EXHIBIT 10.146
AMENDMENT NUMBER SIX TO LOAN AND SECURITY AGREEMENT
This Amendment Number Six to Loan and Security Agreement ("Amendment") is
entered into as of April 2, 2004, by and between BLUEGREEN CORPORATION, f/k/a
Xxxxxx Corporation, a Massachusetts corporation ("Borrower"), and XXXXX FARGO
FOOTHILL, INC., a California corporation, f/k/a/ Foothill Capital Corporation
("Foothill"), in light of the following:
FACT ONE: Borrower and Foothill have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of September 23,
1997, as Amended by that certain Amendment Number One to Loan and Security
Agreement dated as of December 1, 2000, as further amended by that certain
Amendment Number Two to Loan and Security Agreement dated as of November 9,
2001, that certain Amendment Number Three to Loan and Security Agreement dated
as of August 28, 2002, that certain Amendment Number Four to Loan and Security
Agreement dated as of March 26, 2003, and that certain Amendment Number 5 to
Loan and Security Agreement dated as of September 1, 2003 (as amended, the
"Agreement").
FACT TWO: Borrower and Foothill desire to amend the Agreement as provided
for and on the conditions herein.
NOW, THEREFORE, Borrower and Foothill hereby amend and supplement the
Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The following new definitions are added to Section 1.1 of the
Agreement:
""Sixth Amendment" means that certain Amendment Number Six to
Loan and Security Agreement dated as of April 2, 2004,
executed by Borrower and Foothill."
(b) The definition of Land Inventory Borrowing Base in Section 1.1
of the Agreement is deleted in its entirety and the following substituted in its
place and stead:
""Land Inventory Borrowing Base" means an amount equal to the
lesser of (a) Ten Million dollars ($10,000,000.00), (b)
fifty-five percent (55%) of the Orderly Liquidation Value,
valued as of January 31, 2004, of each project, or (c)
Foothill's in-house appraisal (or third-party appraisal, if
Foothill, in its sole absolute discretion, desires) of the
Real Property."
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(c) The definition of Mulberry Note in Section 1.1 of the
Agreement is deleted in its entirety and the following substituted in its place
and stead:
""Mulberry Note" means that certain "Amended and Restated Land
Inventory Advance Note (Secured) ($10,000,000.00) executed by
Borrower and Bluegreen Communities dated contemporaneously to
the date of the Sixth Amendment and Secured by the Mulberry
Deed to Secure Debt."
(d) Section 2.7(b) of the Loan Agreement is amended by adding the
following sentence at the conclusion thereof:
"Accordingly, with the funding of the Land Inventory Advance
evidenced by the Mulberry Note, a one time funding fee of
Fifty Thousand Dollars ($50,000.00) shall be owing, which such
fee is fully earned and payable and which shall be added to
the Obligations."
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill
that all of Borrower's representations and warranties set forth in the Agreement
are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrower hereby affirms to Foothill that no Event of
Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon receipt by Foothill of an executed copy of this
Amendment.
6. COSTS AND EXPENSES. Borrower shall pay to Foothill all of Foothill's
out-of-pocket costs and expenses (including, without limitation, title fees,
search fees, filing and recording fees, documentation fees, appraisal fees,
travel expenses, and other fees, and the reasonable fees and expenses of its
counsel) arising in connection with the preparation, execution, and delivery of
this Amendment and all related documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
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8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto. This Agreement may
be executed and the signature pages telecopied between the parties. A
telefacsimile signature is deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
XXXXX FARGO FOOTHILL, INC.,
a California corporation, f/k/a FOOTHILL
CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Title: Senior Vice President
BLUEGREEN CORPORATION,
a Massachusetts corporation
By: /s/ Xxxx X. Xxxxxx
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Title: Chief Financial Officer & Treasurer
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