Exhibit 10.153
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FULL GUARANTY
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THIS GUARANTY AGREEMENT (this "Guaranty") is made as of January 10, 2005
(the "Effective Date") by BLUEGREEN CORPORATION, a Massachusetts corporation
(the "Guarantor"), in favor of RESORT FINANCE LLC, a Massachusetts limited
liability company (the "Lender").
R E C I T A L S:
A. Lender and Bluegreen Vacations Unlimited, Inc., a Florida corporation
("Borrower") are entering into a Loan Agreement dated as of even date herewith
(as from time to time amended, the "Loan Agreement"), pursuant to which Lender
has agreed to make to Borrower a revolving acquisition, development and
construction loan in the maximum principal amount of $50,000,000 ("Loan"). The
Loan is evidenced by a Revolving Promissory Note executed by Borrower in favor
of Lender dated as of even date herewith (as from time to time amended, the
"Note").
B. As a condition to making the Loan, the Lender has required that the
Guarantor execute and deliver this Guaranty guaranteeing the payment of the Loan
and performance of the Borrower's obligations under the Loan Documents.
A G R E E M E N T:
NOW, THEREFORE, in order to induce the Lender to enter into the Loan
Agreement and to make the Loan, and in consideration thereof, the Guarantor
hereby agrees as follows:
Section 1. Guaranty.
a. The Guarantor hereby absolutely and unconditionally guarantees to the
Lender the payment, as and when the same shall be due and payable whether by
lapse of time, by acceleration of maturity or otherwise, and at all times
thereafter, of (i) the principal of the Loan, (ii) all interest, fees, costs,
expenses, indemnification, indebtedness and other sums of money now or hereafter
due and owing by the Borrower to the Lender in connection with the Loan
Agreement (including, without limitation, those arising pursuant to the terms of
the Note, the Loan Agreement, and any of the other loan documents corresponding
to the Loan (collectively, the "Loan Documents")), and (iii) all renewals,
extensions, refinancings, modifications or amendments of such indebtedness or
any part thereof (collectively, the "Monetary Obligations"). This Guaranty
covers the Monetary Obligations whether currently outstanding or arising
subsequent to the date hereof including all amounts advanced by the Lender in
stages or installments. The guaranty of the Guarantor as set forth in this
Section 1.a is a guaranty of payment and not of collection.
b. The Guarantor hereby further irrevocably, unconditionally and
absolutely guarantees to the Lender the due and prompt performance by the
Borrower of all duties, agreements and obligations of the Borrower contained in
the Loan Documents, and the due and prompt payment of all costs and expenses
incurred, including, without limitation, reasonable attorneys' fees, court costs
and all other litigation expenses (including but not limited to expert witness
fees, exhibit preparation, and courier, postage, communication and document
copying expenses), in enforcing the payment and performance of the Loan
Documents (the "Performance Obligations"). The Monetary Obligations and the
Performance Obligations are collectively hereinafter referred to as the
"Indebtedness."
c. In addition, the Guarantor hereby agrees to pay any and all reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees,
but without regard to any statutory presumption) incurred by the Lender to third
parties in enforcing any rights or remedies under this Guaranty.
d. All amounts due under this Guaranty shall bear interest, to the extent
permitted by law, from the date due until paid at the Default Rate, as defined
in the Note.
Section 2. Guaranty Absolute.
