FIRST AMENDMENT
TO CONSTRUCTION LOAN AGREEMENT
THIS FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this "Amendment")
is made as of September 12, 1995, by and among Xxxx Real Estate Group, Inc.,
a Delaware corporation ("KREG"), Signal Landmark, a California corporation
("Signal" and, collectively with KREG, the "Borrower") and Nomura Asset
Capital Corporation, a Delaware corporation (together with its successors and
assigns, the "Lender").
WHEREAS, Borrower and the Lender have entered into that certain
Construction Loan Agreement, dated as of December 20, 1995, and whereas the
terms of such agreement were modified by that certain Modification to
Construction Loan Agreement, dated as of April 5, 1995 (as so modified, the
"Loan Agreement").
WHEREAS, Borrower and the Lender now desire to amend the Loan Agreement,
upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and the
Lender agree to amend the Loan Agreement as follows:
1. Section 1.1 of the Loan Agreement is hereby amended by adding the
following definitions:
"APPROVED BUDGET" shall mean the budget for Construction Costs for
the Eagle Crest Project approved by the Lender pursuant to this Agreement.
"CATEGORY" shall mean each of the scope of work categories set
forth in the Approved Budget, which categories may include, by way of example
and without limitation: Off-Site Improvements, On-Site Common Area
Improvements, On-Site Grading, Bonds, City, County and Utility Fees, Soil
Engineering Fees,and Architectural and other Engineering Fees, and
Contingency.
"CONTRACTOR" shall mean Xxxx Construction Company.
"CONSTRUCTION COSTS" shall mean the actual costs incurred by
Borrower in connection with the construction of any Infrastructure (but in no
event including build-out costs of residential home units) including all
capitalized soft costs which are allowable under GAAP.
"CONSTRUCTION FUNDS" shall have the meaning assigned to such term
in Section 6.2(f) hereof.
"CONSTRUCTION PLANS" shall mean the plans and specifications for
the Eagle Crest Project approved by the Lender pursuant to this Agreement.
"DEVELOPMENT MANAGER" shall mean Xxxxx Eagle Crest, Inc.
"ENGINEER" shall mean the City Engineer of the City of Escondido,
California or other independent construction inspector approved by the Lender
in its sole and absolute discretion.
2. Section 1.1 of the Loan Agreement is hereby amended by inserting the
following definitions in lieu of the definitions set forth for such terms in
the Loan Agreement:
"DRAW" shall mean each disbursement requested by Borrower to be
made by the Lender pursuant to the terms of this Agreement.
"DRAW FEE" shall have the meaning set forth in Section 2.2(b)
hereof.
"EAGLE CREST SECURITIES ACCOUNT" shall mean that certain securities
account # 324-141517, established with Xxxxx Fargo Bank, N.A. in the name of
the Lender, as secured party, which, together with the KREG Securities
Account is the subject of the Securities Account Agreement, as amended.
"INFRASTRUCTURE" shall mean infrastructure improvements to real
property, including, without limitation, road, walkways, sewers, storm
drains, water mains, community walls and landscaping and all improvements for
the Eagle Crest Project set forth on the Construction Plans.
"NACC SHARE" shall mean, (i) from and after the date hereof, eighty
percent (80%) of all Net Cash Proceeds from each and every Permitted
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Sale; and (ii) from and after six months from the date hereof, ninety percent
(90%) of all Net Cash Proceeds from each and every Permitted Sale.
3. Section 2.1 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
Section 2.1 DISBURSEMENT PROCEDURES.
