EXHIBIT 10.167
SECOND MODIFICATION AGREEMENT
(AD&C Loan Agreement)
THIS SECOND MODIFICATION AGREEMENT (AD&C Loan Agreement) ("Second
Modification Agreement"), dated effective as of the 15th day of September, 2004
("Effective Date"), is entered into by and between BLUEGREEN VACATIONS
UNLIMITED, INC., a Florida corporation ("BVU") and BLUEGREEN/BIG CEDAR
VACATIONS, LLC, a Delaware limited liability company ("BCV" and collectively
with BVU, "Borrower") and RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation ("Lender") with respect to the Loan Documents defined below.
RECITALS:
A. BVU and Lender are parties to that certain Loan Agreement dated as of
February 10, 2003, as amended by a Modification Agreement dated as of September
10, 2003 and as amended by letter agreement dated as of September 10, 2003
(collectively, "Loan Agreement"), pursuant to which Lender agreed to make a
revolving acquisition, development and construction loan to Borrower on the
terms and conditions set forth therein in a maximum principal amount of
$45,000,000 ("Loan"). BCV agreed to become a borrower under and to be bound by
the terms of the Loan Agreement and to be jointly and severally liable for the
Loan pursuant to that certain Project Commitment (Big Cedar Wilderness Club)
dated October 10, 2003 between Borrower and Lender ("Big Cedar Project
Commitment"). BCV's monetary liability under the Loan, however, is limited
pursuant to the terms of the Big Cedar Project Commitment as provided therein.
The documents executed in connection with the Loan are collectively referred to
herein as the "Loan Documents." All terms used herein with initial capital
letters, unless otherwise defined herein, shall have the same meanings given
such terms in the Loan Agreement.
B. Bluegreen Corporation, a Massachusetts corporation, executed a Full
Guaranty dated as of February 10, 2003 (as amended, "Guaranty") in favor of
Lender Guarantying the payment and performance of the obligations of Borrower
under the Loan Documents.
C. The total outstanding balance of the Loan presently owed by Borrower to
Lender as of April 29, 2004 is $24,048,323 ("Loan Balance"), plus any and all
accrued and unpaid interest thereon and certain costs and expenses of Lender to
the extent due and owing under the Loan Documents.
D. Borrower has requested that Lender modify the Loan and the other Loan
Documents to, among other things: (i) extend the Approval Period during which
new projects will be considered for approval for funding from proceeds of the
Loan and thereby concurrently extend the Maturity Date, and (ii) increase the
Loan Amount under the Loan Agreement from $45,000,000 to $75,000,000. Lender is
willing to so modify the Loan, the Loan Agreement and the other Loan Documents,
subject to the terms and conditions herein.
E. All of the documents executed in connection with this Second
Modification
Agreement, inclusive of the Second Modification Agreement, shall be referred to
herein as the "Modification Documents."
AGREEMENT:
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter stated, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Acknowledgement of Existing Indebtedness.
1.1 Borrower acknowledges that it is truly and justly indebted to Lender
in the amount of the Loan Balance, plus all accrued and unpaid interest on the
Loan and all other costs, fees and expenses that are, under the Loan Agreement
or the other Loan Documents, properly chargeable to Borrower.
1.2 Borrower acknowledges that, as of the date hereof, it has (i) no
defense, counterclaim, offsets, cross-complaint, claim or demand of any nature
whatsoever which can be asserted as a basis to seek affirmative relief or
damages from Lender or to reduce or eliminate all or any part of its liability
to repay the Loan, and (ii) no other claim against Lender with respect to any
aspect of the transactions in respect of which the Loan was made.
2. Modification to Loan Documents.
2.1 Modification of Loan Agreement: As material inducements to Lender to
enter into this Second Modification Agreement, and acknowledging Lender's
reliance upon such inducements, the parties agree that the Loan Agreement is
amended in the following respects:
(a) Modification of Definitions within Loan Agreement:
(i) The definition of the term "Approval Period Termination
Date" is hereby amended by deleting such definition in its entirety and
replacing and substituting in lieu thereof the following:
"Approval Period Termination Date" means the date which is 24
months after the Effective Date of this Second Modification
Agreement.
(ii) The definition of the term "Commitment Fee" is hereby
amended by deleting such definition in its entirety and replacing and
substituting in lieu thereof the following:
"Commitment Fee" means 3/4 of 1% of the Loan Amount, i.e.
$562,500, of which Borrower has paid $337,500 as of the
Effective Date of this Second Modification and the remainder
of which is required to be paid by Borrower on the dates set
forth in Section 2.4.
(iii) The definition of the term "Loan Amount" is hereby
amended to
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mean $75,000,000 (with the understanding that all references in the Loan
Agreement stating the prior acquisition, development and construction loan
amount of $45,000,000 is concurrently amended to read $75,000,000).
