PURCHASE AGREEMENT
THIS
PURCHASE AGREEMENT, dated November 16th, 2009 (the "Effective Date"), is
among Xxxxx X. Xxxxxx ("Xxxxxx"), Xxxxx X. Xxxxxx Revocable Trust (the "Trust") and Central
Florida Investments, Inc. ("CFI" and, together with Xxxxxx and the Trust, the
"Sellers") and
Woodbridge Holdings, LLC (the "Purchaser").
WHEREAS, CFI desires to sell
an aggregate of 7,405,628 shares of the common stock, par value $0.01 per share
(the "Shares")
of Bluegreen Corporation, a Massachusetts corporation ("Bluegreen"), which
Shares constitute all of the shares of common stock of Bluegreen owned of record
or beneficially by the Sellers; and
WHEREAS, the Purchaser is
willing to purchase the Shares from CFI on the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, in
consideration of and subject to the mutual agreements, terms and conditions
herein contained, the Purchaser and the Sellers hereby agree as
follows:
1.
Purchase and
Sale of the Shares; Closing.
(a) Purchase and Sale.
Pursuant to the terms and conditions of this Agreement, the Purchaser shall
purchase from CFI, and CFI shall sell, assign, transfer and deliver to the
Purchaser, the Shares for an aggregate purchase price of $23,068,771.44 (the
"Purchase
Price").
(b) Timing of the
Closing. The closing of the transactions contemplated hereby (the "Closing") shall occur
as promptly as practicable, and in any event within five business days,
following the Effective Date. In the event the Closing does not occur within the
time period set forth in the preceding sentence, then this Agreement shall,
unless extended by the mutual agreement of all parties, automatically terminate
and be of no further force or effect.
(c) Obligations of the Parties
at the Closing. Upon the execution of this Agreement and the Escrow
Agreement contemplated hereby, the form of which is attached hereto as Exhibit A (the "Escrow Agreement"),
the Purchaser shall cause a portion of the Purchase Price in an amount equal to
$1,000,000 (the "Escrow
Consideration") as well as the balance of the Purchase Price (the "Cash Consideration"
and, together with the Escrow Consideration, the "Escrow Funds") to be
deposited in escrow to be held by the Escrow Agent appointed under the terms of
the Escrow Agreement in accordance with the terms and conditions set forth
herein and therein. Upon confirmation that Escrow Agent has received the Escrow
Funds, CFI shall deliver or cause to be delivered to the account (the "Purchaser's Account") identified
on Exhibit B (i) the certificate or certificates representing the Shares,
registered in CFI's name, together with an executed stock power, or other
appropriate transfer instrument, with an original signature from an authorized
representative of CFI, duly transferring the Shares to the Purchaser, or
alternatively (ii) written confirmation from DTC or the brokerage firm in which
Purchaser's Account is located that the Shares have been irrevocably transferred
by CFI free and clear of all liens and encumbrances to the Purchaser's Account.
Upon confirmation that the Shares have been received in Purchaser's Account in
accordance with the previous sentence, Escrow Agent shall (i) deliver the Cash
Consideration payable to CFI by wire transfer to the account identified on
Exhibit C (the "Designated Account") and (ii)
retain the Escrow Consideration under the terras and conditions of the Escrow
Agreement. The parties hereto shall execute and deliver, and use their best
efforts to cause Bluegreen to execute and deliver, the Escrow Agreement. The
Closing shall be deemed to have occurred upon confirmation that the Shares have
been delivered to Purchaser's Account and the Cash Consideration wired to the
Designated Account.
2.
Representations of the
Sellers. Each Seller, as applicable, represents and warrants to the
Purchaser as follows:
(a) Capacity:
Enforceability. Xxxxxx is a natural person and has the capacity to
execute, deliver and perform this Agreement. The Trust is a trust governed by
the laws of the State of Florida, and Xxxxxx, as trustee, has the power and
authority to execute, deliver and perform this Agreement on behalf of the Trust.
