterprise or project. For purposes of this Section
7.9(g), the "net amount" shall be equal to the aggregate amount of all capital
contributions less any dividends paid to the Company and/or Subsidiaries, as the
case may be, by
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the Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members
and/or Unrestricted Subsidiaries.
Notwithstanding anything to the contrary in this Section 7.9,
no Subsidiary which owns any project may invest in any Subsidiary which has no
interest in such project.
7.10 LIMITATION ON OPTIONAL PAYMENTS AND MODIFICATIONS OR RENEWALS
OF DEBT INSTRUMENTS.
(a) Make any optional payment or optional prepayment on,
or optional redemption of, any Indebtedness (including any payments on the DK
Loan Obligations, and Secured Note Obligations) or Guarantee Obligation except:
(i) payments on the DK Loans and the Loans, (ii) payment of the 20% Profits
Interest or (iii) so long as no Event of Default has occurred and is continuing
or would result therefrom, payments made pursuant to Indebtedness permitted
pursuant to Section 7.2(e), (f), (g) (but exclusive of Indebtedness permitted
pursuant thereto consisting of intercompany Indebtedness among Company and its
Subsidiaries and Financing Leases), (h), or (k);
(b) Amend, modify, or change, or consent or agree to any
amendment, modification or change to any of the terms of the DK Loan
Obligations, the Secured Agreement Obligations, or any other agreement executed
in connection with the foregoing or otherwise in connection with any
Indebtedness or Guarantee Obligation (other than: (1) Indebtedness permitted to
be incurred pursuant to subsections 7.2(e) and (f) (but exclusive of
Indebtedness permitted pursuant thereto consisting of intercompany Indebtedness
among Company and its Subsidiaries and Financing Leases), (h), and (k); and (2)
any such amendment, modification, or change to any such other Indebtedness which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or the amount of interest payable or
extend the date for payment of interest thereon; but in the case of either (1)
or (2), solely to the extent the amendment, modification, or change to any such
Indebtedness is not prohibited by any other provision in this Agreement or the
other Loan Documents or in the Intercreditor Agreement); provided that Company
shall not agree to any renewal, extension, refinancing or replacement of the DK
Loan Obligations other than Permitted Refinancing Indebtedness; and
(c) Amend any subordination provisions of any instrument
governing any Indebtedness or Guarantee Obligation (except for amendments
pursuant to this Agreement and the other Loan Documents or pursuant to the
Intercreditor Agreement).
7.11 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction, including any purchase, sale,
lease or exchange of property or the rendering of any service, with any
Affiliate (other than any Subsidiary of Company), unless such transaction is
otherwise permitted under this Agreement, is in the ordinary course of Company's
or such Affiliate's business and is upon fair and reasonable terms
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no less favorable to Company or such Affiliate, as the case may be, than it
would obtain in a comparable arms length transaction with a Person not an
Affiliate.
7.12 SALE AND LEASEBACK.
Enter into any Sale and Leaseback to the extent the aggregate
Book Value of all assets sold and leased under all such transactions exceeds
$2,000,000 during the term of this Agreement.
7.13 FISCAL YEAR.
Permit the fiscal year of Company to end on a day other than
December 31.
7.14 LIMITATION ON NEGATIVE PLEDGE CLAUSES.
Enter into any agreement, other than any Secured Debt
Documents, industrial revenue bonds, community development district financing,
purchase money mortgages, Financing Leases, or agreements executed in connection
with Indebtedness or Guarantee Obligations incurred in connection with
Subsidiary Property Under Development and/or Mezzanine Property Under
Development permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby), with
any Person other than Lenders pursuant hereto which prohibits or limits the
ability of Company or any of its Subsidiaries to create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired.
7.15 DEVIATION FROM BUSINESS PLAN.
After the DK Loan Obligations and any Permitted Refinancing
Indebtedness have been paid in full, allow the total actual Net Cash Flow for
any fiscal quarter, including major asset dispositions, to deviate from the
quarterly Net Cash Flow projected under the Business Plan for such year by a
negative margin equal to or greater than 50 percent or $5,000,000, whichever is
greater.
7.16 INTER-PROJECT LOANS, MERGERS, CONSOLIDATION AND INVESTMENTS.
Allow any Subsidiary which owns any project to borrow from or
lend to, merge, consolidate with or invest in any other Subsidiary which has no
interest in such project.
7.17 LIMITATION ON BANK ACCOUNTS.
So long as any Obligations or Commitments are outstanding, and
after the DK Loan Obligations have been paid in full, allow cash and Cash
Equivalents maintained in Bank Accounts of Company and Subsidiaries other than
in the Cash Collateral Account and the restricted accounts set forth in Schedule
7.17 (including any beneficial interest therein), less the amount of checks
outstanding to pay current expenses in the ordinary course of business or to
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prepay expenses to be incurred in the immediately subsequent three-month period
consistent with past practices, to exceed $5,000,000 in the aggregate at any
time. Company and its Subsidiaries shall deposit in the Company Operating
Account, after application pursuant to Section 2.11, all remaining cash of
Company and its Subsidiaries in excess of amounts permitted to be maintained in
accounts other than a Cash Collateral Account under this Section 7.17.
7.18 VENTURE SUBSIDIARIES AND JOINT VENTURES.
(a) Cause, suffer, or permit any Venture Subsidiary to
have any asset or revenues other than the Joint Venture interests owned by such
Venture Subsidiary as disclosed on Schedule 4.14(B) and the revenues arising
from such revenue.
(b) Cause, suffer, or permit any Venture Subsidiary to
create, incur, assume, or suffer to exist any Lien (other than Liens in favor of
Collateral Agent) upon any of such Venture Subsidiary's property, assets, or
revenues, whether now owned or hereafter acquired (including the Joint Venture
interests owned by such Venture Subsidiary as disclosed on Schedule 4.14(B) and
the revenues arising from such revenue).
7.19 EMPLOYEE BENEFITS.
(a) Fail to comply in all material respects with the
applicable provisions of ERISA and the Code to the extent that such failure,
individually or in the aggregate, results or could reasonably be expected to
result in a Material Adverse Effect and (b) fail to furnish the Agent as soon as
possible after, and in any event within 10 days after any Responsible Officer of
the Company or any Commonly Controlled Entity knows or has reason to know that
any ERISA Event has occurred that, alone or together with any other ERISA Events
that, individually or in the aggregate, have occurred could reasonably be
expected to result in a Material Adverse Effect, a statement by a Responsible
Officer of the Company setting forth details as to such ERISA Event and the
action, if any, that the Company and/or the Subsidiaries propose to take with
respect thereto.
7.20 CHARTER DOCUMENTS.
Amend or modify the Series A Statement or the Series B
Statement or any other provision of its charter, certificate of incorporation or
other organizational documents relating to preferred stock (whether now
outstanding or hereafter issued) without obtaining the prior written consent of
Lenders.
