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(LOGO) EXHIBIT 10.132
LOAN AGREEMENT
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx - XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as the "Bank")
Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts Management, Inc.
f/k/a RDI Resort Services Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Holding Corporation (Texas)
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Properties of the Southwest One, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Properties of the Southwest, L.P.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Asset Management Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Carolina Land, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Montana
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Tennessee
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of the Rockies
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
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Bluegreen Properties of Virginia, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Communities, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts International, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Carolina National Golf Club, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Leisure Capital Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Properties of the West, Inc.
f/k/a Properties of the West, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
BG/RDI Acquisition Corp.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
RDI Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Dellona Enterprises, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts of Florida, Inc.
f/k/a Resort Development International, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Vacations Unlimited, Inc.
f/k/a RDI Resources, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(INDIVIDUALLY AND COLLECTIVELY "BORROWER")
This Loan Agreement ("Agreement") is entered into September 23, 1998, by and
between Bank and Borrower.
Borrower has applied to Bank for a loan or loans (individually and
collectively, the "Loan") evidenced by one or more promissory notes (whether
one or more, the "Note") as follows:
Line of Credit - in the principal amount of $5,000,000.00 which is evidenced by
the Promissory Note dated September 23, 1998 ("Line of Credit Note"), under
which Borrower may borrow, repay, and
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reborrow, from time to time, so long as the total indebtedness outstanding at
any one time does not exceed the principal amount minus the sum of (i) the
amount available to be drawn plus (ii) the amount of unreimbursed drawings
under all letters of credit issued by Bank for the account of Borrower. The
Loan proceeds are to be used by Borrower solely for working capital and to
issue letters of credit from time to time. The total amount of letters of
credit to be issued under the Line of Credit Note shall not exceed
$1,000,000.00 at any time nor have maturities greater than July 31, 1999.
Bank's obligation to advance or readvance under the Line of Credit Note shall
terminate if Borrower is in Default under the Line of Credit Note.
This Agreement applies to the Loan and all Loan Documents. The terms "Loan
Documents" and "Obligations," as used in this Agreement, are defined in the
Note. The term "Borrower" shall include its Subsidiaries and Affiliates. As
used in this Agreement as to Borrower, "Subsidiary" shall mean any corporation
of which more than 50% of the issued and outstanding voting stock is owned
directly or indirectly by Borrower. As to Borrower, "Affiliate" shall have the
meaning as defined in 11 U.S.C. ss. 101, except that the term "debtor" therein
shall be substituted by the term "Borrower" herein.
Relying upon the covenants, agreements, representations and warranties
contained in this Agreement, Bank is willing to extend credit to Borrower upon
the terms and subject to the conditions set forth herein, and Bank and Borrower
agree as follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: ACCURATE INFORMATION. All
information now and hereafter furnished to Bank is and will be true, correct
and complete. Any such information relating to Borrower's financial condition
will accurately reflect Borrower's financial condition as of the date(s)
thereof, (including all contingent liabilities of every type), and Borrower
further represents that its financial condition has not changed materially or
adversely since the date(s) of such documents. AUTHORIZATION;
NON-CONTRAVENTION. The execution, delivery and performance by Borrower and any
guarantor, as applicable, of this Agreement and other Loan Documents to which
it is a party are within its power, have been duly authorized by all necessary
action taken by the duly authorized officers of Borrower and any guarantors
and, if necessary, by making appropriate filings with any governmental agency
or unit and are the legal, binding, valid and enforceable obligations of
Borrower and any guarantors; and do not (i) contravene, or constitute (with or
without the giving of notice or lapse of time or both) a violation of any
provision of applicable law, a violation of the organizational documents of
Borrower or any guarantor, or a default under any agreement, judgment,
injunction, order, decree or other instrument binding upon or affecting
Borrower or any guarantor, (ii) result in the creation or imposition of any
lien (other than the lien(s) created by the Loan Documents) on any of
Borrower's or guarantor's assets, or (iii) give cause for the acceleration of
any obligations of Borrower or any guarantor to any other creditor. ASSET
OWNERSHIP. Borrower has good and marketable title to all of the properties and
assets reflected on the balance sheets and financial statements supplied Bank
by Borrower, and all such properties and assets are free and clear of
mortgages, security deeds, pledges, liens, charges, and all other encumbrances,
except as otherwise disclosed in the Borrower's Form 10-Q for the period ended
June 28, 1998 ("Permitted Liens"). To Borrower's knowledge, no default has
occurred under any Permitted Liens and no claims or interests adverse to
Borrower's present rights in its properties and assets have arisen. DISCHARGE
OF LIENS AND TAXES. Borrower has duly filed, paid and/or discharged all taxes
or other claims which may become a lien on any of its property or assets,
except to the extent that such items are being appropriately contested in good
faith and an adequate reserve for the payment thereof is being maintained.