CFI is a corporation duly incorporated and validly existing under the laws of
the State of Florida and has the requisite power and authority to execute,
deliver and perform this Agreement. This Agreement has been duly executed and
delivered by or on behalf of each Seller and, upon due execution by the
Purchaser, will constitute the legal, valid and binding obligations of each
Seller, enforceable against each Seller in accordance with its terms, except to
the extent that its enforcement is limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of equity.
(b) Title to the Shares.
CFI is the sole record owner of, and (other than Xxxxxx) the sole beneficial
owner of, and has good and marketable title to, the Shares, free and clear of
all liens, security interests, charges, claims, restrictions and other
encumbrances, except for transfer restrictions arising under securities laws and
that certain lien in favor of Textron Financial Corporation which will be
released at the Closing. The Shares represent all of the shares of Bluegreen's
common stock owned of record or beneficially by the Sellers. Upon delivery of
the Shares to the Purchaser, the Purchaser will acquire the Shares free and
clear of all liens, security interests, charges, claims, restrictions and other
encumbrances. Other than the irrevocable proxy and durable power of attorney
granted with respect to the Shares in connection with the Settlement Agreement
(as defined below), no Seller has granted to any individual or entity, and no
individual or entity has, any options or other rights to buy, or proxies or
other rights to vote, or any other right with respect to, the Shares. Except as
described in this Section 2(b), no other individual or entity has any interest
in the Shares of any nature.
(c) No Conflicts. Except
for restrictions contained in the Settlement Agreement, neither the execution
and delivery of this Agreement nor the consummation of the purchase and sale of
the Shares contemplated hereby will violate or result in a breach or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under (i) any organizational or governing document of the
Trust or CFI, (ii) any agreement or instrument to which any Seller is a party or
by which it is bound or (iii) any law, or any rule, order or regulation of any
court or other governmental agency or regulatory authority that has jurisdiction
over any Seller.
(d) No Broker or Finder.
No person is entitled to any broker's, finder's or similar fees, commissions or
expenses in connection with this Agreement or the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of any
Seller.
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3. Representations and
Warranties of the Purchaser. The Purchaser hereby represents and warrants
to each Seller as follows:
(a) Capacity. The
Purchaser is a limited liability company duly organized and validly existing
under the laws of the State of Florida and has the requisite power and authority
to execute, deliver and perform this Agreement.
(b) Enforceability. This
Agreement has been duly executed and delivered by the Purchaser and, upon due
execution by each Seller, will constitute the legal, valid and binding
obligations of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except to the extent that its enforcement is limited by
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally and by general principles of
equity.
(c) No Broker or Finder.
No person is entitled to any broker's, finder's or similar fees, commissions or
expenses in connection with this Agreement or the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of the
Purchaser.
4. Settlement Agreement.
Each Seller represents and warrants to the Purchaser that it is in compliance
with the terms and provisions of the Stipulation and Order, dated October 16,
2006, by and among the Sellers, Bluegreen and the Director Defendants (as
defined in the Settlement Agreement), as amended by the Amendment as well as the
Second and Third Amendments thereto (as so amended, the "Settlement
Agreement").
