Exhibit 10.158
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
Wachovia Bank, National Association
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as the "Bank")
Bluegreen Corporation, a Massachusetts corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as "Bluegreen Corporation")
Bluegreen Resorts Management, Inc., a Delaware corporation
f/k/a RDI Resort Services Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Vacations Unlimited, Inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Holding Corporation (Texas), a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Properties of the Southwest One, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Southwest One, L.P., a Delaware limited partnership
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Asset Management Corporation, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Carolina Lands, LLC, a Delaware limited liability company
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Tennessee, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of the Rockies, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Properties of Virginia, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Resorts International, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Carolina National Golf Club, Inc., a North Carolina corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Leisure Capital Corporation, a Vermont corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen West Corporation, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
BG/RDI Acquisition Corp., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation Great Lakes (WI), a Wisconsin corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Corporation of Canada, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Golf Clubs, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Interiors, LLC, a Delaware limited liability company 0000 Xxxxxxxxxx
Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Southwest Land, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
New England Advertising Corp., a Vermont corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Boca Raton, Florida 33431
South Florida Aviation, Inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Winding River Realty, Inc., a North Carolina corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Jordan Lake Preserve Corporation, a North Carolina corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Page 2
Leisure Communication Network, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Managed Assets Corporation, a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
travelheads, inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Encore Rewards, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Leisurepath, Inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
BXG Realty, Inc., a Delaware corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Mystic Shores Realty, Inc., a Texas corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Brickshire Realty, Inc., a Virginia corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Boca Raton, Florida 33431
Catawba Falls, LLC, a North Carolina limited liability company
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Preserve at Jordan Lake Realty, Inc., a North Carolina corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Bluegreen Purchasing & Design, Inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Great Vacation Destinations, Inc., a Florida corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Boca Raton, Florida 33431
Lake Ridge Realty, Inc., a Texas corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(Individually or collectively, jointly and severally, the "Borrower")
Page 3
This Fourth Amended and Restated Loan Agreement ("Agreement") is entered into as
of December 31, 2004.
Borrower requested and First Union National Bank ("First Union") made that
certain $5,000,000.00 line of credit available to Borrower (the "Loan") as
evidenced by that certain Promissory Note dated as of September 23, 1998 and
certain other documents including that certain Loan Agreement dated as of
September 23, 1998. The Loan has been previously amended, increased and extended
pursuant to the terms and conditions of certain documents including, without
limitation, that certain $10,000,000.00 Renewal Promissory Note dated as of
December 31, 2000, that certain Modification Number One to the Loan Agreement
dated as of August 1, 1999, that certain Modification Number Two to Loan
Agreement dated as of November 3, 1999, that certain Modification Number Three
to Loan Agreement dated as of December 31, 2000, and certain other documents.
Borrower subsequently requested and First Union agreed to amend, increase and
extend the Loan as evidenced by (i) that certain Amended and Restated Promissory
Note executed by Borrower, jointly and severally, dated as of December 31, 2001,
and made payable to First Union in the original principal amount of
$12,500,000.00; (ii) that certain Amended and Restated Loan Agreement dated as
of December 31, 2001; and (iii) certain other loan documents dated as of
December 31, 2001.
Borrower subsequently requested and Bank (successor by merger to First Union)
agreed to amend and extend the Loan as evidenced by (i) that certain Second
Amended and Restated Promissory Note executed by Borrower, jointly and
severally, dated as of December 31, 2002, and made payable to Bank in the
original principal amount of $12,500,000.00; (ii) that certain Second Amended
and Restated Loan Agreement dated as of December 31, 2002; and (iii) certain
other loan documents dated as of December 31, 2002.
Borrower requested and Bank agreed to further amend, increase and extend the
Loan pursuant to the terms of (i) that certain Third Amended and Restated
Promissory Note executed by Borrower, jointly and severally, dated as of
December 30, 2003, and made payable to Bank in the original principal amount of
$15,000,000.00, and (ii) that certain Third Amended and Restated Loan Agreement
dated as of December 30, 2003.
Borrower subsequently requested, and Bank agreed to further amend the Loan, as
evidenced by that certain First Amendment and Ratification of Loan Agreement
dated as of March 31, 2004, and as evidenced by that certain Second Amendment
and Ratification of Loan Agreement dated as of August 9, 2004.
