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EXHIBIT 10.138
[EXEMPT FROM ALL EXCISE TAXES AS A WHOLESALE WAREHOUSE MORTGAGE AGREEMENT UNDER
SECTION 201.21, F.S. COLLATERAL OBLIGATIONS GREATER THAN PRIMARY OBLIGATIONS.]
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
DATED AS OF JUNE 30, 1999
BLUEGREEN CORPORATION
BLUEGREEN VACATIONS UNLIMITED, INC.
AS BORROWERS,
AND
XXXXXX FINANCIAL, INC.
AS LENDER
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TABLE OF CONTENTS
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SECTION 1. THE LOAN...................................................................1
1.1 Loan Availability..........................................................1
1.2 Term.......................................................................2
1.3 Interest Rate..............................................................2
1.4 Funding Advances...........................................................2
1.5 Note.......................................................................2
1.6 Payments...................................................................2
1.7 Prepayments................................................................3
1.8 Fees.......................................................................3
1.9 Increased Costs............................................................3
1.10 [Omitted]..................................................................5
1.11 Interest Loans.............................................................5
SECTION 2. COLLATERAL.................................................................6
2.1 Grant of Security Interest.................................................6
2.2 Exchange Mechanics.........................................................7
2.3 Security Agreement.........................................................7
SECTION 3. CONDITIONS PRECEDENT TO ADVANCES...........................................7
3.1 Closing Deliveries.........................................................8
3.2 Deliveries Prior to Each Advance...........................................8
3.3 Security Interests.........................................................8
3.4 Representations and Warranties.............................................8
3.5 No Default.................................................................9
3.6 Performance of Agreements..................................................9
3.7 Governmental Approvals.....................................................9
3.8 Intercreditor Agreements...................................................9
SECTION 4. GENERAL REPRESENTATIONS AND WARRANTIES.....................................9
4.1 Existence..................................................................9
4.2 Authorization and Enforceability..........................................10
4.3 Financial Statements and Business Condition...............................10
4.4 Taxes.....................................................................10
4.5 Litigation and Proceedings................................................10
4.6 Licenses and Permits......................................................11
4.7 Full Disclosure...........................................................11
4.8 Employee Benefit Plans....................................................11
4.9 Representations as to the Resorts and Additional Resorts..................11
4.10 Timeshare Interval Exchange Network.......................................12
4.11 Collateral................................................................12
4.12 Investment Company Act, Etc...............................................13
4.13 Trade Names...............................................................13
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4.14 Margin Regulations........................................................13
4.15 [Omitted].................................................................13
SECTION 5. AFFIRMATIVE COVENANTS.....................................................13
5.1 Payment of Indebtedness...................................................13
5.2 Maintenance of Insurance..................................................13
5.3 Inspections and Audits....................................................14
5.4 Reporting Requirements....................................................14
5.5 Records...................................................................16
5.6 Management; Contracts.....................................................16
5.7 Net Worth.................................................................16
5.8 Fixed Rate Coverage Ratio.................................................16
5.9 Leverage Ratio Test.......................................................17
5.10 Maintenance...............................................................17
5.11 Release and Bonding of Liens..............................................17
5.12 Claims....................................................................17
5.13 Use of Lender Name........................................................17
5.14 Other Documents...........................................................17
5.15 Additional Indebtedness for Borrowed Money;
Additional Obligations Affiliated with Subordinated Obligations......17
5.16 Loan Servicing............................................................18
5.17 Custodian.................................................................18
5.18 Compliance with Laws......................................................18
5.19 Compliance Documents......................................................18
5.20 Real Estate Taxes.........................................................18
5.21 Omitted...................................................................18
5.22 Omitted...................................................................18
5.23 Borrowers' Financial Maintenance Requirement..............................18
5.24 Year 2000.................................................................19
5.25 Authorized Signatory......................................................19
5.26 Allonge/Assignment Requirements...........................................19
5.27 Environmental.............................................................19
SECTION 6. NEGATIVE COVENANTS........................................................19
6.1 Consolidation and Merger..................................................19
6.2 Restrictions on Transfers.................................................20
6.3 Collateral................................................................20
SECTION 7. EVENTS OF DEFAULT.........................................................20
7.1 Payments..................................................................20
7.2 Failure to Permit Inspections.............................................20
7.3 Covenant Defaults.........................................................20
7.4 Warranties or Representations.............................................21
7.5 Bankruptcy................................................................21
7.6 Attachment, Judgment, Tax Liens...........................................21
7.7 Omitted...................................................................21
7.8 Default by Borrowers in Other Agreements..................................21
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7.9 Omitted...................................................................21
7.10 Tax Liens; ERISA Liens....................................................21
7.11 Loan Exceeds Maximum Exposure For Five Days...............................21
7.12 Validity of Transaction Documents.........................................21
7.13 Default under the Project Loan............................................22
SECTION 8. REMEDIES..................................................................22
8.1 Remedies Upon Default.....................................................22
8.2 Application of Collateral; Termination of Agreements......................23
8.3 Waivers...................................................................23
8.4 Set Off of Payments.......................................................23
8.5 Cumulative Rights.........................................................24
SECTION 9. CERTAIN RIGHTS AND OBLIGATIONS OF LENDER..................................24
9.1 Protection of Collateral..................................................24
9.2 Performance by Lender.....................................................24
9.3 Fees and Expenses.........................................................24
9.4 Release of Security Interest..............................................24
9.5 Notice to Obligor.........................................................24
9.6 Collection of Receivables.................................................24
9.7 Power of Attorney.........................................................25
9.8 Indemnification of Lender.................................................25
9.9 Lender's Right to Provide Financing.......................................26
SECTION 10. PARTICIPATION AND ASSIGNMENTS.............................................26
10.1 Participations in Loan and Assignments in Loan............................27
SECTION 11. MISCELLANEOUS.............................................................28
SECTION 11. MISCELLANEOUS.............................................................28
11.1 Notice....................................................................28
11.2 Survival..................................................................28
11.3 Governing Law.............................................................29
11.4 Invalid Provisions........................................................29
11.5 Counterparts; Effectiveness...............................................29
11.6 Lender Not Fiduciary......................................................29
11.7 Entire Agreement..........................................................29
11.8 Consent to Advertising and Publicity......................................29
11.9 [Omitted].................................................................30
11.10 Headings..................................................................30
11.11 Broker's Fees.............................................................30
11.12 Venue.....................................................................30
11.13 Jury Trial Waiver.........................................................30
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LIST OF EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Assignment of Pledged Receivables and Pledged
Receivables Collateral
Exhibit C Form of Reassignment of Pledged Receivables
Exhibit D Form of Request for Advances
Exhibit E Form of Allonge
Exhibit F Servicing Agreement
Exhibit G Reserved
Exhibit H List of Permitted Liens
(including therein the Condominium Declarations)
Exhibit I List of Resorts Encumbered by Resort Blanket Mortgages
Exhibit J List of Project Loan Documents
Exhibit K Structuring Fee Letter
Exhibit L Time Share Documents
Exhibit M Legal Description of Resorts
Exhibit N Commitment Letter dated March 30, 1998
Exhibit O Borrower Closing Checklist
Exhibit P Resort Closing Checklist
Exhibit Q Additional Resort Closing Checklist
Exhibit R Club Closing Checklist
LIST OF SCHEDULES
Schedule 2.1 Definition of "Material Project Loan Default" to be utilized
in the Project Loan Agreement
Schedule 3.2 List of Deliveries for all Advances
Schedule 4.5 List of Litigation Matters
Schedule 4.13(a) Trade Names Other than Name of Borrower
Schedule 4.13(b) Mergers and Corporate Reorganizations
Schedule 5.2 Insurance
Schedule 5.15 Additional Indebtedness for Borrowed Money; Additional
Obligations
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HSF Loan No. 98-087
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Amended and Restated Loan and Security Agreement (this
"Agreement") dated as of June 30, 1999 is made by and between Bluegreen
Corporation, a Massachusetts corporation whose address is 0000 Xxxx Xxxx Xxxxx,
Xxxx Xxxxx, Xxxxxxx 00000, ("Bluegreen Corporation") and Bluegreen Vacations
Unlimited, Inc., a Florida corporation whose address is 0000 Xxxx Xxxx Xxxxx,
Xxxx Xxxxx, Xxxxxxx 00000 ("Bluegreen Vacations" and together with Bluegreen
Corporation and the Additional Borrowers (as hereinafter defined) collectively
referred to herein as the "Borrowers" and sometimes referred to herein
individually as a "Borrower"), and Xxxxxx Financial, Inc., a Delaware
corporation ("Lender"), whose address is 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000.
RECITALS
A. Borrowers and Lender are parties to that certain Loan and
Security Agreement dated as of October 20, 1998 (as now or heretofore amended,
restated, supplemented or otherwise modified, the "Prior Loan Agreement").
B. Borrowers and Lender desire to amend and restate the Prior
Loan Agreement for the purpose of reconstituting the Indebtedness outstanding
thereunder, subject to the terms and conditions set forth herein.
C. Bluegreen Vacations was the successor by merger with Bluegreen
Resorts, Inc., a Delaware corporation ("Resorts"), and, as such, has become a
"Borrower" hereunder and succeeds to all of the rights and obligations of
Resorts.
D. Borrowers' obligations under the Loan Documents will continue
to be secured inter alia by a security interest in the Pledged Receivables (as
hereinafter defined).
E. All capitalized terms used herein shall have the meanings
ascribed thereto in the Appendix attached hereto and made a part hereof by this
reference.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements, provisions and covenants herein contained, Borrowers and Lender
agree as follows:
SECTION 1. THE LOAN
1.1 Loan Availability. During the period commencing on the date
hereof and ending on June 26, 2000, Lender shall make Advances to the Borrowers
not in excess of Availability provided that the Borrowers satisfy all
conditions, as applicable, set forth in Section 3 hereof. Advances shall be (a)
in minimum amounts of $100,000 each or such lesser amount equal to
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Availability hereunder, and (b) made no more frequently than four (4) times each
month nor more than one (1) time each week; provided, however, that, subject to
Availability, any request for an Advance of less than $100,000 or for any
Advance in excess of the number of Advances permitted in any week or month shall
be honored by Lender if accompanied by payment to Lender of a fee (the "Service
Charge") of $3,000 for each such Advance. Except in connection with a prepayment
mandated under Section 1.7(b)(i) below, any amounts repaid during the Term may
be reborrowed during the Term.
1.2 Term. The Loan shall be for a term of two (2) years from June
26, 1998 to the end of the Fiscal Month of Bluegreen Corporation in which the
date hereof occurs (the "Term").
1.3 Interest Rate. The outstanding principal balance of the Loan
together with all other Indebtedness shall bear interest at the Interest Rate;
provided, however, that after the occurrence and during the continuance of an
Event of Default the Loan will bear interest at the Default Rate which interest
shall be payable on a Payment Date.
1.4 Funding Advances. Subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof with respect to Advances
hereunder and the limitations set forth in Section 1.1, the Lender shall make
the proceeds of an Advance available to the Borrowers by wiring funds to such
account or such other destination or directive as Bluegreen Corporation on its
own behalf or on behalf of the Borrowers as it may direct in writing.
1.5 Note. The Loan shall be evidenced by a promissory grid note
(herein, as amended, modified, extended or replaced from time to time, called
the "Note") substantially in the form set forth in Exhibit A, with appropriate
insertions, payable to the order of the Lender. The Borrowers hereby irrevocably
authorize the Lender to make (or cause to be made) appropriate notations on the
grid attached to the Note (or on any continuation of such grid, or at the
Lender's option, in its records), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal of, and the interest rate and
interest period applicable to the Advance evidenced thereby. Such notations
shall be rebuttably presumptive evidence of the subject matter thereof absent
manifest error; provided, however, that the failure to make any such notations
shall not limit or otherwise affect any obligations of the Borrowers.
1.6 Payments.
(a) Weekly Payments. All funds collected by the Lockbox
Bank from the Pledged Receivables shall be paid to Lender at least weekly
pursuant to the Lockbox Agreement, and applied in the following order: first to
the payment of accrued and unpaid interest on the Indebtedness and then to the
reduction of the principal balance of the Loan; provided, however, that after
the occurrence and during the continuance of an Event of Default hereunder, such
amounts shall be applied in the following order: first to the payment of costs
and expenses incurred by Lender in collecting any amounts due in connection with
the Loan; second, to the payment of accrued but unpaid interest on the Loan; and
thereafter to the reduction of the principal balance of the Loan. If the funds
received by Lender from the Lockbox Bank with
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respect to any month are insufficient to pay interest in full, Borrowers shall
pay the difference to Lender within five (5) Business Days of written notice
from Lender. Payments received by Borrowers directly from any Obligor shall be
delivered to the Lockbox Bank within two (2) Business Days. Notwithstanding
anything in this Section 1.6 to the contrary, in the event of the occurrence and
during the continuance of an Event of Default, Lender shall have sole discretion
as to the order in which said payments shall be applied.
(b) Final Payment. The Indebtedness shall be payable in
full on the Maturity Date.
1.7 Prepayments.
(a) Voluntary Prepayments. Borrowers may not make any
voluntary prepayments except (i) in accordance with Section 1.6(a), (ii) as may
result from the sale of Pledged Receivables financed under this Agreement into
the Purchase Facility, (iii) in the event the Purchase Limit is reached under
the Purchase Facility and Lender, in its capacity as Purchaser thereunder, has
refused to increase the Purchase Limit in accordance with Section 2.12(b) of the
Purchase Facility or (iv) in the event Lender has reviewed and rejected
Receivables associated with the Club. In connection with any sale to the
Purchase Facility of Pledged Receivables, Lender shall release its lien and
security interest in and to such Pledged Receivable and the related Pledged
Receivables Collateral if but only if the Repayment Price in respect to such
Pledged Receivable is paid to Lender. All Repayment Prices shall be applied as
prepayments of the Loan. From time to time Lender shall also cause to be
released from the lien of a Resort Blanket Mortgage those Intervals with respect
to which the related Pledged Receivable has been fully paid and fully performed.
Additionally, in the event a Pledged Receivable is no longer an Eligible
Completed Unit Receivable or an Eligible Uncompleted Unit Receivable and the
Borrowers take the action described in Section 1.7(b), the Lender will release
its lien on the Pledged Receivable. All out of pocket costs and expenses in
connection with any partial releases shall be for the expense of the Borrowers.
(b) Mandatory Prepayments. If at any time the outstanding
principal balance of the Loan exceeds the Maximum Exposure, Borrowers shall,
within five (5) Business Days after notice, prepay the Loan in an amount
necessary to reduce the principal balance of the Loan to the Maximum Exposure;
provided, however, that Borrowers, at their option within five (5) Business Days
after notice, may deliver to Lender one (1) or more Pledged Receivables such
that, after delivery of such Pledged Receivable(s), the outstanding principal
balance of the Loan does not exceed the Maximum Exposure.
1.8 Fees. The Borrowers shall pay to Lender the structuring fees
as described in the Structuring Fee Letter attached hereto as Exhibit K.
1.9 Increased Costs. (a) If (i) any change in Regulation D of the
Board, or (ii) any Regulatory Change, in each case occurring after the date
hereof:
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(A) shall subject the Affected Party to any additional tax, duty
or other charge with respect to Advances made hereunder or a
participation purchased hereunder, or shall change the basis
of taxation of payments to such party of the interest on
Advances funded by it or any participation purchased hereunder
in any material respect, or any other amounts due under this
Agreement in respect of any Advances made or funded by it or
participations purchased by it (except for changes in the rate
of tax on the overall net income of such party imposed by the
jurisdiction of such party's principal executive office); or
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the
Board of Governors of the Federal Reserve System), but
excluding any reserve included in the determination of
interest rates, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Affected Party; or
(C) shall change the amount of capital maintained or required or
requested or directed to be maintained by any Affected Party;
or
(D) shall impose on any Affected Party any other condition
affecting any Advance or participation made or funded by any
Affected Party; and the result of any of the foregoing is or
would be to increase the cost to (or in the case of Regulation
D referred to above, to impose a cost on) (a) an Affected
Party funding or making or maintaining any Advances or
purchasing participations, or (b) the Lender for continuing
its relationship with the Borrowers, to reduce the amount of
any sum received or contracted by an Affected Party under this
Agreement, the Note, or any other Loan Document with respect
thereto, or in the good faith determination of such Affected
Party, to reduce the rate of return on the capital of an
Affected Party as a consequence of its obligations hereunder
or arising in connection herewith to a level below that which
such Affected Party would otherwise have achieved, then within
five Business Days after demand by the Lender on behalf of
such Affected Party to Borrowers (which demand shall be
accompanied by a written statement of such Affected Party,
subject to the second sentence of subsection (e) below),
Borrowers shall pay the Affected Party such additional amount
or amounts as will (in the reasonable determination of such
Affected Party) compensate such Affected Party for such
increased cost or such reduction. Such written statement
(which shall include calculations in reasonable detail) shall,
in the absence of manifest error, be rebuttably presumptive
evidence of the subject matter thereof; and
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(E) Each Affected Party will promptly notify the Lender (which
shall promptly notify the Borrowers) within 90 days after such
Affected Party has actual knowledge of any event occurring
after the date hereof that will entitle such Affected Party to
such additional amounts as compensation pursuant to this
Section 1.9. Such additional amounts shall accrue from the
date of such event (or if such notice is not given within 90
days after such Affected Party's knowledge of such event, from
the date which is 90 days prior to the date such notice is
given by such Affected Party).
