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Exhibit
10.3
FIRST AMENDMENT TO THIRD
CONSOLIDATED, AMENDED AND RESTATED
REVOLVING CREDIT
CONSTRUCTION LOAN AGREEMENT
THIS FIRST AMENDMENT TO
THIRD CONSOLIDATED, AMENDED AND RESTATED REVOLVING CREDIT
CONSTRUCTION LOAN AGREEMENT (hereinafter referred to as this
“ Amendment ”), is made as of August 17,
2007, by and among WCI COMMUNITIES, INC., a Delaware corporation
(“ Borrower ”), BAY COLONY-GATEWAY, INC., a
Delaware corporation, RESORT AT SINGER ISLAND PROPERTIES, INC., a
Florida corporation (collectively “ Guarantors
”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, (“ Wachovia ”) as Agent for
itself and the Lenders (as defined herein) and Lenders.
BACKGROUND
WHEREAS, Borrower is the
borrower under that certain Third Consolidated, Amended and
Restated Revolving Credit Construction Loan Agreement dated as of
September 22, 2005 (as amended, restated, supplemented or
otherwise modified from time to time, the “ Loan
Agreement ”) with Wachovia as the administrative agent
(“ Agent ”) for itself and the other Lenders
party thereto;
WHEREAS, Borrower is also
borrower under (i) that certain Senior Term Loan Agreement
dated as of December 23, 2005 by and among Borrower, KeyBank
National Association, as Administrative Agent, and the Lenders
defined therein (as amended, restated, or otherwise modified from
time to time, the “ Senior Term Loan Agreement
”), and (ii) that certain Senior Unsecured Revolving
Credit Agreement;
WHEREAS, all capitalized
terms used herein but not otherwise defined herein shall have the
meanings ascribed to them in the Loan Agreement;
WHEREAS, Guarantors have
guaranteed Borrower’s obligations under the Loan
Agreement;
WHEREAS, Borrower has
notified Agent that at its shareholders’ meeting scheduled
for August 30, 2007, a slate of directors will be proposed for
election which, if elected, would constitute a Change of Control of
Borrower as defined in the Loan Agreement;
WHEREAS, a Change of Control
without the prior written consent of Agent constitutes an Event of
Default under the Loan Agreement, and a Change of Control
constitutes an Event of Default under the Senior Term Loan
Agreement and the Senior Unsecured Revolving Credit
Agreement;
WHEREAS, Borrower has
requested that Agent and Lenders consent to the Change of Control
with respect to Borrower;
WHEREAS, Borrower has
requested certain other changes under the Loan
Agreement;
WHEREAS, Lenders and Agent
have consented to the Change of Control and have agreed to such
amendments as set forth herein, subject to the terms and conditions
set forth herein; and
NOW THEREFORE, in exchange
for the mutual covenants and agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree,
covenant, warrant and represent as follows:
1. Amendments to
Section 1.1 of the Loan Agreement .
(a) Section 1.1 of the
Loan Agreement, Definitions , is hereby modified and amended
by deleting the definitions of “ Applicable Rate
”, “ Change of Control ”, “
Commitment ” and “ Maturity Date ”,
in their entirety and by substituting the following
therefor:
“ Applicable
Rate . At the time of determination thereof, a percentage per
annum as shown below:
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Eurodollar Rate
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Base Rate
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Unused Fee
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1.00% |
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0.35% |
“ Change of
Control. An event or series of events by which:
(a) any “person”
or “group” (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934), directly or indirectly,
of fifty percent (50%) or more of the equity securities of
Borrower entitled to vote for members of the board of directors or
equivalent governing body of Borrower on a fully-diluted basis;
or
(b) during any period of
twelve (12) consecutive months, a majority of the members of
the board of directors or other equivalent governing body of
Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that
board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or
equivalent governing body, (iii) who were named in the
Proposed Slate or (iv) whose election or nomination to that
board or other equivalent governing body was approved by
individuals referred to in clauses (i), (ii) and
(iii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent
governing body (excluding, in the case of clause (ii), clause
(iii) and clause (iv), any individual whose initial nomination
for, or assumption of office as, a member of that board or
equivalent governing body occurs as a result of an actual
or
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threatened solicitation of
proxies or consents for the election or removal of one or more
directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of
directors); or
(c) for any reason a “
change in control ” or similar event shall occur as
provided in the Senior Term Loan Agreement, the Senior Revolving
Credit Agreement, or any agreement governing any Senior Notes or
any Subordinated Indebtedness, as such terms are defined in the
Senior Revolving Credit Agreement.”
“ Commitment .
With respect to each Lender, the obligation to make loans to
Borrower under this Agreement up to the amount set forth on
Schedule 1.1 as the amount of such Lender’s commitment
to make loans to Borrower, as the same may be reduced from time to
time in accordance with Section 2.6.”
“ Maturity Date
. December 31, 2008, or such earlier date as the Obligations
are accelerated or the Commitments are terminated pursuant to the
terms hereof.”