Borrower has now requested and Bank has agreed to further modify and extend the
Loan pursuant to the terms of (i) that certain Fourth Amended and Restated
Promissory Note executed by Borrower, jointly and severally, dated of even date
herewith, and made payable to the Bank in the original principal amount of
$15,000,000.00 (the "Note"), and (ii) this Agreement. The Note, and this
Agreement and all other documents executed in connection with the Loan are
hereinafter collectively referred to as the "Loan Documents". All capitalized
terms used herein and not otherwise defined shall have those meanings ascribed
to them in the Loan Documents.
LINE OF CREDIT. Borrower may borrow, repay, and reborrow, from time to time, so
long as the total principal indebtedness outstanding under the Loan plus the
amount of all unreimbursed drawings under all letters of credit issued by Bank
for account of Borrower does not exceed the face amount of the Note. All
payments made by Bank under any letters of credit issued for the account of
Borrower and all fees, commissions, discounts and other amounts owed or to be
owed to Bank in connection therewith, shall be deemed to be Advances under the
Note and shall be repaid on demand. The Loan proceeds are to be used by Borrower
solely for working capital and to issue letters of credit from time to time. The
Borrower shall deliver a Borrowing Certificate attached as Exhibit "A" to Bank
with each borrowing under the Loan. Each borrowing request shall be in
compliance with the eligibility formula of the Borrowing Certificate. Advances
under the Loan shall be repaid within ninety (90) days of such advance and the
Borrower shall pay down the outstanding balance under the Loan (excluding
letters of credit issued under
Page 4
the Note) to a maximum of $100.00 for forty-five (45) consecutive days annually.
The total amount of letters of credit to be issued under the Note shall not
exceed the face amount of the Note at any time nor have maturities greater than
the maturity date of the Loan. The maturity date of the Loan shall be June 30,
2006.
Representations. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: Accurate Information. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof,
(including all contingent liabilities of every type), and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. Authorization; Non-Contravention. The
execution, delivery and performance by Borrower of this Agreement and other Loan
Documents to which it is a party are within its power, have been duly authorized
as may be required and, if necessary, by making appropriate filings with any
governmental agency or unit and are the legal, binding, valid and enforceable
obligations of Borrower; and do not (i) contravene, or constitute (with or
without the giving of notice or lapse of time or both) a violation of any
provision of applicable law, a violation of the organizational documents of
Borrower, or a default under any agreement, judgment, injunction, order, decree
or other instrument binding upon or affecting Borrower, (ii) result in the
creation or imposition of any lien (other than the lien(s) created by the Loan
Documents) on any of Borrower's assets, or (iii) give cause for the acceleration
of any obligations of Borrower or any guarantor to any other creditor. Asset
Ownership. Borrower has good and marketable title to all of the properties and
assets reflected on the balance sheets and financial statements supplied Bank by
Borrower, and all such properties and assets are free and clear of mortgages,
security deeds, pledges, liens, charges, and all other encumbrances, except as
otherwise disclosed to Bank by Borrower in writing and approved by Bank
("Permitted Liens"). To Borrower's knowledge, no default has occurred under any
Permitted Liens and no claims or interests adverse to Borrower's present rights
in its properties and assets have arisen. Discharge of Liens and Taxes. Borrower
has duly filed, paid and/or discharged all taxes or other claims which may
become a lien on any of its property or assets to the extent required to be paid
as of this date, except to the extent that such items are being appropriately
contested in good faith and an adequate reserve for the payment thereof is being
maintained. Sufficiency of Capital. Borrower is not, and after consummation of
this Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Note and any other Loan Documents,
will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32). Compliance
with Laws. Borrower is in compliance in all material respects with all federal,
state and local laws, rules and regulations applicable to its properties,
operations, business, and finances, including, without limitation, any federal
or state laws relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or
narcotics (including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes;
all applicable federal, state and local laws and regulations intended to protect
the environment; and the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), if applicable. Organization and Authority. Each Borrower is
duly created, validly existing and in good standing under the laws of the state
of its organization, and has all powers, governmental licenses, authorizations,