(a) DISBURSEMENT REQUESTS. The Loan proceeds (which in the aggregate
shall not exceed $5,000,000) shall be disbursed on a Category by Category
basis in accordance with the Approved Budget and subject to the terms and
conditions hereof solely for the purposes of funding Eagle Crest Project
Construction Costs. Draws shall be funded only upon Borrower's written
request in the form attached hereto as Exhibit G-1 (a "Disbursement Request")
showing all costs which Borrower intends to fund with such Draw, itemized in
such detail as the Lender may reasonably require, accompanied in each case by
(i) an Application and Certificate for Payment (AIA Documents G702 and G703)
or other document acceptable to the Lender containing certifications of the
Contractor and the Engineer, that construction which has been competed as of
the date of the Disbursement Request has been completed in accordance with
the Construction Plans, (ii) invoices and lien releases satisfactory to the
Lender, including, in any event, partial lien releases executed by each
contractor and subcontractor who has received any payment for work performed,
and (iii) all other documents and information reasonably required by the
Lender. Disbursement Requests shall be submitted in duplicate no less than
five (5) Business Days prior to the date of the requested Draw, and shall not
be submitted more often than monthly. Notwithstanding anything to the
contrary contained herein, except as provided in clause (c) below, in no
event shall the Lender have any obligation to fund a Draw with respect to any
Category if such Draw, when taken in the aggregate with all prior Draws would
exceed the amount originally set forth in the Approved Budget for such
Category. Further, notwithstanding anything herein to the contrary, the
Lender may, in its absolute discretion, fund Draws from time to time, in the
absence of a Disbursement Request, to pay the Lender fees and interest on the
Loan and to make payments reasonably deemed advisable by the Lender to
protect the Collateral Property, the Bolsa Chica Project or the Lender's
interests under any Loan Document or any LOC Document and to fulfill any
obligation of Borrower hereunder, including under Section 13.3 that Borrower
has not timely fulfilled.
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(b) MANNER OF DISBURSEMENT. The Lender may fund any Draw by wire
transfer, or check payable to Borrower, or on a voucher basis, or by check
payable jointly to Borrower and any contractor, subcontractor or other
claimant, or by any other means reasonably selected by the Lender.
(c) COST-OVERRUNS AND COST SAVINGS.
(i) In the event that, at any time and for any reason, the actual
cost (the "Actual Cost") reasonably estimated by the Lender or Borrower to be
required to complete all matters included in any Category in the Approved
Budget exceeds the amount allocated to that Category in the Approved Budget
(the "Approved Cost"), Borrower shall immediately notify the Lender and
shall, within thirty (30) days after it learns of the cost overrun, do one or
more of the following:
(1) provide satisfactory evidence to the Lender that Borrower
has previously paid the amount of the Actual Cost in excess of the
Approved Cost (the "Excess Cost") with funds from a source other than
the Loan;
(2) reallocate sufficient funds to such Category from funds
allocated to "contingency" in the Approved Budget; provided, however,
that the Lender's consent to any such reallocation shall be required
(which consent shall not be unreasonably withheld, conditioned or
delayed) unless the reallocated funds were originally transferred to
"Contingency" from cost savings pursuant to this Agreement; or
(3) deposit an amount equal to the Excess Cost in an interest-
bearing account (the "Overrun Account") from which withdrawals may be
made only with the consent of the Lender (which consent shall not be
unreasonably withheld, conditioned or delayed), or otherwise provide
the Lender with reasonable assurance that sufficient Net Cash Proceeds
will be available from Permitted Sales to allow Borrower to pay for
such cost overruns.
The Lender shall have no obligation to fund further Draws until
Borrower has paid or otherwise provided for the cost overrun as required above.
Amounts deposited by Borrower in the Overrun Account for any Category shall
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be disbursed by the Lender prior to the disbursement of any remaining Loan
proceeds for such Category.
(iii) COST SAVINGS. Upon completion of and disbursement
for all matters within any Category in the Approved Budget, any remaining
undisbursed amounts allocated to that Category shall be reallocated to the
"Contingency" Category and thereafter be available for disbursement in
accordance with the terms of this Agreement.