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SECTION 8
EVENTS OF DEFAULT; REMEDIES
8.1 EVENTS OF DEFAULT; REMEDIES.
If any of the following events ("Events of Default") shall
occur and be continuing:
(a) Company shall fail to pay any principal when due of
any Obligation in accordance with the terms hereof; or Company shall fail to pay
any interest due on any Obligation or any other amount payable hereunder within
five days after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by
Company or any of its Subsidiaries herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished at any time under or in connection with this Agreement shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or
(c) Company shall default in the observance or
performance of any agreement contained in Section 7; or
(d) Company or any Subsidiary shall default in the
observance or performance of any other agreement contained in this Agreement
(other than as provided in paragraphs (a) through (c) of this Section) or in any
other Loan Document, and such default shall continue unremedied for a period of
30 days; or
(e) Company shall fail to pay any principal of or
interest on any DK Loan Obligations or any Secured Agreement Obligations
(whether at scheduled maturity or by required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the relevant agreement or instrument relating to
such obligations; or there shall occur any other "default" or "event of default"
(as defined in the DK Loan Documents or the Secured Agreement Documents or any
other event that accelerates, or permits the acceleration, of any DK Loan
Obligations or any Secured Agreement Obligations; or
(f) Any DK Loan Obligations or Secured Agreement
Obligations shall be declared to be due and payable, or required to be prepaid
prior to the stated maturity thereof other than mandatory prepayments set forth
in the DK Loan Agreement; or
(g) Any Subsidiary of Company shall fail to pay any
principal of, or interest on, any Indebtedness or any Guarantee Obligation
(other than any Guarantee Obligation created pursuant to any Loan Document) in
excess of $1,000,000, when due and payable (whether at scheduled maturity or by
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument under which such Indebtedness or Guarantee Obligation was created
and, if such
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agreement or instrument permits the acceleration of the maturity of such
Indebtedness or Guarantee Obligation as a result of such failure, such
Indebtedness or Guarantee Obligation shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or any such Indebtedness or
Guarantee Obligation shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity; or
(h) Company shall (i) default in any payment of principal
of or interest on any Indebtedness (other than any Obligations, the DK Loan
Obligations or the Secured Agreement Obligations) or in the payment of any
Guarantee Obligation in excess of $1,000,000, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(i) (i) Company or any of its Subsidiaries shall commence
any case, proceeding or other action (x) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (y)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or Company or any of
its Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Company or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (x) results in the entry of an order for relief or any
such adjudication or appointment or (y) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
Company or any of its Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) Company or any of its Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) Company or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due, provided that
Company or any of its Subsidiaries may admit in writing that it is "insolvent"
as such term is defined in, and for purposes of, Section 108(a)(1)(8) of the
Code; or (vi) Company or any of its Subsidiaries shall cause to be reinstated
the Reorganization Proceedings; or
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(j) The Confirmation Order shall be reversed, withdrawn,
or modified (in any manner adverse to Company or any of its Subsidiaries), or
any rehearing shall be ordered with respect thereto by the Bankruptcy Court or
by any court having jurisdiction over Company; or
(k) (i) There occurs one or more events or conditions
described in Section 4.12 or an ERISA Event which individually or in the
aggregate result in liability of Company or any Commonly Controlled Entity in
excess of $4,600,000; or the present value of all accrued benefits under each
Single Employer Plan (based on the reasonable assumptions used by the
independent actuary for such Plan for purposes of establishing the minimum
funding requirements under Section 412 of the Code), as of the last annual
valuation date, exceed the value of the assets of such plan allocable to such
accrued benefits, individually or in the aggregate for all Single Employer Plans
with respect to which the value of the assets exceed the present value of the
accrued benefits, by more than $4,600,000; or
(l) One or more judgments or decrees shall be entered
against Company or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $500,000 or more in the
case of Company or any of its Subsidiaries and all such judgments or decrees
shall not have been vacated, discharged, stayed or bonded pending appeal within
60 days from the entry thereof; or
(m) (i) Any of the Guarantees, Security Documents, or
other Loan Documents hereunder shall cease, for any reason, to be in full force
and effect or Company or any of its Subsidiaries, as the case may be, party
thereto shall so assert in writing, or (ii) any Security Document shall cease to
be effective to grant a perfected Lien on the collateral described therein with
the priority purported to be created thereby (other than as a result of any
action or inaction on the part of Agent or Lenders or their agents or bailees or
other than with respect to Collateral having an aggregate value of $100,000 or
less); or
(n) [intentionally omitted]
(o) Any event or change shall occur that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect; or
(p) There shall occur any defined "Event of Default"
under any Secured Debt Documents other than the Loan Documents; or
(q) There shall occur any defined "Event of Default" as
defined in the Series A Statement or Series B Statement; or
(r) There shall occur any event that results in the
accumulation of, or the right of "Holders" (as such term is defined and used in
the Series A Statement or the Series B Statement of the Series A or Series B
Preferred Stock to receive dividends at the "Default Dividend Rate" as defined
therein; or
(s) A Change of Control shall occur; or
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(t) There shall occur any transfer of any shares of
Series A Preferred Stock under circumstances in which the transferee does not
become bound by all of the provisions of the Intercreditor Agreement which,
immediately prior to such transfer, were applicable to the Secured Agreement
Obligees;
(u) Any funds in excess of $500,000 are paid over
pursuant to the resolution of any claim asserted by any third party, including
claims by any state or other Governmental Authority, that any unclaimed funds
disbursed by the United States Trust Company of New York to Company out of the
proceeds of the Unsecured 1996 Notes are "abandoned property" under state
escheat or other applicable laws; or
(v) The occurrence or failure to occur of any act or
event which occurrence or failure to occur could give rise to the right on the
part of the Class A Preferred Shareholders and/or the Class B Preferred
Shareholders to require Company to repurchase such shares or any portion
thereof;
then, and in any such event, (a) if such event is an Event of Default specified
in clause (i), (ii), (iv), (v) or (vi) of paragraph (i) above, (i) the
Commitments shall automatically immediately terminate, and (ii) the Loans
hereunder (with accrued interest thereon) and all other Obligations shall
immediately become due and payable in full, and Agent and Collateral Agent shall
have all rights and remedies given to Agent and Collateral Agent pursuant to the
Loan Documents and all rights of a secured party, mortgagee and pledgee under
applicable law, all of which rights and remedies shall be cumulative and
non-exclusive, to the extent permitted by law; and (b) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Required Lenders, Agent may, or upon the request of
the Required Lenders, Agent shall, by notice to Company declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, Agent may, or upon
the request of the Required Lenders, Agent shall, by notice of default to
Company, declare the Loans hereunder (with accrued interest thereon) and all
other Obligations to be due and payable in full, and Agent shall have all rights
and remedies given to Agent and Collateral Agent pursuant to the Loan Documents
and all rights of a secured party, mortgagee and pledgee under applicable law,
all of which rights and remedies shall be cumulative and non-exclusive, to the
extent permitted by law; provided, however, with regard to clause (b) hereof,
that unless and until Agent shall have received such directions, Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of Lenders.