5. Section 16(b) Litigation and
Escrow. The Sellers agree to use their best efforts to reach a settlement
with respect to the derivative action captioned Xxxxx Xxxxx, derivatively on behalf
of Bluegreen Corporation, v. Central Florida Investments, Inc., Xxxxx X. Xxxxxx
Revocable Trust, Xxxxx
X. Xxxxxx and Bluegreen Corporation, Case No. 08-80358-CIV-XXXXX/XXXXXXX,
brought in the United States District Court for the Southern District of Florida
(the "Section 16(b) Action"). Subject to the terms and conditions of the Escrow
Agreement, the Escrow Consideration shall be used to first satisfy any liability
that any of the Sellers may have to Bluegreen for the disgorgement of
short-swing profits under Section 16(b) of the Securities Exchange Act of 1934,
as amended ("Section 16(b)"), in connection with the Section 16(b) Action, and
for any fees, costs and expenses (including reasonable attorneys* fees) incurred
by or on behalf of Bluegreen in connection with the prosecution of the Section
16(b) Action (such short-swing profits and any related fees, costs and expenses,
collectively, the "Section 16(b) Recovery Amounts"). The Sellers acknowledge
that Bluegreen's right to assert claims against the Escrow Consideration shall
be in addition to any other rights or remedies that Bluegreen may have against
any Seller with respect to the Section 16(b) Action in the event the Escrow
Consideration is insufficient to satisfy the liability of Sellers pursuant to
the 16(b) Action. In this regard, Seller shall remain liable for any deficiency
in the Closing Consideration to satisfy Seller's liability in the 16(b) Action,
and the Sellers' acknowledge that Bluegreen reserves all rights and remedies
relating to such deficiency. Subject to the preceding sentence, each Seller
agrees and acknowledges that Bluegreen does not waive any other claims, rights
or remedies arising under Section 16(b), whether known or unknown or relating to
the Section 16(b) Action or otherwise; however, to the extent the Escrow
Consideration is sufficient to satisfy the claims in the 16(b) Action, Bluegreen
shall have no further claims against Sellers related to the 16(b) Action and the
transactions identified therein. In the event the Escrow
Consideration exceeds the Section 16(b) Recovery Amounts, then any and all such
excess Escrow Consideration shall be refunded and disbursed to the Purchaser in
accordance with the terms and conditions of the Escrow
Agreement.
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6. Notice, Any notice,
request, demand or other communication required or permitted under this
Agreement shall be in writing and shall be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, or sent by facsimile
or prepaid overnight courier to the parties at the names and addresses set forth
below (or at such other addresses as shall be specified by the parties by like
notice).
If to the
Purchaser, then to:
Woodbridge
Holdings, LLC
0000 Xxxx
Xxxxxxx Xxxxx Xxxx
Xxxx
Xxxxxxxxxx, XX 00000
Attention:
Xxxx X. Xxxxx
Facsimile:
(000) 000-0000
If to the
Sellers, then to:
Xxxxx X.
Xxxxxx
0000
Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Facsimile:
(000)000-0000
7. Amendment. This
Agreement may be amended only upon the mutual written consent of each of the
parties hereto.
8. Acknowledgements.
Each Seller acknowledges and agrees as follows:
(a) The
Purchaser and its affiliates, and other related parties, may possess and may in
the future possess certain information, including material and/or non-public
information ("Information"),
concerning Bluegreen and its affiliates and/or Bluegreen's securities that may
or may not be independently known to any Seller.
(b) Each
Seller has entered into this Agreement and agrees to consummate the transactions
contemplated hereby, including the purchase by the Purchaser and sale by CFI of
the Shares pursuant hereto, notwithstanding that such Seller is aware that
Information may exist and that such Information may not have been disclosed by
the Purchaser or Bluegreen to such Seller, and confirms and acknowledges that
neither the existence of any Information, nor the substance of it, nor the fact
that it may not have been disclosed by the Purchaser or Bluegreen to such
Seller, is material to such Seller or such Seller's determination to enter into
this Agreement and to consummate the transactions contemplated hereby,
including, in the case of CFI, the sale of the Shares pursuant hereto. CFI
acknowledges that it has independently determined to sell the Shares and that it
or its affiliates initiated discussions with the Purchaser regarding the
purchase of the Shares, and each Seller acknowledges that such Seller did not
request, receive or rely upon any statement or representation regarding the
value of the Shares from either the Purchaser or Bluegreen. Each Seller further
acknowledges that the Purchaser or its affiliates may in the future formulate a
plan or make a proposal relating to, among other things, a sale or merger of, or
other business combination involving, Bluegreen, Bluegreen pursuing a rights
offering to its shareholders or other equity or debt offering, a change in
Bluegreen's business plan, or any other extraordinary corporate transaction or
similar event, in each case as the Purchaser or its affiliates may deem
appropriate. Each Seller covenants and agrees that such Seller will not xxx,
commence litigation or make any claim arising out of or related to (i) any
omission by either the Purchaser or Bluegreen to disclose Information to such
Seller, including, without limitation, any claim that the Purchaser or Bluegreen
failed to disclose a material fact which might have affected such Seller's
decision to enter into this Agreement or grant the covenants set forth in this
Section, or CFI's sale of the Shares, or (ii) any plan or proposal formulated or
made by or on behalf of the Purchaser or any of its affiliates relating to, or
the consummation by Bluegreen of, any of the events described in the preceding
sentence or other similar events.