SUFFICIENCY OF CAPITAL. Borrower is not, and after consummation of this
Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Loan, will not be, insolvent within
the meaning of 11 U.S.C. ss. 101(32). COMPLIANCE WITH LAWs. Borrower is in
compliance in all respects with all federal, state and local laws, rules and
regulations applicable to its properties, operations, business, and finances,
including, without limitation, any federal or state laws relating to liquor
(including 18 U.S.C. ss. 3617, ET SEQ.) or narcotics (including 21 X.X.X.xx.
801, ET SEq.) and/or any commercial crimes; all applicable federal, state and
local laws and regulations intended to protect the environment; and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if
applicable. ORGANIZATION AND AUTHORITY. Each corporate or limited liability
company
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Borrower and any guarantor, as applicable, is duly created, validly existing
and in good standing under the laws of the state of its organization, and has
all powers, governmental licenses, authorizations, consents and approvals
required to operate its business as now conducted. Each corporate or limited
liability company Borrower and any guarantor, if any, is duly qualified,
licensed and in good standing in each jurisdiction where qualification or
licensing is required by the nature of its business or the character and
location of its property, business or customers, and in which the failure to so
qualify or be licensed, as the case may be, in the aggregate, could have a
material adverse effect on the business, financial position, results of
operations, properties or prospects of Borrower or any such guarantor. NO
LITIGATION. There are no pending or threatened suits, claims or demands against
Borrower or any guarantor that have not been disclosed to Bank by Borrower in
writing. ERISA. Each employee pension benefit plan, as defined in ERISA,
maintained by Borrower meets, as of the date hereof, the minimum funding
standards of ERISA and all applicable regulations thereto and requirements
thereof, and of the Internal Revenue Code of 1954, as amended. No "Prohibited
Transaction" or "Reportable Event" (as both terms are defined by ERISA) has
occurred with respect to any such plan.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will: BUSINESS CONTINUITY. Conduct its business in
substantially the same manner and locations as such business is now and has
previously been conducted. MAINTAIN PROPERTIES. Maintain, preserve and keep its
property in good repair, working order and condition, making all needed
replacements, additions and improvements thereto, to the extent allowed by this
Agreement. ACCESS TO BOOKS & RECORDS. Allow Bank, or its agents, during normal
business hours, access to the books, records and such other documents of
Borrower as Bank shall reasonably require, and allow Bank to make copies
thereof at Bank's expense. INSURANCE. Maintain adequate insurance coverage with
respect to its properties and business against loss or damage of the kinds and
in the amounts customarily insured against by companies of established
reputation engaged in the same or similar businesses including, without
limitation, commercial general liability insurance, workers compensation
insurance, and business interruption insurance; all acquired in such amounts
and from such companies as Bank may reasonably require. NOTICE OF DEFAULT AND
OTHER NOTICES. (a) Notice of Default. Furnish to Bank immediately upon becoming
aware of the existence of any condition or event which constitutes a Default
(as defined in the Loan Documents) or any event which, upon the giving of
notice or lapse of time or both, may become a Default, written notice
specifying the nature and period of existence thereof and the action which
Borrower is taking or proposes to take with respect thereto. (b) Other Notices.
