EXHIBIT 10.169
PROJECT COMMITMENT
(Big Cedar Wilderness Club October 10, 2003)
THIS PROJECT COMMITMENT (Big Cedar Wilderness Club) ("Project Commitment")
is entered into as of October 10, 2003 by and between BLUEGREEN VACATIONS
UNLIMITED, INC., a Florida corporation ("BVU") and BLUEGREEN/BIG CEDAR
VACATIONS, LLC, a Delaware limited liability company ("Big Cedar", and jointly
and severally with BVU, "Borrower") and RESIDENTIAL FUNDING CORPORATION, a
Delaware corporation ("Lender") and shall become part of and supplement the
terms of the Loan Agreement between BVU and Lender dated February 10, 2003, as
amended by that certain Modification Agreement (AD&C Loan Agreement) dated as of
September 10, 2003 between BVU and Lender (collectively, the "Loan Agreement").
Under the terms of the Loan Agreement, Lender has agreed to make a revolving
loan in the maximum principal amount of $45,000,000 (the "Loan") to Borrower to
finance various time-share acquisition, development and construction projects to
be approved pursuant to a Project Commitment. Lender is pleased to confirm that
upon the execution of this Project Commitment, Lender shall be deemed to approve
the project described herein as a "Project" and that proceeds of the Loan may be
disbursed with respect to such Project all in accordance with the terms and
conditions of the Loan Agreement, inclusive of this Project Commitment.
Section 1. It is the intent of the parties that this Project Commitment
become a part of and supplement the terms of the Loan Agreement with respect to
the Project described herein. Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Loan Agreement.
Section 2. The following Project terms are hereby approved and agreed to
by the parties:
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GENERAL
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PROJECT BIG CEDAR WILDERNESS CLUB, located at 612 Devil's Pool
Road, Ridgedale, Missouri and consisting of the
following: (i) 69 completed two-bedroom Units (13 of
which are stand-alone cabins); (ii) real property
planned for the construction of 80 additional
two-bedroom Units (16 of which are planned stand-alone
cabins); and (iii) the sales center building, the resort
check-in facility, the applicable resort amenities and
the other common areas applicable to the project. The
real property corresponding to the above is legally
described on Exhibit A attached hereto and incorporated
herein by reference. As a matter of clarification, the
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two-bedroom Units described above and herein that are
not within the stand-alone cabins may consist of a
one-bedroom Unit combined with a studio Unit.
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TERMS OF THE LOAN APPLICABLE TO THIS PROJECT
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PROJECT LOAN AMOUNT Means an amount not to exceed the principal amount of
$24,289,379. The Project Loan Amount shall consist of
two tranches: (i) the "Timeshare Unit Tranche," which
shall not exceed the principal amount of $20,842,957 and
(ii) the "Common Areas Tranche," which shall not exceed
the principal amount of $3,446,422. Notwithstanding the
above, at no time shall the outstanding principal
balance of the Project Loan at any one time exceed
$15,000,000.
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PROJECT LOAN ADVANCE Means the period of time commencing on the date of this
PERIOD Project Commitment and expiring on October 10, 2005.
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PROJECT LOAN Means for the Timeshare Unit Tranche: the first to occur
REPAYMENT DATE of (i) October 10, 2007 or (ii) the date on which the
Loan must be repaid pursuant to Section 8.2.
Means for the Common Areas Tranche: the first to occur
of (i) October 10, 2007 or (ii) the date on which the
Loan must be repaid pursuant to Section 8.2.
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MINIMUM REQUIRED With respect to the Time-Share Unit Tranche: Borrower is
PRINCIPAL PAYMENTS required to make the following minimum cumulative
principal payments towards the repayment of the
Time-Share Unit Tranche during the following loan years
(with each loan year ending on the anniversary of the
Effective Date)
Loan Year Minimum Cumulative
--------- ------------------
Principal Reduction
-------------------
Year 1 $ 4,000,000
Year 2 $ 9,000,000
Year 3 $ 15,000,000
Year 4 Entire balance
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With respect to the Common Areas Tranche: Borrower is
required to make the following minimum cumulative
principal payments towards the repayment of the Project
Loan during the following loan years (with each loan
year ending on the anniversary of the Effective Date)
Loan Year Minimum Cumulative
--------- ------------------
Principal Reduction
-------------------
Year 1 $ 800,000
Year 2 $ 1,600,000
Year 3 $ 2,400,000
Year 4 Entire balance
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LENDER'S RELEASE The Lender's Release Price will consist of two payments:
PRICE (i) (a) $4,560 for each Time-Share Interest involving a
two-bedroom interval within a stand-alone cabin ("Cabin
Interval"), (b) $3,192 for each Time-Share Interest
involving a one-bedroom interval within a time-share
building ("One-Bedroom Interval"), or (c) $1,368 for
each Time-Share Interest involving a studio interval
within a time-share building ("Studio Interval"), which
payment(s) shall be applied to the Time-Share Unit
Tranche until paid in full and (ii) (a) $750 for each
Cabin Interval, (b) $525 for each One-Bedroom Interval,
or (c) $225 for each Studio Interval, which payment(s)
shall be applied to the Common Areas Tranche until paid
in full, all of which are based upon the construction of
149 two-bedroom Units at the Project.