consents and approvals required to operate its business as now conducted. Each
Borrower is duly qualified, licensed and in good standing in each jurisdiction
where qualification or licensing is required by the nature of its business or
the character and location of its property, business or customers, and in which
the failure to so qualify or be licensed, as the case may be, in the aggregate,
could have a material adverse effect on the business, financial position,
results of operations, properties or prospects of Borrower or any such
guarantor. No Litigation. There are no pending or threatened suits, claims or
demands against Borrower or any guarantor that have not been disclosed to Bank
by Borrower in writing, and approved by Bank. ERISA. Each employee pension
benefit plan, as defined in ERISA, maintained by Borrower meets, as of the date
hereof, the minimum funding standards of ERISA and all applicable regulations
thereto and requirements thereof, and of the Internal Revenue Code of 1954, as
amended. No "Prohibited Transaction" or "Reportable Event" (as both terms are
defined by ERISA) has occurred with respect to any such plan.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date hereof and until final
payment in full of the Obligations, unless Bank shall otherwise consent in
writing, Borrower will: Business Continuity. Conduct its business in
substantially the same manner and locations as such business is now and has
Page 5
previously been conducted. Maintain Properties. Maintain, preserve and keep its
property in good repair, working order and condition, making all needed
replacements, additions and improvements thereto, to the extent allowed by this
Agreement. Access to Books and Records. Allow Bank, or its agents, during normal
business hours and upon prior advance written notice, access to the books,
records and such other documents of Borrower as Bank shall reasonably require,
and allow Bank to make copies thereof at Bank's expense. Insurance. Maintain
adequate insurance coverage with respect to its properties and business against
loss or damage of the kinds and in the amounts customarily insured against by
companies of establiHed reputation engaged in the same or similar businesses
including, without limitation, commercial general liability insurance, workers
compensation insurance, and business interruption insurance; all acquired in
such amounts and from such companies as Bank may reasonably require. Notice of
Default and Other Notices. (a) Notice of Default. Furnish to Bank immediately
upon becoming aware of the existence of any condition or event which constitutes
a Default (as defined in the Loan Documents) or any event which, upon the giving
of notice or lapse of time or both, may become a Default, written notice
specifying the nature and period of existence thereof and the action which
Borrower is taking or proposes to take with respect thereto. (b) Other Notices.
Promptly notify Bank in writing of (i) any material adverse change in its
financial condition or its business; (ii) any default under any material
agreement, contract or other instrument to which it is a party or by which any
of its properties are bound, or any acceleration of the maturity of any
indebtedness owing by Borrower; (iii) any material adverse claim against or
affecting Borrower or any part of its properties; (iv) the commencement of, and
any material determination in, any litigation with any third party or any
proceeding before any governmental agency or unit affecting Borrower in a
claimed amount in excess of $1,500,000.00; and (v) at least 30 days prior
thereto, any change in Borrower's name or address as shown above, and/or any
material change in Borrower's structure. Compliance with Other Agreements.
Comply with all terms and conditions contained in this Agreement, and any other
Loan Documents, and swap agreements, if applicable, as defined in the 11 U.S.C.
ss. 101. Payment of Debts. Pay and discharge when due, and before subject to
penalty or further charge, and otherwise satisfy before maturity or delinquency,
all obligations, debts, taxes, and liabilities of whatever nature or amount,
except those which Borrower in good faith disputes. Reports and Proxies. Deliver
to Bank, promptly, a copy of all financial statements, reports, notices, and
proxy statements, sent by Borrower to stockholders, and all regular or periodic
reports required to be filed by Borrower with any governmental agency or
authority. Other Financial Information. Deliver promptly such other information
regarding the operation, business affairs, and financial condition of Borrower
which Bank may reasonably request. Non-Default Certificate From Borrower.
Deliver to Bank, with the Financial Statements required herein, a certificate
signed by Borrower, if Borrower is an individual, or by a principal financial
officer of Borrower warranting that no "Default as specified in the Loan
Documents nor any event which, upon the giving of notice or lapse of time or
both, would constitute such a Default, has occurred. Estoppel Certificate.
Furnish, within 15 days after request by Bank, a written statement duly
acknowledged of the amount due under the Loan and whether offsets or defenses
exist against the Obligations.
