EXHIBIT 10.137
FOURTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment"), dated as of October 16, 2001, among BLUEGREEN CORPORATION
("Bluegreen"), BLUEGREEN VACATIONS UNLIMITED, INC. ("Vacations", and together
with Bluegreen, the "Borrowers"), and XXXXXX FINANCIAL, INC., (together with its
successors and permitted assigns, the "Lender").
RECITALS
A. Lender and Borrowers are party to that certain Amended and Restated Loan
and Security Agreement dated as of June 30, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement").
B. On and subject to the terms and conditions hereof, Borrowers have
requested from Lender, and Lender is willing to grant, certain amendments to
certain provisions of the Loan Agreement, all on terms and conditions set forth
herein.
C. This Amendment shall constitute a Loan Document and these Recitals shall
be construed as part of this Amendment; capitalized terms used herein without
definition are so used as defined in the Appendix to the Loan Agreement or the
Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Amendment to Loan Agreement
(a) Section 1.1 of the Loan Agreement is hereby amended by deleting
the reference to "October 16, 2001" therein and substituting
therefor "February 16, 2002".
(b) The Appendix to the Loan Agreement is hereby amended by deleting
the following definitions in their entirety and substituting the
following new definitions in their place:
Availability. At all times during the term of this Agreement, the
lesser of (i) $15,000,000 minus outstanding Advances, or (ii) an
amount equal to ninety-five percent (95%) of the principal
balance of Pledged Receivables; provided that with respect to
Aruba Receivables, such amount shall be eighty-five percent (85%)
of the principal balance of such Pledged Receivables; provided
further that from and after the date of this Fourth Amendment,
Advances against new Pledged Receivables shall not exceed ninety
percent (90%) of the principal balance of such new Pledged
Receivables (other than Aruba Receivables) and eighty percent
(80%) of the principal balance of new Aruba Receivables. In the
event of a payment with respect to Pledged Receivables existing
as of the date of this Fourth Amendment, Borrower shall not be
entitled to Advances against such Pledged Receivables in an
amount in excess of 90% of the principal balance of such Pledged
Receivables or with respect to Aruba Receivables, 80% of the
principal balance of such Aruba Receivables. Notwithstanding
anything to the contrary contained herein the
amounts advanced against Pledged Receivables (i) relating to
Eligible Uncompleted Unit Receivables shall not at any time
represent in the aggregate more than the lesser of $5,000,000.00
or thirty percent (30%) of the aggregate principal amount of all
Advances outstanding under this Agreement; (ii) relating to
Managed Resorts shall not at any time represent in the aggregate
more than $2,000,000 of the aggregate principal amount of all
Advances outstanding under this Agreement and (iii) relating to
Aruba Receivables shall not exceed on a cumulative basis
$6,000,000 of all Advances made under this Agreement. After the
Maturity Date or, at the option of Lender in accordance with
Section 8.10, after the occurrence and during the continuance of
an Event of Default hereunder, Availability shall be zero ($0).
At any time Bluegreen Corporation ceases to own, directly or
indirectly, at least fifity-one percent (51%) of the economic and
voting interests of Bluegreen Properties, N.V., Availability with
respect to Aruba Receivables shall be zero ($0).
Interest Rate. A floating rate per annum equal to the Base Rate
plus 3.5% (the aggregate rate referred to as the "Interest
Rate"). "Base Rate" shall mean the rate published each business
day in The Wall Street Journal for deposits maturing ninety (90)
days after issuance under the caption "Money Rates, London
Interbank Offered Rates (LIBOR)" as the same may be fixed based
upon the Interest Rate published prior to and in effect on the
first (1st) Business Day of such Fiscal Month. Interest shall be
calculated based on a 360 day year and charged for the actual
number of days elapsed.
Maturity Date. February 16, 2002.
Maximum Exposure. The lesser of (a) $15,000,000, or (b)
ninety-five percent (95%) of the outstanding principal balance of
all Pledged Receivables; provided that with respect to Aruba
Receivables, such amount shall be eighty-five percent (85%) of
the outstanding principal balance of such Pledged Receivables;
provided further that from and after the date of this Fourth
Amendment, Advances against new Pledged Receivables shall not
exceed ninety percent (90%) of the principal balance of such new
Pledged Receivables (other than Aruba Receivables) and eighty
percent (80%) of the principal balance of new Aruba Receivables.
In the event of a payment with respect to Pledged Receivables
existing as of the date of this Fourth amendment, Borrower shall
not be entitled to Advances against such Pledged Receivables in
an amount in excess of 90% of the principal balance of such
Pledged Receivables or with respect to Aruba Receivables, 80% of
the principal balance of such Aruba Receivables. Notwithstanding
anything to the contrary contained herein, the outstanding
principal amount of Advances made with respect to Eligible
Uncompleted Unit Receivables shall not in the aggregate represent
more than the lesser of $5,000,000 or thirty percent (30%) of the
aggregate principal amount of Advances outstanding hereunder and
any such excess shall require a prepayment of the Loan or the
pledge of Eligible Receivables consistent with Section 1.7(b)
hereof.