(d) RETAINAGE. As to each item in the Approved Budget designated
thereon as being subject to retainage, the Lender shall fund Draws for such
item in the amount of 90% of the costs of such item properly incurred and
substantiated by Borrower during the course of construction, with a retainage
of 10% of the total cost of work then completed. All amounts so retained
shall be disbursed upon satisfaction of all conditions to the final Draw;
provided, however, that Borrower may require the Lender to release a portion
of such retainage to any subcontractor that has fully performed under each
and all of its contracts relating to the Eagle Crest Project if all of the
following conditions precedent have been satisfied:
(i) Engineer shall have certified in writing to the Lender that
all of the work provided for in the applicable subcontract(s) has been
completed in accordance with the Construction Plans, and that all supplies to
be delivered by such subcontractor have been delivered;
(ii) The Contractor or the Development Manager and/or the
subcontractor shall have supplied the Lender with full and complete waivers
and lien releases in statutory form of all mechanics' lien claims in form and
substance reasonably satisfactory to the Lender and the title company;
(iii) Such subcontractor shall have completed all work and
supplied all materials it was obligated to complete and supply; and
(iv) Contractor, Development Manager and the Lender shall have
approved the work completed by such subcontractor, such approval not to be
unreasonably withheld, conditioned or delayed.
(e) OFFSITE MATERIALS. In the event that any Disbursement Request
includes the cost of materials stored at a location other than the Eagle Crest
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Project ("Offsite Materials"), such Disbursement Request shall include each of
the following:
(i) evidence that the Offsite Materials have been segregated from
other materials in the facility where held and have been appropriately marked to
indicate Borrower's ownership thereof and the Lender's security interest
therein; and
(ii) evidence that the Offsite Materials are insured as required
hereunder.
(f) WAIVER OF DISBURSEMENT CONDITIONS. Unless the Lender otherwise agrees
in writing, the funding by the Lender of any Draw with the knowledge that any
condition to such Draw is not fulfilled shall constitute a waiver of such
condition only with respect to the particular Draw made, and such condition
shall continue to be a condition to all further Draws until fulfilled.
4. Section 2.2(b) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following Sections 2.2(b) and (c):
(b) AMENDMENT FEE. Concurrently with the execution and delivery of
the First Amendment to Loan Agreement, KREG shall pay to the Lender an Amendment
Fee equal to Thirty Thousand Dollars ($30,000).
(c) AMENDED DRAW FEES. Concurrently with the execution and delivery
of the First Amendment to Loan Agreement, KREG shall pay to the Lender a Draw
Fee equal to Seventy-Five Thousand Dollars ($75,000). KREG shall pay a second
Draw Fee equal to Seventy-Five Thousand Dollars ($75,000) together with the
first Disbursement Request made after an aggregate of Five Million Dollars have
been disbursed (and repaid) pursuant to the terms hereof.
5. Section 2.4 of the Loan Agreement is hereby amended by adding the following
at the end of such Section:
"In the event that SBC elects to sell all or any portion of the
Bolsa Chica Project to the American Land Conservancy, or any other purchaser
thereof, then the Lender shall permit such sale provided that Net Proceeds
therefrom are (i) sufficient to repay any and all amounts then outstanding
under the LOC Documents and the Loan Documents and (ii) actually applied to
the repayment of such amounts. In the event that all amounts then
outstanding hereunder are so repaid,
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Borrower shall nonetheless be entitled to draw an amount equal to $10,000,000
minus all amounts previously disbursed pursuant to the terms hereof
(provided, further, that in no event shall the total amount outstanding
hereunder exceed $5,000,000 at any time)."
6. Section 6.2 of the Loan Agreement is hereby amended by deleting subsections
6.2(f) and 6.2(g) and replacing them with the following:
(f) APPROVED BUDGET AND CONSTRUCTION REQUIREMENTS.
(i) The Lender shall have received and approved the Approved
Budget and the Construction Plans, together with any modifications or change
orders thereto, which approval shall not be unreasonably withheld conditioned or
delayed.
(ii) No stop notice or similar notice shall have been asserted
against the Eagle Crest Project which has not been released.
(iii) The Lender shall be satisfied, based on its own inspections
or other reliable information, that the development of the Eagle Crest Project
is progressing satisfactorily and in conformance with all applicable laws and
other requirements.
