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Exhibit 9.2
FIRST AMENDMENT TO INVESTORS' AGREEMENT
This First Amendment to Investor Agreement ("First Amendment") is entered
into as of February 23, 1999, by and among the following:
Communities Investor Corp., a Delaware corporation (the "CIC") and each of
the stockholders of CIC identified as such on Schedule A hereto (each of whom is
referred to individually as a "CIC Stockholder" and collectively as the "CIC
Stockholders").
Communities Investor Limited Partnership, a Delaware limited partnership
("CILP") and each of the limited partners of CILP identified as such on Schedule
A hereto (each of whom is referred to individually as a "CILP Limited Partner"
and collectively as the "CILP Limited Partners").
Watermark Communities, Inc., formerly known as D & A Communities, Inc., a
Delaware corporation ("Watermark") and each of the stockholders of Watermark
identified as such on Schedule A hereto (each of whom is referred to
individually as a "Watermark Stockholder" and collectively as the "Watermark
Stockholders").
BankBoston, N.A., as Agent and SFT II, Inc. (together with any successors
and assigns, individually a "Lender" and collectively the "Lenders").
References herein to the CIC Stockholders, the CILP Limited Partners, the
Watermark Stockholders and the Lenders include their respective Permitted
Transferees (as defined below).
RECITALS:
The parties entered into an Investors' Agreement dated November 30, 1998
under which they agreed among other things, to certain voting agreements,
including the election of up to 7 directors for Watermark and to certain
management controls, including a requirement that all subsidiaries of Watermark
would have the same board of directors as Watermark.
The parties now wish to provide for (i) the election of up to 9 directors
and (ii) those certain subsidiaries which must have the same board of directors
as Watermark and to make certain conforming changes.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows.
1. Section 7.1 (a) is deleted and the following Section 7.1(a) is substituted
therefor:
"(a) A Watermark Board of not less than 5 members and not more than
9 members,"
2. Section 7.1(b)(vi) is deleted and the following Section 7.1(b)(vi) is
substituted therefor:
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"(vi) Up to four directors designated by a majority of the persons
referred to in paragraphs (i) through (v) above, except as provided in
Section 7.1(c).
3. Section 7.1(d) is deleted and the following Section 7.1(d) is substituted
therefor:
"(d) The composition of the board of directors of Newco's operating
subsidiaries which are substantial corporate divisions or a substantial
portion of Newco's business, including, but not limited to, Investors of
WCI, Inc., Florida Design Communities, Inc. and Bay Colony-Gateway, Inc.,
(each such board, a 'Sub Board") shall be the same as that of the Newco
Board. The decision of at least three of the holders of a majority of the
▇▇▇▇▇▇ Interests, CVC Interests, MacArthur Interest and the Management
Interests shall control any question as to whether a Newco subsidiary is
governed by this Section 7.1(d)."
4. Section 7.1)f) is deleted and the following Section 7.1(f) is substituted
therefor:
"(f) Any directors designated under Section 7.1(b)(i) through (v) or
Section 7.1(c) shall be removed from the Newco Board, a Sub Board or any
committee thereof (with or without cause) only at the written request of
the Equity Owner or a majority of the Equity Owners which have the right
to designate such director hereunder, but only upon such written request
and under no other circumstances (in each applicable case, determined on
the basis of a vote or consent of the relevant Equity Owners). Any
director designated under Section 7.1(b)(vi) may be removed from the Newco
Board, a Sub Board or any committee thereof (with or without cause) at any
time upon the concurrence of at least three of the holders of a majority
of the ▇▇▇▇▇▇ Interests, CVC Interests, MacArthur Interests and the
Management Partners as described in Section 7.3, and the Equity Owners of
Newco agree to vote all Interests in Newco to remove such directors."
5. Section 7.1(k) is added as follows:
"(k) Each Equity Owner shall vote all Interests over which such
Equity Owner has voting control, and shall take all other necessary or
desirable actions within such Equity Owner's control and Newco shall take
all necessary and desirable actions within its control so as (x) to fill
any vacancy created in the directorship seat under Sections 7.1(b)(i)
through (v) with a replacement designated in accordance with the
applicable paragraph (i) through (v) and (y) to fill any vacancy created
in a directorship seat under Section 7.1(b)(vi) with a successor to the
extent designated by the appropriate directors thereunder.