Promptly notify Bank in writing of (i) any material adverse change in its
financial condition or its business; (ii) any default under any material
agreement, contract or other instrument to which it is a party or by which any
of its properties are bound, or any acceleration of the maturity of any
indebtedness owing by Borrower; (iii) any material adverse claim against or
affecting Borrower or any part of its properties; (iv) the commencement of, and
any material determination in, any litigation with any third party or any
proceeding before any governmental agency or unit affecting Borrower; and (v)
at least 30 days prior thereto, any change in Borrower's name or address as
shown above, and/or any change in Borrower's structure. COMPLIANCE WITH OTHER
AGREEMENTS. Comply with all terms and conditions contained in this Agreement,
and any other Loan Documents, and swap agreements, if applicable, as defined in
the Note. PAYMENT OF DEBTS. Pay and discharge when due, and before subject to
penalty or further charge, and otherwise satisfy before maturity or
delinquency, all obligations, debts, taxes, and liabilities of whatever nature
or amount, except those which Borrower in good faith disputes. REPORTS AND
PROXIES. Deliver to Bank, promptly, a copy of all financial statements,
reports, notices, and proxy statements, sent by Borrower to stockholders, and
all regular or periodic reports required to be filed by Borrower with any
governmental agency or authority. OTHER FINANCIAL INFORMATION. Deliver promptly
such other information regarding the operation, business affairs, and financial
condition of Borrower which Bank may reasonably request. NON-DEFAULT
CERTIFICATE FROM BORROWER. Deliver to Bank, with the Financial Statements
required herein, a certificate signed by Borrower, if Borrower is an
individual, or by a principal financial officer of Borrower warranting that no
"Default" as specified in the Loan Documents nor any event which, upon the
giving of notice or lapse of time or both, would constitute such a Default, has
occurred. ESTOPPEL CERTIFICATE. Furnish, within 15 days after request by Bank,
a written statement duly acknowledged of the amount due under the Loan and
whether offsets or defenses exist against the Obligations.
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NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will not: DEFAULT ON OTHER CONTRACTS OR
OBLIGATIONS. Default on any material contract with or obligation when due to a
third party or default in the performance of any obligation to a third party
incurred for money borrowed. JUDGMENT ENTERED. Permit the entry of any monetary
judgment or the assessment against, the filing of any tax lien against, or the
issuance of any writ of garnishment or attachment against any property of or
debts due Borrower. GOVERNMENT INTERVENTION. Permit the assertion or making of
any seizure, vesting or intervention by or under authority of any government by
which the management of Borrower or any guarantor is displaced of its authority
in the conduct of its respective business or such business is curtailed or
materially impaired. PREPAYMENT OF OTHER DEBT. Retire its $110,000,000.00
Senior Secured Notes due April 1, 2008 in advance of its legal obligation to do
so. RETIRE OR REPURCHASE CAPITAL STOCK. Retire or otherwise acquire any of its
capital stock.
FINANCIAL COVENANTS. Borrower, on a consolidated Basis, agrees to the following
provisions from the date hereof until final payment in full of the Obligations,
unless Bank shall otherwise consent in writing: ADJUSTED TANGIBLE NET WORTH.
Borrower shall, at all times, maintain an Adjusted Tangible Net Worth of at
least $85,000,000.00. "Adjusted Tangible Net Worth" shall mean the total assets
minus total liabilities. For purposes of this computation, the aggregate amount
of any intangible assets of Borrower including, without limitation, goodwill,
franchises, licenses, patents, trademarks, trade names, copyrights, service
marks, and brand names, shall be subtracted from total assets, and total
liabilities shall exclude debt subordinated to Bank. ADJUSTED TOTAL LIABILITIES
TO ADJUSTED TANGIBLE NET WORTH RATIO. Borrower shall, at all times, maintain a
ratio of Adjusted Total Liabilities to Adjusted Tangible Net Worth of not more
than 2.00 to 1.00. For purposes of this computation, "Adjusted Total
Liabilities" shall mean the sum of total liabilities, including capitalized
leases and all reserves for deferred taxes and other deferred sums appearing on
the liabilities side of a balance sheet, in accordance with generally accepted
accounting principles applied on a consistent basis, excluding debt
subordinated to Bank. DEPOSIT RELATIONSHIP. Borrower shall maintain its primary
depository account with Bank. COMPLIANCE CERTIFICATE. Borrower shall furnish
Bank with a quarterly covenant compliance certificate demonstrating Borrower's
compliance with the above Financial Covenants.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 90 days
after the close of each fiscal year, audited financial statements reflecting
its operations during such fiscal year, including, without limitation, a
balance sheet, profit and loss statement and statement of cash flows, with
supporting schedules; all on a consolidated and consolidating basis and in
reasonable detail, prepared in conformity with generally accepted accounting
principles, applied on a basis consistent with that of the preceding year. All
such statements shall be examined by an independent certified public accountant
acceptable to Bank. The opinion of such independent certified public accountant
shall not be acceptable to Bank if qualified due to any limitations in scope
imposed by Borrower or its Subsidiaries, if any. Any other qualification of the
opinion by the accountant shall render the acceptability of the financial
statements subject to Bank's approval.