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SECTION 9
AGENTS
9.1 APPOINTMENT OF AGENT.
Each Lender hereby irrevocably designates and appoints
Anglo-American Financial as Agent of such Lender under this Agreement and the
other Loan Documents, and Anglo-American Financial hereby accepts such
appointment, subject to the terms and provisions of this Agreement and the other
Loan Documents. Each Lender irrevocably authorizes Anglo-American Financial, as
Agent for such Lender, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to Agent by the terms of this
Agreement and the other Loan Documents together with such other powers as are
reasonably incidental thereto.
Each Lender hereby further authorizes Agent to enter into the
Security Documents to be executed and delivered by Agent, on behalf of and for
the benefit of Lenders, on the Effective Date and agrees to be bound by the
terms thereof. Each Lender irrevocably authorizes Agent to take such action on
its behalf under the provisions of the Security Documents, and to exercise such
powers and perform such duties as are expressly delegated to Agent by the terms
of the Security Documents, together with such other powers as are reasonably
incidental thereto; provided that Agent shall not enter into any consent to any
amendment, modification, termination or waiver of any provision contained in any
Security Document to which it is party without the prior written consent of
Required Lenders. Each Lender agrees that no Lender shall have any right
individually to realize upon the collateral granted by the Security Documents
(including through the exercise of a right of set-off against call deposits, if
any, of such Lender in which any funds on deposit in the Cash Collateral
Accounts may from time to time be invested), it being understood and agreed that
such rights and remedies may be exercised only by Agent at the direction of
Required Lenders, for the benefit of Lenders, in accordance with the terms of
such agreements. Each Lender hereby authorizes Agent to release Collateral only
as expressly permitted or required under this Agreement or the Security
Documents, and agrees that a certificate executed by Agent evidencing such
release of Collateral shall be conclusive evidence of such release to any third
party.
9.2 APPOINTMENT OF COLLATERAL AGENT.
Each Lender hereby irrevocably designates and appoints MHD as
Collateral Agent of such Lender under this Agreement and the Security Documents
to which MHD is a party, and MHD hereby accepts such appointment, subject to the
terms and provisions of this Agreement and the Security Documents to which it is
a party, and agrees to perform the duties of Collateral Agent as set forth
herein and therein. Each Lender hereby further authorizes Collateral Agent to
enter into the Security Documents to be executed and delivered by Collateral
Agent on the Effective Date and agrees to be bound by the terms thereof. Each
Lender irrevocably authorizes MHD, as Collateral Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the
Security Documents to which Collateral Agent is a party, and to
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exercise such powers and perform such duties as are expressly delegated to
Collateral Agent by the terms of this Agreement and the Security Documents to
which it is a party, together with such other powers as are reasonably
incidental thereto; provided that Collateral Agent shall not enter into any
consent to any amendment, modification, termination or waiver of any provision
contained in any Security Document to which it is party without the prior
written consent of Required Lenders. Each Lender agrees that no Lender shall
have any right individually to realize upon the security granted by the Security
Documents to which Collateral Agent is party, it being understood and agreed
that such rights and remedies may be exercised only by Collateral Agent at the
direction of Agent on behalf of Required Lenders, for the benefit of Lenders, in
accordance with the terms of such agreements. Each Lender hereby authorizes
Collateral Agent to release Collateral only as expressly permitted or required
under this Agreement or the Security Documents and agrees that a certificate
executed by Collateral Agent evidencing such release of Collateral shall be
conclusive evidence of such release to any third party. Collateral Agent shall
not subordinate or release any Liens under any of the Security Documents except
as provided in this Agreement or upon the written direction of Agent on behalf
of the Required Lenders. All notices and directions to Collateral Agent shall be
given by Agent on behalf of and at the direction of Required Lenders.
9.3 [INTENTIONALLY OMITTED].
9.4 DELEGATION OF DUTIES.
Agent and Collateral Agent may execute any of their respective
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Agent nor Collateral Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care. Notwithstanding any provision to the
contrary elsewhere in this Agreement, neither Agent nor Collateral Agent shall
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Agent or
Collateral Agent; and Agent and Collateral Agent are acting hereunder and under
the other Loan Documents solely as the agent and collateral agent, respectively,
of Lenders pursuant hereto and thereto, and neither Agent nor Collateral Agent
is acting as trustee for Lenders.
9.5 EXCULPATORY PROVISIONS.
Neither Agent, Collateral Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Persons own gross negligence or willful misconduct) or
(b) responsible in any manner to any of Lenders for any recitals, statements,
representations or warranties made by Company or any officer thereof contained
in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by Agent
under or in connection with, this Agreement
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or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the Notes or any
other Loan Document or for any failure of Company to perform its obligations
hereunder or thereunder. Neither Agent nor Collateral Agent shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions to, this
Agreement or any other Loan Document or as to the use of proceeds of the Loans
or of the existence or possible existence of a Default or Event of Default, or
to inspect the properties, books or records of Company. Notwithstanding anything
herein to the contrary, neither Agent nor Collateral Agent shall have any
liability arising from confirmations of the amount of outstanding Loans.
9.6 RELIANCE BY AGENTS.
(a) Each of Agent and Collateral Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Company), independent
accountants and other experts selected by Agent or Collateral Agent, as the case
may be. Agent and Collateral Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with Agent.
(b) Each of Agent and Collateral Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless (i) it shall first receive such advice or concurrence
as it deems appropriate from Agent, in the case of Collateral Agent or from any
Lender, Lenders or Required Lenders in the case of Agent, as may be required
pursuant to this Agreement for such action, or (ii) it shall first be
indemnified to its satisfaction by such Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action, except in the case of Agent's or Collateral Agent's, as
the case may be, gross negligence or willful misconduct. Each of Agent and
Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement, the Notes and the other Loan
Documents in accordance with a request of any Lender, Lenders or Required
Lenders in the case of Agent, or Agent in the case of Collateral Agent, as
required pursuant hereto and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Lenders and all future holders of the
Notes.
9.7 NOTICE OF DEFAULT.
Neither Agent nor Collateral Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default unless
Agent or Collateral Agent, as the case may be, has received notice from a Lender
or Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." If Agent receives
such a notice, Agent shall promptly give notice thereof to Lenders and
Collateral Agent. If Collateral Agent receives such a notice, Collateral Agent
shall give notice thereof to Agent. Agent and Collateral Agent shall take such
action with respect to such Default
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or Event of Default as shall be directed by Agent in the case of Collateral
Agent and by any Lender Lenders or Required Lenders in the case of Agent, as
required pursuant hereto (subject to the provisions of Section 9.5(b)); provided
that unless and until Agent or Collateral Agent, as the case may be, shall have
received such directions, Agent or Collateral Agent, as the case may be, may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of Lenders.
