EXHIBIT 10.148
AMENDMENT NUMBER NINE TO LOAN AND SECURITY AGREEMENT
This Amendment Number Nine to Loan and Security Agreement ("Amendment") is
entered into as of December 23, 2004, by and between BLUEGREEN CORPORATION,
f/k/a Xxxxxx Corporation, a Massachusetts corporation ("Borrower"), and XXXXX
FARGO FOOTHILL, INC., a California corporation, f/k/a/ Foothill Capital
Corporation ("Foothill"), in light of the following:
FACT ONE: Borrower and Foothill have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of September 23,
1997, as Amended by that certain Amendment Number One to Loan and Security
Agreement dated as of December 1, 2000, as further amended by that certain
Amendment Number Two to Loan and Security Agreement dated as of November 9,
2001, that certain Amendment Number Three to Loan and Security Agreement dated
as of August 28, 2002, that certain Amendment Number Four to Loan and Security
Agreement dated as of March 26, 2003, that certain Amendment Number Five to Loan
and Security Agreement dated as of September 1, 2003, and that certain Amendment
Number Six to Loan and Security Agreement dated as of April 2, 2004, that
certain Amendment Number Seven to Loan and Security Agreement dated as of
September 21, 2004, and that certain Amendment Number Eight to Loan and Security
Agreement dated as of October 5, 2004 (as amended, the "Agreement").
FACT TWO: Borrower and Foothill desire to amend the Agreement as provided
for and on the conditions herein.
NOW, THEREFORE, Borrower and Foothill hereby amend and supplement the
Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The following new definitions are added to Section 1.1 of the
Agreement:
""Ninth Amendment" means that certain Amendment Number Nine to
Loan and Security Agreement dated as of December ___, 2004,
executed by Borrower and Foothill."
(b) Schedule PN-A of the Loan Agreement is deleted in its entirety
and the replacement schedule PN-A attached hereto and incorporated by reference
hereby is substituted in its place and stead.
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3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill
that all of Borrower's representations and warranties set forth in the Agreement
are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrower hereby affirms to Foothill that no Event of
Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is expressly
conditioned upon receipt by Foothill of an executed copy of this Ninth
Amendment.
6. COSTS AND EXPENSES. Borrower shall pay to Foothill all of Foothill's
out-of-pocket costs and expenses (including, without limitation, title fees,
search fees, filing and recording fees, documentation fees, appraisal fees,
travel expenses, and other fees, and the reasonable fees and expenses of its
counsel) arising in connection with the preparation, execution, and delivery of
this Amendment and all related documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
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8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto. This Agreement may
be executed and the signature pages telecopied between the parties. A
telefacsimile signature is deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
XXXXX FARGO FOOTHILL, INC.,
a California corporation, f/k/a FOOTHILL
CAPITAL CORPORATION,
By:
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Title:
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BLUEGREEN CORPORATION,
a Massachusetts corporation
By:
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Title:
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SCHEDULE PN-A
VARIOUS PLEDGED NOTE STANDARDS
1. Foothill has a valid, direct and perfected first lien/security interest
in the note and security therefore and has a valid and perfected first priority
right to payments arising thereunder.
2. The maker of such a note is not a director, officer, their agents,
employees or creditors, or any relative or affiliate of Borrower or the
foregoing.
3. (a) With respect to Pledged A Notes, Borrower has received from the
purchaser a minimum cash down payment of 10% of the total sales price, no part
of which, to Borrower's knowledge, had been advanced or loaned to such purchaser
or borrower, directly or indirectly and the average down payment of the entire
portfolio of Pledged A Notes must be at least 20%.
(b) With respect to Pledged C and Pledged T Notes, Borrower has
received from the purchaser a minimum cash down payment of 10% of the total
sales price, no part of which, to Borrower's knowledge, had been advanced or
loaned to such purchaser or borrower, directly or indirectly and the average
down payment of the entire portfolio of: (i) Pledged C Notes must be at least
10%, and (ii) Pledged T Notes must be at least 10%; and (iii) Pledged D Notes
must be at least 15%.
4. The notes must provide for consecutive bi-weekly or monthly
installments of principal and interest in U.S. funds over a term not exceeding
one hundred eighty (180) months from the date of its execution; provided,
however, the average remaining term of the entire portfolio of Pledged Notes is
no greater than one hundred twenty months (120).
5. The Pledged Notes must provide for an interest rate of at least eight
percent (8%) per annum, if fixed, or Reference Rate plus two percent (2%) if
variable, provided, however, that the blended rate of interest for the entire
portfolio of Pledged Notes shall not be less than the Reference Rate plus one
point five (1.5%).