PERIODIC FINANCIAL STATEMENTS. Borrower shall deliver to Bank unaudited
management-prepared quarterly financial statements, including, without
limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules, as soon as available and in any event within
45 days after the close of each such period; all in reasonable detail and
prepared in conformity with generally accepted accounting principles, applied
on a basis consistent with that of the preceding year. Such statements shall be
certified as to their correctness by a principal financial officer of Borrower
and in each case, if audited statements are required, subject to audit and
year-end adjustments.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such
information as Bank may reasonably request from time to time, including without
limitation, financial statements and information pertaining to Borrower's
financial condition. Such information shall be true, complete, and accurate.
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YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary to assure
that Borrower's computer based systems are able to operate and effectively
process data including dates on and after January 1, 2000. At the request of
Bank, Borrower shall provide Bank assurance acceptable to Bank of Borrower's
Year 2000 compatibility.
CONDITIONS PRECEDENT. The obligations of Bank to make the Loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
ADDITIONAL DOCUMENTS. Receipt by Bank of such additional supporting documents
as Bank or its counsel may reasonably request. OPINION OF COUNSEL. On or prior
to the date of any borrowing hereunder, Bank shall have received a written
opinion of the counsel of Borrower acceptable to Bank that includes
confirmation of the following: (a) The accuracy of the representations set
forth in this Agreement in the Representations Subparagraphs entitled
"Authorization; Non-Contravention"; "Compliance with Laws", and "Organization
and Authority". (b) This Agreement and other Loan Documents have been duly
executed and delivered by Borrower and constitute the legal, valid and binding
obligations of Borrower, enforceable in accordance with their terms. (c) No
registration with, consent of, approval of, or other action by, any federal,
state or other governmental authority or regulatory body to the execution and
delivery of this Agreement, the borrowing under this Agreement or other Loan
Documents, is required by law, or, if so required, such registration has been
made, and consent or approval given or such other appropriate action taken. (d)
The Loan is not usurious. (e) The Loan Documents create the priority of lien on
or security interest in the Collateral (as defined in the Loan Documents) that
is contemplated by the Loan Documents.
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written above,
have caused this Agreement to be executed under seal.
Bluegreen Corporation
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Senior Vice President
Bluegreen Resorts Management, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Resorts, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Holding Corporation (Texas)
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
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Properties of the Southwest One, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President
Properties of the Southwest, L.P.
By: Properties of the Southwest One, Inc.,
its: General Partner
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President
Bluegreen Asset Management Corporation
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Carolina Land, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of Montana
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of Tennessee
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of the Rockies
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
8
Bluegreen Corporation of Virginia, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Communities, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Resorts International, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Carolina National Golf Club, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Leisure Capital Corporation
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Properties of the West, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
BG/RDI Acquisition Corp.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
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RDI Group, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Dellona Enterprises, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Bluegreen Resorts of Florida, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Bluegreen Vacations Unlimited, Inc.
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
First Union National Bank
CORPORATE By: /s/ XXXXX XXXXXXX
SEAL ------------------------------------------------
Xxxxx Xxxxxxx, Vice President
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(LOGO) EXHIBIT 10.132
PROMISSORY NOTE
September 23, 1998
$5,000,000.00
Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts Management, Inc.
f/k/a RDI Resort Services Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Holding Corporation (Texas)
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Properties of the Southwest One, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Properties of the Southwest, L.P.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Asset Management Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Carolina Land, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Montana
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Tennessee
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of the Rockies
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Properties of Virginia, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
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Bluegreen Communities, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts International, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Carolina National Golf Club, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Leisure Capital Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Properties of the West, Inc.