9.8 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender expressly acknowledge that neither Agent,
Collateral Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by Agent or Collateral Agent hereinafter taken,
including any review of the affairs of Company or any of its Subsidiaries, shall
be deemed to constitute any representation or warranty by Agent or Collateral
Agent to any Lender. Each Lender represents to Agent and Collateral Agent that
it has, independently and without reliance upon Agent or Collateral Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
Company and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon Agent, Collateral Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of Company and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to Lenders by
Agent hereunder, neither Agent nor Collateral Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of Company or any of its Subsidiaries
which may come into the possession of Agent or Collateral Agent or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
9.9 INDEMNIFICATION.
Lenders agree to indemnify Agent and Collateral Agent in their
respective capacities as such (to the extent not reimbursed by Company and
without limiting the obligation of Company to do so), ratably according to the
respective outstanding principal amounts of their Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including at any time following the payment of the Notes) be
imposed on, incurred by or asserted against Agent or Collateral Agent in any way
relating to or arising out of this Agreement, any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
Agent or Collateral Agent under or in connection with any of the foregoing;
provided
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that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from Agent's or Collateral
Agent's gross negligence or willful misconduct. Anything in this Agreement or
the other Loan Documents to the contrary notwithstanding, in no event may
Collateral Agent seek indemnification from Company or any Lender, nor shall
Company or any Lender be obligated for indemnification, under this Agreement for
any matters in relation to foreclosure or exercise of remedies in Collateral or
any of its other duties as Collateral Agent unless Collateral Agent has
completed foreclosure of the security interest in all of the Collateral and
application of the proceeds thereof as provided in the Intercreditor Agreement,
and its costs and expenses remain unpaid. The agreements in this Section 9.9
shall survive the payment of the Obligations and all other amounts payable
hereunder.
9.10 REPRESENTATIONS AND WARRANTIES OF COLLATERAL AGENT. Collateral
Agent hereby represents and warrants to the Agent and the Lenders as follows:
(a) Collateral Agent (1) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (2) has the power and authority, and the legal right, to own and
operate its property and to conduct the business in which it is currently
engaged, (3) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, and (4) is
in compliance in all material respects with all Requirements of Law.
(b) Collateral Agent has the power and authority, and the
legal right, to make, deliver and perform this Agreement and other Loan
Documents, and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement and other Loan Documents. No consent
or authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
execution, delivery, performance by Collateral Agent or for the validity or
enforceability against Collateral Agent of this Agreement or the other Loan
Documents.
(c) The execution, delivery and performance by Collateral
Agent of this Agreement and the other Loan Documents will not violate any
Requirement of Law or Contractual Obligation of Collateral Agent and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation.
(d) This Agreement and the other Loan Documents to which
Collateral Agent is party have been, and all Loan Documents to which Collateral
Agent hereafter becomes a party will be, duly executed and delivered on behalf
of Collateral Agent. This Agreement has been duly executed and delivered and
constitutes, and each other Loan Document signed on the date hereof has been
duly executed and delivered and constitutes, and each other Loan Document when
executed and delivered by Collateral Agent will constitute, a legal, valid and
binding obligation of Collateral Agent, enforceable against Collateral Agent in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization,
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moratorium, or similar laws affecting the enforcement of creditors rights
generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
9.11 AGENT IN ITS INDIVIDUAL CAPACITY; OTHER RELATIONSHIPS.
Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with Company as though Agent
were not Agent hereunder and under the other Loan Documents. Each of the parties
to this Agreement acknowledges that Anglo-American Financial and its affiliates
is a party to the DK Loan Agreement and may have rights, obligations and duties
thereunder and may act as an agent or collateral agent thereunder, and each
party waives and agrees not to claim any conflict of interest based upon those
activities. With respect to its Loans made or renewed by it and any Note issued
to it, Agent shall have the same rights and powers under this Agreement and the
other Loan Documents as any Lender and may exercise the same as though it were
not Agent, and the terms "Lender" and "Lenders" shall include Agent in its
individual capacity.
9.12 SUCCESSOR AGENTS.
Each of Agent and Collateral Agent may resign as Agent or
Collateral Agent, as the case may be, upon 30 days notice to Agent in the case
of Collateral Agent and to Lenders in the case of Agent. In addition, at any
time after repayment in full of the DK Loan Obligations and any Permitted
Refinancing Indebtedness, Collateral Agent may be removed by Agent or the
Required Lenders by giving notice of such removal to Collateral Agent. If Agent
or Collateral Agent shall resign as Agent or Collateral Agent, as the case may
be, or if Collateral Agent shall be removed, under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among Lenders a
successor agent or collateral agent for Lenders, which successor agent or
collateral agent, except if an Event of Default shall have occurred and be
continuing, shall be approved by Company (which approval shall not be
unreasonably withheld), whereupon, effective upon acceptance of its appointment
as successor agent or collateral agent, such successor agent or collateral agent
shall succeed to the rights, powers and duties of Agent or Collateral Agent, as
the case may be, and the terms "Agent" and "Collateral Agent" shall mean such
successor agent or collateral agent, as the case may be, and the former Agent's
or Collateral Agent's rights, powers and duties as Agent or Collateral Agent, as
the case may be, shall be terminated, without any other or further act or deed
on the part of such former Agent or Collateral Agent or any of the parties to
this Agreement or any holders of the Notes. If the Required Lenders fail to
appoint a successor or collateral agent for Lenders as provided above within 30
days after the resignation of Agent or Collateral Agent or removal of Collateral
Agent as aforesaid, then Agent or Collateral Agent, as the case may be, may
appoint a successor agent or collateral agent for Lenders, which successor agent
or collateral agent, except if an Event of Default shall have occurred and be
continuing, shall be approved by Company (which approval shall not be
unreasonably withheld), whereupon, effective upon acceptance of its appointment
as successor agent or collateral agent, such successor agent or collateral agent
shall succeed to the rights, powers and duties of Agent or Collateral Agent, as
the case may be, and the terms "Agent" and "Collateral Agent" shall mean such
successor agent or collateral agent and the former Agent's or Collateral Agent's
rights, powers and duties as Agent or Collateral Agent, as the case may be,
shall be terminated, without any other or further act or deed on the part of
such former Agent or Collateral Agent or any of the parties to this Agreement or
any holders of the Notes. After any retiring Agent's or Collateral Agent's
resignation as Agent or Collateral Agent, as
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the case may be, the provisions of this Section 9 shall inure and survive to its
benefit as to any actions taken or omitted to be taken (or any matter related
thereto) by it while it was Agent or Collateral Agent under this Agreement and
the other Loan Documents. Notwithstanding anything herein to the contrary, the
resignation of Agent or Collateral Agent or removal of Collateral Agent shall
not be effective unless and until a successor agent or collateral agent has been
appointed and has accepted such appointment. The retiring Collateral Agent shall
take all steps necessary to transfer to any new Collateral Agent all Liens in
favor of Collateral Agent, and all Collateral then in Collateral Agent's
physical possession.
9.13 CHANGE OF AGENT'S OFFICE. The Agent acts initially through
Anglo-American Financial, but at any time may change the office through which it
acts as Agent to any office, branch or affiliate of Anglo-American Financial by
giving prompt subsequent notice of such change to each of the other parties to
this Agreement. Upon such transfer, each reference in this Agreement to
"Anglo-American Financial", when referring to the Agent, shall be deemed to
refer to such other office, branch or affiliate.
SECTION 10
MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS.