Negative Covenants. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing, Borrower will not: Default on Other Contracts or
Obligations. Default on any material contract with or obligation when due to a
third party or default in the performance of any obligation to a third party
incurred for money borrowed. Judgment Entered. Permit the entry of any monetary
judgment or the assessment against, the filing of any tax lien against, or the
issuance of any writ of garnishment or attachment against any property of or
debts due Borrower not dismissed or bonded within 30 days. Government
Intervention. Permit the assertion or making of any seizure, vesting or
intervention by or under authority of any government by which the management of
Borrower or any guarantor is displaced of its authority in the conduct of its
respective business or its such business is curtailed or materially impaired.
Prepayment of Other Debt. Retire any long-term debt entered into prior to the
date of this Agreement in advance of its legal obligation to do so other than in
connection with refinancing. Retire or Repurchase Capital Stock. Retire or
otherwise acquire any of its capital stock, except as permitted by waiver letter
from Bank to Borrower dated as of May 13, 1999 authorizing the repurchase of up
to two million shares of capital stock under Borrower's existing share
repurchase program.
Page 6
Financial Covenants. Borrower, on a consolidated Basis, agrees to the following
provisions from the date hereof until final payment in full of the Obligations,
unless Bank shall otherwise consent in writing: Adjusted Tangible Net Worth.
Borrower shall, at all times, on a consolidated basis, maintain an Adjusted
Tangible Net Worth of not less than $165,000,000.00. "Adjusted Tangible Net
Worth" shall mean total assets minus Adjusted Total Liabilities. For purposes of
this computation, the aggregate amount of any intangible assets of Borrower
including, without limitation, goodwill, affiliated receivables or loans,
related receivables or loans, franchises, licenses, patents, trademarks, trade
names, copyrights, service marks, and brand names, shall be subtracted from
total assets. "Adjusted Total Liabilities" shall mean all liabilities of
Borrower, including capitalized leases and all reserves for deferred taxes, and
other deferred sums appearing on the liabilities side of a balance sheet and all
obligations as lessee under off-balance sheet synthetic leases of Borrower,
excluding debt fully subordinated to Bank on terms and conditions acceptable to
Bank, all in accordance with generally accepted accounting principles applied on
a consistent basis. Adjusted Total Liabilities to Adjusted Tangible Net Worth
Ratio. Borrower shall, at all times, on a consolidated basis, maintain a ratio
of Adjusted Total Liabilities to Adjusted Tangible Net Worth of not more than
2.50 to 1.00. Liquidity Requirement. Borrower shall, at all times, maintain
unrestricted cash and unencumbered timeshare receivables of not less than
$20,000,000.00 in the aggregate. Deposit Relationship. Bluegreen Corporation
shall maintain its primary depository account with Bank. Compliance Certificate.
Borrower shall furnish Bank with a quarterly covenant compliance certificate
demonstrating Borrower's compliance with the above Financial Covenants.
Annual Financial Statements. Bluegreen Corporation shall deliver to Bank, within
90 days after the close of each fiscal year, audited financial statements
reflecting its operations during such fiscal year, including, without
limitation, a balance Sheets, profit and loss statement and statement of cash
flows, with supporting schedules; all on a consolidated and consolidating basis
and in reasonable detail, prepared in conformity with generally accepted
accounting principles, applied on a basis consistent with that of the preceding
year. All such statements shall be compiled by an independent certified public
accountant acceptable to Bank. The opinion of such independent certified public
accountant shall not be acceptable to Bank if qualified due to any limitations
in scope imposed by Bluegreen Corporation. Any other qualification of the
opinion by the accountant shall render the acceptability of the financial
statements subject to Bank's approval.
Periodic Financial Statements. Bluegreen Corporation shall deliver to Bank
unaudited management-prepared quarterly financial statements including, without
limitation, a balance Sheets, profit and loss statement and statement of cash
flows, with supporting schedules, as soon as available and in any event within
45 days after the close of each such period; all in reasonable detail and
prepared in conformity with generally accepted accounting principles, applied on
a basis consistent with that of the preceding year. Such statements shall be
certified as to their correctness by a principal financial officer of Bluegreen
Corporation and in each case, if audited statements are required, subject to
audit and year-end adjustments.