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PROJECT INFORMATION
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USE OF PROCEEDS The proceeds of the Time-Share Units Tranche will be
used to reimburse Borrower for (i) the construction of
inventory corresponding to the completed but unsold
timeshare inventory within the 69 two-bedroom Units
(which Units are within Buildings 2300 and 2500 and the
13 stand-alone cabins) at the Project (the "Reimbursed
Unsold Inventory Advance") and (ii) 85% of the
construction expenses incurred for the construction of
the 80
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additional two-bedroom Units (inclusive of 16
stand-alone cabins) to be built at the Project to the
extent incurred by Borrower, consistent with the Budget
and otherwise approved by Lender, subject to the maximum
amount of such tranche. The actual amount of the
Reimbursed Unsold Inventory Advance shall be equal to
the sum of (A) the number of unsold Cabin Intervals,
which are identified on Exhibit A-1 attached hereto,
times $3,648.00, plus (B) the number of unsold
One-Bedroom Intervals, which are identified on Exhibit
A-3 attached hereto, times $2,553.60, plus (C) the
number of unsold Studio Intervals, which are identified
on Exhibit A-2 attached hereto, times $1,094.40.
The proceeds of the Common Areas Tranche will be used to
reimburse Borrower for 85% of the construction expenses
for the construction of the of the check-in facility,
resort amenities and the sales building to the extent
incurred by Borrower and approved by Lender, subject to
the maximum amount of such tranche.
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DEVELOPMENT WORK With respect to the Project, the work of development to
be performed on or with respect to the Land and existing
Improvements, which shall include the construction of
the 80 additional two-bedroom Units (inclusive of the 16
stand-alone cabins) referenced in this Project
Commitment, all of which work will be completed by or on
behalf of the Borrower in accordance with the Plans and
Specifications in all material respects.
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BUDGET FOR The Budget for the construction of the Project as
ACQUISITION, provided for in this Project Commitment is attached
DEVELOPMENT AND hereto as Schedule 1.
CONSTRUCTION
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CONSTRUCTION PROGRESS Schedule 2 attached hereto sets forth the Construction
SCHEDULE AND STAGED Progress Schedule for the Project and Schedule 3
DRAW SCHEDULE attached hereto sets forth the Staged Draw Schedule for
the Project.
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INSPECTOR FAS Construction Management, Inc., or such
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other inspector(s) engaged by the Lender, at Borrower's
expense, to provide to the Lender consultation services
with regard to the Project.
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RETAINAGE 10% of the amount of each approved disbursement under a
construction contract.
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PROJECT DOCUMENTS
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PROJECT DOCUMENTS Project Commitment
Deed of Trust/Mortgage
CLPI Assignment
UCC Financing Statements
Assignment of Construction Items
Plans and Specifications
Addendum to Note
Title Policy
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Section 3. As the approved Project is owned by Bluegreen/Big Cedar
Vacations, LLC (the "Project Owner"), Project Owner, subject to Section 4 of
this Project Commitment, hereby expressly, and without any reservations or
exceptions, agrees hereby to become a party to the Loan Agreement, assumes,
jointly and severally with Borrower, all of the obligations of Borrower
presently, or at any time in the future, contained in the Loan Agreement and
agrees to be bound by and comply with all the terms thereof. Project Owner
agrees to execute and deliver to Lender the Addendum to the Note whereby Project
Owner, jointly and severally with Borrower, assumes all of the obligations of
Borrower presently, or at any time in the future, contained in the Note to the
extent provided for in this Project Commitment. Subject to Section 4 of this
Project Commitment, Project Owner and Borrower acknowledge that they are each
jointly and severally liable, as primary co-obligors and not as sureties or
guarantors, for all of the amounts disbursed under the Note for this Project and
for all other obligations of "Borrower" pursuant to such Loan Agreement. To the
extent Project Owner or Borrower is deemed a surety or guarantor, each hereby
waive any and all surety and guarantor defenses to the extent waivable under
applicable laws. Whenever used herein or in the other Loan Documents, the term
"Borrower" shall include Project Owner.
