Exhibit 10.160
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THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
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THIS THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"Amendment Agreement") dated as of October 21, 2005, is entered into by and
between BLUEGREEN CORPORATION OF THE ROCKIES, a Delaware corporation, BLUEGREEN
GOLF CLUBS, INC., a Delaware corporation, BLUEGREEN PROPERTIES OF VIRGINIA,
INC., a Delaware corporation, BLUEGREEN SOUTHWEST ONE, L.P., a Delaware limited
partnership, and CATAWBA FALLS, LLC, a North Carolina limited liability company
(collectively and jointly and severally, the "Borrower") and RFC CONSTRUCTION
FUNDING CORP., a Delaware corporation ("Lender") as successor in interest to and
assignee of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation ("RFC").
RECITALS
This Amendment Agreement is entered into upon the basis of the following
facts and circumstances:
A. Borrower and RFC, whose interest has been assigned to Lender, entered
into a Loan Agreement dated as of September 25, 2002 (as the same has been and
may be amended, supplemented or otherwise modified from time to time, including
any other instruments executed and delivered in renewal, extension,
rearrangement or otherwise in replacement of such Loan Agreement, the "Loan
Agreement"), whereby RFC made a revolving loan in the principal amount of
$75,000,000.00 (the "Loan") to finance various residential acquisition and
development projects which the Borrower anticipates undertaking. Capitalized
terms used in this Amendment Agreement and not otherwise defined shall have the
meanings given those terms in the Loan Agreement.
B. The Loan is evidenced by, among other documents, the Loan Agreement, a
Revolving Promissory Note dated September 25, 2002 in the principal amount of
$50,000,000 ("Note A"), a Revolving Promissory Note dated May 10, 2005 ("Note
B") (as the same may be amended, supplemented or otherwise modified from time to
time, including any other instruments executed and delivered in renewal,
extension, rearrangement or otherwise in replacement of such promissory note,
collectively the "Note") and a Guaranty Agreement dated as of September 25, 2002
("Guaranty").
C. The Borrower has requested that the Loan Agreement be amended to, among
other things, remove the Project Concentration Limitation and modify the ABF
Disbursement Amount and the Guaranty be amended to reflect changes to the
Subrogation language.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing Recitals and the
covenants and conditions, representations and warranties contained herein, the
parties hereto agree as follows:
Section 1 Amendment to Section 1.1 of the Loan Agreement
The following definitions in Section 1.1 of the Loan Agreement are deleted
and replaced in their entirety as follows:
"ABF Disbursement Amount" means, on any date of determination, as determined by
Lender, the amount of the Loan available to be disbursed with respect to the ABF
Collateral, which amount will be equal to the difference of:
(1) the lesser of:
(A) the Loan Amount;
(B) the total for all Projects of, for each Project, the
lesser of 70% of the ABF Value and 70% of the Value; and
(C) 70% of the Approved Costs spent by the Borrower
minus
(2) the ABF Outstanding Amount.
"ABF Value" means, on any date of determination by the Lender, the sum total of,
for each Project, 100% of the Schedule A Value of the Lots; provided, however,
that Golf Parcels will remain as part of the ABF Collateral until released in
accordance with the terms of the Loan Documents.
"Value" means 100% of the value which an Appraiser assigns to a Project or any
part thereof as to which a value is being determined, as set forth in an
Appraisal Report and based upon the following:
(3) the value of the Land or any part thereof which is part of a
Project shall be determined based on the as-is value of the Land and the
Development Work; and
(1) the value of any Lot or Golf Parcel sold or under contract to be
sold pursuant to a sales agreement shall be determined based upon the
Gross Selling Price set forth in the applicable sales agreement.
Section 2 Deletion of Defined Terms to Section 1.1 of the Loan Agreement
The following defined term is hereby deleted from Section 1.1 of the Loan
Agreement for all purposes:
"Project Concentration Limitation"
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Section 3 Amendment to Section 3.3 of the Loan Agreement
Section 3.3 (b)(2) of the Loan Agreement is deleted and replaced in its
entirety as follows:
(2) Upon receipt of a complete and satisfactory request for
determination of the ABF Disbursement Amount, the Lender will determine
the ABF Value, and make such adjustments thereto as the Lender determines,
all in its sole discretion, based upon, (i) Lots and Finished Lots which
have been removed as ABF Collateral, (ii) a materially detrimental change,
in the Lender's reasonable judgment, in the operations or value of a
Project which justifies, in the Lender's judgment, that the Project be
disregarded for purposes of determining ABF Value, (iii) a Project that is
disregarded by the Lender for purposes of determining ABF Value pursuant
to Section 6.16, and (iv) such other information which the Lender deems
relevant.
Amendment to Section 3.4(3)(A-C) of the Loan Agreement
Section 3.4(3) (A-C) of the Loan Agreement is deleted and replaced in its
entirety as follows:
(3) Following the requested disbursement of proceeds of the Loan,
the ABF Outstanding Amount of the Loan shall not exceed the lesser of:
(A) the Loan Amount;
(B) the total for all Projects of, for each Project, the
lesser of 70% of the ABF Value and 70% of the Value; and
(C) 70% of the Approved Costs spent by the Borrower on
completed Development Work.
Section 4 Amendment to Section 5.5 of the Loan Agreement
Section 5.5 (2) of the Loan Agreement is deleted and replaced in its
entirety as follows:
(2) Ratio of Total Liabilities to Net Worth. At all times, the ratio
of debt of Bluegreen Corporation determined in accordance with GAAP
consistently applied on a consolidated basis, not including non-recourse,
receivable-backed debt of up to $500,000,000, and not including, but not
limited to contingent liabilities, to its Net Worth, shall not exceed
2.5:1.
