EXHIBIT 10.175
SECURED PROMISSORY NOTE
(Acquisition / Construction Loan Component)
$11,800,000.00 December 22, 2003
Hartford, Connecticut
FOR VALUE RECEIVED and pursuant to the terms of this Secured Promissory
Note ("Note"), the undersigned, BLUEGREEN VACATIONS UNLIMITED, INC., a Florida
corporation, and BLUEGREEN CORPORATION, a Massachusetts corporation (singly and
collectively the "Borrower"), promises to pay to the order of TEXTRON FINANCIAL
CORPORATION, a Delaware corporation (the "Agent"), on its behalf and on behalf
of each Lender (the Agent and all subsequent holders of this Note being
hereinafter referred to as the "Holder"), as provided in the Acquisition,
Construction and Receivable Loan, Security and Agency Agreement by and among the
Borrower, the Agent and the other parties thereto, dated as of December 22, 2003
(as may be amended from time to time hereafter, the "Loan Agreement"), the
principal sum of ELEVEN MILLION EIGHT HUNDRED THOUSAND AND 00/100 DOLLARS
($11,800,000.00), or so much thereof as may be advanced from time to time under
the Loan Agreement, together with interest (computed on the basis of the number
of days elapsed over a 360-day year and twelve 30-day months) on the unpaid
principal amount from time to time outstanding under this Note at a rate equal
to the Acquisition/Construction Loan Component Interest Rate (as defined in the
Loan Agreement).
The principal amount of this Note, together with interest thereon and all
other sums due pursuant to this Note or any of the Loan Documents, shall be due
and payable on the dates and in the manner as provided in the Loan Agreement.
All principal, interest and any other amounts due under this Note shall be
payable in lawful money of the United States of America as provided in the Loan
Agreement.
The Borrower may prepay the principal sum outstanding from time to time
hereunder only as provided in the Loan Agreement.
This Note is one of the two "Notes" described in, and issued pursuant to,
the Loan Agreement. This Note evidences the Acquisition/Construction Loan
Component of the Loan and is secured by the Collateral. All of the terms,
covenants and conditions of the Loan Agreement (including all exhibits and
schedules to it) and all other instruments evidencing or securing the
Obligations are hereby made a part of this Note and are deemed incorporated
herein in full. In the event of any conflict between the terms and conditions of
this Note and the terms and conditions of the Loan Agreement, the terms and
conditions of the Loan Agreement shall control. All terms used herein and not
otherwise defined herein shall have the meanings provided therefor in the Loan
Agreement.
This Note also evidences Borrower's obligation to repay with interest all
additional moneys advanced or expended from time to time by any Holder to or for
the account of Borrower or
otherwise to be added to the principal balance hereof or as provided in any of
the Loan Documents, whether or not the principal amount hereof shall thereby
exceed the principal amount above stated.
Borrower shall pay the cost of all revenue, tax or other stamps now or
hereafter required by law at any time to be affixed to this Note or to any of
the Loan Documents; and if any tax is now or hereafter imposed with respect to
notes of the nature of this Note or debts of the nature of the debt evidenced by
this Note, Borrower agrees to pay to the Holder hereof upon demand the amount of
such tax, and hereby waives any contrary provision of any law or rule of court
now or hereafter in effect.
Upon the occurrence of any Event of Default by the Borrower under the Loan
Agreement or under any other Loan Document, the Holder may, at its option and in
accordance with the terms of the Loan Agreement and the other Loan Documents, in
addition to any other remedies to which it may be entitled, declare to be
immediately due and payable the total unpaid principal balance of the Loan,
together with all accrued but unpaid interest thereon, any applicable prepayment
premium and all other Obligations owing hereunder, under the Loan Agreement or
under any other Loan Document.
All agreements between the Borrower and the Holder are expressly limited
so that in no contingency or event whatsoever, whether by reason of advancement
of the proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the Holder
for the use, forbearance or detention of the money to be advanced hereunder
exceed the highest lawful rate permissible under applicable usury laws. If, from
any circumstances whatsoever, fulfillment of any provision hereof, of the Loan
Agreement or any other Loan Documents shall involve transcending the limit of
validity prescribed by any law which a court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity, and, if from any circumstance the Holder
shall ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance due hereunder and not to the payment
of interest. This provision shall control every other provision of all
agreements between the Borrower and the Holder.
Time is of the essence for the performance and observance of each
agreement and obligation of Borrower under this Note and under the Loan
Documents.
The Borrower and all sureties, endorsers, guarantors and all other parties
now or hereafter liable for the payment of this Note, in whole or in part,
hereby severally waive, for themselves and their legal representatives, heirs,
successors and assigns (i) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of acceleration,
protest, default, nonpayment, maturity, release, compromise, settlement,
extension, waiver or renewal of any or all of the Loan Documents, and all other
notices in connection with the delivery, acceptance, performance, default or
enforcement of the payment of this Note; and (ii) the benefit of all
marshalling, election of remedies, valuation, appraisal, and exemption laws; and
Borrower and such endorsers, guarantors and sureties expressly consent to any
extension of time of payment hereof or of any installment hereof, to the release
of any party liable for the Obligations, to the release, change or modification
of the Loan, the Loan Documents or any of the Collateral, and any such
extension,
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modification or release may be made without notice to any of said parties and
without in any way affecting or discharging the liability pursuant to this Note.
No single or partial exercise of any power under this Note, under the
Revolving Loan Component Note, under the Loan Agreement or under any other Loan
Document shall preclude other or further exercise thereof or the exercise of any
other power. The Holder shall at all times have the right to proceed against any
portions of the Collateral in such order and in such manner as the Holder may
deem appropriate, without waiving any rights with respect to any other security.