Attorneys' Fees. Borrower shall pay all of Bank's reasonable expenses incurred
to enforce or collect any of the Advances, including, without limitation,
reasonable arbitration, attorneys' and experts' fees and expenses, whether
incurred without the commencement of a suit, in any trial, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
Waivers. Except as otherwise permitted in the Note or other Loan Documents,
Borrower hereby waives presentment, protest, notice of dishonor, demand for
payment, notice of intention to accelerate maturity, notice of acceleration of
maturity, notice of sale and all other notices of any kind whatsoever. Any
failure by Bank to exercise any right hereunder shall not be construed as a
waiver of the right to exercise the same or any other right at any time.
Amendment and Severability. No amendment to or modification of this Agreement
shall be binding upon Bank unless in writing and signed by it. If any provision
of this Agreement shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
Page 7
Miscellaneous. This Agreement is fully assignable by Bank and all rights of Bank
thereunder shall inure to the benefit of its successors and assigns. This
Agreement shall be binding upon Borrower and its successors and assigns. The
captions contained in this Agreement are inserted for convenience only and shall
not affect the meaning or interpretation of the Agreement. This Agreement shall
be governed by and interpreted in accordance with the laws of the state where
Bank's office as shown herein is located, without regard to that state's
conflict of laws principles.
Notices. Any notices to Borrower shall be sufficiently given, if in writing and
mailed or delivered to the Borrower's address shown above (attention Borrower's
Corporate General Counsel) or such other address as provided hereunder, and to
Bank, if in writing and mailed or delivered to Bank's office address shown above
or such other address as Bank may specify in writing from time to time. In the
event that Borrower changes Borrower's address at any time prior to the date the
Obligations are paid in full, Borrower agrees to promptly give written notice of
said change of address by registered or certified mail, return receipt
requested, all charges prepaid.
Conditions Precedent. All advances under the Note are subject to the following
conditions precedent: (a) Non-Default. Borrower shall be in compliance with all
of the terms and conditions set forth herein and an Event of Default as
specified herein, or an event which upon notice or lapse of time or both would
constitute such an Event of Default, shall not have occurred or be continuing at
the time of such Advance. (b) Borrowing Resolution. Bank shall have received all
certified resolutions authorizing borrowings by Borrower under this Agreement.
(c) Financial Information and Documents. Borrower shall deliver to Bank such
information and documents as Bank may request from time to time, including
without limitation, financial statements, information pertaining to Borrower's
financial condition and additional supporting documents. (d)
Purchase/Warehousing Facility. Borrower shall provide evidence to Bank regarding
availability under its then existing purchase/warehousing facility in an amount
not less than that requested advance plus the then outstanding balance of the
Loan. (e) Certificates of Good Standing. Borrower shall have delivered a
Certificate of Good Standing for each Borrower (all dated within thirty days of
the date of this Agreement) issued by the respective Secretary of State.
Fourth Amended and Restated Loan Agreement. This Fourth Amended and Restated
Loan Agreement, amends, replaces and supercedes in its entirety that certain
Third Amended and Restated Loan Agreement dated as of December 30, 2003,
executed by Borrower in favor of Bank (the "Original Loan Agreement"), as
modified by that certain First Amendment and Ratification of Loan Agreement
dated as of March 31, 2004 (the "First Amendment") and as further modified by
that certain Second Amendment and Ratification of Loan Agreement dated as of
August 9, 2004 (the "Second Amendment"). Should there be any conflict between
any of the terms of the Original Loan Agreement, the First Amendment, the Second
Amendment, and the terms of this Agreement, the terms of this Agreement shall
control.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to this Agreement or any other document executed in connection
herewith between parties hereto (a "Dispute") shall be resolved by binding
arbitration conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association (the "AAA") and the Federal Arbitration Act. Disputes may include,
without limitation, tort claims, counterclaims, a dispute as to whether a matter
is subject to arbitration, claims brought as class actions, or claims arising
from documents executed in the future. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or related to swap
agreements. Special Rules. All arbitration hearings shall be conducted in
Broward County, Florida. A hearing shall begin within 90 days of demand for
arbitration and all hearings shall conclude within 120 days of demand for
arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except
Page 8
as provided herein. Preservation and Limitation of Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise before or after an
arbitration proceeding is brought. The parties shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sale; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute. Waiver of Exemplary Damages.