Neither this Agreement, any Note, any other Loan Document, nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section. With the prior written consent
of the Required Lenders, Agent and Company may, from time to time, enter into
written amendments, supplements or modifications hereto and to the Notes and the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the Notes, or the other Loan Documents or changing in any manner the rights
of Lenders or of Company hereunder or thereunder or waiving, on such terms and
conditions as Agent may specify in such instrument, any of the requirements of
this Agreement or the Notes or the other Loan Documents or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (a) reduce the amount of the
Obligations or extend the maturity of the Obligations, or reduce the rate or
extend the time of payment of interest thereon, or reduce the amount or extend
the time of payment of any fee payable to any Lender hereunder or change the
amount of any Lender's Commitments, reduces the amount or postpones the due date
of any amount payable in respect of, in each case without the consent of Lender
affected thereby, or (b) amend, modify or waive any provision of this Section or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by Company of any of its rights and
obligations under this Agreement and the other Loan Documents, or release and/or
subordinate the Liens with respect to any Collateral in excess of 5% of the
aggregate value of the
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Collateral on a Book Value basis during the term of this Agreement (except as
expressly required or provided for hereunder, including as provided in Section
7.3(n), or in the Security Documents or as otherwise required by law), or
release any Subsidiary from its Guarantee, or amend, modify or waive the
provisions of Sections 2.1, 2.6, 2.9, 2.11, 2.13, 2.17, 2.18, 2.19, 2.22, 3.2,
3.4, 3.5, 5.2 or 10.5 (or any of the defined terms used in such Sections) or any
provision hereof or of any other Loan Document which, by its terms, shall be
taken or permitted only with the consent of all Lenders, or extend the Maturity
Date, in each case without the written consent of all Lenders, or (c) amend,
modify or waive any provision of Section 9, without the written consent of the
then Agent or Collateral Agent affected thereby. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of Lenders and
shall be binding upon Company, Lenders, Agent, Collateral Agent and all future
holders of the Notes. In the case of any waiver, Company, Lenders, Agent and
Collateral Agent shall be restored to their former position and rights hereunder
and under the outstanding Notes and any other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
10.2 NOTICES.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or five Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
the recipient has confirmed receipt; provided that any notice, request or demand
to or upon Agent, Collateral Agent or Lenders shall not be effective until
received. For the purposes hereof, the addresses of the parties hereto (until a
notice of change thereof is delivered as provided in this Section 10.2) shall be
as set forth under each party's name on the signature pages hereof.
10.3 NO WAIVER: CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part
of Agent, Collateral Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 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 Agreement and the
Notes.
10.5 PAYMENT OF EXPENSES AND TAXES.
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Company agrees (a) to pay or reimburse Agent, Collateral
Agent, and each Lender for all its out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement, the Notes, the
Intercreditor Agreement, and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation (1)
the reasonable fees and disbursements of counsel to Agent, counsel to Collateral
Agent, and the several counsels to Lenders and the reasonable allocated costs of
in-house counsel to Agent, in-house counsel to Collateral Agent, and the several
in-house counsel to Lenders and (2) the fees and expenses of all appraisers,
engineers and other consultants in connection with the Loan Documents, all
recording costs, search fees and filing fees, (b) to pay or reimburse each
Lender, Agent, and Collateral Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the Notes, the Intercreditor Agreement, the other Loan Documents and
any such other documents, including fees and disbursements of counsel to Agent,
counsel to Collateral Agent, and to the several counsel to Lenders, and the
reasonable allocated costs of in-house counsel to Agent and in-house counsel to
Collateral Agent, (c) to pay, indemnify, and hold each Lender, Agent, and
Collateral Agent harmless from, any and all recording and filing fees, any and
all Florida documentary stamp taxes and Florida intangible personal property
taxes and any and all other stamp, excise and other taxes (other than any taxes
which are determined based solely upon the income or revenues of any such
Lender, Agent or Collateral Agent), if any, which may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
of any of the transactions contemplated by this Agreement, including any and all
advances of the Loans pursuant hereto, the Notes, the other Loan Documents, and
any such other documents, and any and all liabilities with respect to, or
resulting from any delay in paying any of such fees and taxes, (d) to pay the
costs of furnishing all opinions of counsel for Company, or obtaining technical
assistance advisories, required hereunder, (e) to pay the costs of obtaining any
required consents, amendments, waivers or other modifications to the agreements
governing the DK Loan Obligations, the Secured Agreement Obligations, and any
other agreements, (f) to pay the costs and expenses incurred to continue the
perfection of any Liens in favor of Agent and Collateral Agent pursuant to any
of the Security Documents, including the costs of title searches, title
insurance premiums, UCC searches and UCC filing charges, and (g) to pay,
indemnify, and hold each Lender, Agent and Collateral Agent harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Notes, the Intercreditor
Agreement, the other Loan Documents, the other Secured Debt Documents, and any
such other documents (all the foregoing, collectively, the "indemnified
liabilities"); provided, that Company shall have no obligation hereunder to
Agent, Collateral Agent or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of Agent, Collateral
Agent or such Lender, as the case may be. The agreements in this Section shall
survive repayment of the Notes and all other amounts payable hereunder.
10.6 SUCCESSORS AND ASSIGNS: PARTICIPATIONS; PURCHASING LENDERS.
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(a) This Agreement shall be binding upon and inure to the
benefit of Company, Lenders, Agent, Collateral Agent, all future holders of the
Notes and their respective successors and assigns, except that Company may not
assign or transfer any of its rights or obligations under this Agreement and the
other Loan Documents without the prior written consent of each Lender.
(b) Any Lender may, in accordance with applicable law and
with the prior written consent of the Agent, at any time sell to one or more
Persons, including, without limitation, those listed on Schedule 10.6 hereto
("Participants") participating interests in any Loan owing to such Lender, any
Note held by such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Note for
all purposes under this Agreement and the other Loan Documents, and Company and
Agent shall continue to deal solely, and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. Company agrees that if amounts outstanding under this Agreement
and the Notes are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note; provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with Lenders the proceeds thereof as provided in
Section 10.7. Company also agrees that each Participant shall be entitled to the
benefits of Sections 2.12, 2.13 and 10.5 with respect to its participation in
the Commitments and the Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. Participants shall not be
entitled to require the applicable Lender to take or omit to take any action
hereunder except with respect to amendments or waivers resulting in (i) the
extension of the regularly scheduled maturity dates of any portion of the
principal of or interest on a Loan in which such Participant is participating,
(ii) a reduction of the principal amount of, or the rate of interest (except in
connection with a waiver of the applicability of any post-default increase in
interest rates or margins) or fees payable on the Loans in which such
participant is participating, (iii) the release of a substantial portion of the
Collateral or any of the Guarantees (except as otherwise expressly provided in
the Loan Documents) or (iv) an increase in the Commitments in which such
Participant is participating.