(F) If any Lender requests compensation under this Section 1.9
which materially increases the Borrowers' cost of funds with
respect to the Loan or if any Lender defaults in its
obligation to fund loans hereunder, then the Borrowers may
upon five (5) Business Days notice to such Lender, require
such Lender to assign and delegate, without payment by
Borrowers of any prepayment fee or premium, all its interests,
rights and obligations under this Agreement to an Eligible
Assignee that shall assume such obligations (which assignee
may be another Lender, if another Lender accepts such
assignment); provided that (i) such transferring Lender shall
have received payment of an amount equal to the outstanding
principal amount of its loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal
and accrued interest) or Borrowers (in the case of all other
amounts) and (ii) in the case of any such assignment resulting
from a claim for compensation under Section 1.9, such
assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a
waiver by such lender or otherwise, the circumstances
entitling Borrowers to require such assignment and delegation
ceases to apply.
1.10 [Omitted]
1.11 Interest Loans. Notwithstanding any provision to the contrary
contained in this Agreement or any other Loan Document, Borrowers shall not be
required to pay, and the Lender shall not be permitted to collect, any amount of
interest in excess of the maximum amount of interest permitted by applicable law
("Excess Interest"). If any Excess Interest is provided for or determined by a
court of competent jurisdiction to have been provided for in this Agreement or
in any other Loan Document, then in such event: (1) the provisions of this
subsection shall govern and control; (2) the Borrowers shall not be obligated to
pay any Excess Interest; (3) any Excess Interest that the Lender may have
received hereunder shall be, at the Lender's option, (a) applied as a credit
against the outstanding principal balance of the Indebtedness or accrued and
unpaid interest (not to exceed the maximum amount permitted by law), (b)
refunded to the payor thereof,
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or (c) any combination of the foregoing; (4) the interest rate(s) provided for
herein shall be automatically reduced to the maximum lawful rate allowed from
time to time under applicable law (the "Maximum Rate"), and this Agreement and
the other Loan Documents shall be deemed to have been and shall be, reformed and
modified to reflect such reduction; and (5) the Borrowers shall not have any
action against the Lender for any damages arising out of the payment or
collection of any Excess Interest. Notwithstanding the foregoing, if for any
period of time interest on any Indebtedness is calculated at the Maximum Rate
rather than the applicable rate under this Agreement, and thereafter such
applicable rate becomes less than the Maximum Rate, the rate of interest payable
on the Indebtedness shall remain at the Maximum Rate until the Lender shall have
received the amount of interest which such Lender would have received during
such period on the Indebtedness had the rate of interest not been limited to the
Maximum Rate during such period.
SECTION 2. COLLATERAL
2.1 Grant of Security Interest. To secure the payment and
performance of the Indebtedness and, subject to the last sentence of this
Section 2.1, Project Indebtedness, Borrowers do hereby, subject to the terms of
this Agreement unconditionally and irrevocably assign, pledge and grant to
Lender a first priority continuing security interest and lien in and to the
right, title and interest of Borrowers in the following property of Borrowers
with respect to the Resorts and Additional Resorts, whether now owned or
existing or hereafter acquired regardless of where located (collectively, the
"Collateral"):
(a) All Pledged Receivables;
(b) All Pledged Receivables Collateral;
(c) All Project Loan Collateral;
(d) All "Mortgaged Property", as such term is defined in
each of the Resort Blanket Mortgages;
(e) All Club Collateral (except to the extent the
assignment, pledge or granting of a security interest in any Club Collateral
would constitute a default under any license or lease of any such Club
Collateral);
(f) All cash, other monies and property of Borrowers in
the possession or under the control of Lender other than cash and other monies
and property delivered to the Lender in error;
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(g) All books, records, ledger cards, files,
correspondence, computer tapes, disks and software (subject to licensing
agreements) relating to the Pledged Receivables and Pledged Receivable
Collateral or any other Collateral (except to the extent the assignment, pledge
or granting of a security interest in any Club Collateral would constitute a
default under any license or lease of any such Club Collateral); and
(h) All proceeds, extensions, amendments, additions,
improvements, betterments, renewals, substitutions and replacements of the
foregoing.
So long as there is no "Material Project Loan Default" (as the same is defined
on Schedule 2.1 hereto which definition shall be included in the Project Loan
Agreement), the Collateral shall not secure the Project Indebtedness and the
Lender, upon the Borrowers' written request, shall release its lien hereunder.
Lender shall execute such releases and termination statements, to the
extent deemed necessary by Lender, so as to facilitate the purchase and sale of
Receivables under the Purchase Facility, it being the intent of the parties
hereto that this Agreement contemplates the financing of Pledged Receivables
until such time as such Pledged Receivables and Pledged Receivables Collateral
are sold pursuant to the terms of the Purchase Facility.
2.2 Exchange Mechanics. This Agreement contemplates the financing
of Pledged Receivables associated with the Club. The Borrowers anticipate
exchanging certain conditional land sale contracts for notes and Purchase Money
Mortgages to facilitate Obligors joining the Club. Notwithstanding anything to
the contrary contained herein, in no event shall such exchange affect the
Lender's first perfected security interest in a Pledged Receivable. Lender
hereby agrees to cooperate with Borrowers to facilitate the exchange
contemplated in the second sentence of this Section 2.2; provided such exchange
has no negative impact on the Lender's first priority perfected lien and
security interest on the Collateral (i.e. the Lender shall have a first priority
perfected lien and security interest in the new Pledged Receivable which has
been exchanged for the prior Pledged Receivable) and provided further that the
Borrowers pay all of Lender's reasonable costs (including but not limited to
legal expenses) associated with the exchange contemplated in the second sentence
of this Section 2.2.
2.3 Security Agreement. This Agreement shall be deemed a security
agreement as defined in the Code, and the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall be
cumulative and be as prescribed (a) herein, or (b) by applicable law, or (c) as
to such part of the Collateral which is also reflected in any filed financing
statement, by the specific provisions of the Code now or hereafter enacted, all
at Lender's sole election.
SECTION 3. CONDITIONS PRECEDENT TO ADVANCES
The obligation of Lender to make Advances is subject to satisfaction of
all of the conditions set forth below (to the extent applicable to the Pledged
Receivables being financed
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hereby). Notwithstanding anything contained in this Agreement to the contrary,
in no event shall the execution of this Agreement on the date hereof be deemed a
waiver by Lender of any of the conditions set forth below with respect to any
Advance.
3.1 Closing Deliveries.
(a) Lender shall have received, in form and substance
satisfactory to Lender, all documents, instruments and information identified on
the Closing Checklist attached hereto as Exhibit O, including, without
limitation, one or more executed legal opinions, issued by counsel acceptable to
Lender, in form and content acceptable to Lender.
(b) Lender shall have received, in form and substance
satisfactory to Lender, all documents, instruments and information identified on
the Resort Closing Checklist attached hereto as Exhibit P with respect to the
Resorts (including, without limitation, one or more executed legal opinions,
issued by counsel acceptable to Lender in each of the states wherein the Resorts
are located, in form and content acceptable to Lender).
(c) Lender shall have received, in form and substance
satisfactory to Lender, all documents, instruments and information identified on
the Additional Resort Closing Checklist attached hereto as Exhibit Q including,
without limitation, one or more executed legal opinions, issued by counsel
acceptable to Lender in each of the states wherein the Additional Resorts are
located, in form and content acceptable to Lender).
(d) Lender shall have received, in form and substance
satisfactory to Lender, all documents, instruments and information identified on
the Club Closing Checklist attached hereto as Exhibit R with respect to the Club
(including, without limitation, one or more executed legal opinions, issued by
counsel acceptable to Lender in the state wherein the Club is located, in form
and content acceptable to Lender).
3.2 Deliveries Prior to Each Advance. Prior to each Advance,
Lender shall have received all documents, instruments and information identified
on Schedule 3.2 attached hereto. Requests for Advance ("Advance Request") shall
be made at least five (5) Business Days prior to the requested date of
disbursement and shall be in the form of Exhibit D hereto. Any Advance Request
given by a Borrower pursuant to this Section 3.2 shall be irrevocable and
binding on such Borrower. Such Advance Request shall designate a specific
account for the respective Borrower and designate the specific Resort relating
to the respective Borrower's Pledged Receivables.
3.3 Security Interests. Lender shall have received satisfactory
evidence that all security interests and liens granted to Lender pursuant to
this Agreement or the other Loan Documents have been duly perfected and
constitute first priority liens on the Collateral.
3.4 Representations and Warranties. The representations and
warranties contained herein and in the Loan Documents shall be true, correct and
complete in all material respects on and as of the date of funding of each
Advance except for any representation or warranty limited
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by its terms to a specific date or affected by the transactions permitted by
this Agreement and taking into account any amendments to the Schedules or
Exhibits as a result of any disclosures made by the Borrowers to Lender after
the date hereof and approved by Lender, and except to the extent of changes
occurring in the ordinary course of business that, either singly or in the
aggregate, have not had and could not reasonably be expected to have a Material
Adverse Effect.
3.5 No Default. No Event of Default shall have occurred and be
continuing.
3.6 Performance of Agreements. Borrowers shall have performed in
all material respects all agreements, paid all fees, costs and expenses and
satisfied all conditions which any Loan Document provides shall be paid or
performed by it as of such date.
3.7 Governmental Approvals. Borrowers shall have obtained all
approvals, licenses, permits and consents for the sale of Intervals to Obligors
which are the subject of any requested Advance.
3.8 Intercreditor Agreements. To the extent the Borrowers or one
of their respective Affiliates has incurred, or will incur, debt for borrowed
money secured by the Resorts, Additional Resorts or Project Loan Collateral from
a source other than the Lender, the Lender shall have the opportunity to review
such other financing sources loan documentation and, to the extent necessary to
maintain its first perfected security interest in the Collateral, shall have the
opportunity to enter into a satisfactory Intercreditor Agreement or other
arrangement with the Borrowers and the party extending such credit. Such
Intercreditor Agreement or other arrangements shall provide satisfactory
assurances to the Lender that the Collateral shall not be adversely affected by
the security securing such other financing source.
SECTION 4. GENERAL REPRESENTATIONS AND WARRANTIES
Borrowers hereby jointly and severally represent and warrant to Lender
as follows, which representations and warranties shall remain true throughout
the term of the Loan:
4.1 Existence.
(a) Bluegreen Corporation is a corporation duly formed,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts with its principal place of business at Boca Raton, Florida.
Bluegreen Corporation is in good standing under the laws of the State of Florida
and is authorized to transact business in the States of Florida, and in each
other state where the failure to be so authorized would have a Material Adverse
Effect.
(b) Bluegreen Vacations Unlimited, Inc., a Florida
corporation, is a corporation duly formed, validly existing and in good standing
under the laws of the State of Florida with its principal place of business at
Boca Raton, Florida. Bluegreen Vacations Unlimited, Inc. is in good standing
under the laws of the State of Florida and is authorized to
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transact business in each state where the failure to be so authorized would have
a Material Adverse Effect.
4.2 Authorization and Enforceability.
(a) Execution. The Loan Documents have been duly
authorized, executed and delivered and constitute the duly authorized, valid and
legally binding obligations of the Borrowers, enforceable against the Borrowers
and the other parties signatory thereto (other than Lender) in accordance with
their respective terms subject, as to enforceability, to the effect of
bankruptcy and other laws generally affecting creditors' rights.
(b) Other Agreements.The execution, delivery and
compliance with the terms and provisions of the Loan Documents will not (i) to
the best of Borrowers' knowledge, violate any provisions of law or any
applicable regulation, order or other decree of any court or governmental
entity, or (ii) conflict or be inconsistent with, or result in any default
under, any material contract, agreement or commitment to which the Borrowers are
bound.
4.3 Financial Statements and Business Condition. Bluegreen
Corporation has delivered to Lender its financial statements for the Fiscal Year
ending March 29, 1998. Such financial statements fairly present the financial
condition and (if applicable) results of operations of Bluegreen Corporation as
of the date or dates thereof and for the periods covered thereby. All such
financial statements were prepared in accordance with GAAP. Except for any such
changes heretofore expressly disclosed in writing to Lender, there has been no
material adverse change in the financial condition of Bluegreen Corporation
since March 29, 1998. Borrowers are able to pay all of their respective debts as
they become due, and Borrowers shall maintain such solvent financial condition,
giving effect to all obligations, absolute and contingent, of each such
Borrowers. Each such Borrower's obligations under this Agreement and under the
Loan Documents will not render the respective Borrower unable to pay its debts
as they become due. The present fair market value of each Borrower's assets is
greater than the amount required to pay its total liabilities.
4.4 Taxes. All ad valorem taxes and other taxes and assessments
against each Resort, Additional Resort and the Collateral have been paid and the
Borrowers know of no basis for any additional taxes or assessments against any
Resort, Additional Resort or the Collateral. Borrowers have filed all required
tax returns and has paid all taxes shown to be due and payable on such returns,
including interest and penalties, and all other taxes which are payable by it,
to the extent the same have become due and payable except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
(b) the Borrowers have set aside on their books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
4.5 Litigation and Proceedings. Except as disclosed in Schedule
4.5 attached hereto, as of the date hereof there are no actions, suits,
proceedings, orders or injunctions pending or, to
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the best of Borrowers' knowledge, threatened against or affecting the Borrowers,
the Timeshare Associations or any Affiliate thereof, at law or in equity, or
before or by any governmental authority the result of which, if adversely
determined, would have a Material Adverse Effect. The Borrowers have not
received any notice from any court or governmental authority alleging that such
Person, any Affiliate or any of the Timeshare Associations has violated the
applicable timeshare act, any of the rules or regulations thereunder, or any
other applicable laws, the result of which, if adversely determined, would have
a Material Adverse Effect.
4.6 Licenses and Permits. Borrowers possess all requisite
franchises, certificates of convenience and necessity, operating rights,
licenses, permits, consents, authorizations, exemptions and orders as are
necessary to carry on their businesses as now being conducted, except where the
failure to possess the same would not, individually or in the aggregate, have a
Material Adverse Effect.
4.7 Full Disclosure. No written information or written report
furnished by or on behalf of Borrowers to Lender in connection with the Loan,
when taken together with all other written information provided, contains any
untrue statement of a material fact or omits any material fact necessary to make
the statement contained herein or therein, in light of the circumstances in
which made, not misleading. Borrowers know of no legal or contractual
restriction which will prevent them from offering or selling Intervals in any
state where each Borrowers is selling Intervals.
4.8 Employee Benefit Plans. Each Borrower is in compliance in all
material respects with all applicable provisions of the Employee Retirement
Income Security Act, the Internal Revenue Code and all other applicable laws and
the regulations and interpretations thereof with respect to all employee benefit
plans adopted by such Borrower for the benefit of its employees. No material
liability has been incurred by either Borrower which remains unsatisfied for any
funding obligation, taxes or penalties with respect to any such employee benefit
plan.
4.9 Representations as to the Resorts and Additional Resorts.
Borrowers jointly and severally represent and warrant with respect to a Resort
or an Additional Resort the following:
(a) Title; Prior liens. Borrowers have good and
marketable title to the Resorts or Additional Resorts (excluding sold Intervals
and any equitable rights of the Obligors under applicable state law to the Units
under any conditional land sales contracts which are the subject of any Pledged
Receivable). Borrowers are not in default under any of the documents evidencing
or securing any indebtedness for borrowed money in an outstanding amount in
excess of $1,000,000 which is secured, wholly or in part, by the Resorts or
Additional Resorts, and no event has occurred which with the giving of notice,
the passage of time or both, would constitute a default under any of the
documents evidencing or securing any such indebtedness. There are no liens or
encumbrances against the Resorts or Additional Resorts and relating to the
Collateral other than Permitted Adverse Claims or Permitted Liens.
(b) Access. The Resorts and Additional Resorts relating
to Eligible Completed Unit Receivables have direct access to a publicly
dedicated road over a recorded easement and all
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roadways, if any, inside the Resorts and Additional Resorts are or will be
common areas under the Declaration after the first Advance against Receivables
originated at such Resort.
(c) Utilities. Electric, gas, sewer, water facilities and
other necessary utilities are lawfully available in sufficient capacity to
service the Units relating to the Intervals in the Resorts and Additional
Resorts relating to Eligible Completed Unit Receivables and any easements
necessary to the furnishing of such utility service have been obtained and duly
recorded.