f/k/a Properties of the West, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
BG/RDI Acquisition Corp.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
RDI Group, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Dellona Enterprises, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts of Florida, Inc.
f/k/a Resort Development International, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Vacations Unlimited, Inc.
f/k/a RDI Resources, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
(INDIVIDUALLY AND COLLECTIVELY "BORROWER"))
First Union National Bank
000 Xxxxx Xxxxx Xxxxxx - XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
(HEREINAFTER REFERRED TO AS THE "BANK")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Five Million and No/100 Dollars ($5,000,000.00) or such sum
as may be advanced and outstanding from time to time with interest on the
unpaid principal balance at the rate and on the terms provided in this
Promissory Note (including all renewals, extensions or modifications hereof,
this "Note").
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INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at the LIBOR Market Index Rate plus 1.5% as that rate
may change from day to day in accordance with changes in the LIBOR Market Index
Rate ("Interest Rate"). "LIBOR Market Index Rate", for any day, is the rate for
1 month U.S. dollar deposits as reported on Telerate page 3750 as of 11:00
a.m., London time, on such day, or if such day is not a London business day,
then the immediately preceding London business day (or if not so reported, then
as determined by Bank from another recognized source or interbank quotation).
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (defined herein) occurs and as long as a Default continues, all
outstand~ing Obligations shall bear interest at the Interest Rate plus 3%
("Default Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION. (ACTUAL/360). Interest and fees, if any, shall
be computed on the basis of a 360-day year for the actual number of days in the
applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective yield by taking the stated (nominal) rate for a
year's period and then dividing said rate by 360 to determine the daily
periodic rate to be applied for each day in the applicable period. Application
of the Actual/360 Computation produces an annualized effective rate exceeding
that of the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only commencing on October 23, 1998, and on the
same day of each month thereafter until fully paid. In any event, all principal
and accrued interest shall be due and payable on July 31, 1999.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. If a Default occurs, monies may be applied to
the Obligations in any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. LOAN DOCUMENTS. The term "Loan Documents" used in this Note and
other Loan Documents refers to all documents executed in connection with the
loan evidenced by this Note and any prior notes which evidence all or any
portion of the loan evidenced by this Note, and may include, without
limitation, a commitment letter that survives closing, a loan agreement, this
Note, guaranty agreements, security agreements, security instruments, financing
statements, mortgage instruments, any renewals or modifications, whenever any
of the foregoing are executed, but does not include swap agreements (as defined
in 11 U.S.C. ss. 101). OBLIGATIONs. The term "Obligations" used in this Note
refers to any and all indebtedness and other obligations under this Note, all
other obligations under any other Loan Document(s), and all obligations under
any swap agreements as defined in 11 U.S.C. ss. 101 between Borrower and Bank
whenever executed. CERTAIN OTHER TERMs. All terms that are used but not
otherwise defined in any of the Loan Documents shall have the definitions
provided in the Uniform Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of Bank's right to collect such late charge or to
collect a late charge for any subsequent late payment received.
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If this Note is secured by owner-occupied residential real property located
outside the state in which the office of Bank first shown above is located, the
late charge laws of the state where the real property is located shall apply to
this Note and the late charge shall be the highest amount allowable under such
laws. If no amount is stated thereunder, the late charge shall be 5% of each
payment past due for 10 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but
for this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: NONPAYMENT; NONPERFORMANCE. The failure of timely payment or
performance of the Obligations or Default under this Note or any other Loan
Documents. FALSE WARRANTY. A warranty or representation made or deemed made in
the Loan Documents or furnished Bank in connection with the loan evidenced by
this Note proves materially false, or if of a continuing nature, becomes
materially false. CROSS DEFAULT. At Bank's option, any default in payment or
performance of any obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or
the holder(s) of the majority ownership interests of Borrower with Bank or its
affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. ss. 101,
except that the term "debtor" therein shall be substituted by the term
"Borrower" herein; "Subsidiary" shall mean any business in which Borrower
holds, directly or indirectly, a controlling interest). CESSATION; BANKRUPTCY.