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(c) Except
as otherwise set forth in Section 3 hereof as to representations and warranties
made by me Purchaser to the Sellers, the Purchaser has not made and does not
make any representation or warranty, whether express or implied, including,
without limitation, with respect to the business, condition (financial or
otherwise), properties, prospects, creditworthiness, status or affairs of
Bluegreen or with respect to the value of the Shares, of any kind or character,
and the Purchaser has no obligations to the Sellers, whether express or implied,
including, without limitation, fiduciary obligations, except as expressly set
forth in this Agreement.
9. Independent Legal
Counsel. The Sellers, on the one hand, and the Purchaser, on the other
hand, acknowledge that they have been represented by separate independent legal
counsel in connection with the negotiation, preparation and execution of this
Agreement.
10. Entire Agreement.
This Agreement and the Escrow Agreement contain every obligation and
understanding between the parties hereto relating to the subject matter hereof
and merges all prior discussions, negotiations and agreements, if any, between
them.
11. Binding Effect:
Assignment. The provisions of this Agreement shall be binding upon and
accrue to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. No party hereto may assign this
Agreement or any rights hereunder, in whole or in part, except that the
Purchaser may assign this Agreement to any of its affiliates.
12. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, without giving effect to principles of conflicts of
law.
13. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
14. Further Assurances.
The parties hereto agree to promptly take such steps as may be necessary to
effectuate the purposes and intent of this Agreement.
[SIGNATURES
ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
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THE
SELLERS:
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THE
PURCHASER:
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/s/ Xxxxx X.
Xxxxxx
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WOODBRIDGE
HOLDINGS, LLC
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Xxxxx
X. Xxxxxx
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By:
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Executive Officer
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XXXXX
X. XXXXXX REVOCABLE TRUST
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/s/ Xxxxx X.
Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Trustee
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/s/ Xxxxx X.
Xxxxxx
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
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THE
SELLERS:
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THE
PURCHASER:
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WOODBRIDGE
HOLDINGS, LLC
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Xxxxx
X. Xxxxxx
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/s/
Xxxx X. Xxxxxx, CFO
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By:
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Xxxx X. Xxxxxx
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For Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Executive Officer
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XXXXX
X. XXXXXX REVOCABLE TRUST
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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Trustee
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Name:
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Xxxxx
X. Xxxxxx
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Title:
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President
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Exhibit
A
ESCROW
AGREEMENT
THIS
ESCROW AGREEMENT (this "Agreement") is made and entered into this _____ day of
November, 2009, by and among Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx &
Xxxxxxxxx, P.A., as escrow agent (the "Escrow Agent"), Xxxxx X. Xxxxxx
("Xxxxxx"), Xxxxx X. Xxxxxx Revocable Trust (the 'Trust") and Central Florida
Investments, Inc. ("CFI" and, together with Xxxxxx and the Trust, the
"Sellers"), Woodbridge Holdings, LLC (the "Purchaser") and Bluegreen Corporation
("Bluegreen").
RECITALS
WHEREAS,
contemporaneously with the execution and delivery of this Agreement, the Sellers
and the Purchaser have entered into that certain Purchase Agreement, of even
date herewith (the "Purchase Agreement"), which provides for the sale by CFI of
the Shares (as defined in the Purchase Agreement) to the Purchaser;
and
WHEREAS,
the Purchase Agreement contemplates that the Purchaser will deliver the Cash
Consideration and the Escrow Consideration (as each such term is defined in the
Purchase Agreement) to the Escrow Agent to be held in escrow; and
WHEREAS,
the Escrow Agent has agreed to act as Escrow Agent hereunder and to hold the
Cash Consideration and the Escrow Consideration in escrow upon the terms and
conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual agreements
set forth herein and in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Capitalized Terms.
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Purchase Agreement.
2.
Appointment of
Escrow Agent. The Sellers, the Purchaser and Bluegreen hereby appoint
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A. to act as the
Escrow Agent hereunder, and the Escrow Agent hereby accepts such
appointment.