a. The Guarantor guarantees that the Indebtedness will be paid strictly in
accordance with the terms of the Loan Documents regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Lender with respect thereto. The liability of
the Guarantor under this Guaranty shall be a continuing, absolute, irrevocable
and unconditional guarantee of payment irrespective of:
i. any lack of validity or enforceability of any of the Loan
Documents or any renewal, extension or modification thereof (or any other
agreement or instrument relating thereto);
ii. any change in the time, manner or place of payment of, or in any
other term of, all or any of the Indebtedness, or any other amendment or waiver
of or any consent to departure from the Hazardous Substances, Remediation and
Indemnification Agreement, the Note, any deed of trust, the Loan Agreement, or
any of the other Loan Documents, including, without limitation, changes in the
terms of disbursement of the Loan proceeds or repayment thereof, modification to
any of the Plans and Specifications by any of the Borrower, modifications,
extensions (including extensions beyond and after the original term) or renewals
of payment dates, changes in interest rate or the advancement of additional
funds by the Lender in its discretion;
iii. any exchange, release or nonperfection of any collateral, or
any release or amendment or waiver of, or consent to departure from, any other
guaranty, for all or any of the Indebtedness; or
iv. any other circumstances (INCLUDING THE SOLE OR CONCURRENT
NEGLIGENCE OF LENDER) which might otherwise constitute a defense available to,
or a discharge of, any of the entities comprising the Borrower in respect of the
Indebtedness or to the Guarantor in respect of this Guaranty, excepting only the
Lender's gross negligence or willful misconduct in its failure to perform its
obligations to any of the entities comprising the Borrower under the Loan
Agreement;
b. Notwithstanding any termination of this Guaranty or the cancellation of
the Note or any other agreement evidencing the Indebtedness, if at any time any
payment or performance of any of the Indebtedness (from any source) is
rescinded, repaid or must otherwise be returned by the Lender (i) due to or upon
the insolvency, bankruptcy or reorganization of the Borrower or the
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Guarantor, or (ii) for any other circumstance, this Guaranty shall continue to
be effective or be reinstated, as the case may be, all as though such payment
had not been made.
Section 3. Subrogation. During an Event of Default or subsequent to a
Potential Default, the Guarantor shall not accept payment from Borrower by way
of contribution on account of any payment made hereunder by Borrower to the
Lender, and the Guarantor will not take any action to exercise or enforce any
rights to such contribution. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all the Indebtedness shall
not have been paid or performed in full, during an Event of Default or
subsequent to a Potential Default such amount shall be held in trust for the
benefit of the Lender and shall forthwith be paid to the Lender to be credited
and applied upon the Indebtedness, whether matured or unmatured, in such order
as the Lender, in its sole and absolute discretion, shall determine. Any lien or
charge on any real or personal property subject to a lien in favor of Lender, or
the revenue and income to be realized therefrom, and all rights in and to such
property, which the Guarantor may have or obtain as security for any loans or
advances shall be, and such lien or charge hereby is, subordinated to the liens
and to the indebtedness of the Borrower to the Lender under the Note and the
other Loan Documents.
Section 4. Guaranty Independent; Waivers.
a. The Guarantor agrees that (i) the obligations hereunder are independent
of and in addition to the undertakings of the Borrower and the Guarantor, as and
to the extent applicable, pursuant to the Hazardous Substances, Remediation and
Indemnification Agreement and the other Loan Documents, any evidence of
indebtedness issued in connection therewith, any deed of trust or security
agreement given to secure the same, any other guaranties given in connection
with the Loan and any other obligations of the Guarantor to the Lender, (ii) a
separate action may be brought to enforce the provisions hereof whether the
Borrower is a party in any such action or not, (iii) the Lender may at any time,
or from time to time, in its sole discretion, without any notice to or consent
from the Guarantor, (A) modify the Hazardous Substances, Remediation and
Indemnification Agreement and the other Loan Documents to extend or change the
time of payment and/or performance and/or the manner, place or terms of payment
and/or performance of all or any of the Indebtedness, and/or to include
additional Projects, Borrowers and/or Project Owners; (B) exchange, release or
compromise any of the Indebtedness; (C) exchange, release and/or surrender all
or any of the collateral security, or any part thereof, by whomsoever deposited,
which is now or may hereafter be held by the Lender in connection with all or
any of the Indebtedness; (D) if and as permitted by the Loan Documents, sell
and/or purchase all or any such collateral at public or private sale, or at any
broker's board, in the manner permitted by law and after giving any notice which
may be required, and after deducting all costs and expenses of every kind for
collection, sale or delivery, the net proceeds of any such sale may be applied
by the Lender upon all or any of the Indebtedness; and (E) settle or compromise
with the Borrower, and/or any other person liable thereon, any and all of the
Indebtedness, and/or subordinate the payment of same, or any part thereof, to
the payment of any other debts or claims, which may at any time be due or owing
to the Lender and/or any other person or corporation, and (iv) the Lender shall
be under no obligation to marshal any assets in favor of the Guarantor or in
payment of the Indebtedness. The Guarantor agrees that the Lender may without
notice to the Guarantor sell, assign, or transfer all or any portion of the
indebtedness, obligations, and liabilities of the Borrower, and, in that event,
each and every successive assignee, transferee, or holder of all or any part of
said indebtedness, obligations, or liabilities shall have the right to enforce
this Guaranty by suit or other remedy as fully as if such assignee, transferee,
or holder were herein by name specifically given such rights, powers, and
benefits; provided, however, that the Lender
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shall have an unimpaired right to enforce this Guaranty for any of its
liabilities that it has not sold, assigned, or transferred.