(d) Amenities. All amenities described in the sales
prospectus and the "Public Reports" for the Resorts and Additional Resorts
relating to Eligible Completed Unit Receivables are completed, or will be
completed, in the time periods described in the "Public Reports", or a bond
insuring their completion has been posted. Each Obligor has or will have, in the
time period described in the Public Reports, access to and the use of all of the
amenities and public utilities of the Resorts and the Additional Resorts
relating to Eligible Completed Unit Receivables as and to the extent provided in
the Declaration and the "Public Reports".
(e) Construction. All costs arising from the construction
of any improvements and the purchase of any equipment, inventory, or furnishings
located in or on the Resorts and Additional Resorts relating to the Units
relating to the Intervals and relating to Eligible Completed Unit Receivables
have been paid or will be paid when due.
4.9A Representations as to the Units. No Unit or Pledged Receivable
relating to a Unit relates to a campground/tent site, recreational vehicle site
or other non-permanent building or structure.
4.10 Timeshare Interval Exchange Network. Each Borrower is a member
and participant in respect to each Resort and Additional Resort, pursuant to a
validly executed and, to Borrower's knowledge, enforceable agreement in writing,
in Interval International, Inc. or Resorts Condominium International, Inc.
Borrowers has paid all fees and other amounts due and owing under such agreement
and is not otherwise in default in any respect, the effect of which could
reasonably be expected to have a Material Adverse Effect thereunder.
4.11 Collateral. The Collateral, including without limitation, the
Pledged Receivables and the Pledged Receivables Collateral, in which a security
interest is to be granted to the Lender pursuant to this Agreement shall be
owned by Borrowers free and clear of any Adverse Claim (other than any Permitted
Adverse Claim or Permitted Liens). The Borrowers have a first priority perfected
ownership interest in the Collateral including but not limited to the Pledged
Receivables and the Pledged Receivables Collateral, subject to Permitted Adverse
Claims and Permitted Liens. This Agreement creates a valid first priority
security interest in favor of the Lender (for the benefit of the Lender) in the
Collateral granted by such Borrower, including without limitation the Pledged
Receivables and Pledged Receivables Collateral, which security interest has been
perfected (free and clear of any Adverse Claim other than any Permitted Adverse
Claim or
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Permitted Lien and any equitable rights of the Obligors under applicable state
law to the Units under any conditional land sales contracts which are the
subject of any Pledged Receivable) as security for the Indebtedness. No
effective financing statement or other instrument similar in effect covering any
of the Collateral or any interest therein is on file in any recording office
except for financing statements that may be filed (i) in favor of the Lender in
accordance with the Agreement or (ii) in favor of Borrowers and assigned to the
Lender. Borrowers shall defend Lender against and save it harmless from all
claims of any Persons other than Lender with respect to the Collateral, and this
indemnity shall include all reasonable attorneys' fees and legal expenses.
4.12 Investment Company Act, Etc. No Borrower is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company," or a "subsidiary company," of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
4.13 Trade Names. Except as disclosed on Schedule 4.13(a), no
Borrower uses any trade name other than its actual corporate name. From and
after the date that fell five (5) years before the date hereof, the Borrowers
have not been known by any legal name other than their respective corporate
names as of the date hereof, nor have the Borrowers been the subject of any
merger or other corporate reorganization, except as set forth in Schedule
4.13(b).
4.14 Margin Regulations. The Borrowers are not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of the Loan, directly or indirectly, will be used for a
purpose that violates, or would be inconsistent with, Regulations T, U and X
promulgated by the Board from time to time.
4.15 [Omitted]
SECTION 5. AFFIRMATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid or Lender is
committed to make Advances hereunder, unless Lender otherwise consents in
writing, Borrowers jointly and severally covenant as follows:
5.1 Payment of Indebtedness. Borrowers shall pay all of the
Indebtedness hereunder and under the Loan Documents when due.
5.2 Maintenance of Insurance. For so long as the Borrowers control
the Resorts and Additional Resorts, the Resorts and Additional Resorts shall at
all times and for so long as any Indebtedness remains outstanding be kept
insured with such general liability coverage and such other coverages acceptable
to Lender, by carrier(s), in the amounts described on Schedule 5.2 hereto, which
carrier(s), amounts and form shall not be changed without the prior written
consent of Lender. All insurance required under the preceding sentence for each
Resort and Additional Resorts may be maintained by the Timeshare Association as
required by the applicable
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Declaration or Time Share Declaration, provided that in the event such Timeshare
Association fails to maintain any insurance required under this Section 5.2,
then the Borrowers shall be required to obtain and maintain such insurance.
5.3 Inspections and Audits. Borrowers shall, at such reasonable
times during normal business hours and as often as may be reasonably requested,
permit any agents or representatives of Lender to inspect the Resorts and
Additional Resorts and any of Borrowers' assets (including financial and
accounting books and records), to examine and make copies of and abstracts from
the records and books of account of the Borrowers or the Timeshare Association
(to the extent controlled by Borrowers) or serviced under the Servicing
Agreement and to discuss its affairs, finances and accounts with any of its
officers, employees or independent public accountants. Borrowers acknowledge
that Lender intends to conduct such audits and inspections on at least an annual
basis. Borrowers shall make available to Lender all credit information in
Borrowers' possession or under Borrowers' control with respect to Obligors as
Lender may reasonably request. Upon Lender's request, Borrowers shall furnish to
Lender evidence of payment of all real estate taxes relating to the Resorts and
the Additional Resorts. All audits, inspections of the Resorts, Additional
Resorts and credit investigations shall be at Borrowers' expense; provided,
however, that except with respect to any audits, inspections of the Resorts,
Additional Resorts or credit investigations conducted after and during the
continuance of an Event of Default hereunder, Borrowers shall not be required to
pay in excess of Ten Thousand Dollars ($10,000) in any calendar year for audits
performed during such year. After the occurrence and during the continuance of
an Event of Default, Borrowers shall be required to pay all reasonable fees,
costs and expenses incurred by Lender for any and all Resorts and Additional
Resorts inspections, audits and any other diligence relating to Borrowers'
finances or books or records.
5.4 Reporting Requirements. So long as the Indebtedness remains
unpaid, Borrowers shall furnish the following to Lender:
(a) Monthly Reports. To the extent not provided to Lender
pursuant to the requirements of the Servicing Agreement, within twelve (12)
Business Days after the end of each Fiscal Month, reports showing through the
end of the preceding month, (i) the following information with respect to each
Pledged Receivable: (A) the opening and closing balances, (B) all payments
received allocated to interest, principal, late charges, taxes or the like, (C)
the rate of interest, (D) an itemization of delinquencies, extensions,
refinances, prepayments, upgrades, payoffs, cancellations and other adjustments,
(E) the remaining term, (F) the nature and status of any claims asserted or
legal action pending with respect thereto, and (G) any exchange of one form of
Pledged Receivable for another form of Pledged Receivable (i.e., any exchange of
a conditional sales contract to a note and mortgage format required by the
Club); and (ii) the weighted average interest rate and the average remaining
term of all Pledged Receivables.
(b) Sales and Inventory Reports. Within twelve (12)
Business Days after the end of each quarter, a quarterly report showing all
sales and cancellations of sales of Intervals on Resorts and Additional Resorts
on a resort by resort basis, in form and content satisfactory to Lender; and
within thirty (30) Business Days after the end of each fiscal year of Borrowers,
an
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annual sales and inventory report for the Resorts and Additional Resorts
detailing the sales of all Intervals on a resort by resort basis during such
fiscal year and the available inventory of Units and Intervals, certified by
each Borrowers to be true, correct and complete and otherwise in the form
approved by Lender.
(c) Quarterly Financial Reports. Within forty-five (45)
days after the end of each of Borrowers' first three fiscal quarterly periods
each year (or, if later, that date by which any Borrower is required to file
financial statements with the Securities and Exchange Commission), unaudited
financial statements of Borrowers certified by its chief financial officer as
well as, to the extent requested by the Lender and available to Borrowers,
unaudited financial statements of the Timeshare Association.
(d) Year-End Financial Reports. As soon as available and
in any event within one hundred and twenty (120) days after the end of each
fiscal year of Bluegreen Corporation: (i) the balance sheet of Bluegreen
Corporation as of the end of such year and the related statements of income and
cash flow for such Fiscal Year; (ii) a schedule of all outstanding indebtedness
of Bluegreen Corporation describing in reasonable detail each such debt or loan
outstanding and the principal amount and amount of accrued and unpaid interest
with respect to each such debt or loan; and (iii) a copy of a report from a firm
of independent certified public accountants selected by Bluegreen Corporation,
which report shall be unqualified as to going concern and scope of audit and
shall state that such financial statements present fairly the financial position
of Bluegreen Corporation as of the dates indicated and the results of its
operations and cash flow for the periods indicated in conformity with GAAP.
(e) Officer's Certificate. Each set of financial
statements delivered hereunder shall be accompanied by a certificate of the
Chief Financial Officer of the respective Borrower setting forth to the extent
applicable:
(i) Covenant Compliance. The information
(including detailed calculations) required in order to
establish whether the Borrower was in compliance with the
requirements of Sections 5.7, 5.8 and 5.9 hereof, during the
quarterly or annual period covered by the statements then
being furnished;
(ii) Event of Default. A statement that such
officer has reviewed the relevant terms hereof and has made,
or caused to be made, under his or her supervision, a review
of the transactions and conditions of the Borrowers and their
respective Subsidiaries from the beginning of the quarterly or
annual period covered by the statements then being furnished
to the date of the certificate and that such review shall not
have disclosed the existence during such period of any
condition or event that constitutes an Event of Default or, if
any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action the
respective Borrowers shall have taken or proposed to take with
respect thereto.
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(f) Timeshare Association Reports. To the extent the
respective Borrower controls the Resort or Additional Resort the semiannual and
annual financial statements of the Timeshare Association and to the extent the
Resort or Additional Resort is not in a Borrower's control, the respective
Borrower shall make a good faith effort to obtain the same from the respective
Timeshare Association.
(g) Audit Reports. Promptly upon receipt thereof, one (1)
copy of each other report submitted to Bluegreen Corporation by their
independent public accountants in connection with any annual, interim or special
audit made by them of the books of Bluegreen Corporation.
(h) Other Reports. Such other reports, statements,
notices or written communications relating to the Borrowers, the Time Share
Associations, the Resorts or the Additional Resorts as are available to
Borrowers and as Lender may reasonably require.
(i) SEC Reports. Promptly upon their becoming
publicly available, one (1) copy of each financial statement,
report, notice or proxy statement sent by Borrowers to
security holders generally, and of each regular or periodic
report and any registration statement, prospectus or written
communication (other than transmittal letters) in respect
thereof filed by Borrowers with, or received by Borrowers in
connection therewith from, any securities exchange or the
Securities and Exchange Commission or any successor agency.
5.5 Records. Borrowers shall keep adequate records and books of
account reflecting all financial transactions of Borrowers and (to the extent
available to the Borrowers) the Time Share Associations, including sales of
Intervals, in which complete entries will be made in accordance with GAAP.
5.6 Management; Contracts. For so long as the Borrowers control
the Resorts and the Additional Resorts, the manager, related management contract
and master marketing and sale contract (if applicable) for each Resort shall at
all times be satisfactory to Lender. For so long as the Borrowers control the
Timeshare Association for the Resorts or Additional Resorts, and the Borrowers
or an Affiliate thereof is the manager, the management contracts and primary
marketing and sale contracts may be amended or modified only with the prior
written consent of Lender, which consent shall not be unreasonably withheld.
5.7 Net Worth. At all times Indebtedness is outstanding or Lender
is obligated to make Advances, Bluegreen Corporation agrees to maintain a
Tangible Net Worth, determined in accordance with GAAP, of Eighty Million
Dollars ($80,000,000).
5.8 Fixed Rate Coverage Ratio. Bluegreen Corporation's ratio of
EBITDA to Consolidated Fixed Charges shall not be less than 2.00 to 1.00.
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5.9 Leverage Ratio Test. Bluegreen Corporation's ratio of Total
Indebtedness to Tangible Net Worth shall not be more than 2.00 to 1.00.
5.10 Maintenance. For so long as the Borrowers control the Resorts
and Additional Resorts, the Borrowers shall maintain the Resorts and Additional
Resorts in good repair, working order and condition (ordinary wear and tear
excepted).
5.11 Release and Bonding of Liens. In the event any lien securing
indebtedness for borrowed money in an amount in excess of $250,000 attaches to
any Collateral (other than Permitted Adverse Claims), Borrowers shall, within
the earlier to occur of ten (10) days after such attachment or the respective
lienholder's action to foreclose on such lien, either (a) cause such lien to be
released of record, or (b) provide Lender with a bond in accordance with the
applicable laws of the state in which the Collateral is located, issued by a
corporate surety acceptable to Lender, in an amount and in form reasonably
acceptable to Lender, or (c) provide Lender with such other security as Lender
may reasonably require.
5.12 Claims. Borrowers shall: (a) promptly notify Lender of (i) any
claim, action or proceeding affecting the Collateral, or any part thereof, or
any of the security interests granted hereunder which would have a Material
Adverse Effect, and (ii) any action, suit, proceeding, order or injunction of
which Borrowers become aware after the date hereof pending or threatened against
or affecting Borrowers or any Affiliate which would, if adversely determined,
have a Material Adverse Effect; (b) at the request of Lender, appear in and
defend, at Borrowers' expense, any such claim, action or proceeding which would,
if adversely determined, have a Material Adverse Effect; and (c) comply in all
respects, and shall cause all Affiliates to comply in all respects, with the
terms of any orders imposed on such Person by any governmental authority the
failure to comply with which would have a Material Adverse Effect.
5.13 Use of Lender Name. Borrowers will not, and will not permit
any Affiliate to, without the prior written consent of Lender, use the name of
Lender or the name of any affiliates of Lender in connection with any of their
respective businesses or activities, except in connection with internal business
matters, administration of the Loan and as required in dealings with
governmental agencies including any reports required to be filed with the
Securities and Exchange Commission.
5.14 Other Documents. To the extent not maintained by the
Custodian, Borrowers will maintain accurate and complete files relating to the
Pledged Receivables, the Pledged Receivables Collateral and other Collateral to
the satisfaction of Lender, and such files (to the extent not computerized) will
contain copies of each Pledged Receivable and the Pledged Receivable Collateral
together with the purchase agreements, truth-in-lending statements, all relevant
credit memoranda and all collection information and correspondence relating to
such Pledged Receivables.
5.15 Additional Indebtedness for Borrowed Money; Additional
Obligations Affiliated with Subordinated Obligations. Borrowers will not,
directly or indirectly, permit any payment to
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be made in respect of any indebtedness, liabilities or obligations, direct or
contingent for borrowed money (except any payments required or permitted with
respect to the indebtedness on Schedule 5.15), to any Affiliates (excluding
trade payables incurred in the ordinary course of business), which payments
shall and are hereby made subordinate to the payment of principal of, and
interest on, the Note.
5.16 Loan Servicing. Borrowers may not amend or terminate the
Servicing Agreement attached hereto as Exhibit F without Lender's prior
approval. Borrowers agree not to interfere with a Successor Servicer's
performance of its duties under the Servicing Agreement or to take any action
that would be inconsistent with the terms of the Servicing Agreement. The
Servicing Agreement shall be cancelable by Lender, as applicable under the terms
of the Servicing Agreement. All servicing fees, and the costs and expenses of
the Servicer shall be paid by the Borrowers.
5.17 Custodian. Lender shall utilize a Custodian to maintain
custody of the Pledged Receivables and the Pledged Receivables Collateral.
Borrowers agree not to interfere with Custodian's performance of its duties
under the Custodial Agreement or to take any action that would conflict with the
terms of the Custodial Agreement. All custodial fees, and the costs and expenses
of the Custodian, shall be paid by the Borrowers.
5.18 Compliance with Laws. Borrowers, and each of the Resorts in
which Intervals are being sold, shall comply with, conform to and obey each and
every judgment, law, statute, rule and governmental regulation applicable to it
and each indenture, order, instrument, agreement or document to which it is a
party or by which it is bound except where the failure to comply would not have
a Material Adverse Effect.
5.19 Compliance Documents. Upon request by Lender, Borrowers will
provide Lender with copies of all Compliance Documents relating to the sale of
any Intervals relating to Pledged Receivables outside of the States of South
Carolina, Missouri or Tennessee.
5.20 Real Estate Taxes. Borrowers will pay when due all of the
Borrowers' liabilities in respect of real estate taxes relating to the Resorts
and the Additional Resorts.
5.21 Omitted.
5.22 Omitted.
5.23 Borrowers' Financial Maintenance Requirement. For as long as
any Borrower controls a Resort or Additional Resort, such Borrower shall be
obligated to pay the Timeshare Association dues relating to such Resort or
Additional Resort and shall provide such monies as are necessary to maintain
services for a Resort or an Additional Resort which is equal to or greater than
one hundred percent (100%) of such Resort's or Additional Resort's total
operating expenses, taxes, utilities and associated reserve fund requirements.