The parties agree that they shall not have a remedy of punitive or exemplary
damages against other parties in any Dispute and hereby waive any right or claim
to punitive or exemplary damages they have now or which may arise in the future
in connection with any Dispute whether the Dispute is resolved by arbitration or
judicially. Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY
TRIAL WITH REGARD TO A DISPUTE.
[EXECUTIONS COMMENCE ON FOLLOWING PAGE]
Page 9
The parties hereto have duly executed this instrument as of the date stated
above.
Wachovia Bank, National Association, successor
interest to First Union National Bank
By: __________________________________________________
Xxxxx X. Xxxxxxx, Senior Vice President
Bluegreen Corporation, a Massachusetts corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Resorts Management, Inc., a Delaware
corporation f/k/a RDI Resort Services Corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Vice President
Taxpayer Identification Number: 00-0000000
Bluegreen Vacations Unlimited, Inc., a Florida
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Holding Corporation (Texas), a Delaware
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Properties of the Southwest One, Inc., a Delaware
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Page 00
Xxxxxxxxx Xxxxxxxxx One, L.P., a Delaware limited
partnership
By: Bluegreen Southwest Land, Inc., a Delaware
corporation, Its General Partner
CORPORATE By: _____________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Asset Management Corporation, a Delaware
corporation, successor by merger to
Bluegreen Corporation of Montana
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Carolina Lands, LLC, a Delaware limited
liability company
By: Bluegreen Corporation, a Massachusetts
corporation, its Managing Member
CORPORATE By: _____________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Corporation of Tennessee, a Delaware
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Corporation of the Rockies, a Delaware
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Page 11
Bluegreen Properties of Virginia, Inc., a Delaware
corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Resorts International, Inc., a Delaware
corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Vice President
Taxpayer Identification Number: 00-0000000
Carolina National Golf Club, Inc., a North Carolina
corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Leisure Capital Corporation, a Vermont corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen West Corporation, a Delaware corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
BG/RDI Acquisition Corp., a Delaware corporation
CORPORATE By: _________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Page 12
Bluegreen Corporation Great Lakes (WI), a Wisconsin
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Corporation of Canada, a Delaware
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 03- 0311034
Bluegreen Golf Clubs, Inc., a Delaware corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Interiors, LLC, a Delaware limited liability
company
By: Bluegreen Vacations Unlimited, Inc., a Florida
corporation, its Managing Member
CORPORATE By: ____________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Bluegreen Southwest Land, Inc., a Delaware corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
New England Advertising Corp., a Vermont corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
South Florida Aviation, Inc., a Florida corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Page 13
Winding River Realty, Inc., a North Carolina
corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 56-20955309
Jordan Lake Preserve Corporation, a North Carolina
corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Leisure Communication Network, Inc., a Delaware
corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Managed Assets Corporation, a Delaware corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
travelheads, inc., a Florida corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Vice President
Taxpayer Identification Number: 00-0000000
Encore Rewards, Inc., a Delaware corporation
CORPORATE By: ________________________________________________
SEAL Xxxx Xxxxxx, Vice President
Taxpayer Identification Number: 00-0000000
Page 14
Leisurepath, Inc., a Florida corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Vice President
Taxpayer Identification Number: 00-0000000
BXG Realty, Inc., a Delaware corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Mystic Shores Realty, Inc., a Texas corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Brickshire Realty, Inc., a Virginia corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Catawba Falls, LLC, a North Carolina limited liability
company
By: Bluegreen Corporation, a Massachusetts
corporation, its Managing Member
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Preserve at Jordan Lake Realty, Inc., a North Carolina
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Page 15
Bluegreen Purchasing & Design, Inc., a Florida
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Great Vacation Destinations, Inc., a Florida
corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