(c) Any Lender may, in accordance with applicable law, at
any time sell to any Lender or any Affiliate thereof or to one or more Persons
("Purchasing Lenders") all or any part of its rights and obligations under this
Agreement, the Notes and other Loan Documents pursuant to a Assignment and
Assumption Agreement, substantially in the form of Exhibit 10.6, executed by
such Purchasing Lender and such transferor Lender, and delivered to Agent for
its acceptance
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and recording in the Register. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date determined pursuant to
such Assignment and Assumption Agreement, (i) the Purchasing Lender thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Assumption Agreement, have the rights and obligations of a Lender hereunder and
under the other Loan Documents, and (ii) the transferor Lender thereunder shall,
to the extent provided in such Assignment and Assumption Agreement, be released
from its obligations under this Agreement and under the other Loan Documents
(and, in the case of a Assignment and Assumption Agreement covering all or the
remaining portion of a transferor Lender's rights and obligations under this
Agreement and under the other Loan Documents, such transferor Lender shall cease
to be a party hereto and thereto). Such Assignment and Assumption Agreement
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitment and Loan percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement, the Notes and other Loan Documents. At
the request of Purchasing Lender, Company and Agent shall negotiate in good
faith with Purchasing Lender to accommodate Purchasing Lender's reasonable
requests with respect to the timing of the obligations of Company, Agent and
Lenders set forth in Section 2.3. On or prior to the Transfer Effective Date
determined pursuant to such Assignment and Assumption Agreement, Company, at its
own expense, shall execute and deliver to Agent in exchange for the surrendered
Note(s), new renewal Note(s) to the order of such Purchasing Lender in an amount
equal to the Commitment assumed by it pursuant to such Assignment and Assumption
Agreement and, if the transferor Lender has retained a Commitment hereunder, new
Note(s) to the order of the transferor Lender in an amount equal to the
Commitment retained by it. Such new Note(s) shall be dated the Transfer
Effective Date and shall otherwise be in the form of the Note(s) replaced
thereby. The Note(s) replaced by such new Note(s), marked "renewed," shall be
attached to such new Note(s); and a copy thereof shall be sent to Company.
(d) Agent shall maintain at its address referred to in
Section 10.2 a copy of each Assignment and Assumption Agreement delivered to it
and a register (the "Register") for the recordation of the names and addresses
of Lenders and the Commitments of, and principal amount of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and Company, Agent, Collateral Agent and
Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Assignment and Assumption
Agreement executed by a transferor Lender and Purchasing Lender, Agent shall (i)
promptly accept such Assignment and Assumption Agreement, (ii) forward a copy of
such Assignment and Assumption Agreement to Company and (iii) on the Transfer
Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
Lenders and Company.
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(f) Subject to Section 10.16, Company authorizes each
Lender to disclose to any Participant or Purchasing Lender (each, a
"Transferee") and any prospective Transferee any and all financial information
in such Lender's possession concerning Company and its Affiliates which has been
delivered to such Lender by or on behalf of Company pursuant to this Agreement
or which has been delivered to such Lender by or on behalf of Company in
connection with such Lender's credit evaluation of Company and its Affiliates
prior to becoming a party to this Agreement; provided, however, that such
Transferee agrees in writing to be bound by the terms of Section 10.16.
(g) If, pursuant to this Section 10.6, any interest in
this Agreement or any Note is transferred to any Purchasing Lender which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, Company will not be required to pay any increased withholding
taxes of the United States or any political subdivision thereof unless, prior to
the date of transfer, the transferor Lender shall cause such Purchasing Lender
to comply with the requirements of Section 2.13(b).
(h) Nothing herein shall prohibit any Lender from
pledging or assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
(i) Notwithstanding the foregoing provisions of this
Section 10.6, no holder of any Note shall transfer such Note in a manner which
would violate any Requirement of Law.
10.7 ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "Benefitted Lender") shall at any
time receive any payment of all or part of its Loans owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in the last paragraph of Section 8.1, or otherwise), in a greater
proportion than any such payment to or collateral received by, any other Lender,
if any, in respect of such other Lender's Loans owing to it, or interest
thereon, or fees due to it hereunder, such benefitted Lender shall purchase for
cash from the other Lenders such portion of each such other Lenders' Loans, or
make such payment on account of such fees, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof as shall be
necessary to cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. Company agrees, that each Lender so purchasing a
portion of another Lender's Loan owing to it may exercise all rights of payment
(including rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, without prior notice to
Company, any such notice being expressly waived by Company to the extent
permitted by applicable law, upon any Obligations (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against
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such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender to or
for the credit or the account of Company. Each Lender agrees promptly to notify
Company and Agent after any such set-off and application made by such Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
10.8 APPOINTMENT OF AGENT AS COMPANY'S LAWFUL ATTORNEY.
Company irrevocably designates, makes, constitutes and
appoints Agent (and all Persons designated by Agent) as Company's true and
lawful attorney (and agent-in-fact) coupled with an interest, with the power to
sign the name of Company on any instruments, documents and agreements, including
security agreements, pledge agreements, mortgages, and financing statements, as
deemed by Agent as necessary or reasonably required by Agent to grant, perfect,
maintain and continue the Liens in the Collateral or to monitor or administer
the Loans, together with any and all amendments, modifications, extensions,
substitutions and renewals thereof and deliver any of such instruments,
documents and agreements to such persons as Agent, in its sole discretion, may
elect, and in such event copies thereof shall be delivered to Company.
10.9 COUNTERPARTS.
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with Company and Agent.
10.10 SEVERABILITY.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.11 INTEGRATION.
This Agreement, together with the other Loan Documents,
represents the entire agreement of Company, Agent, Collateral Agent and Lenders
and supersedes all prior agreements with respect to the subject matter hereof or
thereof, and there are no promises, undertakings, representations or warranties
by Agent, Collateral Agent or any Lender relative to subject matter hereof or
thereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.12 GOVERNING LAW.
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THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS AND TO THE
EXTENT EXPRESSLY PROVIDED TO THE CONTRARY IN SUCH OTHER LOAN DOCUMENT WITH
RESPECT TO SUCH OTHER LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
10.13 SUBMISSION TO JURISDICTION; WAIVERS.
COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO
WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NONEXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK,, AND APPELLATE COURTS FROM ANY THEREOF, AND AGREES THAT
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY
OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY OF THE AFORESAID COURTS, AS
AGENT, COLLATERAL AGENT OR ANY LENDER MAY ELECT IN ITS SOLE DISCRETION;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) POSTAGE PREPAID, TO COMPANY AT
ITS ADDRESS SET FORTH ON THE SIGNATURE PAGES HEREOF OR AT SUCH OTHER ADDRESS OF
WHICH AGENT SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO XXX IN ANY OTHER JURISDICTION;
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(e) WAIVES (I) PRESENTMENT, DEMAND AND PROTEST AND NOTICE
OF PRESENTMENT, PROTEST, DEFAULT, NON-PAYMENT, MATURITY, RELEASE, COMPROMISE,
SETTLEMENT, EXTENSION OR RENEWAL OF THE NOTES AND ALL OTHER LOAN DOCUMENTS AND
HEREBY RATIFIES AND CONFIRMS WHATEVER LENDERS, AGENT OR COLLATERAL AGENT MAY DO
IN THIS REGARD; (II) ALL RIGHTS TO NOTICE OF A HEARING PRIOR TO LENDERS' OR
AGENT'S OR COLLATERAL AGENT'S ATTACHMENT OR LEVY UPON THE COLLATERAL, AND ANY
BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO ALLOWING LENDERS,
AGENT OR COLLATERAL AGENT TO EXERCISE ANY OF LENDERS' OR AGENT'S OR
COLLATERAL AGENT'S REMEDIES; AND (III) THE BENEFIT OF ALL
VALUATION, APPRAISEMENT AND EXEMPTION LAWS; AND
(f) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
10.14 ACKNOWLEDGMENTS.
Each party hereto hereby acknowledges that;
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes, and the other Loan
Documents;
(b) none of Agent, Collateral Agent or any Lender has any
fiduciary relationship to Company, and the relationship between Agent and
Lenders, on one hand, and Company, on the other hand, is solely that of creditor
and debtor, and
(c) no joint venture exists among Lenders or among
Company and Lenders.