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5.24 Year 2000. Borrowers have made an assessment of the microchip
and computer-based systems and the software used in their respective businesses
and based upon such assessment believe that they will be "Year 2000 Compliant"
by January 1, 2000. For purposes of this Section 5.24, "Year 2000 Compliant"
means that all software, embedded microchips and other processing capabilities
utilized by, and material to the business operations or financial condition of,
the respective Borrower are able to interpret, store, transmit, receive and
manipulate data on and involving all calendar dates correctly and without
causing any abnormal ending scenarios in relation to dates in and after the Year
2000. From time to time, at the request of the Lender, Borrowers shall provide
to Lender such updated information as is requested regarding the status of its
effort to become Year 2000 Compliant.
5.25 Authorized Signatory. Any person signing an Advance Request on
behalf of such Borrower, as provided in Schedule 3.2 hereof shall have the
requisite power and authority to sign the same on behalf of the related
Borrower.
5.26 Allonge/Assignment Requirements. The Borrower will attach an
Allonge in the form attached hereto as Exhibit E to each Pledged Receivable with
respect to Pledged Receivables which take the form of a Note or other instrument
secured by a Purchase Money Mortgage or a master assignment with respect to
Receivables which take the form of conditional sales contracts (the "Assignment
Document"). The signature of the authorized signatory with respect to an Allonge
or an Assignment Document may be either an original signature, a signature stamp
or a computer generated signature.
5.27 Environmental. So long as the Loan is outstanding, no
Hazardous Materials may be used, generated, treated, stored or disposed of by
any Person for any purpose upon any Collateral except in material compliance
with all applicable Environmental Laws except where the failure to comply would
not have a Material Adverse Effect. If the Lender, at any time, has a reasonable
basis to believe that Borrowers or any Resort or Additional Resort may be in
violation of any Environmental Law, then Borrowers agree, upon request from the
Lender to provide the Lender with such reports, certificates, engineering
studies or other written material or data as the Lender may require, in its
reasonable discretion, so as to satisfy the Lender that Borrowers, any Resort or
any Additional Resort are in compliance with all applicable Environmental Laws
and that the marketability and value of such Resort or Additional Resort is
adequately maintained.
SECTION 6. NEGATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid or Lender is
committed to lend hereunder, unless Lender otherwise consents in writing,
Borrowers hereby jointly and severally covenant and agree with Lender as
follows:
6.1 Consolidation and Merger. Each Borrower will not consolidate
with or merge into any other Person or permit any other Person to consolidate
with or merge into it or convey all or substantially all of its assets to any
person, unless (i) either the respective Borrowers shall be the continuing
corporation or the successor corporation or the person which acquires by sale or
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conveyance substantially all the assets of the respective Borrowers shall be a
corporation organized under the laws of the United States of America or any
State thereof and shall expressly assume the due and punctual payment of the
Indebtedness hereunder, and the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed or
observed by the respective Borrowers, by an amendment hereto in form
satisfactory to the Lender, and (ii) the respective Borrowers or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
6.2 Restrictions on Transfers. The Borrowers shall not, without
obtaining the prior written consent of Lender, which may be granted or withheld
in Lender's sole discretion, transfer, sell, pledge, convey, assign or encumber
all or any portion of the Collateral except with respect to the sales of Pledged
Receivables to the Purchase Facility and Permitted Adverse Claims and Permitted
Liens.
6.3 Collateral. The Borrowers shall not take any action (nor
permit or consent to the taking of any action) which might reasonably be
anticipated to impair the value of the Collateral or any of the rights of Lender
in the Collateral. Borrowers shall not (i) except in connection with a so-called
"upgrade" or a modification of a Pledged Receivable with no change in financial
terms or an exchange contemplated by Section 2.2 hereof, provided the conditions
in this Agreement are met, modify or amend any of the Pledged Receivables or the
Pledged Receivables Collateral without Lender's prior written consent, or (ii)
grant extensions of time for the payment of, compromise for less than the full
face value, release in whole or in part any Obligor liable for the payment of,
or allow any credit whatsoever except for the cash to be paid upon, any
Collateral or any instrument or document representing the Collateral other than
in the ordinary course of business in accordance with accepted industry loan
servicing standards.
SECTION 7. EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
7.1 Payments. Borrowers shall fail to make any payment of interest
on the Indebtedness within five (5) Business Days of the date such payment is
due and shall fail to make payments on the principal of the Indebtedness on the
date such payment is due.
7.2 Failure to Permit Inspections. Borrowers shall fail to
strictly comply with the provisions of Section 5.3 of this Agreement.
7.3 Covenant Defaults. Borrowers shall fail to perform or observe
any covenant, agreement or obligation contained in this Agreement or in any of
the Loan Documents (other than any covenant or agreement obligating Borrowers to
pay the Indebtedness), and such failure shall continue for thirty (30) days
after Lender delivers written notice thereof to Borrowers, provided, however, if
the failure is incapable of cure within such thirty (30) day period and
Borrowers shall
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be diligently pursuing a cure, such thirty (30) day cure period shall be
extended by an additional period not to exceed sixty (60) days.
7.4 Warranties or Representations. Any representation or other
statement made by or on behalf of Borrowers in this Agreement, in any of the
Loan Documents or in any instrument furnished in compliance with or in reference
to the Loan Documents, shall be false, misleading or incorrect in any material
respect as of the date made.
7.5 Bankruptcy. A petition under any Chapter of Title 11 of the
United States Code or any similar law or regulation is filed by or against any
Borrower, (and in the case of an involuntary petition in bankruptcy, such
petition is not discharged within sixty (60) days of its filing), or a
custodian, receiver or trustee for any of the Resorts or Additional Resorts is
appointed, or any Borrower makes an assignment for the benefit of creditors, or
any of them are adjudged insolvent by any state or federal court of competent
jurisdiction, or any of them admit their insolvency or inability to pay their
debts as they become due or an attachment or execution is levied against any of
the Resorts or Additional Resorts.
7.6 Attachment, Judgment, Tax Liens. The issuance, filing or levy
against the Borrowers of one or more attachments, injunctions, executions, tax
liens or judgments for the payment of money cumulatively in excess of
$1,000,000, which is not discharged in full or stayed within thirty (30) days
after issuance or filing.
7.7 Omitted.
7.8 Default by Borrowers in Other Agreements. Any default by a
Borrower in the payment of indebtedness for borrowed money in an aggregate
principal amount in excess of $1,000,000 (including, without limitation, any
default by a Borrower or any Affiliate in the payment of indebtedness for
borrowed money owing to Lender under any other agreement) which accelerates or
permits the acceleration (after the giving of notice or passage of time, or
both) of the maturity of such indebtedness.
7.9 Omitted.
7.10 Tax Liens; ERISA Liens. The Internal Revenue Service shall
file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with
regard to any of the assets of Borrowers, and such lien shall not have been
released within 30 days, or the Pension Benefit Guaranty Corporation shall file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
assets of Borrowers, and such lien shall not have been released within 30 days.
7.11 Loan Exceeds Maximum Exposure For Five Days. The provisions of
Section 1.7(b) hereof have not been met.
7.12 Validity of Transaction Documents. (a) Any Loan Document, or
any lien or security interest granted thereunder, shall (except in accordance
with its terms), in whole or in part, terminate, cease to be effective or cease
to be the legally valid, binding and enforceable
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obligation of Borrowers, (b) Borrowers, or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability of any Loan Document or (c) any security interest securing the
Indebtedness shall, in whole or in part, cease to be a perfected first priority
security interest, except as contemplated by this Agreement.
7.13 Default under the Project Loan. The occurrence and continuance
of an Event of Default under the Project Loan Documents.
SECTION 8. REMEDIES
8.1 Remedies Upon Default. Upon the occurrence and during the
continuance of an Event of Default, Lender may take any one or more of the
following actions, without notice to Borrowers except as expressly stated below
or required by applicable law:
(a) Acceleration. Declare by written notice to Borrowers,
(except upon the occurrence of any event specified in Section 7.5 above, in
which case the Indebtedness shall automatically be accelerated simultaneously
with the occurrence of such event) the unpaid balance of the Indebtedness, or
any part thereof, immediately due and payable, whereupon the same shall be due
and payable.
(b) Termination of Obligation to Advance. Terminate by
written notice to Borrowers any commitment of Lender to lend under this
Agreement in its entirety, or any portion of any such commitment, to the extent
Lender shall deem appropriate.
(c) Judgment. Reduce Lender's claim to judgment,
foreclose or otherwise enforce Lender's security interest in all or any part of
the Collateral by any available judicial procedure.
(d) Sale of Collateral. Exercise all the rights and
remedies of a secured party on default under the Code (whether or not the Code
applies to the affected Collateral) including (i) require the Borrowers to, and
the Borrowers hereby agree that they will, at their expense and upon request of
Lender forthwith, assemble all or part of the Collateral as directed by Lender
and make it available to Lender at a place to be designated by Lender which is
reasonably convenient to both parties; (ii) enter upon any premises of the
Borrowers and take possession of the Collateral; and (iii) sell the Collateral
or any part thereof at public or private sale, at any of the Lender's offices or
elsewhere, at such time or times, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as Lender may deem
commercially reasonable. Borrowers agree that, whether or not notice of sale
shall be required by law, ten (10) days notice of the time and place of any sale
shall constitute reasonable notification. At any sale of the Collateral, if
permitted by law, Lender may bid (which bid may be, in whole or in part, in the
form of cancellation of indebtedness) for the purchase of the Collateral or any
portion thereof for the account of Lender. Subject to compliance by Lender with
all applicable laws, Borrowers shall remain jointly and severally liable for any
deficiency. Lender shall not be required to proceed against any Collateral but
may proceed against the Borrowers directly. To the extent permitted
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by law, the Borrowers hereby specifically waive all rights of redemption, stay
or appraisal which it has or may have under any law now existing or hereafter
enacted.
(e) Omitted.
(f) Exercise of Other Rights. Exercise any and all other
rights or remedies afforded by any applicable laws or by the Loan Documents as
Lender shall deem appropriate, at law, in equity or otherwise, including the
right to bring suit or other proceeding, either for specific performance of any
covenant or condition contained in the Loan Documents or in aid of the exercise
of any right or remedy granted to Lender in the Loan Documents.
8.2 Application of Collateral; Termination of Agreements. Upon the
occurrence and during the continuance of an Event of Default and subject to the
conditions provided in Section 2.1 hereof, Lender may apply against the
Indebtedness, any other indebtedness to Lender with respect to any Resort,
Additional Resort or any Project Indebtedness any and all Collateral in its
possession, other than any monies of the Borrowers received in error, any and
all balances, credits, deposits, accounts, reserves, indebtedness or other
moneys due or owing to Borrowers held by Lender hereunder or under any other
financing agreement or otherwise, whether accrued or not.
8.3 Waivers. No waiver by Lender of any Event of Default shall be
deemed to be a waiver of any other or subsequent Event of Default. No delay or
omission by Lender in exercising any right or remedy under the Loan Documents
shall impair such right or remedy or be construed as a waiver thereof or an
acquiescence therein, nor shall any single or partial exercise of any such right
or remedy preclude other or further exercise thereof, or the exercise of any
other right or remedy under the Loan Documents or otherwise. Further, Borrowers
waive notice of the occurrence of any Event of Default, presentment and demand
for payment, protest, and notice of protest, notice of intention to accelerate,
acceleration and nonpayment, and agree that their liability shall not be
affected by any renewal or extension in the time of payment of the Indebtedness,
or by any release or change in any security for the payment or performance of
the Indebtedness, regardless of the number of such renewals, extensions,
releases or changes. Borrowers also hereby waive the right to assert any statute
of limitations as a bar to the enforcement of the lien created by any of the
Loan Documents or to any action brought to enforce the Note or any other
obligation secured by the Loan Documents.
8.4 Set Off of Payments. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, upon the occurrence and during the continuance of any Event of Default,
the Lender is hereby authorized by Borrowers at any time or from time to time,
with reasonably prompt subsequent notice to Borrowers or to any other Person
(any prior or contemporaneous notice being hereby expressly waived) to set off
and to appropriate and to apply any and all (A) balances held by the Lender or
such holder at any of its offices for the account of Borrowers (regardless of
whether such balances are then due to Borrowers), and (B) other property at any
time held or owing by the Lender or such holder to or
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for the credit or for the account of Borrowers, against and on account of any of
the Indebtedness which are not paid when due other than monies of the Borrowers
received by Lender in error.
8.5 Cumulative Rights. All rights and remedies available to Lender
under the Loan Documents shall be cumulative and in addition to all other rights
and remedies granted to Lender at law or in equity, whether or not the
Indebtedness is due and payable and whether or not Lender shall have instituted
any suit for collection or other action in connection with the Loan Documents.
SECTION 9. CERTAIN RIGHTS AND
OBLIGATIONS OF LENDER
9.1 Protection of Collateral. Lender may at any time and from time
to time take such actions as Lender deems necessary or appropriate to protect
Lender's liens and security interests in and to preserve the Collateral.
Borrowers agree to cooperate fully with all of Lender's efforts to preserve the
Collateral and Lender's liens and security interests therein.
9.2 Performance by Lender. If Borrowers fail to perform any
agreement contained herein, Lender may, but shall not be obligated to, cause the
performance of, such agreement, and the expenses of Lender incurred in
connection therewith shall be payable by Borrowers pursuant to Section 9.3
below.
9.3 Fees and Expenses. Borrowers agree to promptly pay all
reasonable Costs and all such Costs shall be included as additional
Indebtedness.
9.4 Release of Security Interest. Upon satisfaction in full of an
Obligor's obligations under a Receivable, Lender shall release its security
interest in such Obligor's Receivable and, in connection therewith, shall
execute such amendments or partial releases to the related Resort Blanket
Mortgage as shall be necessary to enable the applicable Borrower to convey an
unencumbered deed to the related Interval to such Obligor. Lender's security
interest in all other Pledged Receivables shall remain in full force and effect.
Lender's obligations under this Section 9.4 shall be unaffected by the pendency
of an Event of Default hereunder.
9.5 Notice to Obligor. After the occurrence of and during the
continuance of an Event of Default, Borrowers authorize both the Lender and the
Custodian (but neither the Lender nor the Custodian shall be obligated) to
communicate at any time and from time to time, after a sale of an Interval, with
any Obligor or any other Person primarily or secondarily liable under a Pledged
Receivable with regard to the lien of Lender thereon and any other matter
relating thereto.
9.6 Collection of Receivables. Following the occurrence of and
during the continuance of an Event of Default, Lender shall have the right to
(a) require that all payments due under the Pledged Receivables be paid directly
to Lender or to such party as Lender may designate, and to receive, collect,
hold and apply the same in accordance with the provisions of this Agreement or
to such party as Lender may designate, and (b) take such remedial action
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available to it for the enforcement of any defaulted Pledged Receivables
including the foreclosure of any Pledged Receivable Collateral securing the
payment thereof. Borrowers hereby further irrevocably authorize, direct and
empower Lender, after the occurrence and during the continuance of an Event of
Default, to collect and receive all checks and drafts evidencing such payments
and to endorse such checks or drafts in the name of Borrowers and upon such
endorsements, to collect and receive the money therefor.
Upon payment and satisfaction in full of all Indebtedness and subject
to Section 2.1 hereof, Lender will, at Borrowers' request and sole expense, give
written notice as necessary to redirect payment of the Pledged Receivables as
requested by Borrowers.
9.7 Power of Attorney. The Borrowers do hereby irrevocably
constitute and appoint Lender as Borrowers' true and lawful agent and
attorney-in-fact, with full power of substitution, for Borrowers and in
Borrowers' name, place and stead, or otherwise, to (i) attach an Allonge in the
form attached hereto as Exhibit E to each Pledged Receivable with respect to
Pledged Receivables which take the form of a note or other instrument secured by
a Purchase Money Mortgage and (ii) following the occurrence and during the
continuance of an Event of Default (a) endorse any checks or drafts payable to
Borrowers in the name of Borrowers and in favor of Lender as provided in Section
9.6 above; (b) to demand and receive from time to time any and all property,
rights, titles, interests and liens hereby sold, assigned and transferred, or
intended so to be, and to give receipts for same; and (c) to institute and
prosecute in the name of Borrowers or otherwise, but for the benefit of Lender,
any and all proceedings at law, in equity, or otherwise, that Lender may deem
proper in order to collect, assert or enforce any claim, right or title, of any
kind, in and to the property, rights, titles, interests and liens hereby sold,
assigned or transferred, or intended so to be, and to defend and compromise any
and all actions, suits or proceedings in respect of any of the said property,
rights, titles, interests and liens. Borrowers hereby declare that the
appointment made and the powers granted pursuant to this Section are coupled
with an interest and are and shall be irrevocable by the Borrowers in any
manner, or for any reason, unless and until all obligations of the Borrowers to
Lender have been satisfied.
