Exhibit 4.11
BLUEGREEN CORPORATION,
as Issuer,
CERTAIN OF ITS SUBSIDIARIES SPECIFIED HEREIN,
as Subsidiary Guarantors
and
SUNTRUST BANK (formerly SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION),
as Notes Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of December 31, 2001
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To
The Indenture Dated as of April 1, 1998
Among Bluegreen Corporation,
Certain of its Subsidiaries and SunTrust Bank (formerly SunTrust Bank,
Central Florida, National Association), as Notes Trustee,
Relating to $110 Million Aggregate Principal Amount of
10 1/2% Senior Secured Notes due 2008
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is made
as of the 31st day of December, 2001, among Bluegreen Corporation, a
Massachusetts corporation (the "Company"), the Subsidiary Guarantors (as defined
in the Indenture defined below), and SunTrust Bank (formerly SunTrust Bank,
Central Florida, National Association, a national banking association), in its
capacity as trustee (the "Notes Trustee").
WHEREAS, the Company, the Subsidiary Guarantors and the Notes Trustee
heretofore executed and delivered an Indenture, dated as of April 1, 1998, as
amended and supplemented by a First Supplemental Indenture thereto dated as of
March 15, 1999, as further amended and supplemented by a Second Supplemental
Indenture thereto dated as of December 31, 2000 and as further amended and
supplemented by a Third Supplemental Indenture thereto dated as of October 31,
2001 (as so amended and supplemented, the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Company issued and the Notes
Trustee authenticated and delivered $110 million aggregate principal amount of
the Issuer's 10 1/2% Senior Secured Notes due 2008 (the "Initial Notes"); and
WHEREAS, pursuant to an exchange offer registered with the Securities and
Exchange Commission on a Registration Statement No. 333-51717 on Form S-4, the
Company offered to, and did, exchange $110 million in aggregate principal amount
of its 10 1/2% Senior Secured Notes due 2008 (the "Exchange Notes" and, together
with the Initial Notes, the "Notes") for $110 million in aggregate principal
amount of the Initial Notes; and
WHEREAS, the Initial Notes were, and the Exchange Notes are,
unconditionally guaranteed on a senior basis by the Subsidiary Guarantors; and
WHEREAS, Section 9.02 of the Indenture provides that the Company and the
Subsidiary Guarantors, when authorized by Board Resolutions of their respective
Boards of Directors, and the Notes Trustee, with the written consent of the
Noteholders of not less than a majority in aggregate principal amount of the
Notes outstanding, may amend the Indenture, subject to certain exceptions (none
of which is applicable to the amendments (the "Amendments") contained in Section
2.01 of this Supplemental Indenture) specified in Section 9.02 of the Indenture;
and
WHEREAS, pursuant to its Request for Consent to Certain Amendments to
Indenture, dated July 2, 2001 (the "Consent Solicitation"), the Company
solicited consents of the Noteholders to the Amendments, which if adopted would
(i) amend the definition of the term "Subsidiary Guarantor" contained in Section
1.01 of the Indenture, (ii) amend Section 4.09 of the Indenture as set forth
below, and (iii) amend Section 4.11 of the Indenture as set forth below; and
WHEREAS, the Noteholders of not less than a majority in aggregate principal
amount of the outstanding Notes have duly consented to the Amendments set forth
in this Supplemental Indenture in accordance with Section 9.02 of the Indenture;
and
WHEREAS, the Company has heretofore delivered or is delivering
contemporaneously herewith to the Notes Trustee (i) a copy of Board Resolutions
authorizing the execution, delivery and performance of this Supplemental
Indenture, (ii) evidence of the written consent of the Noteholders described in
the immediately preceding paragraph, (iii) an Officers' Certificate in
compliance with and to the effect set forth in Sections 1.01, 7.02, 9.02, 9.06
and 12.04 of the Indenture, and (iv) an Opinion of Counsel in compliance with
and to the effect set forth in Sections 1.01, 7.02, 9.02, 9.06 and 12.04 of the
Indenture; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this Supplemental Indenture and to make this Supplemental Indenture valid and
binding have been complied with or have been done or performed;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any
provision of the Indenture which, absent this Supplemental Indenture, might
operate to limit such action, the Company, the Subsidiary Guarantors and the
Notes Trustee agree as follows for the equal and ratable benefit of the
Noteholders.
ARTICLE 1
DEFINITIONS
SECTION 1.01. General. For all purposes of the Indenture and this
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to the Indenture and this Supplemental Indenture as a whole and not
to any particular Article, Section or subdivision; and
(b) capitalized terms used but not defined herein shall have the meaning
assigned to them in the Indenture.