10.15 WAIVERS OF ANY JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
scope of this waiver is intended to be all encompassing of any and all disputes
that may be filed in any court and that relate to the subject matter of this
Agreement, including contract claims, tort claims, breach of duty claims, and
all other common law and statutory claims. Each party hereto acknowledges that
this waiver is a material inducement to enter into a business relationship, that
each has already belied on this waiver in entering into this Agreement, and that
each will continue to rely on this waiver in entering into any further
documentation related to the transactions contemplated hereby and otherwise in
their related future dealings. Each party hereto further warrants and represents
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that it has reviewed this waiver with its legal counsel and that it knowingly
and voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. In
the event of litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.16 CONFIDENTIALITY.
Each Lender agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all non-public
information provided to it by Company or any of its Subsidiaries, or by Agent or
Collateral Agent on Company's behalf, in connection with this Agreement or any
other Loan Document and agrees and undertakes that neither it nor any of its
Affiliates shall use any such information for any purpose or in any manner other
than pursuant to the terms contemplated by this Agreement. Any Lender may
disclose such information (a) at the request of any regulatory authority or in
connection with an examination of such Lender by any such authority; (b)
pursuant to subpoena or other court process; (c) when required to do so in
accordance with the provisions of any applicable law; (d) at the express
direction of any other agency of any State of the United States of America or of
any other jurisdiction, in which such Lender conducts its business; (e) to such
Lender's independent auditors and other professional advisors; (f) following an
Event of Default, in connection with the sale or other realization on the
collateral under the Security Documents; (g) in connection with any litigation
or dispute between (i) such Lender and (ii) Company and/or any Subsidiary; and
(h) in connection with any litigation or dispute involving such Lender if the
disclosure is determined by such Lender to be necessary for the defense or
protection of such Lender's rights and/or interests. Each Lender further agrees,
upon receipt by such Lender of a request to disclose any information to a
Governmental Authority or courts (other than governmental bank examiners and
independent auditors of such Lender), to notify Company of such request and to
permit, to the extent practicable, Company to seek a protective order with
respect thereto; provided however that no Lender shall be requested to notify
Company of any such request if (i) it is not permitted to do so by applicable
law and regulations, (ii) it is requested not to notify Company by any Person
acting or purporting to act on behalf of a Governmental Authority, or (iii) it
otherwise reasonably believes that it is not permitted to so notify Company.
10.17 FURTHER ASSURANCES.
Company shall, and shall cause its Subsidiaries to, promptly
(a) cure any defects in the execution and delivery of Loan Documents and (b)
execute and deliver, or cause to be executed and delivered, all such other
documents, agreements and instruments as Agent may reasonable request to further
evidence and more fully describe the collateral for the Loan to correct any
omissions in the Loan Documents, to perfect, protect or preserve any liens
created under any of the Loan Documents, or to make any recordings, file any
notices, or obtain any consents, as may be necessary or appropriate in
connection therewith.
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10.18 CONTROLLING AGREEMENT.
In the event of any conflict between the terms and provisions
of this Agreement and the terms and provisions of any other Loan Document, the
terms and provisions of this Agreement shall control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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
CORPORATION
By: ___________________________
Name:
Title:
Notice Address:
0000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
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ANGLO-AMERICAN FINANCIAL
as Agent and as a Lender
By____________________________
Name:
Title:
Notice Address:
000 Xxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention:
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GENERAL MOTORS EMPLOYEES
GLOBAL GROUP PENSION TRUST,
as a Lender
By MAGTEN ASSET MANAGEMENT CORP., as
Attorney-in-Fact
By____________________________
Name:
Title:
Notice Address:
00 Xxxx 00xx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention:
WITH A COPY TO:
Xxxxxxxx Xxxxxx Xxxxx & Xxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx Xxxxx, Esq.
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X.X. XXXXXXXX & CO., LLC,
as Collateral Agent
By: _____________________________
Name:
Title:
Notice Address:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000)-000-0000
Attention: Xxxxxx Xxxxx
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TERM LOAN AGREEMENT
DATED AS OF DECEMBER 31, 1998
SCHEDULE 2.1
COMMITMENTS
--------------------------------------------------------------------------------
LENDER COMMITMENT
================================================================================
Anglo-American Financial $ 11,115,384.62
================================================================================
General Motors Employees Global $ 15,384,615.38
Group Pension Trust
================================================================================
Total (All Lenders) $ 26,500,000.00
--------------------------------------------------------------------------------
Schedule 10.6
INITIAL PARTICIPANTS
FOOTBRIDGE LIMITED TRUST
EXHIBIT 2.2
FORM OF TERM NOTE
$______________ New York, New York
January __, 1999
FOR VALUE RECEIVED, ATLANTIC GULF COMMUNITIES
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (the "BORROWER") hereby promises to pay to the order of [NAME OF
LENDER] (the "LENDER"), the principal amount of __________________ DOLLARS
($______________) on February 1, 2002 or on such earlier date as shall be the
Maturity Date (as defined in the Agreement defined below).
The Borrower also promises to pay interest on the principal
amount hereof from time to time outstanding, in like funds and manner, at the
rates and on the dates and computed in accordance with the Agreement (as defined
below).
This Term Note is one of the Notes referred to in the Term
Loan Agreement dated as of December 31, 1998 by and among the Borrower, the
lenders from time to time party thereto (including the Lender), Anglo- American
Financial, as Agent for the lenders thereunder (in such capacity, the " AGENT"),
and X.X. Xxxxxxxx & Co., LLC, as Collateral Agent for the lenders thereunder (as
amended, supplemented or otherwise modified from time to time, the "AGREEMENT")
and is entitled to the benefits thereof and of certain security arrangements as
contemplated therein. Except as otherwise expressly defined in this Term Note,
terms defined in the Agreement and used herein shall have their respective
defined meanings when used herein. As provided in the Agreement, this Term Note
is subject to voluntary prepayment and to mandatory prepayment on the terms and
conditions provided therein.
Both principal and interest in respect hereof shall be paid to
the Agent, for the account of the Lender, in Dollars, in immediately available
funds and in the manner provided in the Agreement, without set-off, counterclaim
or deduction of any kind, at the office of the Agent specified on the signature
page of the Agreement or at such other place as the Agent may notify the
Borrower from time to time.