9.8 Indemnification of Lender. Borrowers shall jointly and
severally indemnify Lender and hold Lender harmless from and against any and all
liabilities, indebtedness, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses, and disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Lender, in
any way relating to or arising out of (a) this Agreement and the Loan Documents
and/or (b) any of the transactions contemplated therein or thereby (including
those in any way relating to or arising out of the violation by Borrowers of any
federal or state laws including the Interstate Land Sales Full Disclosure Act or
any applicable timeshare acts) other than liabilities, indebtedness, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements which are caused by the Lender's material breach of, or gross
negligence or willful misconduct with respect to its actions or inactions under
this Agreement or any other Loan Document. Upon receiving knowledge of any suit,
claim or demand asserted by a third party that Lender believes is covered by
this indemnity, Lender shall give Borrowers notice of the matter and an
opportunity to defend it, at Borrowers' sole cost and expense, with legal
counsel satisfactory to Lender.
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Notwithstanding any defense by Borrowers of any such suit, claim or demand,
Lender shall have the right to participate in any material decision affecting
the conduct or settlement of any dispute or proceeding for which indemnification
may be claimed.
9.9 Lender's Right to Provide Financing. Borrowers hereby covenant
with Lender that, from the date hereof until the first to occur of (a) the
Maturity Date, (b) the date on which an event occurs which relieves the
Purchaser from making purchases under the Asset Purchase Agreement and the
Purchaser ceases making purchases thereunder, (c) the acceleration of the
Indebtedness following an Event of Default, or (d) the termination of the
Lender's commitment under Section 8.1(b) of this Agreement, Lender shall have,
and Lender is hereby granted, the right and option, subject to the terms set
forth below (the "Funding Option") to provide secured financing for Eligible
Receivables (which for this purpose shall obligate the Borrowers, as well as any
Affiliate thereof, to disclose to Lender all resorts developed by the Borrowers
or any Affiliate thereof in order to provide Lender the opportunity to make a
determination whether such resort may be an Additional Resort). Lender shall
notify the Borrowers within forty-five (45) days of its receipt of satisfactory
information with respect to a resort whether such resort qualifies as an
Additional Resort.
The Funding Option may be exercised or not exercised in Lender's sole
discretion. If Lender declines to exercise the Funding Option, Lender shall have
no further Funding Option with respect to the Receivables; provided, however,
Lender shall have no Funding Option with respect to (i) Receivables relating to
resorts for which Lender has reviewed and denied financing pursuant to the terms
of the Project Loan Agreement, (ii) Receivables from a resort that does not
qualify as an Additional Resort after Lender has reviewed such resort in
accordance with the preceding paragraph or (iii) Receivables associated with the
Club after the date on which Lender has reviewed and rejected the Club and
associated Receivables. Lender's decision to decline to exercise the Funding
Option shall be deemed to be a decision to decline to exercise the Purchase
Option (as defined in the Purchase Facility) under the Purchase Facility.
Notwithstanding anything contained herein to the contrary, it is expressly
agreed and understood that any financing to be extended pursuant to the Funding
Option shall be subject to approval by Lender's loan committees in accordance
with Lender's standard credit guidelines and it is further expressly understood
and agreed that Lender is under no obligation to exercise the Funding Option and
that nothing in this Section 9.9 shall be deemed or construed to create any such
obligation.
SECTION 10. PARTICIPATION AND
ASSIGNMENTS
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10.1 Participations in Loan and Assignments in Loan.
(a) Lender may sell Participations in all or any part of
Advances made hereunder to another Person; provided, that such Person is not a
competitor of the Borrowers as determined by the Borrowers in their reasonable
discretion all amounts payable by Borrowers hereunder shall be determined as if
that Lender had not sold such participation. Borrowers hereby acknowledges and
agree that the participant under each participation shall for purposes of
subsection 1.9, 1.10, 1.11 and 9.8 be considered to be a "Lender".
(b) Lender shall have the right to assign all or any
portion of its rights in this Agreement and the Loan hereunder to an Eligible
Assignee; provided that Lender and its Affiliates agree to retain 30% of the
Advances hereunder at all times, and provided that there shall not be more than
five (5) Eligible Assignees at any time. Any Eligible Assignee may assign its
rights and delegate its obligations under this Agreement to any other Eligible
Assignee; provided that such assigning Eligible Assignee shall first obtain the
written consent of Lender. In all events Xxxxxx Financial, Inc. shall be the
agent for the Loan hereunder.
(c) Except as otherwise provided in this Section 10.1 the
Lender shall not, as between Borrowers and that Lender, be relieved of any of
its obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of participation in, all or any part of the Loan or
other Indebtedness owed to the Lender.
(d) Lender agrees to take and to cause its Affiliates to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Borrowers and neither Lender nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with the Borrowers; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than the Borrowers, provided that
such source is not bound by a confidentiality agreement with the Borrowers known
to the Lender; provided, however, that the Lender may disclose such information
(A) at the request or pursuant to any request of a regulatory authority of which
Lender is subject or in connection with an examination of such Lender by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
requirement of law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Lender or any Affiliates may be party in
connection with the transactions contemplated by this Agreement; (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to the Lender's independent
auditors and other professional advisors; (G) to any participant or Eligible
Assignee, actual or potential, provided that such participant or Eligible
Assignee agrees in writing to keep such information confidential to the same
extent required of the Lender hereunder; (H) as to the Lender or its Affiliate,
as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which the Borrower is party or is deemed party with
the
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Lender as its Affiliates; and (I) to its Affiliates provided such Affiliates
agree in writing to be bound by the confidentiality provisions hereof.
SECTION 11. MISCELLANEOUS
11.1 Notice. Any notice or other communication required or
permitted to be given shall be in writing addressed to the respective party as
set forth below and may be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 3:00 p.m.
(Chicago time) on a Business Day, otherwise on the next Business Day; provided
that a hard copy of such notice is also sent pursuant to (c) or (d) below; (c)
if by overnight courier, on the first business day after delivery to the
courier; or (d) if by U.S. Mail, certified or registered mail, return receipt
requested on the fourth (4th) day after deposit in the mail postage prepaid.
Notices to Borrowers: Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
Bluegreen Vacations Unlimited, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
Notices to Lender: Xxxxxx Financial, Inc.
Attn: Portfolio Manager, Vacation Ownership
HSF Loan No. 98-087
500 West Monroe St., 31st Fl.
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxx Financial, Inc.
Vacation Ownership Finance
Attn: Legal Department - Relationship Manager
HSF Loan No. 98-087
500 West Monroe St., 31st Fl.
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
11.2 Survival. All representations, warranties, covenants and
agreements made by Borrowers herein, in the other Loan Documents or in any other
agreement, document, instrument
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or certificate delivered by or on behalf of Borrowers under or pursuant to the
Loan Documents shall be considered to have been relied upon by Lender and shall
survive the delivery to Lender of such Loan Documents and the extension of the
Indebtedness (and each part thereof), regardless of any investigation made by or
on behalf of Lender.
11.3 Governing Law. This Agreement shall be governed by and shall
be construed and enforced in accordance with the internal laws of the State of
Illinois, (without regard to conflicts of law principles) and applicable laws of
the United States.
11.4 Invalid Provisions. If any provision of this Agreement or any
of the other Loan Documents is held to be illegal, invalid or unenforceable
under present or future laws effective during the term thereof, such provision
shall be fully severable, this Agreement and the other Loan Documents shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof or thereof, and the remaining provisions
hereof or thereof shall remain in full force and effect.
11.5 Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signature thereto and hereto were on the same instrument. This
Agreement shall become effective upon Lender's receipt of one or more
counterparts hereof signed by Borrowers and Lender.
11.6 Lender Not Fiduciary. The relationship between Borrowers and
Lender is solely that of debtor and creditor, and Lender has no fiduciary or
other special relationship with Borrowers, and no term or provision of any of
the Loan Documents shall be construed so as to deem the relationship between
Borrowers and Lender to be other than that of debtor and creditor.
11.7 Entire Agreement. This Agreement, including the Exhibits,
Schedules and other Loan Documents and agreements referred to herein embody the
entire agreement between the parties hereto, supersedes all prior agreements and
understandings between the parties whether written or oral relating to the
subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no oral
agreements among Lender or Borrowers. This Agreement may be modified or changed
only in a writing executed by both Lender and Borrowers and/or the other
affected parties.
11.8 Consent to Advertising and Publicity. Lender may issue and
disseminate to the public information describing the credit accommodation
entered into pursuant to this Agreement; provided the Borrowers shall have
approved the description of such credit accommodation which approval shall not
be unreasonably withheld.
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11.9 [Omitted]
11.10 Headings. Section headings have been inserted in the Agreement
as a matter of convenience of reference only; such section headings are not a
part of the Agreement and shall not be used in the interpretation of this
Agreement.
11.11 Broker's Fees. There are no brokers, finders' or other similar
fees or commitments due with respect to the transactions described in the
Agreement. Borrowers shall defend Lender and save and hold it harmless from all
claims of any Persons for any such fees which indemnity shall include reasonable
attorneys' fees and legal expenses.
11.12 Venue. BORROWERS HEREBY CONSENT TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF XXXX STATE OF ILLINOIS.
BORROWERS EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID
COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. BORROWERS HEREBY WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE UPON BORROWERS BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO BORROWERS, AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS
BEEN POSTED.
11.13 Jury Trial Waiver. BORROWERS AND LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. BORROWERS AND LENDER
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER
IN THEIR RELATED FUTURE DEALINGS. BORROWERS AND LENDER WARRANT AND REPRESENT
THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
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The parties hereto have executed this Agreement or has caused the same
to be executed by their duly authorized representatives as of the date first
above written.
BORROWERS:
BLUEGREEN CORPORATION
By:
--------------------------------
Printed Name:
----------------------
Its:
-------------------------------
BLUEGREEN VACATIONS UNLIMITED, INC.
By:
--------------------------------
Printed Name:
----------------------
Its:
-------------------------------
LENDER:
XXXXXX FINANCIAL, INC.
By:
--------------------------------
Printed Name:
----------------------
Its:
-------------------------------
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APPENDIX
Defined Terms
The following terms used in this Agreement shall have the following
meanings:
Additional Borrowers. Such other Subsidiaries and/or Affiliates of the
Borrowers which may own a Resort or an Additional Resort and become a "Borrower"
hereunder with the approval of Lender.
Additional Resorts. Those certain timeshare vacation resorts which the
Lender may approve in the future which Intervals may be financed hereunder,
which approval shall be in the Lender's reasonable discretion.
Advance. Proceeds of the Loan advanced from time to time by Lender to
Borrowers in accordance with this Agreement.
Adverse Claim. A Lien, security interest, pledge, charge or
encumbrance, or similar right or claim of any Person.
Affected Party. The Lender and any permitted assignee of Lender
including any person who purchases a Loan participation or an assignment of the
Loan pursuant to Section 10 hereof, an Eligible Assignee, the holding company of
any such Person and any successor holding company thereof; provided, however, in
no event shall Xxxxxx Financial, Inc. or its Affiliates be an "Affected Party."
Affiliate. Any individual, trust, estate, partnership, limited
liability company, corporation or any other incorporated or unincorporated
organization (each, a "Person") that directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with
Borrowers; any officer, director or partner of Borrowers; or any relative of any
of the foregoing. The term "control" means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise.
Assignment. The Assignment of Pledged Receivables and Pledged
Receivables Collateral in the form set forth on Exhibit B of this Agreement.
Availability. At all times during the term of this Agreement, the
lesser of (i) $35,000,000 minus outstanding Advances, or (ii) an amount equal to
95% of the principal balance of Pledged Receivables; provided, that
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 30% of the aggregate principal amount of all Advances
outstanding under this Agreement and (ii) relating to Managed Resorts shall not
at any time represent in the aggregate more than $5,000,000 of the aggregate
principal amount of all Advances outstanding under this Agreement.
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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).
Board. Board of Governors of the Federal Reserve System.
Business Day. Any day which is not a Saturday or Sunday or a legal
holiday under the laws of the State of Illinois, the Commonwealth of
Pennsylvania, the State of Florida or the United States and which is a London
Banking Day.
Capital Lease. At any time, a lease with respect to which the lessee is
required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
Capitalized Lease Obligations. With respect to any Person, all
outstanding obligations of such Person in respect of all Capital Leases, taken
at the capitalized amount thereof accounted for as indebtedness in accordance
with GAAP.
Club. The RDI Club formed pursuant to the RDI Vacation Club Trust
Agreement dated the 2nd day of August, 1995 by and among RDI Resources, Inc.,
Vacation Trust, Inc. and the beneficiaries named therein, as amended from time
to time as well as such other clubs as the Lender shall approve.
Club Collateral. With respect to the Club, and to the extent owned by a
Borrower, the reservation systems and related computer software and hardware.
Code. The Uniform Commercial Code as adopted and in force in the State
of Illinois as the same may be amended from time to time.
Collateral. Has the meaning assigned in Section 2.1.
Completed Units. A Unit at a Resort or Additional Resort which has been
fully constructed and furnished, has received a valid permanent certificate of
occupancy, is ready for occupancy and is subject to a Time Share Declaration.
Compliance Documents. With respect to sales of Intervals in any state
or jurisdiction: (i) evidence satisfactory to Lender that the governmental
authority of such state or jurisdiction having jurisdiction over sales of
timeshare intervals has issued all required approvals of Borrowers' offering
materials, sales and financing documents and sales practices, and (ii) copies of
Borrowers' offering materials, sales and financing documents as approved by such
state.
Consolidated Fixed Charge. The sum for Bluegreen Corporation and its
subsidiaries, determined on a consolidated basis in accordance with GAAP, of all
amounts which would be deducted in computing Consolidated Net Income on account
of interest on indebtedness (including imputed interest in respect of
Capitalized Lease Obligations and amortization of debt discount and expenses).
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Consolidated Net Income. The net income of Bluegreen Corporation and
its subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, excluding:
(i) the proceeds of any life insurance policy,
(ii) any gains arising from (a) the sale or other disposition of
any assets (other than land, timeshare intervals, current
assets and other receivables sold in the ordinary course of
business, including without limitation under the Purchase
Facility, to the extent that the aggregate amount of the gains
during such period exceeds the aggregate amount of the losses
during such period from the sale, abandonment or other
disposition of assets (other than current assets and other
receivables sold in the ordinary course of business), (b) any
write-up of assets or (c) the acquisition of outstanding
securities of Bluegreen Corporation or any subsidiary,
(iii) any amount representing any interest in the undistributed
earnings of any other person (other than a subsidiary),
(iv) any earnings, prior to the date of acquisition, of any person
acquired in any manner, and any earnings of any subsidiary
acquired prior to its becoming a subsidiary,
(v) any earnings of a successor to or transferee of the assets of
Bluegreen Corporation prior to its becoming such successor or
transferee,
(vi) any deferred credit (or amortization of a deferred credit)
arising from the acquisition of any person, and
(vii) any extraordinary gains not covered by clause (ii) above.
Consolidated Net Worth. On a consolidated basis for Bluegreen
Corporation and its subsidiaries, at any date, (i) the sum of (a) capital stock
taken at par or stated value plus (b) capital in excess of par or stated value
relating to capital stock plus (c) retained earnings (or minus any retained
earning deficit) minus (ii) the sum of treasury stock, capital stock subscribed
for and unissued and other contra-equity accounts, all determined in accordance
with GAAP.
Costs. All expenditures and expenses which may be paid or incurred by
or on behalf of Lender in connection with the documentation, modification,
workout, collection or enforcement of the Loan or any of the Loan Documents.
Notwithstanding the foregoing, Costs payable on the date of the initial Advance
shall be limited to (i) the fees and costs of Lender's attorneys in connection
with the documentation of the Loan and the due diligence review of Borrowers'
deliveries; (ii) the costs of the Back-up Servicer, if applicable; and (iii) all
applicable title, filing and recording fees and other closing costs. During the
term of the Loan, Costs payable by Borrowers shall include: payments to remove
or protect against liens; attorneys' fees; receivers'
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fees; engineers' fees; accountants' fees; independent consultants' fees
(including environmental consultants); fees of the Custodian, the Servicer and
the Back-up Servicer; all costs and expenses incurred in connection with any of
the foregoing; outlays for documentary and expert evidence; stenographers'
charges; stamp taxes; publication costs; and costs (which may be estimates as to
items to be expended after entry of an order or judgment) for procuring all such
abstracts of title, title and UCC searches, and examination, title insurance
policies, and similar data and assurances with respect to title as Lender may
deem reasonably necessary either to prosecute any action or to evidence to
bidders at any foreclosure sale a true condition of the title to, or the value
of, the Collateral.
Credit Policy. Bluegreen's Credit Scoring Matrix dated July 7, 1997 and
the collection policies with respect to the Receivables and the Receivables
Collateral, which policies may not be amended or supplemented without the
Lender's written approval, which shall not be unreasonably withheld.
Custodial Agreement. An agency and custodial agreement; in such form as
shall be reasonably satisfactory to both the Lender and the Borrowers which
Agreement shall be by and among Borrowers, Lender and Custodian providing for
the maintenance of the Receivables File relating to the Pledged Receivables.