3. Escrow. The Purchaser
shall contemporaneously with the execution by Purchaser and Sellers of the
Purchase Agreement and this Escrow Agreement cause to be deposited with the
Escrow Agent the Cash Consideration and Escrow Consideration by wire transfer,
which amount, together with any interest or other income earned with respect to
such amount while it is held by the Escrow Agent, constitutes the Escrow Funds
for all purposes of this Agreement and the Purchase Agreement. The Escrow Funds
will be held by the Escrow Agent in accordance with the terms and conditions of
this Agreement and Section 5 of the Purchase Agreement (but, in the event of
conflict, the terms and conditions of this Escrow Agreement shall control). The
Escrow Funds will be held for the benefit of the parties hereto and will not be
subject to any Hen or attachment of any other creditor of any party hereto and
will be used solely for the purposes and subject to the conditions set forth
herein.
4.
Disbursement of
Escrow. Upon confirmation that the Shares have been delivered to the
Purchaser's Account in accordance with the terms and conditions of the Purchase
Agreement, the Escrow Agent shall immediately disburse the Cash Consideration by
wire transfer to the account designated on Exhibit C to the Purchase Agreement.
Escrow Agent shall continue to hold the Escrow Consideration in escrow until
authorized hereunder to deliver the same or any portion thereof in accordance
with this section. Within ten (10) days after the date on which the Section
16(b) Action (as defined in the Purchase Agreement) is finally settled,
adjudicated or otherwise resolved, with no further appeal permitted to be taken
(including as a result of the expiration of any applicable appeal period),
Bluegreen shall give notice to the Escrow Agent that it is asserting a claim
(the "Claim") for the amount of Escrow Consideration that Bluegreen has
determined is reasonably required in order to secure payment of the Section
16(b) Recovery Amounts. Such notice shall briefly set forth the basis for
determining the amount of Escrow Consideration subject to the notice. Promptly
after receipt thereof by the Escrow Agent, the Escrow Agent shall send to each
of Xxxxx X. Xxxxxx, on behalf of the Sellers, and the Purchaser a copy of the
notice of the Claim. In the event that the Escrow Agent does not receive a
notice of objection to the Claim from either Xxxxx X. Xxxxxx, on behalf of the
Sellers, or the Purchaser within three (3) business days after such notice was
delivered to Xx. Xxxxxx, then such Claim shall be deemed "Determined."
Alternatively, in the event that the Escrow Agent timely receives from either
Xxxxx X. Xxxxxx, on behalf of the Sellers, or the Purchaser a notice of
objection to the Claim, then the Claim shall thereafter only be deemed
"Determined" upon the Escrow Agent's receipt of: (i) a judgment, order or decree
of a court of competent jurisdiction with respect to such Claim from which no
further appeal may be taken (including as a result of the expiration of any
applicable appeal period); or (ii) joint written instructions with respect to
the Claim from the party disputing the Claim and Bluegreen. Promptly after the
Determination of the Claim hereunder in accordance with the previous two
sentences, the Escrow Agent shall, by cashier's check or wire transfer of
immediately available funds: (x) deliver to Bluegreen the applicable amount, due
Bluegreen if any, of the Escrow Consideration subject to the Claim, as
Determined; (y) deliver to Bluegreen's counsel in the Section 16(b) Action (the
"Section 16(b) Counsel") the applicable amount of the Escrow Consideration, if
any, equal to the Section 16(b) Counsel's fees relating to the Section 16(b)
Action, as finally agreed to by each of Bluegreen, the Section 16(b) Counsel
and/or approved by the court presiding over the Section 16(b) Action; and (y)
refund and disburse to the Purchaser the remaining portion, if any, of the
Escrow Consideration. In the event no Claim is made in accordance with the terms
and conditions hereof, then, promptly following the expiration of the ten (10)
day period referenced in the second sentence of this section, the Escrow Agent
shall refund and disburse to the Purchaser the full amount of the Escrow
Consideration. For purposes hereof, the Trust and CFI hereby appoint Xxxxxx to
act on their behalf and agree that he shall have the authority to receive and
deliver all notices on behalf of the Sellers, including the authority to
determine whether to object or not to object to any notice received on behalf of
the Sellers and, if determined to be appropriate by Xxxxxx, deliver a notice of
objection on behalf of the Sellers.
