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EXHIBIT 10.139
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment"), dated as of June 29, 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 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 "June 26, 2000" therein and substituting therefor "August 28,
2000".
(b) Section 1.2 of the Loan Agreement is hereby amended by deleting it
in its entirety and substituting therefor the following:
"1.2Term. The Loan shall be from June 26, 1998 to the Maturity Date
(the "Term").
(c) Section 1.7(a) of the Loan Agreement is hereby amended by deleting
the last sentence thereof and substituting therefor the following:
"All out of pocket costs and expenses in connection with any partial
releases shall be at the expense of the Borrowers."
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(d) Section 1.7(b) of the Loan Agreement is hereby amended by deleting
it in its entirety and substituting therefor the following:
"(b)MANDATORY PREPAYMENTS. If at any time (i) the outstanding principal
balance of the Loan exceeds the Maximum Exposure or (ii) Bluegreen
Corporation ceases to own, directly or indirectly, at least 51% of the
economic and voting interests of Bluegreen Properties, N.V. Borrowers
shall, within five (5) Business Days after notice, prepay the Loan in
an amount necessary to reduce the principal balance of the Loan to the
Maximum Exposure; provided, however, that Borrowers at their option
within (5) Business Days after notice, may deliver to Lender one (1) or
more Pledged Receivables such that, after delivery of such Pledged
Receivable(s), the outstanding principal balance of the Loan does not
exceed the Maximum Exposure."
(e) The Appendix to the Loan Agreement is hereby amended as follows:
(i) 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) $ $35,000,000 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 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).
CUSTODIAN. U.S. Bank Trust National Association, or such other Person
designated by Lender and approved by Borrowers to maintain physical
possession of the Pledged Receivables and the Pledged Receivables
Collateral.
MATURITY DATE. August 28, 2000.
MAXIMUM EXPOSURE. The lesser of (a) $35,000,000, 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
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shall require a prepayment of the Loan or the pledge of Eligible
Receivables consistent with Section 1.7(b) hereof.
RECEIVABLES. A conditional sale contract or note and its related
security, including but not limited to any Purchase Money Mortgage,
Deed of Trust or security interest in the related Interval (any
accessions thereof) and any and all rights to payments thereunder. The
term "Receivables" shall also include "Aruba Receivables".
RESORTS. Those certain timeshare vacation resorts commonly known as La
Cabana Beach and Racquet Club (Oranjestad, Aruba), Orlando Sunshine II
(Orlando, Florida), Shenandoah Crossing (Gordonsville, Virginia). Shore
Crest I and II (Myrtle Beach, South Carolina), Harbour Lights (Myrtle
Beach, South Carolina), Mountain Loft (Gatlinburg, Tennessee), Laurel
Crest (Pigeon Forge, Tennessee), Lodge Alley Inn (Charleston, South
Carolina), Falls Village (Branson, Missouri), Christmas Mountain
Campground (Wisconsin Dells, Wisconsin), The Timbers at Christmas
Mountain (Wisconsin Dells, Wisconsin), The Villas at Christmas Mountain
(Wisconsin Dells, Wisconsin) as more particularly described on EXHIBIT
M and shall include the Managed Resorts.
(ii) by adding the following definitions in alphabetical order:
ARUBA RECEIVABLES. With the respect to Receivables relating to
La Cabana, a purchase and finance agreement and any and all
rights to payments thereunder.
LA CABANA. That certain timeshare vacations resort commonly
known as La Cabana Beach and Racquet Club.
(iii) By deleting clause (d) of the definition of "Eligible
Completed Unit Receivable" and substituting therefor the following:
"(d) (i) the weighted average interest rate of all Receivables
financed under this Agreement is not less than 14.90% per
annum at the time and inclusive of the Receivable to be
financed hereunder and (ii) the weighted average interest rate
of all Aruba Receivables financed under this Agreement is not
less than 14.00% per annum at the time and inclusive of the
Receivables to be financed hereunder;"
(iv) by deleting clause (l) of the definition of "Eligible
Completed Unit Receivable" and the definition of Eligible Uncompleted Unit
Receivable" and substituting therefor the following:
"(l) at least 90% of the aggregate outstanding principal
balance of all Receivables arise from Obligors who are either
residents of the U.S. or Canada at the time the Pledged
Receivable is financed hereunder; provided that with respect
to Aruba Receivables, at least 60% of the aggregate
outstanding principal balance of tall Receivables arise from
Obligors who are either residents of the U.S. or Canada at the
time the Aruba Receivable is financed hereunder; provided,
further, that in no event shall the aggregate outstanding
principal balance of Receivables arising from Obligors who are
not residents of the U.S. or Canada exceed $2,400,000;"
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(v) by deleting clause (d) of the definition of "Eligible
Uncompleted Unit Receivable" and substituting therefor the following:
"(d) (i) the weighted average interest rate of all Receivables
financed under this Agreement is not less than 14.90% per
annum at the time and inclusive of the Receivables to be
financed hereunder and (ii) the weighted average interest rate
of all Aruba Receivables financed under this Agreement is not
less than 14.00% per annum at the time and inclusive of the
Receivable to be financed hereunder;"
(vi) by adding the following clause (z) to the definition of
"Eligible Completed Unit Receivable":
"(z) with respect to Aruba Receivables only, Bluegreen
Corporation shall own, directly or indirectly, at least 51% of
the economic and voting interests of Bluegreen Properties,
N.V."