Custodian. Norwest Bank Minnesota, N.A. or such other Person designated
by Lender and approved by Borrowers to maintain physical possession of the
Pledged Receivables and the Pledged Receivables Collateral.
Declaration. With respect to each Resort, the Condominium Declaration
set forth on Exhibit H.
Deed of Trust. An instrument by which legal title to an Interval is
placed in one or more trustees to secure an Obligor's payment performance with
respect to a Pledged Receivable.
Default Rate. A per annum rate of interest equal to the Interest Rate
plus two percent (2%).
Determination Date. The last day of each Fiscal Month.
Due Period. Each period consisting of a Fiscal Month.
EBITDA. Consolidated Net Income plus all amounts deducted in the
computation of Consolidated Net Income on account of (i) Consolidated Fixed
Charges, (ii) depreciation and amortization expenses and other non-cash charges
and (iii) income and profits taxes; provided, however, with respect to Bluegreen
Corporation's 1999 Fiscal Year (ending March 28, 1999) the approximately
$3,000,000 associated with prepayments penalties associated with its
$110,000,000 Rule 144A debt offering shall be added back into income.
Eligible Assignee. Any of (a) a commercial bank organized under the
laws of the United States, or any state thereof or the District of Columbia, and
having total assets in excess of
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$1,000,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any state thereof or the District of
Columbia, and having a net worth of at least $100,000,000, calculated in
accordance with GAAP; (c) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; and (d) the
central bank of any country which is a member of the OECD.
Eligible Completed Unit Receivable. A Receivable which satisfies all of
the following criteria:
(a) payments due under the Receivable shall be self-amortizing and
payable in monthly installments;
(b) the weighted average term to maturity of all Receivables
financed hereunder from the date when such receivable is
pledged to Lender as Collateral pursuant to this Agreement is
at least thirty-six (36) months at the time the Receivable is
pledged hereunder;
(c) as of the date of Funding, the Obligor thereunder has made a
cash down payment of at least 10% percent of the actual
purchase price of the Interval (which cash down payment may be
represented by the principal payments on such Receivable since
its date of origination) and no part of such payment has been
made or loaned to Obligor by Borrowers or an Affiliate
thereof;
(d) the weighted average interest rate of all Receivables financed
under this Agreement is not less than 13.90% per annum at the
time and inclusive of the Receivable to be financed hereunder;
(e) no principal or interest with respect to the receivable is
more than thirty (30) days past due on a contractual basis at
the time of Lender's Advance against such Receivable
hereunder, nor becomes more than sixty (60) days past due;
(f) the Obligor is not an Affiliate of the Borrowers; provided
that an Obligor may be related to or employed by the Borrowers
if such Receivables do not, in the aggregate, exceed
$1,000,000, but only if such Obligor purchases the Interval on
no less than the same terms and conditions offered to any
non-Affiliate purchaser; provided that solely for the purposes
of this clause (f) a relative of an employee of the Borrowers
(or any of their Affiliates) shall not be deemed to be an
"Affiliate";
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(g) the Receivable is free and clear of adverse claims, liens and
encumbrances and is not currently, subject to claims of
rescission, invalidity, unenforceability, illegality, defense,
offset or counterclaim;
(h) if the Receivable is evidenced by a promissory note separate
from the conditional sales contract, the Receivable is secured
directly by a first priority Purchase Money Mortgage or Deed
of Trust on the purchased Interval;
(i) if the Purchase Money Mortgage secures a Pledged Receivable,
the title to the Interval is insured under a mortgagee title
insurance policy in form and substance acceptable to Lender;
(j) no Receivable hereunder shall be in excess of $25,000 and no
Obligor shall be the payor of aggregate Receivables herein and
in the Purchase Facility in excess of $50,000;
(k) payments with respect to the Receivable are to be in legal
tender of the United States;
(l) at least 90% of the aggregate outstanding principal balance of
all Receivables arise from Obligors who are either residents
of the U.S. or Canada at the time the Pledged Receivable is
financed hereunder;
(m) all monthly payments on the Receivable have been made by the
Obligor and not by Borrowers or any Affiliate of Borrowers on
the Obligor's behalf;
(n) the Receivable relates to a Resort or any Additional Resort;
(o) the Receivable constitutes either "chattel paper", a "general
intangible" or an "instrument" as defined in the Code as in
effect in all applicable jurisdictions;
(p) the assignment of the Receivable and the Receivables
Collateral does not contravene or conflict with any law, rule
or regulation or any contractual or other restriction,
limitation or encumbrance, and the sale or assignment of the
Receivable and Receivable Collateral does not require the
consent of the Obligor;
(q) the Receivable and Receivables Collateral is in full force and
effect, constitutes the legal, valid and binding obligation of
the Obligor thereof enforceable against such Obligor in
accordance with its terms subject to the effect of bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization,
assignment, liquidation,
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conservatorship and moratorium laws, is not, to the Borrowers'
actual knowledge, subject to any dispute, offset,
counterclaim, defense or assignment whatsoever;
(r) the Receivable relates to a Completed Unit and the Receivables
Collateral does not contravene in any material respect any
laws, rules or regulations applicable thereto (including,
without limitation, laws, rules and regulations relating to
usury, retail installment sales, truth in lending, fair credit
reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party
thereto is in violation of any such law, rule or regulation in
any material respect if such violation would impair the
collectibility of such Receivable and Receivable Collateral;
(s) the Receivable and Receivable Collateral satisfies all
applicable requirements of the Credit Policy and was acquired
by Borrowers in compliance with the underwriting guidelines
set forth therein and has not been modified in any respect due
to the deteriorative credit quality of the Obligor;
(t) as to which to the Seller's knowledge (i) no bankruptcy is
currently existing with respect to the Obligor and (ii) as to
which the Obligor is not insolvent;
(u) the Receivable shall not have an initial term to maturity of
more than 120 months;
(v) the Receivable has not been pledged as Collateral under this
Agreement for more than one year except Receivables in respect
of an Interval at Christmas Mountain Campground, The Timbers
at Christmas Mountain and The Villas at Christmas Mountain;
(w) the Receivable shall not have a contractual interest rate less
than 12.90% per annum;
(x) if a Resort is subject to a construction loan, the
construction lender shall have signed and delivered a
non-disturbance agreement (which may be contained in such
lender's mortgage) pursuant to which such construction lender
agrees not to foreclose on any Intervals relating to Pledged
Receivables; and
(y) the Receivable shall meet the Minimum Credit Scoring Standard.
Eligible Receivable. Shall mean Eligible Completed Unit Receivables and
Eligible Uncompleted Unit Receivables.
Eligible Uncompleted Unit Receivable. A Receivable in respect of an
Interval in and to an Uncompleted Unit at a Resort which satisfies all of the
following criteria:
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(a) payments due under the Receivable (after the Receivable shall
have been released from any document or Payment Escrow in
respect thereof) shall be self-amortizing and payable in
monthly installments;
(b) the weighted average term to maturity of all Receivables
financed hereunder from the date when such receivable is
pledged to Lender as Collateral pursuant to this Agreement is
at least thirty-six (36) months at the time the Receivable is
pledged hereunder;
(c) as of the date of Funding, the Obligor thereunder has made a
cash down payment (in the Payment Escrow if required by
applicable law) of at least ten (10%) percent of the actual
purchase price of the Interval (which cash down payment may be
represented by the principal payments on such Receivable since
its date of origination) and no part of such payment has been
made or loaned to Obligor by Borrowers or an Affiliate
thereof;
(d) the weighted average interest rate of all Receivables financed
under this Agreement is not less than 13.90% per annum at the
time and inclusive of the Receivable to be financed hereunder;
(e) no installment with respect to the Receivable (after the
Receivable shall have been released from any document or
Payment Escrow in respect thereof) is more than thirty (30)
days past due on a contractual basis at the time of such
release nor becomes more than sixty (60) days past due;
(f) the Obligor is not an Affiliate of the Borrowers; provided
that an Obligor may be related to or employed by the Borrowers
if such Receivables do not, in the aggregate, exceed
$1,000,000, but only if such Obligor purchases the Interval on
no less than the same terms and conditions offered to any
non-Affiliate purchaser; provided that solely for the purposes
of this clause (f), a relative of an employee of the Borrowers
(or any of their Affiliates) shall not be deemed to be an
"Affiliate".
(g) the Receivable (after the Receivable shall have been released
from any document or Payment Escrow in respect thereof) is
free and clear of adverse claims, liens and encumbrances and
is not currently, nor shall it (after such release) be
potentially in the future, subject to claims of rescission,
invalidity, unenforceability, illegality, defense, offset or
counterclaim;
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(h) if the Receivable is evidenced by a promissory note separate
from the conditional sales contract, the Receivable (after the
Pledged Receivable shall have been released from any document
or Payment Escrow in respect thereof) is secured directly by a
first priority Purchase Money Mortgage or Deed of Trust on the
purchased Interval;
(i) if the Purchase Money Mortgage secures a Receivable, the title
to the Interval is insured under a mortgagee title insurance
policy in form and substance acceptable to Lender;
(j) no Receivable hereunder shall be in excess of $25,000 and no
Obligor shall be the payor of aggregate Pledged Receivables
herein and in the Purchase Facility in excess of $50,000;
(k) payments with respect to the Pledged Receivable are to be in
legal tender of the United States;
(l) at least 90% of the aggregate outstanding principal balance of
all Receivables arise from Obligors who are either residents
of the U.S. or Canada at the time the Receivable is financed
hereunder;
(m) all monthly payments on the Receivable (including, without
limitation, any payments held in the Payment Escrow) have been
made by the Obligor and not by Borrowers or any Affiliate of
Borrowers on the Obligor's behalf;
(n) the Receivable constitutes either "chattel paper", a "general
intangible" or an "instrument" as defined in the Code as in
effect in all applicable jurisdictions;
(o) the Assignment of the Receivable and the Receivables
Collateral does not contravene or conflict with any law, rule
or regulation or any contractual or other restriction,
limitation or encumbrance, and the Assignment of the
Receivable and Receivable Collateral does not require the
consent of the Obligor, provided that any such Assignment
shall be subject to the terms of any document or Payment
Escrow in respect of such Receivable;
(p) the Receivable and Receivables Collateral after the Receivable
shall have been released from any document or Payment Escrow
in respect thereof is in full force and effect, constitutes
the legal, valid and binding obligation of the Obligor thereof
enforceable against such Obligor in accordance with its terms
subject to the effect of bankruptcy, fraudulent conveyance or
transfer, insolvency, reorganization, assignment, liquidation,
conservatorship and
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moratorium laws, is after the Receivable shall have been
released from any document or Payment Escrow in respect
thereof is not to the Borrowers' actual knowledge, subject to
any dispute, offset, counterclaim, defense or assignment
whatsoever;
(q) the Receivable relates to an Uncompleted Unit at a Resort and
the Receivable and Receivables Collateral does not contravene
in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules
and regulations relating to usury, retail installment sales,
truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no party thereto is in
violation of any such law, rule or regulation in any material
respect if such violation would impair the collectibility of
such Receivable and Receivable Collateral;
(r) the Receivable and Receivable Collateral satisfies all
applicable requirements of the Credit Policy and was acquired
by Borrowers in compliance with the underwriting guidelines
set forth therein and has not been modified in any respect due
to the deteriorative credit quality of the Obligor or
otherwise;
(s) as to which to the Seller's knowledge (i) no bankruptcy is
currently existing with respect to the Obligor and (ii) as to
which the Obligor is not insolvent;
(t) the Receivable shall not have an initial term to maturity of
more than 120 months;
(u) the Receivable has not been pledged under this Agreement for
more than one year except Receivables in respect of an
Interval at Christmas Mountain Campground, The Timbers at
Christmas Mountain and The Villas at Christmas Mountain;
(v) the Receivable shall not have a contractual interest rate less
than 12.90% per annum;
(w) a valid permanent certificate of occupancy in respect of the
Uncompleted Unit related to the Receivable shall have been
issued within 365 days of the date on which such Receivable
was initially pledged to Lender under this Agreement;
(x) at the time of the initial pledge of the Receivable to Lender
under this Agreement, the construction of the Resort in which
the Uncompleted Unit related to such Receivable is located
shall have commenced, all permits and licensing in respect of
such construction shall have been obtained
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(including, without limitation, all construction permits, all
zoning, density, accommodation and design approvals, all
subdivision approvals, all utility approvals and all pre-sale
marketing approvals and registrations) and all acquisition and
construction financing, if any, shall have been obtained,
shall be available and in place and shall be sufficient to
acquire and fully construct and furnish the Resort and all
amenities in respect thereof.
If at any time during which a Receivable shall be held in
document or Payment Escrow such Receivable would, in the
opinion of the Lender and without giving effect to such
Payment Escrow, be subject to any Adverse Claims, liens or
encumbrances, be subject to claims of rescission, invalidity,
unenforceability, illegality, defense, offset or counterclaim,
not be in full force and effect, not constitute the legal,
valid and binding obligation of the Obligor thereunder, be
subject to any dispute, offset, counterclaim or defense
whatsoever, contravene in any material respect any laws, rules
or regulations applicable thereto so as to materially impair
the collectibility of such Pledged Receivable, such Pledged
Receivable shall be deemed not to have satisfied this
definition of "Eligible Uncompleted Unit Receivable."
After the Receivable shall have been released from any
document or Payment Escrow in respect thereof and as soon as
such Receivable satisfies the requirements of an "Eligible
Competed Unit Receivable" and Borrowers certify the same in
writing to Lender, such Pledged Receivable shall no longer be
considered an "Eligible Uncompleted Unit Receivable."; and
(y) the Receivable shall meet the Minimum Credit Scoring Standard.
Environmental Laws. Means and includes the following as now in effect
or hereafter amended: the Comprehensive Environmental Response Compensation and
Liability Act, ("CERCLA"), 42 U.S.C. ss.9601 et. seq.; the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. ss.6901 et. seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
ss.2601, et. seq.; the Clean Air Act, 42 U.S.C. ss.7401 et. seq.; the Federal
Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. ss.1251 et. seq.; the
Emergency Planning and Community Right-to-Know Act, 42 U.S.C. ss.11001 et. seq.;
the Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et. seq.; the
Atomic Energy Act, 42 U.S.C. ss.2011 et. seq.; the Safe Drinking Water Act, 42
U.S.C. ss.300f et. seq. and the state law equivalents; any so-called "Superfund"
or "Superlien" law; and any statute, ordinance, code, rule, regulation, order,
decree or requirement under international, federal, state, regional, provincial
or local law (including, without limitation, administrative orders and consent
decrees) in effect and as amended regulating, relating to or imposing liability
or standards of conduct concerning public health and safety, protection of the
environment, or any pollutant or contaminant or hazardous, toxic or dangerous
substance, waste, chemical or material, as now or any time hereafter may be
existing.
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Event of Bankruptcy. A petition under any Chapter of Title 11 of the
United States Code or any similar law or regulation is filed by or against an
Obligor (and in the case of an involuntary petition in bankruptcy, such petition
is not discharged within sixty (60) days of its filing), or a custodian,
receiver or trustee for an Obligor is appointed, or an obligor makes an
assignment for the benefit of creditors, or obligor is adjudged insolvent by any
state or federal court of competent jurisdiction, or Obligor admits its
insolvency or inability to pay its debts as they become due or an attachment or
execution is levied against the Unit by a creditor of an Obligor.
Event of Default. Has the meaning set forth in Section 8.1 of this
Agreement.
Fiscal Month. With respect to any Fiscal Year, the monthly fiscal
periods utilized by the Borrowers as of the date hereof which may not be
modified without the Lender's written consent, which consent will not be
unreasonably withheld.
Fiscal Quarter. With respect to any Fiscal Year, the quarterly fiscal
periods utilized by the Borrowers as of the date hereof which may not be
modified without the Lender's written consent, which consent will not be
unreasonably withheld.
Fiscal Year. The annual fiscal periods utilized by the Borrowers as of
the date hereof which may not be modified without the Lender's written consent,
which consent will not be unreasonably withheld.
GAAP. Generally accepted accounting principles, applied on a consistent
basis, set forth in Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and/or in statements of the Financial
Accounting Standards Board which are applicable in the circumstances as of the
date in question; and the requisite that such principles be applied on a
consistent basis means that the accounting principles in a current period are
comparable in all material respects to those applied in a preceding period, with
any exceptions thereto noted.
Guaranty. With respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such indebtedness or obligation, or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to
advance or make available funds for the purchase or payment of
such indebtedness or obligation;
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(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or
obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under
any Guaranty, the indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
Hazardous Materials. Means the following: hazardous substances;
hazardous wastes; polychlorinated biphenyls ("PCB's") or any substance or
compound containing PCB's; asbestos or any asbestos-containing materials in any
form or condition; radon; any other radioactive materials including any source,
special nuclear or by-product material; petroleum, crude oil or any fraction
thereof which is liquid at standard conditions of temperature and pressure (60
degrees Fahrenheit and 14.7 pounds per square inch absolute); and any other
pollutant or contaminant or hazardous, toxic or dangerous chemicals, materials
or substances, as all such terms are defined by Environmental Laws.