(iv) The Lender shall have received, at Borrower's sole expense,
in form and substance satisfactory to the Lender, from the Title Company all
endorsements to the Title Policy as the Lender may reasonably require,
including, without limitation, CLTA Form 122 (priority of advances).
(g) ADDITIONAL REQUIREMENTS FOR DRAWS SUBSEQUENT TO DISBURSEMENT OF THE
INITIAL DRAW PROCEEDS. KREG shall have the right to re-Draw up to an
additional $5,000,000 in the aggregate (after an aggregate of $5,000,000 of
Initial Draw Proceeds have been disbursed in accordance with Section 2.4 and
provided that such Initial Draw Proceeds have theretofore been repaid and no
Event of Default has occurred hereunder or under any of the LOC Documents)
for Eagle Crest Project Construction Costs, if and only if: (1) the Initial
Draw Proceeds, together with all interest, fees and other charges thereon
have been repaid in full and no Event of Default has occurred and is
continuing under the Loan Documents or the LOC Documents; (2) no fewer than
eighty (80) home sites at the Eagle Crest Project have been sold in
accordance with the terms and conditions
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hereof; (3) not more than two hundred (200) home sites at the Eagle Crest
Project have been sold in total; and (4) all matters relating to the Xxxxxx
Facilities Audit have been satisfactorily resolved or no Assessment
(including, without limitation, any Assessment resulting from the Xxxxxx
Facilities Audit) has been made, filed, or otherwise assessed against KREG,
any of its Affiliates, the Collateral, or any of the property, assets or
revenues of KREG.
7. Section 8.2 of the Loan Agreement is hereby amended by adding the following
language after the word "liabilities)" in the tenth line of such Section:
"other than up to $30,000,000 for actual Bolsa Chica development
costs incurred since January 1, 1995 (which costs may be included in
the calculation of Signal's assets and liabilities for purposes of
calculating the Minimum Net Worth Amount)"
8. Section 8.6 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
8.6 USE OF REMAINING NET CASH PROCEEDS; COMPLETION OF EAGLE CREST PROJECT
INFRASTRUCTURE.
(a) Signal agrees that it shall allocate and apply any and all Net
Cash Proceeds resulting from any Permitted Sale remaining after the proper
payment and application of the NACC Share in accordance with the terms hereof,
to the payment of Construction Costs in connection with the construction of the
Eagle Crest Project Infrastructure.
(b) Borrower covenants and agrees that it shall complete construction
(or cause the completion of construction) of the Eagle Crest Project
Infrastructure on or before the Maturity Date.
9. Section 9.1 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
9.1 PROHIBITION AGAINST FUNDAMENTAL CHANGES. Signal and its Subsidiaries
will not enter into any transaction of sale, transfer, merger, consolidation or
amalgamation of its ownership interests, or (except with respect to any Exempt
Guarantors which are Subsidiaries) liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution). Signal and its Subsidiaries will not
acquire any business or assets from, or capital stock of, or be a party to any
acquisition of,
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any Person except for (a) purchases of non-real property inventory and other
assets to be used in the ordinary course of business, (b) Investments
permitted under the Securities Account Agreement or Section 9.4 hereof, and
(c) purchases of real property or companies involved in the development,
entitlement or construction of residential housing, provided, however, that
such purchases shall be made through special purpose Subsidiaries and shall
not exceed $2,5000,000 per year in the aggregate. Subject to Signal's right
to effect a Permitted Sale in accordance with Section 13.13 hereof, Signal
and its Subsidiaries will not engage in any Assets Sales, in one transaction
or a series of transactions, whether to Affiliates of Signal or otherwise;
provided, however, that Signal or its Subsidiaries may engage in Asset Sales
with respect to (i) any non-real property inventory or other assets sold or
disposed of in the ordinary course of business; (ii) obsolete or worn-out
property, tools or equipment no longer used or useful in its business so long
as the amount thereof sold in any single fiscal year by Signal shall not have
a fair market value in excess of $50,000 in aggregate; or (iii) assets (other