(vii) by deleting the reference to "2.755" contained in the
definition of "Interest Rate" and substituting therefor "3.00%";
(viii) by adding the following to clause (y) to the definition
of "Eligible Completed Unit Receivable" and the definition of "Eligible
Uncompleted Unit Receivable":
":provided that the Receivable need not meet the Minimum
Credit Scoring Standard during the period beginning on the
date of effectiveness of this Amendment and ending on the
sixtieth day following such date to effectiveness."
(f) The parties hereto agree that notwithstanding anything contained in
this Amendment, the Loan Agreement and any other Loan Document to the contrary,
(a) the Borrowers shall not be required to provide any notice of the
transactions contemplated by the Loan Documents to any Obligor on a Receivable
which is first pledged under the Loan Agreement after Xxxx 00, 0000 (x "Xxx
Xxxxxxx"), (x) the Borrowers shall not be required to instruct any New Obligor
to remit payments to a lockbox maintained for the benefit of the Lender and (c)
absent an Event of Default, the Lender shall not record any mortgage assignment
relating to the Receivable of a New Obligor.
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, 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 of conflict with any provision of any law
applicable to such Borrower, the certificate or articles of
incorporation or
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bylaws of such Borrower, or any order, judgment or decree of any court
or other 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 item and the satisfaction of the following
conditions, as the case may be, all in form and substance satisfactory to
Lender.
(a) DOCUMENTATION
(i) AMENDMENT. This Amendment, duly executed by each
Borrower and Lender.
(ii) ASSIGNMENTS. Duly executed assignment and other
conveyancing documents ("Assignments") necessary to
transfer ownership of the Aruba Receivables from
Bluegreen Properties, N.V. to Bluegreen Corporation.
(iii) OPINION. A duly executed legal opinion of (i) Aruban
counsel to the Borrowers and Bluegreen Properties,
N.V., as to certain corporate matters, enforceability
of the Assignments, no conflict with laws, and
perfection of security interest in Aruban
Receivables, together with opinions on such other
matters as Lender or its counsel may reasonably
request, (ii) Xxxxxx, Xxxx & Xxxxxxx as t certain
corporate matters and no conflict with laws, together
with opinions on such other matters as Lender or its
counsel may reasonably request, and (iii) in-house
counsel to Borrowers as to certain corporation
matters and no conflict with laws, together with
opinions on such other matters as Lender or its
counsel may reasonably request.
(iv) RECEIVABLES FILE. The Receivables File and Pledged
Receivables Collateral relating to Receivables
subject to a proposed Advance (other than those
Receivables Files relating to the Aruba Receivables
that the Lender has in its possession as of the date
hereof) shall have been delivered to the Custodian.
(v) ARUBA RECEIVABLES DOCUMENTS. Copies of all documents
executed and delivered in connection with the Aruba
Receivables.
(vi) SECRETARY'S CERTIFICATE; RESOLUTIONS. A certificate
of the Clerk, Secretary, an Assistant Clerk or and
Assistant Secretary of each of the Borrowers
certifying (i) the names and true signatures of the
officers authorized on its behalf to sign this
Amendment (ii) a copy of such party's certificate or
articles of incorporation and by-laws, and (iii) a
copy of the resolutions of the board of directors of
such party approving this Amendment and the related
transactions to which it is a party, all in form and
substance satisfactory to the Lender. Such
certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(vii) CUSTODIAL AGREEMENT. A duly executed Custodial
Agreement among Lender, Borrowers and the Custodian.
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(viii) UCC SEARCHES. UCC lien searches against Borrowers.
(ix) UCC FINANCING STATEMENTS. Duly executed UCC financing
statements naming the Borrowers as debtors and Lender
as secured party to be filed in such jurisdictions as
Lender may require.
(x) REAL ESTATE DOCUMENTATION. Duly executed assignments
of mortgages in respect of Receivables and Pledged
Receivables Collateral pledged to Lender together
with title commitments relating thereto (except no
title insurance commitments or assignment of
mortgages shall be required with respect to any Aruba
Receivable).
(b) NO EVENT OF DEFAULT. No event of Default shall have occurred
and be continuing, or would result after giving effect hereto.
(c) 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 Amendments 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 notification 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. Notwithstanding anything contained in this Amendment to
the contrary, the amendments contained in Sections I (e)(iii) and (v) hereof
shall only be applicable to Receivables which are proposed to be the subject of
an Advance made on and after the date of this Amendment and shall not be
applicable to Receivables which constituted "Eligible Completed Unit
Receivables" or "Eligible Uncompleted Unit Receivables" before giving effect to
this Amendment and for which Lender has previously made an Advance.
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 interest 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 or 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 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.
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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.
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 effected 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 Amendments 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 Loan Agreement.
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: CHIEF FINANCIAL OFFICER
BLUEGREEN VACATIONS UNLIMITED, INC.
By: /s/ Xxxx X. Xxxxxx
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Title: CHIEF FINANCIAL OFFICER
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: VICE PRESIDENT