b. Except as otherwise provided in the Loan Documents, Guarantor hereby
waives (i) presentment, demand, acceleration, intent to accelerate, protest,
notice of acceptance, notice of dishonor, notice of nonperformance and any other
notice with respect to any of the Indebtedness and this Guaranty (except as
otherwise expressly provided herein), and promptness in commencing suit against
any party thereto or liable thereon, and/or in giving any notice to or making
any claim or demand hereunder upon the Guarantor, (ii) any right to require the
Lender to (A) proceed against the Borrower, (B) proceed against or exhaust any
security held from the Borrower, or (C) pursue any remedy in the Lender's power
whatsoever; (iii) any defense arising by reason of any disability or other
defense of the Borrower or by reason of the cessation from any cause whatsoever
of the liability of the Borrower other than full payment or performance of the
Indebtedness; (iv) any defense it may acquire by reason of the Lender's election
of any remedy against it or the Borrower or both, including, without limitation,
election by the Lender to exercise its rights under the power of sale set forth
in any deed of trust, even though rights of subrogation of the Guarantor may
thereby be impaired or extinguished; (v) any and all suretyship defenses,
including any defense based on lack of due diligence by the Lender in
collection, protection or realization upon any collateral (vi) to the fullest
extent permitted by law, (A) any defense arising as a result of the Lender's
election, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code, and (B) any defense
based on any borrowing or grant of a security interest under Section 364 of the
Bankruptcy Code; and (vii) the benefit of any statute of limitations affecting
the liability of the Guarantor hereunder or the enforcement thereof.
Section 5. Does Not Supersede Other Guaranties. The individual and
collective obligations of the Guarantor hereunder shall be in addition to any
obligations of the Guarantor under any other guaranties of the Indebtedness
and/or any obligations of the Borrower or any other persons or entities
heretofore given or hereafter to be given to the Lender, and this Guaranty shall
not affect or invalidate any such other guaranties. The liability of the
Guarantor to the Lender shall at all times be deemed to be the aggregate
liability of the Guarantor under the terms of this Guaranty and of any other
guaranties heretofore or hereafter given by the Guarantor to the Lender or to an
Affiliate, successor or assign of the Lender in connection with the Loan and
Loan Documents.
Section 6. Representations and Warranties. The Guarantor hereby makes the
following representations and warranties:
a. Benefit. The Guarantor may reasonably expect to benefit, directly or
indirectly, from the making of this Guaranty and from each and every renewal,
extension, modification, alteration, refinancing, and rearrangement of all or
any part of the Indebtedness, the release of collateral or other relinquishment
of legal rights made or granted or to be made or granted by the Lender to the
Borrower and the amendment or modification of the terms and conditions of the
Indebtedness.
b. Power and Authority.
i. The Guarantor has the requisite power and authority to own and
manage its properties, to carry on its business as now being conducted and to
perform its obligations hereunder.