Lake Ridge Realty, Inc., a Texas corporation
CORPORATE By: __________________________________________________
SEAL Xxxx Xxxxxx, Treasurer
Taxpayer Identification Number: 00-0000000
[ACKNOWLEDGMENTS APPEAR ON FOLLOWING PAGE]
Page 16
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxx Xxxxxx, as Treasurer of Bluegreen Corporation, a Massachusetts
corporation, the sole managing member of Bluegreen Carolina Lands, LLC, a
Delaware limited liability company, on behalf of the corporation and the
company. He is personally known to me or has produced a driver's license,
passport or military identification, or other form of identification and did not
take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxx Xxxxxx, as Treasurer of Bluegreen Corporation, a Massachusetts
corporation, the sole managing member of Catawba Falls, LLC, a North Carolina
limited liability company, on behalf of the corporation and the company. He is
personally known to me or has produced a driver's license, passport or military
identification, or other form of identification and did not take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxx Xxxxxx, as Treasurer of Bluegreen Vacations Unlimited, Inc., a
Florida corporation, the sole managing member of Bluegreen Interiors, LLC, a
Delaware limited liability company, on behalf of the corporation and the
company. He is personally known to me or has produced a driver's license,
passport or military identification, or other form of identification and did not
take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
Page 17
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxx Xxxxxx, as Treasurer of Bluegreen Southwest Land, Inc., a Delaware
corporation, the sole general partner of Bluegreen Southwest One, L.P., a
Delaware limited partnership, on behalf of the corporation and as an act of the
partnership. He is personally known to me or has produced a driver's license,
passport or military identification, or other form of identification and did not
take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxx Xxxxxx, as Vice President of Bluegreen Resorts Management, Inc., a
Delaware corporation, as Vice President of Bluegreen Resorts International,
Inc., a Delaware corporation, as Vice President of travelheads, inc., a Florida
corporation, as Vice President of Encore Rewards, Inc., a Delaware corporation,
as Vice President of Leisurepath, Inc., a Florida corporation, as Treasurer of
Bluegreen Corporation, a Massachusetts corporation, as Treasurer of Bluegreen
Vacations Unlimited, Inc., a Florida corporation, as Treasurer of Bluegreen
Holding Corporation (Texas), a Delaware corporation, as Treasurer of Properties
of the Southwest One, Inc., a Delaware corporation, as Treasurer of Bluegreen
Asset Management Corporation, a Delaware corporation, as Treasurer of Bluegreen
Corporation of Tennessee, a Delaware corporation, as Treasurer of Bluegreen
Corporation of the Rockies, a Delaware corporation, as Treasurer of Carolina
National Golf Club, Inc., a North Carolina corporation, as Treasurer of Leisure
Capital Corporation, a Vermont corporation, as Treasurer of Bluegreen West
Corporation, a Delaware corporation, as Treasurer of BG/RDI Acquisition Corp., a
Delaware corporation, as Treasurer of Bluegreen Corporation Great Lakes (WI), a
Wisconsin corporation, as Treasurer of Bluegreen Corporation of Canada, a
Delaware corporation, as Treasurer of Bluegreen Golf Clubs, Inc., a Delaware
corporation, as Treasurer of Bluegreen Southwest Land, Inc., a Delaware
corporation, as Treasurer of New England Advertising Corp., a Vermont
corporation, as Treasurer of South Florida Aviation, Inc., a Florida
corporation, as Treasurer of Winding River Realty, Inc., a North Carolina
corporation, as Treasurer of Jordan Lake Preserve Corporation, a North Carolina
corporation, as Treasurer of Leisure Communication Network, Inc., a Delaware
corporation, as Treasurer of Managed Assets Corporation, a Delaware corporation,
as Treasurer of BXG Realty, Inc., a Delaware corporation, as Treasurer of Mystic
Shores Realty, Inc., a Texas corporation, as Treasurer of Brickshire Realty,
Inc., a Virginia corporation, as Treasurer of Preserve at Jordan Lake Realty,
Inc., a North Carolina corporation, as Treasurer of Bluegreen Purchasing &
Design, Inc., a Florida corporation, as Treasurer of Great Vacation
Destinations, Inc., a Florida corporation, and as Treasurer of Lake Ridge
Realty, Inc., a Florida corporation, on behalf of each corporation. He is
personally known to me or has produced a driver's license, passport or military
identification, or other form of identification and did not take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
Page 18
State of Florida )
) SS:
County of __________ )
The foregoing instrument was acknowledged before me this ___ day of December,
2004, by Xxxxx X. Xxxxxxx, as Senior Vice President of Wachovia Bank, National
Association, on behalf of the bank. She is personally known to me or has
produced a driver's license, passport or military identification, or other form
of identification and did not take an oath.
Print or Stamp Name: ______________________
Notary Public, State of Florida at Large
Commission No.: ___________________________
My Commission Expires: ____________________
Page 19
