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EXHIBIT 10.140
THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "AMENDMENT"), dated as of October 16, 2000, among BLUEGREEN CORPORATION
("BLUEGREEN"), BLUEGREEN VACATIONS UNLIMITED, INC. ("VACATIONS", and together
with Bluegreen, the "BORROWERS"), and XXXXXX FINANCIAL, INC., (together with its
successors and permitted assigns, the "LENDER").
RECITALS
A. Lender and Borrowers are party to that certain Amended and Restated
Loan and Security Agreement dated as of June 30, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "LOAN AGREEMENT").
B. On and subject to the terms and conditions hereof, Borrowers have
requested from Lender, and Lender is willing to grant, certain amendments to
certain provisions of the Loan Agreement, all on the terms and conditions set
forth herein.
C. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment; capitalized terms used herein
without definition are so used as defined in the Appendix to the Loan Agreement
or the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. AMENDMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by
deleting the reference to "October 31, 2000" therein and substituting therefor
"October 16, 2001".
(b) Section 9.9 of the Loan Agreement is hereby deleted.
(c) The Appendix to the Loan Agreement is hereby amended by
deleting the following definitions in their entirety and substituting therefor
the following:
AVAILABILITY. At all times during the term of this
Agreement, the lesser of (i) $15,000,000 minus outstanding
Advances, or (ii) an amount equal to 95% of the principal
balance of Pledged Receivables; provided that with respect
to Aruba Receivables, such amount shall be 85% of the
principal balance of such Pledged Receivables; provided
further, that notwithstanding anything to the contrary
contained herein the amounts advanced against Pledged
Receivables (i) relating to Eligible Uncompleted Unit
Receivables shall not at any time represent in the aggregate
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more than the lesser of $5,000,000.00 or 30% of the
aggregate principal amount of all Advances outstanding under
this Agreement; (ii) relating to Managed Resorts shall not
at any time represent in the aggregate more than $2,000,000
of the aggregate principal amount of all Advances
outstanding under this Agreement and (iii) relating to Aruba
Receivables shall not exceed on a cumulative basis
$6,000,000 of all Advances made under this Agreement. After
the Maturity Date or, at the option of Lender in accordance
with Section 8.10, after the occurrence and during the
continuance of an Event of Default hereunder, Availability
shall be zero ($0). At any time Bluegreen Corporation ceases
to own, directly or indirectly, at least 51% of the economic
and voting interests of Bluegreen Properties, N.V.,
Availability with respect to Aruba Receivables shall be zero
($0).
MATURITY DATE. October 16, 2001.
MAXIMUM EXPOSURE. The lesser of (a) $15,000,000, or (b)
ninety-five percent (95%) of the outstanding principal
balance of all Pledged Receivables; PROVIDED that with
respect to Aruba Receivables, such amount shall be 85% of
the outstanding principal balance of such Pledged
Receivables; PROVIDED, HOWEVER, notwithstanding anything to
the contrary contained herein, the outstanding principal
amount of Advances made with respect to Eligible Uncompleted
Unit Receivables shall not in the aggregate represent more
than the lesser of $5,000,000 or thirty percent (30%) of the
aggregate principal amount of Advances outstanding hereunder
and any such excess shall require a prepayment of the Loan
or the pledge of Eligible Receivables consistent with
Section 1.7(b) hereof.
2. REPRESENTATIONS AND WARRANTIES.
(a) After giving effect to this Amendment and the transactions
contemplated hereby (i) no Event of Default shall have occurred or be continuing
and (ii) the representations and warranties of Borrowers contained in the Loan
Documents shall be true, correct and complete in all material respects on and as
of such date to the same extent as though made on and as of such date, except to
the extent such representations and warranties specifically relate to an earlier
date.
(b) Borrowers jointly and severally represent and warrant to
Lender that the execution, delivery and performance by each Borrower of this
Amendment and the other documents and transactions contemplated hereby are
within such Borrower's corporate powers, have been duly authorized by all
necessary corporate action (including, without limitation, all necessary
shareholder approval) of such Borrower, have received all necessary governmental
approvals, and do not and will not contravene or conflict with any provision of
law applicable to such Borrower, the certificate or articles of incorporation or
bylaws of such Borrower, or any order, judgment or decree of any court or other
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agency of government or any contractual obligation binding upon such Borrower;
and this Amendment, the Loan Agreement and each other Loan Document constitutes
the legal, valid and binding obligation of each Borrower enforceable against
each Borrower in accordance with its terms.
3. CONDITIONS PRECEDENT. This Amendment shall become effective upon
Lender's receipt of the following items and the satisfaction of the following
conditions, as the case may be, all in form and substance satisfactory to
Lender:
(a) AMENDMENT. This Amendment, duly executed by each Borrower
and Lender.
(b) COMMITMENT FEE. The Lender shall have received a
commitment fee of $75,000.
(c) NO EVENT OF DEFAULT. No Event of Default shall have
occurred and be continuing, or would result after giving effect hereto.
(d) WARRANTIES AND REPRESENTATIONS. The warranties and
representations of each Borrower contained in this Amendment and the other Loan
Documents shall be true and correct in all material respects after giving effect
hereto.
4. EFFECT ON LOAN DOCUMENTS. This Amendment is limited to the specific
purpose for which it is granted and, except as specifically set forth above (a)
shall not be construed as a consent, waiver or other modification with respect
to any term, condition or other provision of any Loan Document and (b) each of
the Loan Documents shall remain in full force and effect and are each hereby
ratified and confirmed.
5. SUCCESSORS AND ASSIGNS. This Amendment shall be binding on and shall
inure to the benefit of Borrowers, Lender and their respective successors and
assigns; PROVIDED that no Borrower may assign its rights, obligations, duties or
other interests hereunder without the prior written consent of Lender. The terms
and provisions of this Amendment are for the purpose of defining the relative
rights and obligations of Borrowers and Lender with respect to the transactions
contemplated hereby and there shall be no third party beneficiaries of any of
the terms and provisions of this Amendment.
6. ENTIRE AGREEMENT. This Amendment, including all documents attached
hereto, incorporated by reference herein or delivered in connection herewith,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all other understandings, oral or written, with
respect to the subject matter hereof.
7. FEES AND EXPENSES. As provided in Section 9.3 of the Loan Agreement,
Borrowers agree to pay on demand all Costs incurred by Lender in connection with
the preparation, execution and delivery of this Amendment.
8. INCORPORATION OF LOAN AGREEMENT. The provisions contained in
Sections 11.12 and 11.13 of the Loan Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety with
respect to this Amendment and the subject matter hereof.
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9. CAPTIONS. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
10. SEVERABILITY. Whenever possible each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
12. PAYMENT UPON MATURITY DATE. The parties hereto acknowledge and
agree that payment of the Indebtedness pursuant to Section 1.6(b) of the Loan
Agreement shall not constitute a prepayment under Section 1.7 of the Loan
Agreement.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the day and year first above written.
BLUEGREEN CORPORATION
By: /s/ XXXX X. XXXXXX
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Title: Treasurer
BLUEGREEN VACATIONS
UNLIMITED, INC.
By: /s/ XXXXX X. XXXX
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Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXXXX
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Title: Senior Vice President
Signature Page to Third Amendment
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