The death of, appointment of guardian for, dissolution of, termination of
existence of, loss of good standing status by, appointment of a receiver for,
assignment for the benefit of creditors of, or commencement of any bankruptcy
or insolvency proceeding by or against the Borrower, its Subsidiaries or
Affiliates, if any, or any general partner of or the holder(s) of the majority
ownership interests of Borrower, or any party to the Loan Documents. MATERIAL
CAPITAL STRUCTURE OR BUSINESS ALTERATION. Without prior written consent of
Bank, (i) a material alteration in the kind or type of Borrower's business or
that of Borrower's Subsidiaries or Affiliates, if any; (ii) the sale of
substantially all of the business or assets of Borrower, any of Borrower's
Subsidiaries or Affiliates or guarantor or a material portion (10% or more) of
such business or assets if such a sale is outside the ordinary course of
business of Borrower, or any of Borrower's Subsidiaries or Affiliates or any
guarantor or more than 50% of the outstanding stock or voting power of or in
any such entity in a single transaction or a series of transactions; (iii) the
acquisition of substantially all of the business or assets or more than 50% of
the outstanding stock or voting power of any other entity; or (iv) should any
Borrower, or any of Borrower's Subsidiaries or Affiliates or any guarantor
enter into any merger or consolidation.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: BANK
LIEN. Foreclose its security interest or lien against Borrower's accounts
without notice. ACCELERATION UPON DEFAULT. Accelerate the maturity of this Note
and all other Obligations, and all of the Obligations shall be immediately due
and payable. CUMULATIVE. Exercise any rights and remedies as provided under the
Note and other Loan Documents, or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such
information as Bank may reasonably request from time to time, including without
limitation, financial statements and information pertaining to Borrower's
financial condition. Such information shall be true, complete, and accurate.
14
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary to ensure
that Borrower's computer based systems are able to operate and effectively
process data including dates on and after January 1, 2000. At the request of
Bank, Borrower shall provide Bank assurance acceptable to Bank of Borrower's
Year 2000 compatibility.
LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Bank may
advance and readvance under this Note respectively from time to time until the
maturity hereof (each an "Advance" and together the "Advances"), so long as the
total indebtedness outstanding under this Note at any one time does not exceed
the principal amount stated on the face of this Note minus the sum of (i) the
amount available to be drawn plus (ii) the amount of unreimbursed drawings
under all letters of credit issued by Bank for the account of Borrower. The
total amount of letters of credit to be issued under the Line of Credit Note
shall not exceed $1,000,000.00 at any time. Bank's obligation to make Advances
under this Note shall terminate if Borrower is in Default or a representation
in any of the Loan Documents is false or has become false. As of the date of
each proposed Advance, Borrower shall be deemed to represent that each
representation made in the Loan Documents is true as of such date. 45-DAY
PAYOUT. During the term of the Note, Borrower agrees to pay down the
outstanding balance to a maximum of $100.00 for 45 consecutive days annually.
If Borrower subscribes to Bank's cash management services and such services are
applicable to this line of credit, the terms of such service shall control the
manner in which funds are transferred between the applicable demand deposit
account and the line of credit for credit or debit to the line of credit.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
and other Loan Documents shall be valid unless in writing and signed by an
officer of Bank. No waiver by Bank of any Default shall operate as a waiver of
any other Default or the same Default on a future occasion. Neither the failure
nor any delay on the part of Bank in exercising any right, power, or remedy
under this Note and other Loan Documents shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend, modify or renew
this Note or make a novation of the loan evidenced by this Note for any period
and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all without notice
to or consent of each Borrower or each person who may be liable under this Note
or other Loan Documents and without affecting the liability of Borrower or any
person who may be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and other Loan Documents are freely assignable, in whole
or in part, by Bank. In addition, nothing in this Note or any of the Loan
Documents shall prohibit Bank from pledging or assigning this Note or any of
the Loan Documents or any interest therein to any Federal Reserve Bank.