6. With respect to Pledged A Notes, Notes generated by purchasers of real
property in New York, Connecticut, Rhode Island, Vermont, New Hampshire,
Pennsylvania or Maine which provide for an interest rate during the first two
years of prime plus two hundred (200) basis points, and interest thereafter of
at least prime plus three hundred and forty (340) basis points will be
acceptable, if all other standards are met.
7. Foothill, in its sole and absolute discretion, may, from time to time,
require that the instrument is at least thirty days aged from the date of its
execution, and at least one monthly installment payment has been made.
Schedule PN-A
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8. (a) With respect to Pledged A Notes and Pledged C Notes, the maker of
the Pledged A Note and Pledged C Note is acceptable to Foothill for credit
purposes in its sole judgment; has or will acquire marketable title to a
purchase parcel from Borrower; and has not purchased more than four parcels in
any project.
(b) With respect to Pledged D and Pledged T Notes, the maker of the
Pledged D and Pledged T Note is acceptable to Foothill for credit purposes in
its sole judgment; has or will acquire marketable title to a timeshare interval
purchased from Borrower; and has not purchased an aggregate of more than four
weeks of intervals in all of Borrower's projects.
9. No Pledged Note will be delinquent more than sixty (60) days past its
due date at the time of the advance.
10. The note and the mortgage securing the same are satisfactory to
Foothill and validly enforceable in accordance with their terms; upon the
obligors default under the instrument, subject only to notice in a reasonable
grace period, payment of the balance of the indebtedness owing under the note
may be immediately accelerated and the lien of the mortgage securing the same
may be foreclosed; the Note Mortgage has been recorded in the appropriate real
estate records where the purchased parcel is located; and the lien of the
purchase mortgage is subject only to permitted encumbrances and covenants,
conditions, and restrictions, rights of way and other matters of public record
acceptable to lender in their sole judgment.
11. All lot site improvements, if any, which have been covenanted to be
provided to the maker of the note shall have been provided, completed, or
bonded.
12. The note in the applicable sales transaction complied with all
applicable laws and the purchaser does not have any right of rescission or
setoff, or the like.
13. The Pledged Notes must be from a diverse group of properties and from
a diverse geographic area. At least 90% of the purchasers or the makers of the
notes must be citizens of the United States or of Canada.
14. All Pledged Notes must be payable in United States legal tender.
15. (a) No single Pledged Note can be of a principal amount such that the
advance made on such note would exceed One Million Dollars ($1,000,000).
(b) With respect to Pledged D Notes, no single pledged D Note can be
in an amount less than $30,000.
(c) With respect to Pledged D Notes, the average face value of the
entire portfolio of Pledged D Notes can not exceed $50,000.
16. No single Pledged Note can be of a principal amount such that the
advance made on such note equals or exceeds fifty percent (50%) of the
outstanding A Line Advances and B Line Advances then outstanding, without taking
into effect the proposed advance on such note.
Schedule PN-A
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17. Policies of Title Insurance, in form reasonably satisfactory to
Foothill, shall be delivered to Foothill within sixty (60) days of delivery of
each Note Mortgage.
18. For notes generated by Affiliates of Borrower, Foothill shall be
satisfied with the assignment documents transferring such note to Borrower, and
the certificate set forth in Section 3.2(c) hereof.
19. With respect to Pledged C Notes, Pledged D Notes, and Pledged T Notes,
each Pledged C Note, Pledged D Note, and Pledged T Note shall be aged at least
thirty (30) days from the date of execution thereof.
20. With respect to Pledged D Notes and Pledged T Notes, Foothill shall
have received the originals of: (i) the recorded Note Mortgages and assignments
of Note Mortgages within sixteen (16) weeks of the funding of the same by
Foothill; and (ii) all other security which serves as security for the repayment
of each Pledged D Note and Pledged T Note at the time of funding of the same by
Foothill.
21. With respect to Pledged C Notes, at least one maker of each such note
must have a Fair Xxxxx score of at least 600 with no pending bankruptcy
proceeding pending within the preceding three (3) year period prior to
execution.
22. With respect to Pledged C Notes, the maker of each such note must have
executed valid and enforceable pre-authorized automated checking account
withdrawals for loan payments.
23. With respect to Pledged C Notes, the term shall not exceed two hundred
and forty (240) months.
24. Intentionally Deleted.
25. With respect to Pledged D Notes, the term shall not exceed one hundred
and eighty (180) months.
Schedule PN-A
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