EXHIBIT 10.162
PROMISSORY NOTE
$7,910,000.00
November 12, 2003
Bluegreen Corporation, a Massachusetts corporation
0000 Xxxxxxxxxx Xxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
and
Bluegreen Communities of Georgia, LLC,
a Georgia limited liability company
0000 Xxxxxxxxxx Xxx Xxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
(Individually and collectively "Borrower")
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx - XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Seven Million Nine Hundred Ten Thousand and No/100 Dollars
($7,910,000.00) or such sum as may be advanced and outstanding from time to
time, with interest on the unpaid principal balance at the rate and on the terms
provided in this Promissory Note (including all renewals, extensions or
modifications hereof, this "Note").
LOAN AGREEMENT. This Note is subject to the provisions of that certain Loan
Agreement between Bank and Borrower of even date herewith, as modified from time
to time (the "Loan Agreement").
USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by
this Note to finance the purchase of 514 acres of real estate located in Camden
County, Georgia, to be subdivided into residential lots for a golf community.
SECURITY. Xxxxxxxx has granted Bank a security interest in the collateral
described in the Loan Documents, including, but not limited to, real and
personal property collateral described in that certain Deed to Secure Debt,
Assignment of Rents and Security Agreement of even date herewith (the "Deed to
Secure Debt").
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at the LIBOR Market Index Rate plus 2.00%, as that
rate may change from day to day in accordance with changes in the LIBOR Market
Index Rate ("Interest Rate"). "LIBOR Market Index Rate", for any day, means the
rate for 1 month U.S. dollar deposits as reported on Telerate page 3750 as of
11:00 a.m., London time, on such day, or if such day is not a London business
day, then the immediately preceding London business day (or if not so reported,
then as determined by Bank from another recognized source or interbank
quotation).
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (as defined herein) occurs and as long as a Default continues, all
outstanding Obligations, other than Obligations under any
swap agreements (as defined in 11 U.S.C. ss. 101) between Borrower and Bank or
its affiliates, shall bear interest at the Interest Rate plus 3% ("Default
Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall
be computed on the basis of a 360-day year for the actual number of days in the
applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective interest yield by taking the stated (nominal)
rate for a year's period and then dividing said rate by 360 to determine the
daily periodic rate to be applied for each day in the applicable period.
Application of the Actual/360 Computation produces an annualized effective rate
exceeding the nominal rate.
REPAYMENT TERMS/MATURITY. This Note shall be due and payable in consecutive
monthly payments of accrued interest only, commencing on December 12, 2003, and
continuing on the same day of each month thereafter until fully paid. Commencing
on November 12, 2004 (the "Term Commencement Date"), and continuing on the same
day of each quarter thereafter, in addition to monthly payments of accrued
interest, Borrower shall make equal payments of principal in an amount based on
a four (4) year amortization schedule of the outstanding principal balance of
this Note as of the Term Commencement Date. In addition to the monthly payments
of principal and interest set forth above, if, on November 12, 2004, the then
outstanding principal balance of this Note is greater than $7,105,000.00,
Borrower shall make a principal payment in an amount equal to that necessary to
reduce the then outstanding principal balance to less than or equal to
$7,105,000.00. Notwithstanding the foregoing, any payments received from
Borrower to effect a release of a residential lot pursuant to the Loan Agreement
or any other prepayment shall reduce the next scheduled principal payment due
under this Note. In any event, all principal and accrued interest shall be due
and payable on October 12, 2006 (the "Maturity Date"). Borrower shall have the
right to extend the Maturity Date to November 12, 2008 (the "Extension Option"),
provided that (i) Borrower shall request the Extension Option by written notice
to Bank of not more than sixty (60) days and not less than thirty (30) days
prior to the Maturity Date, (ii) at the time of the request and at the time of
the Extension Option, that no Default or event which, with the giving of notice
or the passage of time, or both, would constitute a Default shall have occurred,
(iii) at Borrower's expense, Borrower shall provide Bank with an updated title
report and title insurance endorsements as Bank shall reasonably require and
Borrower shall execute an appropriate modification to the Deed to Secure Debt to
evidence such Extension Option, and (iv) Borrower shall pay all applicable
intangible taxes under Georgia law at the time of the Extension Option. Borrower
shall continue to make payments of principal and interest as set forth herein
during the period of time this Note is extended. This Note may be prepaid in
whole or in part without penalty or premium.
AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Bank
to debit demand deposit account number _______________ or any other account with
Bank (routing number ____________________) designated in writing by Borrower,
beginning December 12, 2003 for any payments due under this Note. Borrower
further certifies that Xxxxxxxx holds legitimate ownership of this account and
preauthorizes this periodic debit as part of its right under said ownership.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application
toward payment of the Obligations shall be applied to accrued interest and then
to principal. If a Default occurs, monies may be applied to the Obligations in
any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. Loan Documents. The term "Loan Documents", as used in this Note and
the other Loan Documents, refers to all documents executed in connection with or
related to the loan evidenced by this Note and any prior notes which evidence
all or any portion of the loan evidenced by this Note, and any letters of credit
issued pursuant to any loan agreement to which this Note is subject, any
applications for such letters of credit and any other documents executed in
connection therewith or related thereto, and
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may include, without limitation, this Note, the Loan Agreement, the Deed to
Secure Debt, that certain Collateral Assignment of Contracts, Permits, Licenses,
Warranties, Plans, Drawings, and Deposits, Etc. dated of even date herewith,
guaranty agreements, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as defined in 11
U.S.C. ss. 101). Obligations. The term "Obligations", as used in this Note and
the other Loan Documents, refers to any and all indebtedness and other
obligations under this Note, all other obligations under any other Loan
Document(s), and all obligations under any swap agreements (as defined in 11
U.S.C. ss. 101) between Borrower and Bank, or its affiliates, whenever executed.
Certain Other Terms. All terms that are used but not otherwise defined in any of
the Loan Documents shall have the definitions provided in the Uniform Commercial
Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations
including, without limitation, reasonable arbitration, paralegals', 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.
USURY. If at any time the effective interest rate under this Note would, but for
this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: Nonpayment; Nonperformance. The failure of timely payment or
performance of the Obligations or Default under this Note not paid within five
(5) days of the applicable due date or the failure of timely performance of any
other Obligations under any other Loan Document, not cured within fifteen (15)
days after written notice from Bank to Borrower, provided that if Borrower has
commenced to cure such non-monetary Default within such 15 days and is
proceeding diligently to cure then the cure period shall be extended for a
reasonable time in light of the circumstances to complete such cure up to a
maximum of thirty (30) days. Borrower's right to cure shall be applicable only
to curable defaults and shall not apply, without limitation, to Defaults based
upon False Warranty or Cessation; Bankruptcy or any financial covenant. False
Warranty. A warranty or representation made or deemed made in the Loan Documents
or furnished Bank in connection with the loan evidenced by this Note proves
materially false, or if of a continuing nature, becomes materially false. Cross
Default. At Bank's option, any default in payment or performance of any
obligation under any other loans, contracts or agreements of Borrower, any
Subsidiary or Affiliate of Borrower, with Bank or its affiliates, including
without limitation that certain loan from Bank to Borrower, as evidenced by that
certain Second Amended and Restated Promissory Note dated of even date herewith,
in the original principal amount of $12,500,000.00 (as same may be increased,
amended or modified in the future) ("Affiliate" shall have the meaning as
defined in 11 U.S.C. ss. 101, except that the term "Borrower" shall be
substituted for the term "Debtor" therein; "Subsidiary" shall mean any business
in which Borrower holds, directly or indirectly, a controlling interest).
Cessation; Bankruptcy. The dissolution of, termination of existence of, loss of
good standing status by, appointment of a receiver for, assignment for the
benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or
any general partner of or the holder(s) of the majority ownership interests of
Borrower, or any party to the Loan Documents. Material Business Alteration.
Without prior written consent of Bank, a material alteration in the kind or type
of Borrower's business. Material Capital Structure or Business Alteration.
Without prior written consent of Bank, (i) the sale of substantially all of the
business or assets of Borrower or a material portion (25% or more) of such
business or assets if such a sale is outside the ordinary course of business of
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Borrower or more than 50% of the outstanding stock or voting power of or in any
such entity in a single transaction or a series of transactions; or (ii) should
any Borrower enter into any merger or consolidation. Material Adverse Change.
Bank determines in good faith, in its sole discretion, that the prospects for
payment or performance of the Obligations are impaired or there has occurred a
material adverse change in the business or prospects of Borrower, financial or
otherwise which would result in the Borrower's inability to repay the Loan when
due.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: Bank
Lien. Foreclose its security interest or lien against Xxxxxxxx's accounts
without notice. Acceleration Upon Default. Accelerate the maturity of this Note
and, at Bank's option, any or all other Obligations, other than Obligations
under any swap agreements (as defined in 11 U.S.C. ss. 101) between Borrower and
Bank, or its affiliates, which shall be governed by the default and termination
provisions of said swap agreements; whereupon this Note and the accelerated
Obligations shall be immediately due and payable; provided, however, if the
Default is based upon a bankruptcy or insolvency proceeding commenced by or
against Borrower or any guarantor or endorser of this Note, all Obligations
(other than Obligations under any swap agreement as referenced above) shall
automatically and immediately be due and payable. Cumulative. Exercise any
rights and remedies as provided under the Note and other Loan Documents, or as
provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information
as Bank may reasonably request from time to time, including without limitation,
financial statements and information pertaining to Borrower's financial
condition as may be required in the Loan Agreement. Such information shall be
true, complete, and accurate.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or remedy under this
Note and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Except as provided in the Loan Documents, each Borrower or any person liable
under this Note 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. Further, each agrees
that Bank may extend, modify or renew this Note or make a novation of the loan
evidenced by this Note for any period, and grant any releases, compromises or
indulgences with respect to any collateral securing this Note, or with respect
to any other Borrower or any other person liable under this Note or other Loan
Documents, all without notice to or consent of each Borrower or each person who
may be liable under this Note or any other Loan Document and without affecting
the liability of Borrower or any person who may be liable under this Note or any
other Loan Document.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's
interests in and rights under this Note and the other Loan Documents are freely
assignable, in whole or in part, by Bank. In addition, nothing in this Note or
any of the other Loan Documents shall prohibit Bank from pledging or assigning
this Note or any of the other Loan Documents or any interest therein to any
Federal Reserve Bank. Borrower shall not assign its rights and interest
hereunder without the prior written consent of Bank, and any attempt by Xxxxxxxx
to assign without Bank's prior written consent is null and void. Any assignment
shall not release Borrower from the Obligations. Applicable Law; Conflict
Between Documents. This Note and, unless otherwise provided in any other Loan
Document, the other Loan Documents shall be governed by and construed under the
laws of the state named in Bank's address on the first page hereof without
regard to that state's conflict of laws principles. If the terms of this Note
should conflict with the terms of any loan agreement or any commitment letter
that survives closing, the terms of this Note shall control. Xxxxxxxx's
Accounts. Except as prohibited by law, Borrower grants Bank a security interest
in all of Xxxxxxxx's accounts with Bank and any of its affiliates. Jurisdiction.