(iv) The definition of the term "Maturity Date" is hereby
amended by deleting such definition in its entirety and replacing and
substituting in lieu thereof the following:
"Maturity Date" means the first to occur of (i) the Project
Loan Repayment Date set forth in the last Project Commitment
incorporated into this Loan Agreement, (ii) the date which is
48 months from the Approval Period Termination Date or (iii)
any earlier date on which the Loan is accelerated or otherwise
required to be repaid pursuant to the terms of the Loan
Agreement.
(b) Modification of Loan Agreement Terms:
(i) Section 2.4 of the Loan Agreement is hereby amended by
deleting the existing Section 2.4 in its entirety and replacing and
substituting in lieu thereof the following Section 2.4:
Section 2.4 Commitment Fee
Lender acknowledges receipt of $337,500.00 of the Commitment
Fee as of the Effective Date of this Second Modification
Agreement. Borrower will pay to Lender the remaining amount of
the Commitment Fee on the following dates: (i) a good faith
deposit of $20,000 was paid by Borrower to Lender on the date
that Borrower accepted the term sheet for the modification of
the Loan; and (ii) the remaining amount of the Loan Fee in the
amount of $205,000 shall be paid to Lender within 90 days of
the Effective Date of this Second Modification Agreement.
2.2 Modification of Other Loan Documents. Without limiting Lender's right
to require that all other Loan Documents be expressly amended by a separate
instrument in order to effect the intent of this Second Modification Agreement,
all of the Loan Documents are hereby deemed to be amended to include this Second
Modification Agreement and the other Modification Documents with the additional
understanding and agreement that any reference to the Loan Amount shall be equal
to $75,000,000.
3. Fees, Costs and Expenses.
Borrower agrees to pay to Lender all reasonable costs and expenses
incurred by Lender in connection with this Second Modification Agreement and the
other modification of the Loan Documents, including, without limitation,
attorneys' fees and expenses incurred. Such legal fees and expenses shall
include, without limitation, the costs associated with this Second Modification
Agreement. Borrower agrees to pay such costs and expenses to Lender immediately
upon the execution of this Second Modification Agreement.
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4. Reaffirmation of Existing Security Interests. Borrower hereby confirms and
agrees that Lender's security interest in all of the collateral previously
pledged to Lender pursuant to the Loan Documents shall continue to secure the
payment and performance of all of Borrower's Obligations to Lender, as modified
by this Second Modification Agreement.
5. Representations, Warranties And Agreements Of Borrower. As material
inducements to Lender to enter into this Second Modification Agreement, and
acknowledging Lender's reliance upon the truth and accuracy thereof, Borrower
represents, warrants, acknowledges and agrees that:
5.1 The recitals set forth above are true and correct.
5.2 All financial statements and other information delivered to Lender by
or on behalf of Borrower or Guarantor in connection with this Second
Modification Agreement were true and correct as of the respective dates thereof,
and that neither Borrower's nor Guarantor's financial condition has not
adversely and materially altered as of the date of this Second Modification
Agreement from that presented by the latest such financial statements and other
information provided to Lender.
5.3 As of the date hereof, no Event of Default or Incipient Default exists
with respect to the Loan Documents.
5.4 As of the date hereof, Borrower is not the subject of a pending
bankruptcy proceeding and Borrower is not aware of any threatened bankruptcy
proceeding against Borrower.
5.5 As of the date hereof, Guarantor is not the subject of a pending
bankruptcy proceeding, and Borrower is not aware of any threatened bankruptcy
proceeding against Guarantor.
5.6 There are no proceedings pending or threatened against or affecting
Borrower (or to the best of Borrower's knowledge, threatened against or
affecting Guarantor) in any court, before any governmental authority, or
arbitration board or tribunal which may now or in the future materially
adversely affect Borrower or Guarantor.
5.7 All of the representations and warranties contained in the Loan
Agreement and the other Loan Documents are true and correct as of the date
hereof and are hereby reaffirmed and ratified.
5.8 This Second Modification Agreement and any documents and instruments
executed in connection herewith have been authorized by all necessary action and
when executed will be the legal, valid and binding obligations of Borrower.
5.9 Borrower's execution, delivery and performance of this Second
Modification Agreement does not and will not (i) violate any law, rule,
regulation or court order to which Borrower is subject, (ii) conflict with or
result in a breach of the articles of formation, bylaws, operating agreement,
partnership agreement or other formation document of Borrower or any
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agreement or instrument to which Borrower is a party or by which its properties
are bound, or (iii) result in the creation or imposition of any lien, security
interest or encumbrance on any property of Borrower, whether now owned or
hereafter acquired, other than liens in favor of Lender.
5.10 Borrower acknowledges that Borrower has consulted with counsel and
with such other experts and advisors as it has deemed necessary in connection
with the negotiation, execution and delivery of this Second Modification
Agreement. This Second Modification Agreement shall be construed without regard
to any presumption or rule requiring that it be construed against the party
causing this Second Modification Agreement or any part hereof to be drafted.