6. Sections 7.3(k) and 7.3(l) are added as follows:
"(k) Removal in accordance with Section 7.1 (f) of any director who
was designated to serve under Section 7.1(b)(vi).
(l) Election of any individual to a directorship seat referred to in
Section 7.1(b)(vi) of this Agreement."
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7. Ratification. Except as amended by this First Amendment, the Investors'
Agreement is hereby ratified and confirmed and shall remain in full force and
effect.
8. Counterparts. This Agreement may be executed in two (2) or more counterparts
and each counterpart shall be deemed to be an original and which counterparts
together shall constitute one and the same agreement of the parties.
9. Section Headings. Headings contained in this Agreement are inserted only as a
matter of convenience and in no way define, limit or extend the scope or intent
of this Agreement or any provision hereof.
IN WITNESS WHEREOF, each of the parties has executed this First Amendment,
as of the date and year first above written.
COMMUNITIES INVESTOR CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: Vice President
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HARTSEL RANCH CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: President
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KAMEHAMEHA ACTIVITIES ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. Chin
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Its: President
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CCT Partners II, L.P.
Natasha Partnership
63 BR Partnership
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as Trustee of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Flint Trust dated October 27, 1998
Alchemy L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ Court Square Capital Limited,
as Attorney-In-Fact
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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CITICORP VENTURE CAPITAL, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: Managing Director
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COMMUNITIES INVESTOR LIMITED PARTNERSHIP,
a Delaware limited partnership
By: COMMUNITIES INVESTOR CORP.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: Vice President
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▇▇▇▇ ▇. AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FOUNDATION
By: /s/ [▇▇▇ ▇▇▇▇▇▇]
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Its: Vice President
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BANCBOSTON INVESTMENTS, INC.
By:
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Its:
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WATERMARK COMMUNITIES, INC. (formerly D & A
Communities, Inc.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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Its: Chief Executive Officer
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Personal Representative
of the Estate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, by ▇▇▇▇▇▇ ▇. ▇▇▇▇,
his Attorney-In-Fact
/s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
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▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Family Limited Partnership, by its General
Partner, Chandelle Ventures, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇, its President
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustee of the ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Trust U/T/A dated 12/14/96
SFT II, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President and Chief Executive Officer
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BANKBOSTON, N.A.
By:
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Its:
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SCHEDULE A
COMMUNITIES INVESTOR CORP.
CIC STOCKHOLDERS:
HARTSEL RANCH CORPORATION
KAMEHAMEHA ACTIVITIES ASSOCIATION
CCT PARTNERS II, L.P.
63 BR PARTNERSHIP
ALCHEMY L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CITICORP VENTURE CAPITAL, LTD.
COMMUNITIES INVESTOR LIMITED PARTNERSHIP
CILP LIMITED PARTNERS:
▇▇▇▇ ▇. AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FOUNDATION
KAMEHAMEHA ACTIVITIES ASSOCIATION
CITICORP VENTURE CAPITAL LTD.
CCT PARTNERS II, L.P.
NATASHA PARTNERSHIP
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, AS TRUSTEE OF THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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FLINT TRUST DATED OCTOBER 27, 1998
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BANCBOSTON INVESTMENTS, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, YR.
▇▇▇▇▇▇▇▇ FAMILY PARTNERSHIP
E. ▇▇▇▇▇▇ ▇▇▇▇▇
WATERMARK COMMUNITIES, INC.
WATERMARK STOCKHOLDERS:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AS TRUSTEE OF THE ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TRUST U/T/A DATED 12/14/16
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS PERSON REPRESENTATIVE OF THE
ESTATE OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
E. ▇▇▇▇▇▇ ▇▇▇▇▇
COMMUNITIES INVESTOR LIMITED PARTNERSHIP
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