In case an Event of Default (as defined in the Agreement)
shall occur and be continuing, the principal of and accrued interest on this
Term Note may be declared to be or shall become automatically due and payable in
the manner and with the effect provided in the Agreement.
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The Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Term Note.
THIS TERM NOTE SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ATLANTIC GULF COMMUNITIES
CORPORATION
By: ______________________________
Name:
Title:
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LOANS
Date Loan Principal Unpaid
Made or Amount Type of Interest Amount Paid Principal Notation
Converted of Loan Loan Period or Prepaid Amount Made By
--------- --------- ------- -------- ----------- --------- --------
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EXHIBIT 10.6
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ___________, ____ between [ASSIGNOR]
"Assignor") and [ASSIGNEE] ("Assignee").
W I T N E S S E T H:
WHEREAS, this Assignment and Assumption Agreement (this
"Agreement") relates to the Loan Agreement, dated as of December 31, 1998 (as
amended and in effect from time to time, the "Loan Agreement") among Atlantic
Gulf Communities Corporation, a Delaware corporation, formerly known as General
Development Corporation ("Company"), the lenders parties thereto ("Lenders"),
Anglo-American Financial, a New York limited partnership, as agent for Lenders
(together with its successors in such capacity, "Agent"), and X. X. Xxxxxxxx &
Co., LLC, a New York limited liability company ("MHD"), as collateral agent for
Lenders (together with its successors in such capacity ("Collateral Agent").
WHEREAS, Assignor has made a term loan to the Borrower under
the Loan Agreement, which is outstanding on the date hereof in the aggregate
principal amount of $____________ (the "Loan"); and
WHEREAS, Assignor proposes to assign [a portion of] the Loan
[in an aggregate amount equal to $_________] (the "Assigned Amount"), together
with all of the rights of the Assignor under the Loan Agreement to the extent of
the Assigned Amount, and Assignee proposes to accept such assignment from
Assignor and assume the corresponding obligations from Assignor to the extent of
the Assigned Amount, on the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agree ments contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Loan
Agreement.
SECTION 2. ASSIGNMENT. Assignor hereby assigns and sells to
Assignee, without recourse, representation or warranty of any kind, the Assigned
Amount, together with all of the rights of Assignor under the Loan Agreement to
the extent of the Assigned Amount, and Assignee hereby accepts such assignment
from Assignor and assumes all of the obligations of Assignor under the Loan
Agreement to the extent of the Assigned Amount. Upon the execution and delivery
hereof by Assignor, Assignee and Agent and the payment of the amounts specified
in Section 3 required to be paid on the date hereof Assignee shall, as of such
date (the "Assignment Date"), (i) shall hold a Loan in an aggregate principal
amount equal to the Assigned
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Amount, (ii) succeed to the rights and be obligated to perform the obligations
of a Lender under the Loan Agreement with a Loan in an amount equal to the
Assigned Amount, and (iii) the Loan of Assignor shall, as of the date hereof, be
reduced by a like amount and Assignor released from its obligations under the
Loan Agreement to the extent such obligations have been assumed by Assignee. The
assignment provided for herein shall be without recourse to Assignor.
SECTION 3. PAYMENTS. As consideration for the assignment
and sale contemplated in Section 2 hereof, Assignee shall pay to Assignor on the
date hereof in federal funds the amount heretofore agreed between them in a
letter dated __________.(1) It is understood that interest and fees with respect
to the Assigned Amount accrued to the Assignment Date are for the account of
Assignor and interest and fees with respect to the Assigned Amount accruing from
and including the Assignment Date are for the account of Assignee. Each of
Assignor and Assignee hereby agrees that if it receives any amount under the
Loan Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 4. CONSENT OF AGENT. This Agreement is conditioned
upon the consent of the Company and Agent pursuant to Section 10.6(c) of the
Loan Agreement. The execution of this Agreement by Agent is evidence of such
consent. Pursuant to Section 10.6(c) the Company agrees to execute and deliver
new Notes payable to the order of [Assignor and] Assignee to evidence the
assignment and assumption provided for herein.
SECTION 5. NON-RELIANCE ON ASSIGNOR. Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, (i) the solvency, financial condition, or statements of the
Company, the Subsidiaries, the Unrestricted Subsidiaries or any other Person,
(ii) the validity, binding effect, value, sufficiency, effectiveness or the
enforceability of the obligations of the Company, the Subsidiaries, the
Unrestricted Subsidiaries or any other Person in respect of the Loan Agreement,
any Note, the Subsidiary Guarantees, the Security Documents or any other Loan
Document, (iii) the validity, perfection or priority of any Liens purported to
be created by the Security Documents or the value, validity, existence or title
to any of the Collateral. Assignee acknowledges that it has, independently and
without reliance on Assignor, and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the
Company, the Subsidiaries, the Unrestricted Subsidiaries and all other relevant
Persons.
SECTION 6. APPOINTMENT OF AGENTS. Assignee irrevocably
appoints and authorizes each of Agent and the Collateral Agent to take such
actions, as agent on its behalf and
---------------------
(1)Amount may combine principal together with accrued interest and breakage
compensation, if any, to be paid by Assignee. It may be preferable in an
appropriate case to specify these amounts separately, or generically or by
formula, rather than as a fixed sum.
-xiii-
to exercise such powers under the Loan Agreement, the Notes, the Subsidiary
Guarantees, the Security Documents and any other Loan Documents as are delegated
to the respective Agent by the terms of the Loan Agreement, the Notes, the
Subsidiary Guarantees, the Security Documents and any other Loan Documents
together with all such powers as are reasonably incidental thereto.
SECTION 7. CONFIDENTIALITY. By executing this Agreement,
Assignee confirms and agrees that it will keep all non-public information
furnished by or on behalf of the Company in connection with this Agreement and
the Loan Agreement and the transactions contemplated hereby and thereby
confidential in accordance with Section 10.16 of the Loan Agreement.
SECTION 8. WITHHOLDING TAXES. Assignee represents and
warrants that on the Assignment Date it is entitled to receive any payments to
be made to it hereunder and under the Loan Agreement without the withholding of
any Tax and shall provide the Company and Agent with Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Assignee is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest to zero or certifying that
the income receivable pursuant to this Agreement and the Loan Agreement is
effectively connected with the conduct of a trade or business in the United
States. From time to time thereafter Assignee shall, whenever required to do so
by applicable law (but only to the extent that Assignee remains lawfully able to
do so), provide the Company or Agent with Internal Revenue Service Form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that Assignee is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement and the Loan Agreement is effectively connected with
the conduct of a trade or business in the United States.
SECTION 9. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 10. COUNTERPARTS. This Agreement 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
Address for notices: [ASSIGNOR]
[
[
Telephone:
Facsimile: By ________________________________
Title:
Address for payments:
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[
[
Address for notices: [ASSIGNEE]
[
[
Telephone:
Facsimile: By ________________________________
Title:
Address for payments:
[
[
Agent hereby consents to the assignment and
assumption provided for in this Agreement:
ANGLO-AMERICAN FINANCIAL,
as Agent
By _______________________________
Title:
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