5.11 All terms, conditions and provisions of the Loan Agreement, the
applicable promissory note and the other Loan Documents are hereby reaffirmed,
ratified and continued in full force and effect and shall remain unaffected and
unchanged except as specifically amended hereby.
6. Conditions Precedent To Effectiveness. The effectiveness of this Second
Modification Agreement is subject to the full and complete satisfaction of each
and every one of the following conditions precedent:
6.1 Lender shall have received the following documents duly executed and
in form and substance acceptable to Lender:
(a) this Second Modification Agreement;
(b) an Amendment No. 2 to the Note;
(c) a Consent and Agreement of Guarantor;
(d) Resolutions of Borrower and Guarantor authorizing the
execution of the Modification Documents;
(e) an opinion from counsel to Borrower and Guarantor as to such
matters as Lender may require, which counsel shall be
reasonably satisfactory to Lender; and
(f) such other documents that Lender in its discretion may
require.
6.2 Lender shall have received from Borrower any amounts due to Lender
pursuant to Section 3 of this Second Modification Agreement.
7. Miscellaneous Terms.
7.1 Complete Agreement. Notwithstanding anything to the contrary contained
herein or in any other instrument executed by the parties and notwithstanding
any other action or conduct undertaken by the parties on or before the date
hereof, the agreements, covenants and provisions contained herein shall
constitute the only evidence of Lender's agreement to modify the Loan
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Agreement and the other Loan Documents. Accordingly, no express or implied
consent to any further modifications shall be inferred or implied by Lender's
execution of this Second Modification Agreement. The Loan Agreement and this
Second Modification Agreement, together with the other Loan Documents,
constitute the entire agreement and understanding among the parties relating to
the subject matter hereof, and supersedes all prior proposals, negotiations,
agreements and understandings relating to such subject matter. In entering into
this Second Modification Agreement, Borrower acknowledges that it is relying on
no statement, representation, warranty, covenant or agreement of any kind made
by the Lender or any employee or agent of the Lender, except for the agreements
of Lender set forth herein.
7.2 No Waiver. Lender's execution of this Second Modification Agreement
shall not constitute a waiver (either express or implied) of the requirement
that any further modification of the Loan Agreement or of any other Loan
Document shall require the express written approval of Lender. No such approval
(either express or implied) has been given as of the date hereof.
7.3 Full Force and Effect; Conflict. Other than as specifically set forth
herein, the remaining terms of the Loan Agreement and the other Loan Documents
shall remain in full force and effect. Notwithstanding anything to the contrary
contained in the Loan Agreement or the other Loan Documents, in the event of a
conflict between the terms of this Second Modification Agreement (on the one
hand) and the Loan Agreement or other Loan Documents (on the other hand), the
terms of this Second Modification Agreement shall control. Nothing contained in
this Second Modification Agreement is intended to or shall be construed as
relieving any person or entity, whether a party to this Second Modification
Agreement or not, of any of such person's or entity's obligations to Lender.
7.4 Successors and Assigns. The Loan Documents as modified herein shall be
binding upon and shall inure to the benefit of Borrower and Lender and their
successors and assigns and the executors, legal administrators, personal
representatives, heirs, devisees, and beneficiaries of Borrower, provided,
however, Borrower may not assign any of its rights or delegate any of its
obligations under the Loan Documents and any purported assignment or delegation
shall be void.
7.5 Severability. If any one or more of the provisions of a Modification
Document is held to be invalid, illegal or unenforceable in any respect or for
any reason (all of which invalidating laws are waived to the fullest extent
possible), the validity, legality and enforceability of any remaining portions
of such provision(s) in every other respect and of the remaining provision(s) of
such Modification Document shall not be in any respect impaired. In lieu of each
such unenforceable provision, there shall be added automatically as a part of
such Modification Document a provision that is legal, valid and enforceable and
is as similar in terms to such unenforceable provisions as may be possible.
7.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same document. Signature pages may be
detached from the counterparts and attached to a single copy of this Second
Modification Agreement to physically form one document.
7.7 BCV Obligations. Nothing herein shall modify or increase BCV's
monetary obligations under the Loan to the extent that such obligations are
limited pursuant to Section 4 of the Big Cedar Project Commitment. Furthermore,
the parties acknowledge that pursuant to Section 7.4(c) of the Loan Agreement,
upon payment in full of the Project Loan issued under the terms of
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the Big Cedar Project Commitment, the Project Security Instruments corresponding
to the Big Cedar Project Commitment shall be released provided that no Event of
Default or Potential Default shall exist under the Loan Agreement.
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DATED as of the date first above stated.
BORROWER:
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
By:___________________________________
Printed Name:_________________________
Title:________________________________
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
By:___________________________________
Printed Name:_________________________
Title:________________________________
LENDER
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By____________________________________
Print Name: Xxxx Xxxxxx
Its: Managing Director
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