Section 4. Notwithstanding anything to the contrary in Section 3 above, or
any other provision of the Loan Agreement or the Loan Documents, at no time
shall the Project Owner's monetary obligations and liability under the Loan,
including but not limited to the Note dated February 10, 2003, as amended by an
Amendment No. 1 to Revolving Promissory Note (AD&C Loan) dated as of September
10, 2003 and as amended by the Addendum to Note dated as of even date with this
Project Commitment, exceed the aggregate amount of the unpaid balance, plus all
accrued and unpaid interest, of the Project Loan granted pursuant to this
Project Commitment. After an Event of Default has occurred and while it is still
continuing and after Lender has declared the Note and all other sums owing by
Borrower to Lender in connection with the Loan to be due and payable, Lender
agrees that it shall, upon tender of full payment by Big Cedar, L.L.C. to Lender
of the aggregate amount of the unpaid balance, plus all accrued and unpaid
interest of the Project Loan Amount, assign, endorse and deliver to Big Cedar,
L.L.C.,
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immediately and concurrently with tender of full payment, the Project Security
Instruments executed by Project Owner in connection with this Project Commitment
and Lender shall unconditionally release and forever relinquish entirely any and
all rights, title and interest that Lender has with respect to the collateral
assigned by Project Owner to Lender pursuant to such Project Security
Instruments. The rights of Big Cedar, L.L.C. to purchase the Project Security
Instruments pursuant to the above terms shall expire automatically on the date
that is 60 days after Big Cedar, L.L.C. receives written notice (the
"Commencement Notice") from Lender of Lender's determination, which
determination shall be in Lender's sole and absolute discretion, to commence a
foreclosure action or to otherwise take action to realize upon the collateral
that is subject to the Project Security Instruments executed in connection with
this Project Commitment. The Commencement Notice shall be delivered to Big
Cedar, L.L.C. by any of the means described in Section 9.2 of the Loan Agreement
at the following address:
Big Cedar, L.L.C.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Section 5. Except as otherwise disclosed on Exhibit B to this Project
Commitment, BVU reaffirms and Project Owner makes as of the date of this Project
Commitment all of the covenants, representations and warranties as to themselves
and as to the Project. Borrower hereby ratifies all of the provisions of the
Loan Documents and confirms that all of such provisions remain in full force and
effect. Borrower acknowledges and agrees that there are no defenses,
counterclaims, setoffs, recoupments or other adverse claims or causes of action
of any kind existing with respect to the Loan and the Loan Documents, including
without limitation, claims regarding the validity, perfection, priority and
enforceability of the lien interests held by Lender pursuant to the Loan
Documents except for mechanic's liens disclosed to Lender and affirmatively
insured over by the Title Insurance Company.
Section 6. Borrower declares and certifies, under penalty of perjury,
that: (i) the U.S. Taxpayer I.D. Number of BVU and Big Cedar are 00-0000000 and
00-0000000 respectively; (ii) the business addresses of BVU and Big Cedar are
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000; (iii) Borrower
is not a "foreign person" within the meaning of Sections 1445 and 7701 of the
Internal Revenue Code of 1986, as amended; and (iv) Borrower understands that
the information and certification contained in this paragraph may be disclosed
to the Internal Revenue Service and that any false statement contained herein
could be punished by fine, imprisonment or both. The Borrower agrees to provide
the Lender with a new certification containing the provisions of this paragraph
immediately upon any change in such information.
Section 7. SECTIONS 9.17 AND 9.18 OF THE LOAN AGREEMENT ARE INCORPORATED
HEREIN BY THIS REFERENCE. BORROWER SPECIFICALLY ACKNOWLEDGES, REAFFIRMS AND
RESTATES THE AGREEMENTS AND WAIVERS CONTAINED IN THOSE SECTIONS AS IF SET FORTH
IN FULL IN THIS PROJECT COMMITMENT.
Initials:
Lender: /S/ JO
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Borrower: /S/ JC
Section 8. The Project Documents shall be prepared by counsel to the
Lender and shall be satisfactory to the Lender. Borrower shall be obligated to
pay all costs and expenses incurred to satisfy all conditions precedent, whether
or not any funds of the Loan are advanced with respect to the Project. Lender
shall not be responsible or liable for consequential damages which may be
alleged as a result of the issuance of this Project Commitment.
Section 9. Borrower agrees to indemnify and hold harmless Lender from
liabilities (including costs of settlement) arising out of or resulting from the
transactions contemplated by this Project Commitment, other than liabilities
resulting from the gross negligence or willful misconduct of Lender, and to
reimburse Lender for reasonable legal or other expenses incurred in connection
with the defense or preparation of the defense of any such liability.
Section 10. The provisions of the immediately preceding two paragraphs
shall survive any termination of this Project Commitment.