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ii. The Guarantor is in compliance with all corporate and other
applicable laws, regulations, ordinances and orders of public authorities
applicable to it.
c. Validity of Guaranty.
i. The execution, delivery and performance by the Guarantor of this
Guaranty have been duly authorized by all necessary action, do not and will not
(A) contravene the organizational or charter documents of the Guarantor, (B)
violate any provision of any law, rule or regulation or any order, writ,
judgment or decree of any court or agency of government, or any indenture,
agreement or any other instrument to which it is a party or by which it or its
property is bound and it is not in default under any such law, rule, regulation,
order, judgment, decree, indenture, agreement or instrument, (C) require any
approval or consent of any officer, shareholder or any other Person other than
approvals which have been previously obtained and disclosed in writing to the
Lender, (D) result in a breach of or constitute (with due notice and/or lapse of
time) a default under any such indenture, agreement or other instrument, or (E)
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of its property or assets, except as contemplated by
the provisions of the Loan Documents.
ii. This Guaranty has been duly executed by the Guarantor and, when
delivered to the Lender, will constitute a legal, valid and binding obligation
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
d. Financial Statements.
i. All financial statements and data that have been given to the
Lender by the Guarantor (A) are complete and correct in all material respects as
of the date given; (B) accurately present its financial condition on each date
as of which, and the results of its operations for the periods for which, the
same have been furnished; and (C) have been prepared on the basis of GAAP
consistently applied.
ii. All balance sheets and the notes thereto with respect to the
Guarantor furnished to the Lender disclose all its material liabilities, fixed
and contingent, as of their respective dates.
iii. There has been no material adverse change in the financial
condition or operations of the Guarantor since (A) the date of the most recent
financial statement given to the Lender with respect to the Guarantor, or (B)
the date of the financial statements given to the Lender immediately prior to
the date hereof, other than changes in the ordinary course of business, none of
which changes has been materially adverse individually or in the aggregate.
e. Other Arrangements. The Guarantor is not a party to any agreement or
instrument that could result in a Material Adverse Change as to the Borrower or
the Guarantor.
f. Other Information. All other reports, papers and written data and
information given to the Lender by the Guarantor with respect to it are accurate
and correct in all material respects and complete as of the date delivered to
the Lender insofar as completeness may be necessary to give the Lender a true
and accurate knowledge of the subject matter.
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g. Litigation. There is not now pending against or affecting the
Guarantor, nor to its knowledge is there threatened, any action, suit or
proceeding at law or in equity or by or before any administrative agency that,
if adversely determined, would materially impair or affect its financial
condition or operations in a manner to violate the financial covenants set forth
in the Loan Agreement.
h. Taxes. The Guarantor has filed all federal, state, provincial, county,
municipal and other income tax returns required to have been filed by it and has
paid (or, in each case, has obtained a proper extension for the payment of) all
taxes that have become due pursuant to such returns or pursuant to any
assessments received by it, and the Guarantor knows of no basis for any material
additional assessment against it in respect of such taxes.
i. Solvent. The Guarantor is now solvent, and no bankruptcy or insolvency
proceedings are pending by or against the Guarantor or to the best of the
Guarantor's knowledge contemplated by or against the Guarantor. As of the date
hereof, and after giving effect to this Guaranty and the obligations evidenced
hereby, (i) the Guarantor is and will be solvent, (ii) the fair saleable value
of the Guarantor's assets exceeds and will continue to exceed its liabilities
(both fixed and contingent), (iii) the Guarantor is and will continue to be able
to pay its debts as they mature, and (iv) the Guarantor has and will continue to
have sufficient capital to carry on its business and all businesses in which it
is about to engage.
j. Relationship to the Borrower. The value of the consideration received
and to be received by the Guarantor is reasonably worth at least as much as the
liability and obligation of the Guarantor incurred or arising under this
Guaranty. The Guarantor has had full and complete access to the Loan Agreement,
the Note and all other loan documents relating to the guaranteed obligations,
has reviewed them and is fully aware of the meaning and effect of their
contents. The Guarantor is fully informed of all circumstances which bear upon
the risks of executing this Guaranty and which a diligent inquiry would reveal.