ARTICLE 2
AMENDMENTS AND WAIVER
SECTION 2.01. Amendments. Subject to Section 3.01 hereof, the Indenture is
hereby amended in the following respects:
(a) The definition of "Subsidiary Guarantor" in Section 1.01 of the
Indenture is hereby amended and restated to read as follows:
"Subsidiary Guarantor" means each Subsidiary of the Company in
existence on the Issue Date and each Subsidiary (other than
Unrestricted Subsidiaries) created or acquired by the Company after
the Issue Date, other than BG Aruba, Resort Title Agency, Inc.,
Bluegreen/Big Cedar Vacations LLC, any Receivables Subsidiary and any
Subsidiary which is established and continues to operate for the
limited purpose of holding a real estate broker's license and acting
as a broker for the benefit of the Company and its Subsidiaries in
connection with the sale of real estate or Timeshare Interests, and
certain other Subsidiaries which have individually less than $50,000
of assets.
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(b) Section 4.09 of the Indenture is hereby amended by deleting the word
"and" appearing after clause "(b)(xi)" thereof and by adding a new clause
"(b)(xii)" thereto and amending and restating the existing clause "(b)(xii)"
thereof to read as follows:
(xii) Indebtedness of any Receivables Subsidiary Incurred in
connection with any receivables securitization or financing
transactions; and
(xiii) Indebtedness (other than Indebtedness described in clauses (i)
- (xii)) in a principal amount which, when taken together with
the principal amount of all other Indebtedness Incurred
pursuant to this clause (xiii) and then outstanding, will not
exceed $10.0 million.
(c) Section 4.11 of the Indenture is hereby amended by adding at the end of
paragraph (a) thereof the following proviso:
; provided, however, that clause (iii) above shall not apply to any
Affiliate Transaction involving Bluegreen/Big Cedar Vacations LLC.
ARTICLE 3
MISCELLANEOUS
SECTION 3.01. Effectiveness. This Supplemental Indenture shall become
effective, as of its effective date, upon its execution and delivery by the
Company, the Subsidiary Guarantors and the Notes Trustee. Upon the execution and
delivery of this Supplemental Indenture by the Company, the Subsidiary
Guarantors and the Notes Trustee, the Indenture shall be supplemented in
accordance herewith, and this Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Note heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
SECTION 3.02. Indenture Remains in Full Force and Effect. All provisions in
the Indenture shall remain in full force and effect, and, except as expressly
supplemented and amended hereby, shall remain unchanged.
SECTION 3.03. Indenture and Supplemental Indenture Construed Together. This
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture and the Indenture and this Supplemental Indenture shall henceforth
be read and construed together.
SECTION 3.04. Confirmation and Preservation of Indenture. The Indenture, as
supplemented by this Supplemental Indenture, is in all respects confirmed and
preserved.
SECTION 3.05. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), that is
required under the Trust Indenture Act to be part of and govern any provision of
this Supplemental Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the
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provision of the Trust Indenture Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
SECTION 3.06. Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 3.07. Headings. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 3.08. Benefits of Supplemental Indenture, etc. Nothing in this
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Noteholders, any benefit of any legal or equitable right,
remedy or claim under the Indenture, this Supplemental Indenture or the Notes.
SECTION 3.09. Successors. All agreements of the Company and the Subsidiary
Guarantors in this Supplemental Indenture shall bind their respective
successors. All agreements of the Notes Trustee in this Supplemental Indenture
shall bind its successors.
SECTION 3.10. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Company and the Subsidiary
Guarantors, and the Notes Trustee assumes no responsibility for their
correctness. The Notes Trustee shall not be liable or responsible for the
validity or sufficiency of this Supplemental Indenture.
SECTION 3.11. Certain Duties and Responsibilities of the Notes Trustee. In
entering into this Supplemental Indenture, the Notes Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Notes Trustee, whether or
not elsewhere herein so provided.
SECTION 3.12. Governing Law. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
SECTION 3.13. Counterpart Originals. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be original, but
all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
written above.
SIGNATURES
BLUEGREEN CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN HOLDING CORPORATION
(TEXAS)
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PROPERTIES OF THE SOUTHWEST ONE, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN SOUTHWEST ONE, L.P.
BLUEGREEN SOUTHWEST LAND, INC.
GENERAL PARTNER
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President of General
Partner
BLUEGREEN ASSET MANAGEMENT CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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XXXXXXXXX XXXXXXXXXXX XX XXXXXXXXX
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN CORPORATION OF THE
ROCKIES
By: /S/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN PROPERTIES OF VIRGINIA, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN RESORTS INTERNATIONAL,
INC.
By: /S/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
CAROLINA NATIONAL GOLF CLUB, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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LEISURE CAPITAL CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN WEST CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BG/RDI ACQUISITION CORP.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: President
BLUEGREEN VACATIONS UNLIMITED, INC.
By: /S/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Vice President
BLUEGREEN SOUTHWEST LAND, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BLUEGREEN CAROLINA LANDS, LLC
By: /S/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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BLUEGREEN RESORTS MANAGEMENT, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
JORDAN LAKE PRESERVE CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
LEISURE COMMUNICATION NETWORK, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: President
MANAGED ASSETS CORPORATION
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
TRAVELHEADS, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: President
ENCORE REWARDS, INC.
By: /S/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: President
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SUNTRUST BANK, As Trustee
By: /S/ XXXX XXXXXXXXXX
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
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