Xxxxxxxx irrevocably agrees to non-exclusive personal
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jurisdiction in the state named in Bank's address on the first page hereof.
Severability. If any provision of this Note or of the other Loan Documents 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
Note or other such document. Notices. Any notices to Borrower shall be
sufficiently given, if in writing and mailed or delivered to the Borrower's
address shown above or such other address as provided hereunder, and to Bank, if
in writing and mailed or delivered to Wachovia Bank, National Association, Mail
Code VA7391, P. O. Box 00000, Xxxxxxx, XX 00000 or Wachovia Bank, National
Association, Mail Code VA7391, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 or
such other address as Bank may specify in writing from time to time. Notices to
Bank must include the mail code. In the event that Xxxxxxxx changes Xxxxxxxx's
address at any time prior to the date the Obligations are paid in full, Xxxxxxxx
agrees to promptly give written notice of said change of address by registered
or certified mail, return receipt requested, all charges prepaid. Plural;
Captions. All references in the Loan Documents to Borrower, guarantor, person,
document or other nouns of reference mean both the singular and plural form, as
the case may be, and the term "person" shall mean any individual, person or
entity. The captions contained in the Loan Documents are inserted for
convenience only and shall not affect the meaning or interpretation of the Loan
Documents. Advances. Bank may, in its sole discretion, make other advances which
shall be deemed to be advances under this Note, even though the stated principal
amount of this Note may be exceeded as a result thereof. Posting of Payments.
All payments received during normal banking hours after 2:00 p.m. local time at
the office of Bank first shown above shall be deemed received at the opening of
the next banking day. Joint and Several Obligations. Each person who signs this
Note as a Borrower (as defined herein) is jointly and severally obligated. Fees
and Taxes. Borrower shall promptly pay all documentary, intangible recordation
and/or similar taxes on this transaction whether assessed at closing or arising
from time to time. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF
THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY
JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY
BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR
AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT
SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF
THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY
DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY
SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY
ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person who opens an account. For purposes of this section,
account shall be understood to include loan accounts.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS NOTE.
EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY
PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED
IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN
CONNECTION WITH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR
MODIFIED BY, THIS NOTE.
[EXECUTION AND ACKNOWLEDGMENT APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Xxxxxxxx, on the day and year first above written, has
caused this Note to be executed under seal.
Bluegreen Corporation, a Massachusetts corporation
Taxpayer Identification Number: 00-0000000
By: /S/ XXXXXX X. XXXXXXX (SEAL)
-------------------------------------
Xxxxxx X. Xxxxxxx, Senior Vice President
Bluegreen Communities of Georgia, LLC, a Georgia
limited liability company
Taxpayer Identification Number: _______________
By: /S/ XXXXXX X. XXXXXXX (SEAL)
-------------------------------------
Xxxxxx X. Xxxxxxx, Manager
STATE OF GEORGIA )
) SS.:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me November __, 2003, by
Xxxxxx X. Xxxxxxx, as Senior Vice President of Bluegreen Corporation, a
Massachusetts corporation, on behalf of the corporation. He is personally known
to me or who has/have produced a driver's license as identification and did
(not) take an oath.
/S/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
Notary Public, State of GEORGOA
My commission expires: JUNE 11, 2005
STATE OF GEORGIA )
) SS.:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me November __, 2003, by
Xxxxxx X. Xxxxxxx, as Manager of Bluegreen Communities of Georgia, LLC, a
Georgia limited liability company, on behalf of the company. He is personally
known to me or who has/have produced a driver's license as identification and
did (not) take an oath.
/S/ XXXXXX X. XXXXXX
-------------------------------------
Name: XXXXXX X. XXXXXX
Notary Public, State of GEORGOA
My commission expires: JUNE 11, 2005
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