The Guarantor has adequate means to obtain from the Borrower on a continuing
basis information concerning the Borrower's financial condition, and is not
depending on the Lender to provide such information, now or in the future. The
Guarantor agrees that the Lender shall not have any obligation to advise or
notify the Guarantor or to provide the Guarantor with any data or information.
The execution and delivery of this Guaranty is not given in consideration of
(and the Lender has not in any way implied that the execution of this Guaranty
is given in consideration of) the Lender's making, extending or modifying any
loan to the Guarantor or any other financial accommodation to or for the
Guarantor.
k. Massachusetts Corporation. The Guarantor represents and warrants that
the Guarantor is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Massachusetts.
l. Governmental Consents. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution and delivery by the Guarantor of the
applicable Loan Documents, or any other document executed pursuant thereto or in
connection therewith, and all such authorizations, approvals or other actions,
and notices and filings, required for the performance by the Guarantor of said
Loan Documents shall be duly given or obtained by the Guarantor within the time
period required under applicable Laws and Regulations.
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m. Governmental Regulations. The Guarantor is not subject to regulation
under the Investment Company Act of 1940, the Federal Power Act, the Public
Utility Holding Company Act of 1935, the Interstate Commerce Act, as the same
may be amended from time to time, or any federal or state statute or regulation
limiting its ability to incur Debt.
n. Employee Benefit Plans. The Guarantor does not maintain any pension,
retirement, profit sharing or similar employee benefit plan that is subject to
ERISA other than a plan pursuant to which the Guarantor's contribution
requirement, as applicable, is made concurrently with the respective employees'
contributions.
o. Securities Activities. The Guarantor is not engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any margin stock (as defined in Regulation U
of the Board of Governors of the Federal Reserve System in effect from time to
time) and not more than twenty-five percent (25%) of the value of the
Guarantor's assets consists of such margin stock.
p. No Material Adverse Change. No Material Adverse Change with respect to
the Guarantor has occurred since September 30, 2004.
q. No Third Party Fees. Neither the Guarantor nor any of its respective
Affiliates has paid any fees to any third party in connection with the Loan,
except as disclosed to the Lender in writing.
r. Full Disclosure. None of the statements contained in any exhibit,
report, statement or certificate furnished by or on behalf of the Guarantor in
connection with the Loan Documents contains any untrue statement of a material
fact, or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading; provided, however, that it is recognized by the Lender
that projections and forecasts provided by the Guarantor, while reflecting the
Guarantor's good faith projections or forecasts based upon methods and data the
Guarantor believes to be reasonable and accurate, are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections and forecasts may differ from the projected or forecasted results.
Section 7. Affirmative Covenants. The Guarantor covenants and agrees that,
so long as any part of the Indebtedness shall remain to be performed or paid,
the Guarantor will, unless the Lender shall otherwise consent in writing:
a. Financial Covenants.
i. Net Worth. The Guarantor will maintain a Net Worth equal to or in
excess of $200,000,000.00.
ii. Ratio of Total Liabilities to Net Worth. At all times, the ratio
of the total Debt of the Guarantor determined in accordance with GAAP
consistently applied, on a consolidated basis, and including but not limited to
contingent liabilities, to its Net Worth shall not exceed 2.5:1.
b. Taxes Affecting the Guarantor. File all federal, state, provincial,
county, municipal and other income tax returns required to be filed by the
Guarantor and pay before the same becomes
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delinquent all taxes that become due pursuant to such returns or pursuant to any
assessments received by it.