than the Collateral Property, the Bolsa Chica Stock, the Bolsa Chica Project
or other Collateral) having an aggregate value of $5,000,000 or less per year
as to any one transaction or series of transactions; provided, however, that
the proceeds of any such sales are either applied to the repayment of the
Loan Amount and/or the Reimbursement Amount or are otherwise used by Signal
for the development of the Collateral Property or the Bolsa Chica Project;
further, Signal or SBC shall have the right to sell or to grant an option to
acquire up to fifty acres of the wetland portion of the Bolsa Chica Project
to Fieldstone Company (which owns property adjacent to the Bolsa Chica
Project) and to use any proceeds therefrom as part of a mitigation credit in
connection with the implementation of the Wetlands Restoration Plan required
as a condition to securing the entitlements of the Bolsa Chica Project and
the certification of the Environmental Impact Report for the Bolsa Chica
Project by the Orange County Board of Supervisors. Notwithstanding anything
to the contrary herein or in the other Loan Documents or the LOC Documents,
in the event that Signal fails to obtain any forecast entitlements or
approvals or satisfy any development targets or cash flow forecasts with
respect to the Collateral Properties and the Bolsa Chica Project, all as set
forth and projected on EXHIBIT C hereto, then ninety percent (90%) of the Net
Cash Proceeds from any and all Asset Sales of Signal and each of its
Subsidiaries shall be deposited into the Securities Account.
10. Section 9.3(f) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following Sections 9.3(f) and (g):
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(f) Indebtedness incurred by a Subsidiary of KREG in connection with
the acquisition of a company involved in the development, entitlement or
construction of residential housing or commercial projects or in connection
with a Quick Flip Transaction, or an Asset Purchase Transaction permitted
hereunder; provided that such Indebtedness is expressly non-recourse to KREG,
Signal and the Guarantors and is not secured by any of the Collateral or the
Bolsa Chica Project and provided further that the Lender shall have consented
to the incurrence of such Indebtedness, which consent shall not be
unreasonably withheld, conditioned or delayed; and
(g) Indebtedness in connection with build-to-suit transactions incurred
by KREG Operating Company or its Subsidiaries, including guarantees of
completion made in connection with such build-to-suit transactions; provided
that the Indebtedness resulting from such build-to-suit transactions does not
in the aggregate exceed $20,000,000.
11. Section 9.6 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following
9.6 USE OF LOAN PROCEEDS. The amounts funded hereunder shall be used
solely for the purpose of paying for Construction Costs incurred by Signal
and approved by the Lender, which approval shall not be unreasonably
withheld, conditioned, or delayed, in connection with the construction of the
Eagle Crest Project Infrastructure. KREG and Signal agree that the Loan is a
"construction loan" as used in Section 6323(c)(2) of the Code.
12. Section 13.13 of the Loan Agreement is hereby deleted in its entirety
and replaced with the following:
13.13 RELEASE OF CERTAIN COLLATERAL. Signal will from time to time
during the term of the Loan have the right to sell (i) home sites at the
Eagle Crest Project in accordance with a disposition plan approved by the
Lender for not less than:
(1) $53,000 in Net Cash Proceeds per individual Product I lot (77
lots total);
(2) $53,000 in Net Cash Proceeds per individual Product II lot (126
lots total);
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(3) $40,000 in Net Cash Proceeds per individual Product III lot (136
lots total);
(4) $30,000 in Net Cash Proceeds per individual Product IV lot (109
lots total); and
(5) $120,000 in Net Cash Proceeds per individual Custom Lot (20 lots
total);
(which lots are set forth in the existing subdivision plans therefor), (ii)
the golf course at the Eagle Crest Project for not less than $7,000,000 in
Net Cash Proceeds and (iii) the Fairbanks Highlands Project for not less than
$7,000,000 in Net Cash Proceeds (any of the foregoing shall be referred to
herein as a "PERMITTED SALE"). Signal and the Lender contemplate that the
real property that is the subject of any such Permitted Sale shall be
Released from the Lien of the Mortgage encumbering such Collateral Property.