Borrower shall not assign its rights and interest hereunder without the prior
written consent of Bank, and any attempt by Borrower to assign without Bank's
prior written consent is null and void. Any assignment shall not release
Borrower from the Obligations. APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS. This
Note and other Loan Documents shall be governed by and construed under the laws
of the state named in Bank's address shown above without regard to that state's
conflict of laws principles. If the terms of this Note should conflict with the
terms of the loan agreement or any commitment letter that survives closing, the
terms of this Note shall control. BORROWER'S ACCOUNTS. Except as prohibited by
law, Borrower grants Bank a security interest in all of Borrower's accounts
with Bank and any of its affiliates. JURISDICTION. Borrower irrevocably agrees
to non-exclusive personal jurisdiction in the state named in Bank's address
shown above. SEVERABILITY. If any provision of this Note or of the other Loan
Documents shall be prohibited or invalid under applicable
15
law, such provision shall be ineffective but only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Note or other such document. NOTICES. Any
notices to Borrower shall be sufficiently given, if in writing and mailed or
delivered to the Borrower's address shown above or such other address as
provided hereunder, and to Bank, if in writing and mailed or delivered to Bank's
office address shown above or such other address as Bank may specify in writing
from time to time. In the event that Borrower changes Borrower's address at any
time prior to the date the Obligations are paid in full, Borrower agrees to
promptly give written notice of said change of address by registered or
certified mail, return receipt requested, all charges prepaid. PLURAL; CAPTIONS.
All references in the Loan Documents to Borrower, guarantor, person, document or
other nouns of reference mean both the singular and plural form, as the case may
be, and the term "person" shall mean any individual, person or entity. The
captions contained in the Loan Documents are inserted for convenience only and
shall not affect the meaning or interpretation of the Loan Documents. BINDING
CONTRACT. Borrower by execution of and Bank by acceptance of this Note agree
that each party is bound to all terms and provisions of this Note. ADVANCES.
Bank in its sole discretion may make other Advances under this Note pursuant
hereto. POSTING OF PAYMENTS. All payments received during normal banking hours
after 2:00 p.m. local time at the office of Bank first shown above shall be
deemed received at the opening of the next banking day. JOINT AND SEVERAL
OBLIGATIONS. Each Borrower is jointly and severally obligated under this Note.
FEES AND TAXES. Borrower shall promptly pay all documentary, intangible
recordation and/or similar taxes on this transaction whether assessed at closing
or arising from time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. SPECIAL RULES. All arbitration hearings shall be conducted in the
city named in the address of Bank first stated above. A hearing shall begin
within 90 days of demand for arbitration and all hearings shall conclude within
120 days of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total of
60 days. The expedited procedures set forth in Rule 51 ET SEQ. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00.
Arbitrators shall be licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable
Federal or state substantive law except as provided herein. PRESERVATION AND
LIMITATION OF REMEDIES. Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain remedies
that any party may exercise before or after an arbitration proceeding is
brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following remedies,
as applicable: (i) all rights to foreclose against any real or personal
property or other security by exercising a power of sale or under applicable
law by judicial foreclosure including a proceeding to confirm the sale; (ii)
all rights of self-help including peaceful occupation of real property and
collection of rents, set-off, and peaceful possession of personal property;
(iii) obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by
confession of judgment. Any claim or controversy with regard to any party's
entitlement to such remedies is a Dispute. WAIVER OF EXEMPLARY DAMAGES. The
parties agree that they shall not have a remedy of punitive or exemplary
damages against other parties in any Dispute and hereby waive any right or
claim to punitive or exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially. WAIVER OF JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT
BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY
MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE.
16
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
Bluegreen Corporation
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Senior Vice President
Bluegreen Resorts Management, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Resorts, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Holding Corporation (Texas)
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Properties of the Southwest One, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President
Properties of the Southwest, L.P.
By: Properties of the Southwest One, Inc.,
its: General Partner
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President
17
Bluegreen Asset Management Corporation
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Carolina Land, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of Montana
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of Tennessee
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of the Rockies
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Corporation of Virginia, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
18
Bluegreen Communities, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Resorts International, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Carolina National Golf Club, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Leisure Capital Corporation
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
Bluegreen Properties of the West, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
BG/RDI Acquisition Corp.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
RDI Group, Inc.
Taxpayer Identification Number: 00-0000000
19
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Dellona Enterprises, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Bluegreen Resorts of Florida, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
Bluegreen Vacations Unlimited, Inc.
Taxpayer Identification Number: 00-0000000
CORPORATE By: /s/ XXXXXXX X. XXXXXXX
SEAL ------------------------------------------------
Xxxxxxx X. Xxxxxxx, President