c. Compliance with Law. Promptly and faithfully comply with all laws,
ordinances, rules, regulations and requirements, both present and future, of
every duly constituted governmental authority or agency having jurisdiction that
may be applicable to the Guarantor, noncompliance with which might result in a
Material Adverse Change.
d. Books and Records. Maintain full and complete books of account and
other records reflecting the results of its operations, and furnish to the
Lender such information about the financial condition and operations of the
Guarantor as the Lender shall reasonably request, including, but not limited to,
the following information which shall be furnished without request: (i) as soon
as possible and in any event within one hundred twenty (120) days after the end
of each fiscal year of the Guarantor audited financial statements for the
immediately preceding fiscal year of the Guarantor, which financial statements
shall include a balance sheet as at the end of such fiscal year, and a statement
of income for such fiscal year; and (ii) such other information or data as the
Lender may reasonably request.
e. Existence. Maintain, preserve and keep in full force and effect its
existence as a limited partnership.
f. Maintenance of Collateral. Maintain, preserve and keep its properties
and equipment in good repair, working order and condition and from time to time
will make all needful and proper repairs, renewals, replacements and additions
thereto so that at all times the efficiency thereof shall be fully preserved and
maintained.
g. Defaults. Promptly notify the Lender in writing in the event of the
occurrence of any Event of Default or a Potential Default.
Section 8. Consolidation, Merger and Asset Sale. The Guarantor shall not
consolidate nor merge, nor sell, lease or otherwise transfer all or any
substantial part of its assets to any other Person, except for sales in the
ordinary course of business made at fair market value, unless (a) the successor,
survivor or transferee shall have expressly assumed the Guarantor's obligations
by an instrument in writing reasonably satisfactory to the Lender, (b) all
approvals, consents and other actions of any governmental authority required in
connection with the performance by such Person of the obligations hereunder
shall have been obtained, and (c) such action would not cause an Event of
Default under the Loan Agreement.
Section 9. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by the
Lender and Guarantor, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No notice to
or demand on the Guarantor shall in any case entitle the Guarantor to any other
or further notice or demand in similar or other circumstances, except as
otherwise expressly provided in this Guaranty.
Section 10. Notices. All notices, requests and demands to be made
hereunder to the parties hereto must be in writing (at the addresses set forth
below) and may be given by any of the following means:
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(1) personal delivery;
(2) reputable overnight courier service;
(3) electronic communication, whether by telex, telegram or
telecopying (if confirmed in writing sent by registered or certified,
first class mail, return receipt requested); or
(4) registered or certified, first class mail, return receipt
requested.
Any notice, demand or request sent pursuant to the terms of this Guaranty will
be deemed received (i) if sent pursuant subsection (1), upon such personal
delivery, (ii) if sent pursuant to subsection (2), on the next Business Day (as
defined in the Loan Agreement) following delivery to the courier service, (iii)
if sent pursuant to subsection (3), upon dispatch if such dispatch occurs
between the hours of 9:00 a.m. and 5:00 p.m. (recipient's time zone) on a
Business Day, and if such dispatch occurs other than during such hours, on the
next Business Day following dispatch and (iv) if sent pursuant to subsection
(4), 3 days following deposit in the mail.
The addresses for notices are as follows:
a. If to the Guarantor, addressed to:
Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxx XxXxxxxx
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
b. If to the Lender, addressed to:
Resort Finance LLC
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx, Vice-President
Telephone No.: (000) 000-0000 x000
Telecopier No.: (000) 000-0000
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With a copy addressed to:
Resort Finance LLC
000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxxx-Counsel
Telephone: (000) 000-0000 x000
Telecopier (000) 000-0000
With a copy to:
Xxxxx & XxXxxxxx LLP
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
With copy to Borrower:
Bluegreen Vacations Unlimited, Inc.
c/o Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
The failure to provide courtesy copies will not affect or impair the Lender's
rights and remedies against the Guarantor. Such addresses may be changed by
notice to the other parties given in the same manner as provided above.