5.
Investment of Escrow
Funds. The Escrow Agent will not invest the Cash Consideration. The
Escrow Agent may, but shall not have any obligation to, invest and reinvest the
Escrow Consideration in interest bearing money market accounts or certificates
of deposit maturing within thirty (30) days of the date of investment; provided
that each of the Purchaser and Bluegreen shall have provided the Escrow Agent
with appropriate tax identification and other information requested by the
Escrow Agent in connection with establishing interest bearing accounts. The
Escrow Agent shall have no duty to maximize the return on the Escrow
Consideration and shall be fully protected in making any investment permitted by
this section. When necessary to provide funds in order to make any payments
required by this Agreement, the Escrow Agent shall liquidate any investments
held by it as the Escrow Agent may, in its sole and absolute discretion,
determine. The Escrow Agent shall have no liability for any losses which may
result from any investment permitted hereunder or upon the liquidation of any
such investments.
6.
Tax
Treatment of Escrow Funds. For purposes of federal and other taxes based
on income, the Sellers will be treated as the owners of the Cash Consideration,
and each of the Purchaser and Bluegreen will be treated as the owner of fifty
percent (50%) of the Escrow Consideration. The Sellers, on the one hand, and the
Purchaser and Bluegreen, on the other hand, will each be responsible for the
timely and proper tax reporting of all income, if any, that is earned on, or
derived from, the portion of the Escrow Funds which it is deemed to own for tax
purposes in the taxable year or years in which such income is properly
includible in its taxable income and the payment of any taxes attributable
thereto. The Escrow Agent shall not have any responsibility with respect to any
such taxes.
7.
Remedies. Bluegreen's
right to assert claims against the Escrow Consideration shall be in addition to
any other rights, remedies or causes of action that Bluegreen may have against
any Sellers under Section 16(b) (including, without limitation, in connection
with or relating to the Section 16(b) Action) or otherwise.
8.
Term. The term of
this Agreement shall commence on the date the Escrow Funds are deposited with
the Escrow Agent and shall remain in full force and effect until the Escrow
Agent has delivered all of the Escrow Funds in its possession in accordance with
the terms hereof.
9.
Rights and Duties of the
Escrow Agent.
(a) Reliance; Duties. The
Escrow Agent may: (i) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (ii) assume the
validity and accuracy of any statements or assertions contained in such writing
or instrument; and (iii) assume that any person purporting to give any writing,
notice, advice or instruction in connection with the provisions hereof has been
duly authorized to do so. The Escrow Agent shall not be liable in any manner for
the sufficiency or correctness as to form, manner of execution or validity of
any written instructions delivered to it, nor as to the identity, authority or
rights of any person executing the same. The duties of the Escrow Agent shall be
limited to the safekeeping of the Escrow Funds and to the disbursements of the
Escrow Funds in accordance with the provisions hereof. The Escrow Agent
undertakes to perform only such duties as are expressly set forth herein, and no
implied duties or obligations of the Escrow Agent shall be implied by virtue of
this Agreement.
(b) Legal Counsel:
Liability. The Escrow Agent may consult with counsel of its own choice
and shall have full and complete authorization and protection for any action
taken or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel. The Escrow Agent shall not be liable for any mistakes
of fact or error of judgment, or for any acts or omissions of any kind unless
caused by its wailful misconduct.
(c) Interpleader.
Notwithstanding anything contained herein to the contrary, in the event that the
Escrow Agent is uncertain as to the proper disposition of the Escrow Funds, or
in the event of a disagreement about the interpretation of this Agreement, or
about the rights and obligations of the parties hereto, or the propriety of any
action contemplated by the Escrow Agent hereunder, the Escrow Agent may, in its
sole discretion, file an action in interpleader to resolve said disagreement.