No delay or omission on the part of the Holder in exercising any right or remedy
under the Note or under any Loan Document, or the acceptance of one or more
installments from any person after a Default or Event of Default, or the
granting of any forbearance or other indulgence, or the taking or releasing or
subordinating of any security or additional security for the Obligations, or any
other modification or amendment of this Note or any of the Loan Documents, shall
in any way release or discharge the liability of Borrower or of any endorser,
surety or guarantor, or any other Person secondarily liable on this Note,
whether or not granted or done with the knowledge or consent of Borrower or any
such endorser, surety, guarantor or Person, or shall operate as a waiver of such
right or remedy available to the Holder in connection with any future Default or
Event of Default.
In the event any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Note, but this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
Furthermore, in the event that the application of any provision of this Note to
any Person or circumstance shall for any reason be held to be invalid, illegal
or unenforceable, in whole or in part, or in any respect, then, and in any
event, such invalidity, illegality or unenforceability shall not be deemed to
affect the application of such provision to any Person or circumstance against
whom or which such application is legal, valid and enforceable.
No provision of this Note shall be modified except by a written instrument
executed by Xxxxxxxx and by Xxxxxx expressly referring to this Note and to the
provision modified. This Note shall be binding upon Borrower and its successors
and assigns. The rights under and benefits of this Note shall inure to Holder
and its successors and assigns.
Borrower hereby waives any and all present and future laws and rules of
court exempting any of the Collateral covered by the Loan Documents or any other
of its other property, real or personal, or any of the proceeds arising from any
sale of the Collateral or such property, from attachment, levy, sale or
execution, or providing for any stay of execution, appraisal, exemption from
civil process or extension of time for payment.
Upon or at any time after an Event of Default hereunder or under any of
the other Loan Documents, including without limitation the failure of Borrower
to pay any amount of principal and/or interest evidenced by this Note when due,
all amounts of principal and interest and other sums due under this Note shall
bear interest from the day when due until such amount is paid in full at the
"Default Rate." As used herein, the "Default Rate" shall mean the Interest Rate,
[plus four percent (4%)] per annum; provided, however, that the Default Rate
shall in no event exceed the highest lawful rate.
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The Holder is hereby authorized by the Borrower to record in any grid
attached hereto or in the manual or data processing records of the Holder, the
date and amount of each Acquisition/Construction Advance and the amount of the
outstanding Obligations with respect thereto and the date and amount of each
repayment of principal and each payment of interest or otherwise on account of
the Acquisition/Construction Loan Component and the Obligations with respect
thereto. In the absence of established error, such records shall be conclusive
as to the outstanding principal amount of all Acquisition/Construction Advances
and the amount of the total outstanding Obligations with respect thereto, and
the payment of interest, principal and other sums due under the Loan Documents;
provided, however, that the failure of the Holder to make any such record entry
with respect to any Acquisition/Construction Advance or payment shall not limit
or otherwise affect the obligations of the Borrower under this Note or the other
Loan Documents.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of Rhode Island, excluding its choice of laws
principles, except with respect to laws affecting interest rates which may be
preempted by laws of the United States. The Borrower hereby waives any plea of
jurisdiction or venue as not being a resident of Providence County, Rhode
Island, and hereby specifically authorizes actions or proceedings arising
directly, indirectly or otherwise in connection with, out of, related to or from
this Note to be litigated, in the Holder's sole discretion and at the Holder's
sole election, in courts having a situs within Providence County, Rhode Island.
For the purpose of the foregoing, the Borrower and all principals, sureties,
guarantors and endorsers hereby consent and submit to the jurisdiction of any
local, state or federal court located within Rhode Island. The Borrower and all
principals, sureties, guarantors and endorsers hereby waive any right that they
may have to transfer or change the venue of any litigation brought against them
in accordance with this paragraph.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE
WAIVED, THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT, POWER, REMEDY OR DEFENSE
ARISING OUT OF OR RELATED TO THIS NOTE, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR
CONTRACT OR OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY; AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT
BEFORE A JURY. THE BORROWER FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY
SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION
IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER, THE BORROWER
HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF HOLDER, NOR HOLDER'S
COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT HOLDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL
PROVISION. THE BORROWER ACKNOWLEDGES THAT THE
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PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL INDUCEMENT TO HOLDER'S ACCEPTANCE OF
THIS NOTE AND THE OTHER LOAN DOCUMENTS.
This Note may be part of a series of promissory notes executed and
delivered by the Borrower pursuant to the Loan Agreement. The Holder
acknowledges and agrees that this Note shall not have priority over any other
promissory note executed and delivered by the Borrower pursuant to the Loan
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower has caused this Note to be signed in its
corporate name by its duly authorized officer on the date first above written.
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
By /S/ XXXX X. XXXXXX
------------------
Name: XXXX X. XXXXXX
Its: TREASURER
BLUEGREEN CORPORATION,
a Massachusetts corporation
By /S/ XXXX X. XXXXXX
------------------
Name: XXXX X. XXXXXX
Its: SENIOR VICE PRESIDENT
STATE OF FLORIDA )
) ss: ______________________
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 16TH day of
DECEMBER, 2003 by XXXX X. XXXXXX, TREASURER of BLUEGREEN VACATIONS UNLIMITED,
INC., a FLORIDA corporation, on behalf of the corporation.
/S/ XXXXXXX X. XXXXXX
---------------------
Notary Public
My Commission Expires: NOV. 11, 2005
STATE OF FLORIDA )
) ss: ______________________
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 16TH day of
DECEMBER, 2003 by XXXX X. XXXXXX, SENIOR VICE PRESIDENT of BLUEGREEN
CORPORATION, a MASSACHUSETTS corporation, on behalf of the corporation.
/S/ XXXXXXX X. XXXXXX
---------------------
Notary Public
My Commission Expires: NOV. 11, 2005
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