Indebtedness. All payment obligations of Borrowers to Lender under the
Loan Documents.
Insurance Proceeds. Proceeds, paid by any insurer pursuant to any
insurance policy covering a Unit, Receivable or Receivables Collateral.
Intangible Asset. A nonphysical, noncurrent right that gives Bluegreen
or any of its subsidiaries an exclusive or preferred position in the marketplace
including but not limited to a copyright, patent, trademark, goodwill,
organization costs, capitalized advertising cost, computer programs, licenses
for any of the preceding, government licenses (e.g., broadcasting or the right
to sell liquor), leases, franchises, mailing lists, exploration permits, import
and export permits, construction permits, and marketing quotas.
Interest Rate. A floating rate per annum equal to the Base Rate plus
2.75% (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 adjusted by
the Statutory Reserve Rate. The Interest Rate for each Fiscal Month shall 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.
Interval. With respect to any Resort or Additional Resort, (i) an
undivided fee simple ownership interest as a tenant in common or (ii) with
respect to Christmas Mountain
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Campground, The Timbers at Christmas Mountain, The Villas at Christmas Mountain,
an undivided fee simple ownership interest as a tenant in common and the
applicable Resort Interest, in either case, with respect to any Unit in such
Resort or Additional Resort, with a right to use such Unit, or a Unit of such
type, generally for one week annually, together with all appurtenant rights and
interests as more particularly described in the Timeshare Documents.
Lien. With respect to any Collateral, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
Loan. The Thirty-five Million Dollar ($35,000,000) credit facility
described in this Agreement.
Loan Documents. Collectively, this Agreement, the Note, the Servicing
Agreement, the Structuring Fee Letter, the Resort Blanket Mortgages and any and
all other agreements, documents, instruments and certificates delivered or
contemplated to be delivered in connection with this Agreement, as such may be
amended, renewed, extended, restated or supplemented from time to time.
Lockbox Bank. Such banking institution selected by Borrowers and
approved by Lender to act as the depositary of payments on the Pledged
Receivables and the Pledged Receivables Collateral under the Lockbox Agreement.
Lockbox Agreement. An agreement among Bluegreen Corporation, Lender and
Lockbox Bank providing for the receipt by Lockbox Bank of payments on the
Pledged Receivables and the Pledged Receivables Collateral and disbursement of
such payments to Lender.
London Banking Day. Any day on which dealings in deposits in U.S.
Dollars are transacted in the London interbank market.
Managed Resorts. Those certain timeshare vacation resorts commonly
known as Landmark Holiday Beach Resort, Ocean Towers Beach Club, Panama City
Resort and Club, Surfrider Beach Club, Tropical Sands Resort, Resort Sixty Six,
Via Roma Beach Resort, Orlando's Sunshine Resort, Gulfstream Manor, Dolphin
Beach Club, Fantasy Island Resort II, Outrigger Beach Club, Petit Crest Resort,
and any other Resort approved in writing by the Lender.
Mandatory Prepayment. Any prepayment required by Section 1.7(b) of this
Agreement.
Material Adverse Effect. With respect to any event or circumstance, a
material adverse effect on:
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(a) the business, assets, financial condition or operations of
Borrowers and their respective subsidiaries, taken as a whole;
(b) the ability of Borrowers or its direct or indirect
subsidiaries to perform their respective obligations under
this Agreement or any other Loan Document;
(c) the validity, enforceability or collectibility against
Borrowers of this Agreement or the other Loan Documents;
(d) the status, existence, perfection or priority of (i) the
Lender's security interest in the Collateral, or (ii)
Borrowers' ownership interest in the Pledged Receivables or
Pledged Receivables Collateral; or
(e) the validity, enforceability or collectibility of the Pledged
Receivables or Pledged Receivables Collateral.
Maturity Date. June 26, 2000.
Maximum Exposure. The lesser of (a) $35,000,000, or (b) ninety-five
percent (95%) of the outstanding principal balance of all Pledged Receivables;
provided, however, notwithstanding anything to the contrary contained herein the
outstanding principal amount of Advances made (i) 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 (ii) relating to Managed Resorts shall
not at any time represent in the aggregate more than $5,000,000 of the aggregate
principal amount of all Advances outstanding under this Agreement and, in each
such case, any such excess shall require a prepayment of the Loan or the pledge
of Eligible Receivables consistent with Section 1.7(b) hereof.
Minimum Credit Scoring Standard. The Receivable does not have a "20,"
"25" or "99" designation under the Credit Policy provided that no more than
thirty percent (30%) of the Receivables shall have a designation of "10."
Notwithstanding the preceding sentence, any Receivable shall satisfy the Minimum
Credit Scoring Standard if the Obligor relating to such Receivable has made the
aggregate required payments over the most recent twelve (12) months with respect
to the Receivable.
Monthly Reports. The monthly reports required pursuant to Section
5.4(a) of this Agreement.
Note. The promissory note evidencing the Loan executed and delivered by
Borrowers to Lender concurrently herewith and attached hereto as Exhibit A.
Obligor. Any Person who purchases one or more Intervals and finances
the purchase of the same.
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Payment Date. Wednesday of each week; provided, however, in the event
such date is not a Business Day the next succeeding Business Day.
Payment Escrow. An escrow into which payments made by an Obligor under
an Eligible Uncompleted Unit Receivable are required to be made pursuant to
applicable state law.
Permitted Adverse Claims means (a) any Adverse Claim created under any
Loan Document; (b) any Adverse Claim for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without penalty,
provided that no notice of Adverse Claim has been filed or recorded under the
Code of any of the states wherein the Resorts or Additional Resorts are located;
(c) carriers, warehousemen's, mechanics', landlords', materialmen's, repairmen's
or other similar Adverse Claims arising in the ordinary course of business which
are not delinquent or remain payable without penalty; and (d) Permitted Liens.
Permitted Liens. Each of the liens listed on Exhibit H attached hereto.
Person. Natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
Pledged Receivables. At any date of determination, (i) all Eligible
Receivables against which Lender shall have made an Advance which remains
outstanding as of such date, and (ii) all Receivables which are no longer
Eligible Receivables and for which a mandatory prepayment under Section
1.7(b)(i) is required and has not occurred; provided, however, in no event shall
the Receivables described in this clause (ii) be utilized in the definition of
"Availability" or in the definition of "Maximum Exposure" in which case the
references to "Pledged Receivable" therein shall be only to Eligible
Receivables.
Pledged Receivables Collateral. Receivables Collateral relating to
Pledged Receivables.
Preferred Stock. Shall mean stock that takes priority over common stock
in regard to the payment of dividends.
Project Indebtedness. All payment obligations of Borrowers under or in
respect of any of the Project Loan Documents.
Project Loan. The Loan which may be made by Lender pursuant to the
Project Loan Agreement by and between Lender and Borrowers.
Project Loan Agreement. The Agreement by and between Lender and
Borrowers pursuant to which the Project Loan may be made.
Project Loan Collateral. Each of the Project Loan Mortgages associated
with the Project Loans.
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Project Loan Mortgages. The mortgages and deeds of trust made by
Borrowers for the benefit of Lender required pursuant to the Project Loan
Agreement.
Purchase Documents. Any purchase agreement and related sale and escrow
documents executed and delivered by an Obligor to any Borrower or the Additional
Resort Owners with respect to the purchase of an Interval which is the subject
of a Pledged Receivable.
Purchase Facility. The Asset Purchase Agreement dated June 26, 1998 by
and among Bluegreen Receivables Finance Corporation III, as seller, BRFC III
Deed Corporation, as deed custodian solely for the benefit of Xxxxxx Financial,
Inc., Xxxxxx Financial, Inc., as purchaser, Bluegreen Corporation, as originator
and servicer, and U.S. Bank National Association, as cash administrator.
Purchase Limit. $100,000,000, as such amount may be adjusted from time
to time pursuant to Section 2.12(b) of the Purchase Facility.
Purchase Money Mortgage. Any mortgage or deed of trust executed and
delivered by an Obligor to Borrowers or an Additional Resort Owner with respect
to the purchase of an Interval, encumbering all of the right, title and interest
of each such Obligor in and to the purchased Interval as security for the
Obligor's obligations under any Receivable.
Reassignment of Pledged Receivables. The Reassignment of Receivables
and Receivables Collateral in the form set forth on Exhibit C of this Agreement.
Receivables. A conditional sale contract or note and its related
security, including but not limited to any Purchase Money Mortgage, Deed of
Trust or security interest in the related Interval (any accessions thereto) and
any and all rights to payments thereunder.
Receivables Collateral. The Receivables, including: (i) all interest,
finance charges, and principal received on or with respect to the Receivables;
(ii) the Receivables Files; (iii) property which secured a Receivable and which
has been acquired by repossession or otherwise; (iv) all rights to Insurance
Proceeds and Liquidation Proceeds; and (v) the proceeds of the foregoing and the
rights to enforce the foregoing.
Receivables File. With respect to a Receivable, such Receivable; the
Assignment of such Receivable; the Purchase Money Mortgage or UCC financing
statement, if any, evidencing that the security interest granted under such
Receivable has been perfected under applicable state law; the original of any
assumption agreement or any modification extension or refinancing agreement; the
application of the related Obligor to obtain the financing extended by such
Receivable; and the Purchase Documents.
Regulatory Change means relative to any Affected Party:
(a) any change in (or the adoption, implementation, change in the
phase-in or commencement of effectiveness of) any:
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(i) United States Federal or state law or foreign law
applicable to such Affected Party,
(ii) regulation, interpretation, directive, requirement or
request (whether or not having the force of law)
applicable to such Affected Party of (A) any court or
government authority charged with the interpretation
or administration of any law referred to in clause
(a)(i), or of (B) any rating agency, fiscal, monetary
or other authority having jurisdiction over such
Affected Party, or
(iii) GAAP or regulatory accounting principles applicable
to such Affected Party and affecting the application
to such Affected Party of any law, regulation,
interpretation, directive, requirement or request
referred to in clause (a)(i) or (a)(ii) above; or
(b) any change in the application to such Affected Party of any
existing law, regulation, interpretation, directive,
requirement, request or accounting principles referred to in
clause (a)(i), (a)(ii) or (a)(iii) above.
Repayment Price. With respect to any Receivable, 95% of the outstanding
principal amount of the Receivable at the time of any prepayment of the same
under Section 1.7(a) or such lesser amount as may be equal to outstanding
Advances provided Advances do not exceed Maximum Exposure.
Resorts. Those certain timeshare vacation resorts commonly known as
Shore Crest (Myrtle Beach, South Carolina), Harbour Lights (Myrtle Beach, South
Carolina), Mountain Loft (Gatlinburg, Tennessee), Laurel Crest (Pigeon Forge,
Tennessee), Falls Village (Branson, Missouri) Christmas Mountain Campground
(Wisconsin Dells, Wisconsin), The Timbers at Christmas Mountain (Wisconsin
Dells, Wisconsin), The Villas at Christmas Mountain (Wisconsin Dells, Wisconsin)
as more particularly described on Exhibit M and shall include the Managed
Resorts.
Resort Blanket Mortgage. Each of the mortgages and deeds of trust made
by Borrowers, or the Additional Resort Owners, for the benefit of Lender,
encumbering at each Resort or Additional Resort listed on Exhibit I the
Intervals which are the subject of a Pledged Receivable.
Resort Interest. With respect to Christmas Mountain Campground, a 1/3
divided interest in an undivided fee simple ownership interest, with respect to
The Timbers at Christmas Mountain, a 1/3 divided interest in an undivided fee
simple ownership interest and a 1/6 divided interest in an undivided fee simple
ownership interest relating to the usage of a townhome, and
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with respect to The Villas at Christmas Mountain, a 1/3 divided interest in an
undivided fee simple ownership interest, all as more particularly described in
the Timeshare Documents.
Servicer. Initially means Bluegreen Corporation, a Massachusetts
corporation, together with its successors and assigns.
Servicing Agreement. A servicing agreement between Lender, Borrowers
and the Servicer approved by Lender providing for the servicing of the Pledged
Receivables and the Pledged Receivables Collateral in the form attached hereto
as Exhibit F.
Statutory Reserve Rate. A fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board, for advances (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D and shall be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to the Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
Structuring Fee Letter. That certain letter agreement between Borrowers
and Lender dated as of the date of this Agreement, a copy of which is attached
hereto as Exhibit K, setting forth therein the structuring fees required to be
paid by Borrowers to Lender.
Subordinated Indebtedness. Indebtedness of Borrowers or its
subsidiaries, whether direct or indirect, to non-affiliated Persons which is
subordinated to the Indebtedness on a basis acceptable to the Lender. No
indebtedness shall be considered Subordinated Indebtedness unless the
obligations of each of the Borrowers or its subsidiaries (whether direct,
indirect or contingent) is subordinated on a basis acceptable to the Lender.
Successor Servicer. Any Servicer other than the Borrowers or an
Affiliate of the Borrowers appointed pursuant to the terms of the Servicing
Agreement.
Tangible Net Worth. Consolidated Net Worth minus Intangible Assets plus
Subordinated Indebtedness.
Term. Has the meaning set forth in Section 1.2 of this Agreement.
Time Share Association. A not-for-profit corporation under applicable
state law which is responsible for operating and maintaining a Resort or an
Additional Resort pursuant to the terms of the Declaration and/or Time Share
Declaration in respect thereof.
Time Share Declaration. With respect to each Resort, the Time Share
Declaration set forth on Exhibit L.
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Time Share Documents. With respect to any Resort, the documents
relating to the sale of Intervals by Borrowers, including without limitation the
documents on Exhibit L.
Total Indebtedness. With respect to the Borrowers and its subsidiaries
means, at any time, without duplication,
(a) its liabilities for borrowed money (exclusive of Advances
hereunder and Subordinated Indebtedness) and its redemption
obligations in respect of mandatorily redeemable Preferred
Stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities
created or arising under any conditional sale or other title
retention agreement with respect to any such property);
(c) all Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such
liabilities);
(e) all its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for
its account by banks and other financial institutions (whether
or not representing obligations for borrowed money);
(f) Interest Rate Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (f) hereof.
Uncompleted Unit. Any Unit that is not a Completed Unit.
Unit. One individual air-space condominium unit, cabin, villa, cottage
or townhome within a Resort or Additional Resort, together with all furniture,
fixtures and furnishings therein, and together with any and all interests in
common elements appurtenant thereto, as provided in a Declaration; provided that
the definition of "Unit" shall not include or apply to those units relating a
campground/tent site, recreational vehicle site or other non-permanent building
or structure.
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EXHIBIT A
AMENDED AND RESTATED
NOTE
$35,000,000.00 June ___, 1999
FOR VALUE RECEIVED, BLUEGREEN CORPORATION AND BLUEGREEN VACATIONS
UNLIMITED, INC.("Makers") whose addresses are 0000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx,
Xxxxxxx 00000, jointly and severally promise to pay to the order of XXXXXX
FINANCIAL, INC., a Delaware corporation, and its successors and assigns
("Holder") the sum of up to THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000
OR, IF LESS, THE AGGREGATE UNPAID AMOUNT OF ALL ADVANCES SHOWN ON THE SCHEDULE
ATTACHED HERETO), together with all other amounts added thereto pursuant to this
Note or otherwise payable to Holder (the "Loan") (or so much thereof as may from
time to time be outstanding), together with interest thereon as hereinafter set
forth, payable in lawful money of the United States of America. Payments shall
be made to Holder at 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
(or such other address as Holder may hereafter designate in writing to Makers).
The repayment of the Loan evidenced by this Note is secured by that
certain Amended and Restated Loan and Security Agreement of even date herewith
(the "Agreement"), which amends and restates that certain Loan and Security
Agreement dated as of October 20, 1998 (the "Prior Loan Agreement") pursuant to
which Makers have granted Lender a first priority lien on the Collateral as of
the Closing Date. This Note, the Agreement, and any other documents evidencing
or securing the Loan or executed in connection therewith, and any modification,
renewal or extension of any of the foregoing are collectively called the "Loan
Documents".
This Note has been issued pursuant to the Agreement, and all of the
terms, covenants and conditions of the Agreement (including all Exhibits
thereto), and all other instruments evidencing or securing the indebtedness
hereunder are hereby made a part of this Note and are deemed incorporated herein
in full. Defined terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
1. Principal and Interest.
Principal and Interest shall be payable as provided in the Agreement.
2. Payment.
Makers shall make payments on the Loan as set forth in the Agreement.
If not sooner repaid, the entire outstanding principal amount of the Loan,
together with all accrued but unpaid interest, fees, and charges shall be
payable by the Maturity Date.
3. Prepayment.
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Makers may prepay the Loan as provided in the Agreement.