The Escrow Agent shall be indemnified pursuant to the provisions of Section 10
hereof for all costs and expenses, including, without limitation, attorneys'
fees, incurred by it in its capacity as Escrow Agent in connection with any such
interpleader action and shall be fully protected in suspending all or part of
its activities under this Agreement until a final judgment in the interpleader
action is resolved.
(d) Resignation. The
Escrow Agent may resign at any time upon the giving of fifteen (15) days'
written notice to each of the other parties hereto. Upon such resignation, the
Sellers, the Purchaser and Bluegreen shall jointly appoint a successor escrow
agent, who shall assume the duties of escrow agent hereunder by supplement
hereto. If, in accordance with the previous sentence, a successor escrow agent
is not appointed within fifteen (15) days after notice of the Escrow Agent's
resignation, then the Escrow Agent may petition any court of competent
jurisdiction to name a successor escrow agent.
10.
Indemnification of the
Escrow Agent. Unless and until the Escrow Agent is determined by a court
of competent jurisdiction to have been guilty of willful misconduct with regard
to any of its duties hereunder, each of the Sellers, the Purchaser and Bluegreen
shall jointly and severally indemnify and hold the Escrow Agent harmless from
any and all claims, liabilities, damages, losses, actions, suits and
proceedings, whether at law or in equity, and any other costs, expenses, fees or
charges of any nature whatsoever, which the Escrow Agent may incur or with which
the Escrow Agent may be threatened by reason of its acting as Escrow Agent under
this Agreement. Without limiting the generality of the foregoing, each of the
Sellers, the Purchaser and Bluegreen shall jointly and severally indemnify the
Escrow Agent against any and all costs and expenses, including, without
limitation, attorneys' fees, of defending any action, suit or proceeding or
resisting any claim in its capacity as Escrow Agent.
11.
Miscellaneous.
(a) Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Florida, without giving effect to principles of conflicts
of law.
(b) Venue. This Agreement
shall be subject to the exclusive jurisdiction of the courts of Miami-Dade
County, Florida, The parties to this Agreement agree that any breach of any term
or condition of this Agreement shall be deemed to be a breach occurring in the
State of Florida by virtue of a failure to perform an act required to be
performed in the State of Florida and irrevocably and expressly agree to submit
to the jurisdiction of the courts of the State of Florida for the purpose of
resolving any disputes among the parties relating to this Agreement or the
transactions contemplated hereby. The parties irrevocably waive, to the fullest
extent permitted by law, any objection which they may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement, or any judgment entered by any court in respect hereof
brought in the State of Florida, and further irrevocably waive any claim that
any suit, action or proceeding brought in any court located in Miami-Dade
County, Florida has been brought in an inconvenient forum.
(c) Waiver of Jury Trial.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT. ANY OF THE PARTIES HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF SUCH PARTY'S
RIGHT TO TRIAL BY JURY.
(d) Entire Agreement;
Amendment. This Agreement and the Purchase Agreement constitute the
entire agreement of the parties hereto with respect to the subject matter hereof
and supersede all prior agreements and undertakings, both written and oral,
between the parties hereto with respect to the subject matter hereof. This
Agreement shall not be modified or amended except by an instrument in writing
signed by or on behalf of each of the parties hereto.
(e) Notices. Any notice,
request, demand or other communication required or permitted under this
Agreement shall be in writing and shall be delivered personally or sent by
certified mail, return receipt requested, postage prepaid, or sent by facsimile
(with original to be mailed and facsimile to be evidenced by notice of delivery)
or nationally-recognized overnight delivery service to the parties at the names
and addresses set forth below (or at such other addresses as shall be specified
by the parties by like notice).
|
If
to the Purchaser, then to:
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Woodbridge
Holdings, LLC
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|
0000
Xxxx Xxxxxxx Xxxxx Xxxx
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|
|
Xxxx
Xxxxxxxxxx, XX 00000
|
|
|
Attention:
Xxxx X. Xxxxx
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|
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Facsimile:
(000) 000-0000
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|
|
If
to Bluegreen, then to:
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Bluegreen
Corporation
|
|
0000
Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
|
|
|
Xxxx
Xxxxx, XX 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxx
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|
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Facsimile:
(000) 000-0000
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|
If
to the Sellers, then to:
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Xxxxx
X. Xxxxxx
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|
0000
Xxxxxxxxx Xxxxx
|
|
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Xxxxxxx,
Xxxxxxx 00000
|
|
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Facsimile:
(000) 000-0000
|
|
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If
to the Escrow Agent, then to:
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Xxxxxxx
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
|
|
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
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|
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Xxxxx,
XX 00000
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|
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Attn:
Xxxxxx X. Xxxxxx, Esq.