2. Amendment to Note
All references to the Maturity Date in the Note shall refer to
February 16, 2002 and all references to the Interest Rate in the Note
shall refer to the Interest Rate as amended herein.
3. Representations and Warranties
(a) After giving effect to this Amendment and the transactions
contemplated hereby (i) no Event of Default shall have occurred or be
continuing and (ii) the representations and warranties of Borrowers
contained in the Loan Documents shall be true, correct and complete in all
material respects on and as of such date to the same extent as though made
on and as of such date, except to the extent such representations and
warranties specifically relate to an earlier date
(b) Borrowers jointly and severally represent and warrant to Lender
that the execution, delivery and performance by each Borrower of this
Amendment and the other documents and transactions contemplated hereby are
within such Borrower's corporate powers, have been duly authorized by all
necessary corporate action (including, without limitation, all necessary
shareholder approval) of such Borrower, have received all necessary
governmental approvals, and do not and will not contravene or conflict with
any provision of law applicable to such Borrower, the certificate or
articles of incorporation or bylaws of such Borrower, or any order,
judgment or decree of any court or other agency of government or any
contractual obligation binding upon such Borrower; and this Amendment, the
Loan Agreement and each other Loan Document constitutes the legal, valid
and binding obligation of each Borrower enforceable against each Borrower
in accordance with its terms.
4. Conditions Precedent. This Amendment shall become effective upon
Lender's receipt of the following item and the satisfaction of the
following conditions, as the case may be, all in form and substance
satisfactory to Lender.
(a) Documentation
(i) Amendment. This Amendment, duly executed by each Borrower
and Lender.
(ii) Secretary's Certificate; Resolutions. A certificate of the
Clerk, Secretary, an Assistant Clerk or and Assistant
Secretary of each of the Borrowers certifying (i) the names
and true signatures of the officers authorized on its behalf
to sign this Amendment (ii) a copy of such party's
certificate or articles of incorporation and by-laws, and
(iii) a copy of the resolutions of the board of directors of
such party approving this Amendment and the related
transactions to which it is a party, all in form and
substance satisfactory to the Lender. Such certificate shall
state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded as of the date of
such certificate.
(b) No Event of Default. No event of Default shall have occurred and
be continuing, or would result after giving effect hereto.
(c) Warranties and Representations. The warranties and
representations of each Borrower contained in this Amendment and
the other Loan Documents shall be true and correct in all
material respects after giving effect hereto.
5. Effect on Loan Documents. This Amendments is limited to the specific
purpose for which it is granted and, except as specifically set forth
above (a) shall not be construed as a consent, waiver or other
notification with respect to any term, condition or other provision of
any Loan Document and (b) each of the Loan Documents shall remain in
full force and effect and are each hereby ratified and confirmed.
6. Successors and Assigns. This Amendment shall be binding on and shall
inure to the benefit of Borrowers, Lender and their respective
successors and assigns; provided that no Borrower may assign its
rights, obligations, duties or other interest hereunder without the
prior written consent of Lender. The terms and provisions of this
Amendment are for the purpose of defining the relative rights and
obligations of Borrowers and Lender with respect to the transactions
contemplated hereby and there shall be no third party beneficiaries or
any of the terms and provisions of this Amendment.
7. Entire Agreement. This Amendment, including all documents attached
hereto, incorporated by reference herein or delivered in connection
herewith, constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes all other understandings,
oral or written, with respect to the subject matter hereof.
8. Fees and Expenses. Borrower shall pay to Lender upon execution of this
Amendment, an extension fee equal to $5,000. Borrower hereby
authorizes Lender to charge the Loan for such fee.
9. Captions. Section captions used in this Amendment are for convenience
only, and shall not affect the construction of this Amendment.
10. Severability. Whenever possible each provision of this Amendment shall
be interpreted in such manner as to be effected and valid under
applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Amendment.
11. Counterparts. This Amendments may be executed in any number of
counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page to
this Amendment by telecopy shall be effective as delivery of a
manually executed counterpart of this Amendment.
12. Payment upon Maturity Date. The parties hereto acknowledge and agree
that payment of the Indebtedness pursuant to Section 1.6(b) of the
Loan Agreement shall not constitute a prepayment under Section 1.7 of
Loan Agreement.
[signature page follows]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the day and year first above written,
BLUEGREEN CORPORATION
By: /S/ Xxxx X. Xxxxxx
Title: Sr. V.P., and Treasurer
BLUEGREEN VACATIONS UNLIMITED, INC.
By: /S/ Xxxxx Xxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /S/ Xxxxxx Xxxxxxx
Title: Sr. Vice President