Section 11. Borrower represents, warrants and certifies that as of the
date of this Project Commitment (i) there has been no Material Adverse Change
since the date of the most recent financial statements delivered to Lender, (ii)
there has been no Material Adverse Change in the financial condition or
projected operations of the Project since the date of the most recent
information delivered to the Lender with respect to the Project, (iii) except as
disclosed in a written title commitment issued to Lender or Bluegreen
Corporation's SEC filings, there has been no material action, suit or proceeding
(including, without limitation, any inquiry or investigation) pending or
threatened with respect to Borrower or the Project that could have a Material
Adverse Change on Borrower or the Project and (iv) no Event of Default or
Potential Default exists under the Loan Agreement.
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LENDER:
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: /S/ XXXX XXXXXX
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Printed Name: Xxxx Xxxxxx
Title: Managing Director
BORROWER:
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
By: /S/ XXXX X. XXXXXX
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Print Name: XXXX X. XXXXXX
Its: TREASURER
BY SIGNING BELOW, PROJECT OWNER
ACKNOWLEDGES THAT IT HAS RECEIVED A COPY
OF THE LOAN AGREEMENT AND THAT PROJECT
OWNER AGREES TO BECOME A BORROWER UNDER
AND BOUND BY SUCH LOAN AGREEMENT,
JOINTLY AND SEVERALLY LIABLE, ALL
CONSISTENT WITH THE PROVISIONS OF THIS
PROJECT COMMITMENT
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
By: /S/ XXXX X. XXXXXX
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Print Name: XXXX X. XXXXXX
Title: AUTHORIZED AGENT
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EXHIBIT A TO PROJECT COMMITMENT
Real Property Description
(Inclusive of Exhibits X-0, X-0, and A-3)
EXHIBIT B TO PROJECT COMMITMENT
Disclosed Non-Compliance with Covenants, Representations and Warranties
None, unless otherwise completed.
SCHEDULE 1 TO PROJECT COMMITMENT
DEVELOPMENT WORK BUDGET
[To be supplied subsequent to the Effective Date of this Project Commitment at
the request of Lender]
SCHEDULE 2 TO PROJECT COMMITMENT
CONSTRUCTION PROGRESS SCHEDULE
SCHEDULE 3 TO PROJECT COMMITMENT
STAGED DRAW SCHEDULE
[To be supplied subsequent to the Effective Date of this Project Commitment at
the request of Lender]
EXHIBIT A
FORM OF DRAW REQUEST CERTIFICATION
DRAW REQUEST CERTIFICATION
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DRAW REQUEST NUMBER __
DATE:
LENDER: RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
BORROWER: BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation and
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
PROJECT: Big Cedar Wilderness Club
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Reference is made to that certain Loan Agreement dated as of February 10,
2003 between Lender and Borrower relating to the above referenced Project (as
amended or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used herein without definition shall have the meanings set
forth in the Loan Agreement, unless the context shall require otherwise.
Borrower requests Lender to disburse to Borrower the proceeds of the Loan
in the amounts and for the purposes stated in the attached Schedule 1.
In connection with such requested disbursement, Borrower hereby
represents, warrants and certifies to Lender as follows:
(1) No Event of Default or Potential Default presently exists under
the Loan Agreement or any other Loan Document.
(2) All of the representations and warranties of Borrower and
Guarantor, if any, under the Loan Agreement and the other Loan Documents
are hereby remade and restated.
(3) With respect to the Loan:
(A) Borrower has satisfied all conditions precedent to the
funding of the Project as set forth in the Loan Documents;
(B) the Loan Documents are in full force and effect;
(C) the Loan is secured by a first-priority lien on the
Project and the other collateral described in the Loan Documents;
(D) the sum of all amounts expended in respect of the
acquisition of the Land, the Improvements and the Development Work
does not exceed the Budget, or if such amounts do exceed the Budget,
attached hereto is a listing of the amounts over budget and an
explanation of such budget overrun(s); and
(E) all contractors, subcontractors, vendors, materialmen and
other Persons entitled to payment with respect to the Development
Work have been paid or will be paid, subject to retainage, with the
proceeds of the requested disbursement except for payments in
dispute ("Disputed Payments") pursuant to filed mechanic's liens
disclosed to Lender and affirmatively insured over by the Title
Insurance Company, provided however, that the requested disbursement
is not seeking reimbursement for any portion of the Disputed
Payments.
(4) All insurance required to be maintained by Borrower remains in
full force in effect, of the types, in the amounts and issued by insurers
as previously approved by Lender.
(5) All Development Work covered by this Draw Request has been
completed in accordance with the applicable contracts and should now be
paid, and all costs incurred in connection with the Development Work
either have been paid or will be paid out of the proceeds of this
disbursement.
BORROWER:
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
By:___________________________________
Name: ________________________________
Title: _______________________________
BIG CEDAR WILDERNESS CLUB
SCHEDULE 1 TO DRAW REQUEST NUMBER