Provided that the NACC Share of Net Cash Proceeds resulting from each and
every Permitted Sale is delivered to the Lender or deposited into the
Securities Account as required under this Agreement, the Securities Account
Agreement, and the LOC Documents, the Lender agrees to execute a request for
partial reconveyance and deliver such request for partial reconveyance to the
Trustee for any portion of the Collateral Properties so sold, upon the sale
of such portion of the Collateral Properties to a bona fide third party
purchaser or to a KGT Affiliate or special purpose Subsidiary as permitted by
the terms hereof. Upon receipt of such partial release request and prior to
recording any partial release, Trustee shall obtain from Signal and deliver
to the Lender: (i) a copy of the preliminary closing statement for the
applicable Permitted Sale (with a copy of the final closing statement to
follow as soon as available after the closing of such Permitted Sale); and
(ii) a completed partial release request for execution by the Lender. The
Lender shall have no obligation to execute a partial release request with
respect to any portion of the Collateral Properties unless and until that
portion of sale proceeds relating thereto which are required to be delivered
to the Lender hereunder or under the LOC Documents have been so delivered to
the Lender. Notwithstanding the foregoing, KREG and Signal agree that if at
any time KREG or Signal obtains knowledge of any Federal tax lien or
Assessment (including, without limitation, any tax lien or Assessment in
connection with the Xxxxxx Facilities Audit), then KREG and Signal shall
immediately notify the Lender thereof telephonically and in writing. In no
event shall any otherwise Permitted Sales be permitted, and all pending
Permitted Sales shall be stayed, immediately upon KREG's or Signal's
knowledge of any Federal tax lien or Assessment (including, without
limitation, any tax lien
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or Assessment in connection with the Xxxxxx Facilities Audit) until such time as
the Lender, in its sole and absolute discretion, agrees in writing to permit
further Permitted Sales to occur.
13. The Lender shall agree to execute a letter, in substantially the form of
Exhibit K attached hereto.
14. Exhibit G to the Loan Agreement is hereby deleted in its entirety and
replaced with Exhibit G-1 attached hereto.
15. In addition to those expenses set forth in Section 13.3 of the Loan
Agreement, KREG agrees to pay or reimburse the Lender for paying: (a) all
reasonable out-of-pocket expenses of the Lender and any servicer of the Loan
(including, without limitation, the reasonable fees, charges and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to the Lender,
in connection with the negotiation, preparation, execution and delivery of
this Amendment) and the Lender's due diligence in connection with the
Collateral Properties; (b) all reasonable out-of-pocket travel and third
party due diligence expenses of the Lender and any servicer (including the
reasonable fees, charges and disbursements of counsel to the Lender and such
servicer ) in connection with the preparation, negotiation, review and
execution of any documents required pursuant hereto or to the Loan Documents;
and (c) all reasonable costs and expenses of the Lender and such servicer
(including reasonable counsel fees, charges and disbursements) in connection
with any Default and any enforcement or collection proceedings resulting
therefrom, including, without limitation, in connection with any bankruptcy,
insolvency, liquidation, reorganization, moratorium or other similar
proceedings involving KREG, Signal or the Guarantors or a "workout" of the
Loan.
16. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute but one and the same instrument and any
of the parties hereto may execute this Amendment by signing any such
counterpart.
17. Except as expressly amended hereby, the Loan Agreement shall continue
unmodified and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date and year first above written.
XXXX REAL ESTATE GROUP, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
_____________________________
Xxxxxxx X. Xxxxxx
Chief Financial Officer and
Executive Vice President
SIGNAL LANDMARK,
a California corporation
By: /s/ XXXXXXX X. XXXXXX
_____________________________
Xxxxxxx X. Xxxxxx
Chief Financial Officer and
Executive Vice President
NOMURA ASSET CAPITAL CORPORATION
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
_____________________________
Xxxxxxx X. Xxxxxxxx
Vice President
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EXHIBIT G-1
FORM OF DISBURSEMENT REQUEST
G-1
EXHIBIT K
FORM OF SURETY LETTER
G-2