Section 11. No Waiver; Remedies. No failure on the part of the Lender to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof; nor shall the Lender be estopped to exercise any such right
or remedy at any future time because of any such failure or delay; nor shall any
single or partial exercise of any right or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right or remedy. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 12. Setoff. Without limiting any other right of the Lender, the
Lender at its sole option may at any time set off against any obligation
hereunder any and all obligations of the Lender (whether or not contingent or
matured) to the Guarantor arising under the Loan Agreement.
Section 13. Subordination. Any indebtedness of the Borrower now or
hereafter held by the Guarantor is hereby subordinated to the indebtedness of
the Borrower to the Lender, and during the Event of Default such indebtedness of
the Borrower to the Guarantor shall, if the Lender so requests, be collected,
enforced and received by the Guarantor as trustee for the Lender and be paid
over to the Lender on account of the indebtedness of the Borrower to the Lender,
but without
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reducing or limiting in any manner the liability of the Guarantor under the
other provisions of this Guaranty.
Section 14. No Duty. The Guarantor assumes the responsibility for keeping
informed of the financial condition of the Borrower and of all other
circumstances bearing upon the risk of nonpayment or nonperformance of the
Indebtedness, and agrees that the Lender shall have no duty to advise the
Guarantor of any information known to the Lender regarding any such financial
condition or circumstances.
Section 15. Bankruptcy of the Borrower. Notwithstanding any modification,
discharge or extension of the Indebtedness or any amendment, modification, stay
or cure of the Lender's rights which may occur in any bankruptcy or
reorganization case or proceeding concerning the Borrower whether permanent or
temporary, and whether assented to by the Lender, the Guarantor hereby agrees
that it shall be obligated hereunder to pay and perform the Indebtedness and
discharge its other obligations in accordance with the terms of the Indebtedness
and the terms of this Guaranty. The Guarantor understands and acknowledges that
by virtue of this Guaranty, it has specifically assumed any and all risks of a
bankruptcy or reorganization case or proceeding with respect to the Borrower. As
an example and not by way of limitation, a subsequent modification of the
Indebtedness in any reorganization case concerning the Borrower shall not affect
the obligation of the Guarantor to pay and perform the Indebtedness in
accordance with the original terms.
Section 16. Entire Agreement. This Guaranty is intended as a final
expression of this agreement of guaranty and is intended also as a complete and
exclusive statement of the terms of this agreement. No course of prior dealings
between the Guarantor and the Lender, no usage of the trade, and no parole or
extrinsic evidence of any nature, shall be used or be relevant to supplement,
explain, contradict or modify the terms and/or provisions of this Guaranty.
Section 17. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.
Section 18. Forum Selection.
EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY:
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK SITTING IN MANHATTAN AND THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME; AND
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AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY
OTHER JURISDICTION.
Section 19. Waiver of Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT RELATED
HERETO AND FOR ANY COUNTERCLAIM THEREIN.
Section 20. Miscellaneous.
a. Time is of the essence hereof.
b. If any term, provision, covenant or condition hereof or any application
thereof should be held by a court of competent jurisdiction to be invalid, void
or unenforceable, all provisions, covenants and conditions hereof, and all
applications thereof not held invalid, void or unenforceable shall continue in
full force and effect and shall in no way be affected, impaired or invalidated
thereby.
c. Section headings in this Guaranty are included for convenience of
reference only and do not constitute a part of this Guaranty for any other
purpose.
d. This Guaranty binds the Guarantor and its successors and assigns and
inures to the benefit of the Lender and its successors and assigns and
participants.
e. This Guaranty cannot be modified, amended, or terminated orally.
IN WITNESS WHEREOF, the undersigned has duly executed, sealed and
delivered this Guaranty as of the date first above written.
BLUEGREEN CORPORATION,
a Massachusetts corporation
By: ____________________________________
Print Name:_____________________________
Its:____________________________________
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