Section 5 Amendment to Section 3 of the Guaranty
Section 3 of the Guaranty is deleted and replace in its entirety as
follows:
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The Guarantor will not exercise any rights which it may acquire by
way of subrogation under this Guaranty, by virtue of any payment made
hereunder or otherwise, until all the Indebtedness shall have been paid or
performed in full. The Guarantor shall not accept payment from any other
party by way of contribution on account of any payment made under this
Guaranty by such party to the Lender, and the Guarantor will not take any
action to exercise or enforce any rights to such contribution until all
the Indebtedness shall have been paid or performed in full. If any amount
shall be paid to the Guarantor on account of such subrogation rights at
any time when all the Indebtedness shall not have been paid or performed
in full, such amount shall be held in trust for the benefit of the Lender
and shall forthwith be paid to the Lender to be credited and applied upon
the Indebtedness, whether matured or unmatured, in such order as the
Lender, in its sole and absolute discretion, shall determine. Any lien or
charge on the Property, the personal property located thereon, or the
revenue and income to be realized therefrom, and all rights in and to the
Property and such personal property, which the Guarantor may have or
obtain as security for any loans or advances shall be, and such lien or
charge hereby is, subordinated to the Deed of Trust and to the
indebtedness of the Borrower to the Lender under the Note.
Section 6 Representations and Warranties of Borrower
The Borrower represents, warrants and agrees that (i) there exists no
Potential Default or Event of Default under the Loan Documents, (ii) the Loan
Documents continue to be the legal, valid and binding agreements and obligations
of the Borrower enforceable in accordance with their terms, as modified herein,
(iii) the Borrower is not in default under any of the Loan Documents, (iv) the
Borrower has no offset or defense to its performance or obligations under any of
the Loan Documents, (v) the representations contained in the Loan Documents
remain true and accurate in all material respects, and (vi) there has been no
Material Adverse Change from the date of the Loan Agreement to the date of this
Amendment Agreement. Lender acknowledges that the financial restatements
publicly disclosed in Guarantor's current report on Form 8-K dated December 19,
2005 will not constitute a breach of Section 4.6 of the Loan Agreement. Lender
acknowledges that Borrower has disclosed to Lender the proceeding filed by the
State of Tennessee as disclosed in Guarantor's September 30, 2005 Form 10-Q.
Section 7 No Defenses
The Borrower hereby agrees and stipulates that the Borrower has no
defenses, affirmative defenses, rights to offset, or counterclaims against the
exercise of any of the rights or remedies of the Lender under the Loan Documents
or under applicable law.
Section 8 Release of Claims Against Lender
The Borrower hereby absolutely and unconditionally releases and forever
discharges Lender and any and all of its parent corporations, subsidiary
corporations, affiliated corporations, insurers, indemnitors, successors and
assigns, together with all of its present and former directors, officers, agents
and employees from any and all claims, demands or causes of action of
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any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which the
Borrower has had, now has or has made claim to have against any such party for
or by reason of any act, omission, matter, cause or thing whatsoever arising
from the beginning of time to and including the date of this Agreement, whether
such claims, demands and cause of action are matured or unmatured or known or
unknown.
Section 9 Effect on Loan Documents
Except as hereby expressly modified, the Loan Documents shall otherwise be
unchanged and shall remain in full force and effect, and the Borrower ratifies
and reaffirms all of its obligations thereunder.
Section 10 Execution in Counterpart
This Amendment Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, Borrower and Lender have executed this Amendment
Agreement as of the date first written above by and through their duly
authorized representatives.
BORROWER:
BLUEGREEN CORPORATION OF THE ROCKIES,
a Delaware corporation
By:
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Xxxxxxx Xxxxx
Treasurer
BLUEGREEN GOLF CLUBS, INC.,
a Delaware corporation
By:
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Xxxxxxx Xxxxx
Treasurer
BLUEGREEN PROPERTIES OF VIRGINIA, INC.,
a Delaware corporation
By:
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Xxxxxxx Xxxxx
Treasurer
BLUEGREEN SOUTHWEST ONE, L.P.,
a Delaware limited partnership
By: Bluegreen Southwest Land, Inc.
a Delaware corporation
By:
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Xxxxxxx Xxxxx
Treasurer
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CATAWBA FALLS, LLC,
a North Carolina limited liability company
By: BLUEGREEN CORPORATION,
a Massachusetts corporation,
its sole Member/Manager
By:
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Xxxxxxx Xxxxx
Senior Vice President
LENDER:
RFC CONSTRUCTION FUNDING CORP.,
a Delaware corporation
By:
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Printed Name:
--------------------------------
Title:
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CONSENT OF GUARANTOR
The undersigned Guarantor acknowledges and consents to the terms and
conditions of the foregoing Amendment Agreement dated as of May 10, 2005, and
agrees that the obligations to be incurred by Borrower as set forth in the
Amendment Agreement constitute payment and performance obligations to be
guaranteed by Guarantor pursuant to the terms of that certain Guaranty dated as
of September 25, 2002, executed by Guarantor in favor of Residential Funding
Corporation, a Delaware corporation whose interest has been assigned to RFC
Construction Funding Corp., a Delaware corporation.
Dated as of October 21, 2005.
BLUEGREEN CORPORATION,
a Massachusetts corporation
By:
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Xxxxxxx Xxxxx
Senior Vice President and
Chief Financial Officer
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