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|
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Facsimile:
(000) 000-0000
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Each such
notice shall be deemed delivered for all purposes of this Agreement: (i) on the
date delivered, if by delivered personally or sent by nationally-recognized
overnight delivery service: (ii) on the date of transmission with confirmed
answerback, if sent by facsimile: or (iii) on the date upon which the return
receipt is signed or delivery is refused, if sent by certified mail, return
receipt requested, postage prepaid.
(f) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
(g) Further Assurances.
Each of the parties hereto hereby agrees to take any and all actions and to
execute and deliver at any time and from time to time after the date hereof such
other documents and instruments as may reasonably be required to effectuate the
transactions contemplated hereby.
(h) Assignment. Neither
this Agreement nor any rights, interest or obligations hereunder shall be
assigned by any party hereto without the prior written consent of each of the
other parties hereto.
(i) Escrow Agent as Counsel to
the Purchaser and Bluegreen. Each of the parties hereto: (A) acknowledges
that the Escrow Agent has acted and continues to act as legal counsel to
Bluegreen and the Purchaser, including, as to each of Bluegreen and the
Purchaser, with respect to the transactions contemplated hereby and, as to the
Purchaser, with respect to the transactions contemplated by the Purchase
Agreement; and (B) irrevocably waives any conflict of interest which exists or
which might arise in connection with the Escrow Agent's duties as Escrow Agent
hereunder. Each of the Sellers hereby expressly consents to the Escrow Agent's
legal representation of the Purchaser and Bluegreen as set forth in clause (A)
of the preceding sentence as well as in any litigation or dispute between the
Purchaser and/or Bluegreen, on the one hand, and any or all of the Sellers, on
the other hand, which may arise in connection with or otherwise relate to the
Purchase Agreement and the transactions contemplated thereby or otherwise, and
each of the Sellers hereby expressly waives any right to object to any such
representation of the Purchaser and/or Bluegreen on the basis of a conflict of
interest or otherwise, and further affirmatively covenants that it will not
assert any conflict or other objection in connection with the Escrow Agent's
representation of the Purchaser and/or Bluegreen in any litigation or dispute
between the Purchaser and/or Bluegreen, on the one hand, and any or all of the
Sellers, on the other hand.
(j) Independent Counsel
The Sellers have been represented by independent legal counsel and fully
understand and recognize the meaning of this Agreement and each of the
provisions hereof.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
|
THE
SELLERS:
|
THE
PURCHASER:
|
||||
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WOODBRIDGE
HOLDINGS, LLC
|
|||||
|
Xxxxx
X. Xxxxxx
|
|||||
|
XXXXX
X XXXXXX REVOCABLE TRUST
|
By:
|
||||
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Xxxx
X. Xxxxx, President
|
|||||
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By:
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BLUEGREEN:
|
||||
|
Xxxxx
X. Xxxxxx, Trustee
|
|||||
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BLUEGREEN
CORPORATION
|
|||||
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By:
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|||||
|
By:
|
|
Xxxxxxx
X. Xxxxx, Senior Vice President
|
|||
|
Xxxxx
X. Xxxxxx, President
|
Chief
Financial Officer and Treasurer
|
||||
|
THE
ESCROW AGENT:
|
|||||
|
XXXXXXX
XXXXXX XXXXXX XXXXXXXX
|
|||||
|
XXXXXXXX
& XXXXXXXXX, P.A.
|
|||||
| By: | |||||
|
|
Xxxxxx
X. Xxxxxx, For the Firm
|
||||
Exhibit
B
Purchaser's
Account
Exhibit
C
Designated
Account