(b) Section 1.1 of the
Loan Agreement, Definitions , is hereby modified and amended
by deleting the definition of “ Senior Unsecured Revolving
Credit Agreement ” in its entirety and by substituting
the following therefor:
“ Senior Revolving
Credit Agreement . That certain Revolving Credit Agreement,
dated as of June 13, 2006 by and among Borrower, Bank of
America, N.A., as Administrative Agent, Swing Line Lender, and L/C
Issuer, and the other lender parties from time to time party
thereto, together with Wachovia Bank, N.A., as syndication agent,
and Banc of America Securities LLC, Wachovia Capital Markets, LLC
and RBS Securities Corporation, as joint lead arrangers and joint
book managers, as the same may be amended, restated, modified or
otherwise supplemented from time to time.”
(c) Section 1.1 of the
Loan Agreement, Definitions , is hereby modified and amended
by adding the following new definitions of “ First
Amendment Date ”, “ Proposed Slate ”,
“ Senior Revolving Credit Lenders ”, “
Senior Term Lenders ”, “ Senior Term Loan
Agreement ” and “ WCI Towers ” as
follows in appropriate alphabetical order:
“ First Amendment
Date . August 17, 2007.”
“ Proposed Slate
. The following slate of directors presented by Borrower to its
shareholders for election on or before September 15, 2007:
(i) three (3) members from Borrower’s existing
board, (ii) three (3) members designated by Carl Icahn
and certain of his affiliates (the “Icahn Group”), and
(iii) three (3) members comprised of any independent
director(s) mutually agreed upon by the Borrower’s existing
Board and the Ichan Group or any member designated by the other
large existing shareholders (other than the Icahn Group), , and
(x) in the case of the foregoing clause (i), in the event any
one or more of the three (3) members from Borrower’s
existing board ceases to be a director, any replacement director(s)
approved by a majority of the remaining members from
Borrower’s existing
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board (and any replacement
director(s) pursuant to this clause (x)); (y) in the case of
the foregoing clause (ii), in the event any one or more of the
three (3) members designated by the Icahn Group ceases to be a
director, any replacement director(s) approved by a majority of the
remaining members designated by the Icahn Group (and any
replacement director(s) pursuant to this clause (y)); and
(z) in the case of the foregoing clause (iii), in the event
any one or more of the three (3) members designated by the
other large existing shareholders (other than the Icahn Group) or
mutually agreed upon by the Borrower’s existing Board and the
Ichan Group ceases to be a director, any replacement director(s)
approved by a majority of the members designated by the Icahn Group
(or any replacements thereof) and a majority of the members (or any
replacements thereof) from Borrower’s existing
board.”
“ Senior Revolving
Credit Lenders means one or more of the lenders or other
financial institutions party to the Senior Revolving Credit
Agreement.”
“ Senior Term
Lenders means one or more of the lenders or other financial
institutions party to the Senior Term Loan
Agreement.”
“ Senior Term Loan
Agreement . The Senior Term Loan Agreement dated as of
December 23, 2005, by and among Borrower, KeyBank National
Association, as Administrative Agent, and the Lenders defined
therein, as the same may be amended, restated, modified or
otherwise supplemented from time to time.”
“ WCI Towers .
WCI Towers Northeast USA, Inc., a Delaware
corporation.”
2. Amendment to
Section 2.2 of the Loan Agreement . Section 2.2 of
the Loan Agreement, Loan Amount Project Allocations , is
hereby modified and amended by adding a new Section 2.2.4 as
follows:
“2.2.4 The Net Sales
Proceeds (Actual) received by Agent with respect to a Project
pursuant to Section 6.3.2 which exceeds the original Loan
Amount Project Allocations as set forth on Exhibit A attached
hereto paid by Borrower for a particular Project shall be applied
on a pro-rata basis to reduce the Loan Amount Project Allocations
for the remaining Projects.”
3. Amendment to
Section 2.4 of the Loan Agreement . Section 2.4 of
the Loan Agreement, Increase in Loan Amount , is hereby
modified and amended by deleting the introductory paragraph to
Section 2.4 in its entirety and by substituting the following
therefor:
“2.4 Increase in
Loan Amount. At any time prior to the First Amendment Date,
Agent may in its discretion (which discretion shall not be
arbitrarily or unreasonably exercised so long as the conditions set
forth below are satisfied), from time to time at the request of
Borrower, increase the Loan Amount by (i) admitting additional
Lenders hereunder (each a “ Subsequent Lender
”), or (ii) increasing the Commitment of any Lender
(each an “ Increasing Lender ”), subject to the
following conditions:”
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and by adding the following sentence to
the end of Section 2.4 thereof as follows:
“Notwithstanding
anything to the contrary contained in this Section 2.4, from
and after the First Amendment Date, Borrower shall be prohibited
from requesting an increase in the Loan Amount.”
4. Amendment to
Section 2.5 of the Loan Agreement . Section 2.5 of
the Loan Agreement, Adding Condominium Projects , is hereby
modified and amended by deleting the introductory paragraph to
Section 2.5 in its entirety and by substituting the following
therefor:
“2.5 Adding
Condominium Projects. Borrower may request, at any time prior
to the First Amendment Date, the addition of other condominium
projects to this Loan (a “ Proposed Project ”)
on the following terms and conditions:”
and by adding the following sentence to
the end of Section 2.5 thereof as follows:
“Notwithstanding
anything to the contrary contained in this Section 2.5,
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