4. Default.
4.1 Events of Default.
Events of Default shall be as described in Section 7.1 of the
Agreement.
4.2 Remedies.
So long as an Event of Default remains outstanding and subject to the
terms of the Agreement: (a) interest shall accrue at a rate equal to the
Interest Rate plus two percent (2%) per annum; (b) Holder may, at its option and
without notice (such notice being expressly waived) except as provided in the
Agreement, declare the Loan immediately due and payable; and (c) Holder may
pursue all rights and remedies available under the Agreement, or any other Loan
Documents. Holder's rights, remedies and powers, as provided in this Note, and
the other Loan Documents are cumulative and concurrent, and may be pursued
singly, successively or together against Makers, the security described in the
Loan Documents, and any other security given at any time to secure the payment
hereof, all at the sole discretion of Holder. Additionally, Holder may resort to
every other right or remedy available at law or in equity without first
exhausting the rights and remedies contained herein, all in Holder's sole
discretion. Failure of Holder, for any period of time or on more than one
occasion, to exercise its option to accelerate the Maturity Date shall not
constitute a waiver of the right to exercise the same at any time during the
continued existence of any Event of Default or any subsequent Event of Default.
If any attorney is engaged: (i) to collect the Loan or any sums due
under the Loan Documents whether or not legal proceedings are thereafter
instituted by Holder; (ii) to represent Holder in any bankruptcy,
reorganization, receivership or other proceedings affecting creditors' rights
and involving a claim under this Note; (iii) to protect the liens and security
interests of the Loan Agreement or any of the Loan Documents; (iv) to foreclose
on the Collateral; (v) to represent Holder in any other proceedings whatsoever
in connection with the Agreement or any of the Loan Documents including post
judgment proceedings to enforce any judgment related to the Loan Documents; or
(vi) in connection with seeking an out-of-court workout or settlement of any of
the foregoing, then Makers shall pay to Holder all costs, reasonable attorneys'
fees and expenses in connection therewith, in addition to all other amounts due
hereunder.
5. Late Charge.
If payments of principal and/or interest, or any other amounts under
the Loan Documents are not timely made or remain overdue for a period of ten
(10) days, Makers, without notice or demand by Holder, promptly shall pay an
amount ("Late Charge") equal to two percent (2%) of each delinquent payment;
provided, however, the Late Charge shall not be applicable in the event the
Default Rate shall be accruing; provided, further, that nothing in this
paragraph 5 shall give Holder the option to apply the Late Charge if Holder is
entitled to cause the Default Rate to accrue.
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6. Governing Law; Severability.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Illinois. The invalidity, illegality or
unenforceability of any provision of this Note shall not affect or impair the
validity, legality or enforceability of the remainder of this Note, and to this
end, the provisions of this Note are declared to be severable.
7. Waiver.
To the extent permitted by law, Makers, for themselves and all
endorsers, guarantors and sureties of this Note, and their heirs, successors and
assigns, legal representatives, hereby waive presentment for payment, demand,
notice of nonpayment, notice of dishonor, protest of any dishonor, notice of
protest and protest of this Note, and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment of this
Note, and agree that their respective liability shall be unconditional and
without regard to the liability of any other party and shall not be in any
manner affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by Holder. Makers, for themselves and all
endorsers, guarantors and sureties of this Note, and their heirs, legal
representatives, successors and assigns, hereby consent to every extension of
time, renewal, waiver or modification that may be granted by Holder with respect
to the payment or other provisions of this Note, and to the release of any
makers, endorsers, guarantors or sureties, and of any collateral given to secure
the payment hereof, or any part hereof, with or without substitution, and agrees
that additional makers, endorsers, guarantors or sureties may become parties
hereto without notice to Makers or to any endorser, guarantor or surety and
without affecting the liability of any of them.
8. Security, Application of Payments.
This Note is secured by the liens, encumbrances and obligations created
hereby and by the other Loan Documents. Payments will be applied to any fees,
expenses or other costs Makers are obligated to pay under this Note or the other
Loan Documents, to interest due on the Loan and to the outstanding principal
balance of the Loan, in any order that Holder, at its sole option, may deem
appropriate.
9. Miscellaneous.
9.1 Amendments.
This Note may not be terminated or amended orally, but only by a
termination or amendment in writing signed by Holder.
9.2 Lawful Rate of Interest.
The maximum amount of interest paid or to be paid to Holder pursuant to
this Note or any Loan Document shall be governed by the Agreement.
9.3 Captions.
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The captions of the Paragraphs of this Note are for convenience of
reference only and shall not be deemed to modify, explain, enlarge or restrict
any of the provisions hereof.
9.4 Notices.
Notices shall be given under this Note in conformity with the terms and
conditions of the Agreement.
9.5 Joint and Several.
The obligations of Makers under this Note shall be joint and several
obligations of each Maker and of each Maker's heirs, personal representatives,
successors and assigns.
9.6 Time of Essence.
Time is of the essence of this Note and the performance of each of the
covenants and agreements contained herein.
10. Venue.
MAKERS HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL,
STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY AND STATE. MAKERS HEREBY
IRREVOCABLY APPOINT AND DESIGNATE CSC, WHOSE ADDRESS IS MAKERS, X/X XXX, 00
XXXXX XXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000, AS ITS DULY AUTHORIZED AGENT FOR
SERVICE OF LEGAL PROCESS AND AGREE THAT SERVICE OF SUCH PROCESS UPON SUCH PARTY
SHALL CONSTITUTE PERSONAL SERVICE OF PROCESS UPON MAKERS. IN THE EVENT SERVICE
IS UNDELIVERABLE BECAUSE SUCH AGENT MOVES OR CEASES TO DO BUSINESS IN CHICAGO,
ILLINOIS, MAKERS SHALL, WITHIN TEN (10) DAYS AFTER HOLDER'S REQUEST, APPOINT A
SUBSTITUTE AGENT (IN CHICAGO, ILLINOIS) ON THEIR BEHALF AND WITHIN SUCH PERIOD
NOTIFY HOLDER OF SUCH APPOINTMENT. IF SUCH SUBSTITUTE AGENT IS NOT TIMELY
APPOINTED, HOLDER SHALL, IN ITS SOLE DISCRETION, HAVE THE RIGHT TO DESIGNATE A
SUBSTITUTE AGENT UPON FIVE (5) DAYS NOTICE TO MAKERS. MAKERS HEREBY WAIVE ANY
RIGHT THEY MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT
AGAINST THEM BY HOLDER ON THE LOAN DOCUMENTS OR RELATED LOAN DOCUMENTS IN
ACCORDANCE WITH THIS PARAGRAPH.
11. Sale of Loan.
Subject to the terms of the Agreement, Holder, at any time and without
the consent of Makers, may grant Participations in or sell, transfer, assign and
convey all or any portion of its right, title and interest in and to the Loan,
this Note, the Agreement and the other Loan Documents, any guaranties given in
connection with the Loan and any Collateral given to secure the Loan.
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12. Jury Trial Waiver.
MAKERS, AND HOLDER BY ITS ACCEPTANCE OF THIS NOTE, HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS NOTE AND THE BUSINESS RELATIONSHIP THAT
IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY
MADE BY MAKERS AND BY HOLDER, AND MAKERS ACKNOWLEDGE THAT NEITHER HOLDER NOR ANY
PERSON ACTING ON BEHALF OF HOLDER HAS MADE ANY REPRESENTATIONS OF FACT TO
INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY
MODIFY OR NULLIFY ITS EFFECT. MAKERS AND HOLDER ACKNOWLEDGE THAT THIS WAIVER IS
A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT MAKERS AND
HOLDER HAVE ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS NOTE AND THAT
EACH OF THEM WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. MAKERS AND HOLDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED
(OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
13. No Novation.
This Note issued on the date hereof is issued in replacement of and
substitution for any Note issued under the Prior Loan Agreement prior to the
date hereof, and does not represent a repayment, extinguishment or novation of
the Loan. The Loan, including, without limitation, all accrued and unpaid
interest thereon, shall be deemed to continue and shall hereafter be evidenced
by this Note.
56
62
IN WITNESS WHEREOF, Makers have executed this Note or have caused the
same to be executed by its duly authorized representatives as of the date set
first forth above.
MAKERS:
BLUEGREEN CORPORATION
By:
-------------------------------
Printed Name:
---------------------
Title:
----------------------------
BLUEGREEN VACATIONS UNLIMITED,
INC.
By:
-------------------------------
Printed Name:
---------------------
Title:
----------------------------
57
63
Schedule attached to Note dated June ___, 1999 of Bluegreen Corporation and Bluegreen Vacations Unlimited, Inc.
payable to the order of Xxxxxx Financial, Inc.
-----------------------------------------------------------------------------------------------------------------
Date of Loan Amount of Loan Amount of Repayment
------------ -------------- -------------------
58
64
EXHIBIT B
Form of Assignment
When Recorded Mail To:
[Custodian]
Assignment of Receivables and Receivables Collateral
Assignment (this "Assignment") made and executed as of June ___, 1999,
is made by and between Bluegreen Corporation, a Massachusetts corporation, whose
address is 0000 Xxxx Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Bluegreen
Corporation"), Bluegreen Vacations Unlimited, Inc., whose address is 0000 Xxxx
Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Bluegreen Vacations" and together with
Bluegreen Corporation and the Additional Borrowers (as hereinafter defined)
collectively referred to herein as the "Makers" or the "Borrowers" and sometimes
referred to herein individually as a "Maker" or "Borrower"), and Xxxxxx
Financial, Inc., a Delaware corporation ("Lender"), whose address is 000 Xxxx
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Borrowers and Lender have entered into an Amended and Restated
Loan and Security Agreement, dated as of June ___, 1999 (as amended from time to
time, the "Agreement"), pursuant to which Lender has agreed to lend, upon the
terms and conditions set forth in the Agreement, up to $35,000,000 (the "Loan")
to Borrowers to be evidenced by a Promissory Note dated June ___, 1999 (together
with any renewals, extensions, substitutions or modifications thereof, the
"Note") and secured by a security interest granted by Borrowers to Lender on
certain Receivables and Receivables Collateral as well as other Collateral of
Borrowers (as such terms are defined in the Agreement).
NOW THEREFORE, to secure the payment and performance of the
Indebtedness, the Project Indebtedness and other obligations of Borrowers to
Lender under the Agreement, the Note and the other the Project Indebtedness Loan
Documents (as such terms are defined in the Agreement) and in consideration of
the extension of the Loan to Borrowers and subject to the terms of the
Agreement, Borrowers hereby collaterally convey, assign, transfer and set over
unto Lender as collateral security for the Loan, the Indebtedness and the
Project Indebtedness all of its right, title and interest in and to the
Receivables and the Receivables Collateral, set forth on Schedule 1 attached
hereto, and all other Collateral connected therewith collaterally assigned to
Lender pursuant to the terms of the Agreement, together with all proceeds
derived therefrom and other Collateral delivered in substitution or replacement
thereof.
59
65
The execution and delivery of this Assignment shall not subject Lender
to, or transfer or pass to Lender, or in any way affect or modify, the liability
of Borrowers under any or all of the Receivables and Receivables Collateral
hereby assigned, it being understood and agreed that notwithstanding this
Assignment or any subsequent collateral assignment, all of the obligations of
the Borrowers to each and every other party under each and every one of such
Receivables and Receivables Collateral shall be and remain enforceable by such
other party, its successors and assigns, only against Borrowers and their
successors and assigns, and that Lender has not assumed any of the obligations
or duties of Borrowers under or with respect to any of such Receivables and
Receivables Collateral.
Borrowers hereby agree and acknowledge that neither the acceptance of
this Assignment by Lender nor the exercise of, or failure to exercise, any
right, power or remedy in this instrument conferred upon Lender shall be deemed
or construed to obligate Lender, or its successors or assigns, to pay any sum of
money, take any action or incur any liability in connection with any of the
Receivables and Receivables Collateral hereby assigned to Lender. It is further
agreed and understood by Borrowers that neither Lender nor its successors or
assigns shall be liable in any way for any costs, expenses or liabilities
connected with, or any charges or liabilities resulting from, any of such
Receivables and Receivables Collateral.
If any provision of this Assignment is held to be illegal, invalid or
unenforceable under present or future laws effective during the term thereof,
such provision shall be fully severable, this Assignment shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof or thereof, and the remaining provisions hereof or
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
This Assignment shall be binding upon Borrowers and their successors
and assigns, and shall inure to the benefit of Lender and its successors and
assigns.
This Assignment shall be governed by and shall be construed and
enforced in accordance with the internal laws of the State of Illinois (without
regard to conflicts of law principles) and applicable laws of the United States.
60
66
IN WITNESS WHEREOF, Borrowers have executed this Assignment on the date
first written above.
BLUEGREEN CORPORATION
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
BLUEGREEN VACATIONS UNLIMITED,
INC.
By:
----------------------------------
Printed Name:
------------------------
Title:
-------------------------------
61
67
STATE OF ________ )
) ss.
COUNTY OF _____ )
On this day _____ of ______________, 1998 before me, a Notary Public,
personally appeared _______________________, personally known to me, the
________________ of ____________________, a ____________ corporation, who being
by me first duly sworn declared that the foregoing instrument was signed by
him/her on behalf of the aforesaid corporation, acknowledging said instrument to
be its free act and deed.
----------------------------
Notary Public
My term expires:
-------------------
[NOTARIAL SEAL]
GIVEN under my hand and Notarial Seal this .
------------------------
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
62
68
SCHEDULE 1
List of Receivables and Receivables Collateral
63
69
EXHIBIT C
Form of Reassignment of Receivables and Receivables Collateral
Reassignment of Receivables and
Receivables Collateral
This Reassignment of Receivables and Receivables Collateral
("Reassignment") is made and executed as of _______________, 1999, by Xxxxxx
Financial, Inc., a Delaware corporation (the "Lender") to ___________________, a
______________________ (the "Borrowers").
WITNESSETH:
WHEREAS, the Borrowers and Lender have entered into an Amended and
Restated Loan and Security Agreement, dated as of June ___, 1999 (as amended
from time, to time, the " Agreement"), pursuant to which Lender has agreed to
lend, upon the terms and conditions set forth in the Agreement, up to
$__________ (the "Receivables Loan") to Borrowers, evidenced by a Promissory
Note dated _________, 19__ (the "Note"), which is secured by a security interest
and lien granted by the Borrowers to Lender on certain Receivables and the
Receivables Collateral related thereto, as well as other Collateral of the
Borrowers (as such terms are defined in the Agreement), pursuant to one or more
Assignments of Receivables and Receivables Collateral (collectively, the
"Assignment"); and
WHEREAS, the Agreement provides that upon the occurrence of certain
events, including but not limited to repayment of any of the Receivables held as
collateral under the Assignment, Lender will reassign such Receivables and the
Receivables Collateral related thereto to the Borrowers.
NOW THEREFORE, Lender hereby reconveys, reassigns, transfers and sets
over unto the Borrowers all of its right, title and interest in and to the
Receivables and the Receivables Collateral related thereto described in Exhibit
1 attached hereto and incorporated herein by this reference, without recourse
and without warranty of any kind.
64
70
IN WITNESS WHEREOF, Lender has executed this Reassignment on the date
first written above.
XXXXXX FINANCIAL, INC.,
a Delaware corporation
By:
----------------------------
Its:
---------------------------
Attest:
----------------------
STATE OF ILLINOIS )
)SS
COUNTY OF _______ )
I, _________________________________, a notary public in and for said
county, in the State aforesaid, do hereby certify that ____________, personally
known to me to be the _________________ of Xxxxxx Financial, Inc., a corporation
of the State of Delaware, whose name is subscribed to the within instrument,
appeared before me this day in person and acknowledged that as such
_____________ he/she signed and delivered the said instrument as
___________________ of said corporation to be thereunto affixed, as their free
and voluntary act and as the free and voluntary act and deed of said
corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this ____ day of
__________________, 1999.
------------------------------
Notary Public
My Commission expires:
-----------------------
65
71
EXHIBIT 1
Description of Reassigned
Receivables and Receivables Collateral
66
72
EXHIBIT D
Requests For Advance
DATE:
---------------------------
Xxxxxx Financial, Inc.
Attn: Portfolio Administrator,
Vacation Ownership
000 Xxxx Xxxxxx Xx., 00xx Xx.
Xxxxxxx, Xxxxxxxx 00000
RE: HSF Loan No. 98-087
$35,000,000 credit facility described in that certain
Amended and Restated Loan and
Security Agreement (the "Agreement")
between Xxxxxx Financial, Inc. ("Lender")
and Bluegreen Corporation ("Bluegreen") on behalf
of the Borrowers described thereunder.
Dear Sir or Madam:
In accordance with the terms of the Amended and Restated Loan and
Security Agreement, Borrowers wish to obtain an Advance of
$_______________________ on ___________________, 19____. All terms used herein,
unless otherwise specified, shall have the meanings assigned in the Agreement.
In order to induce Lender to make such Advance, Bluegreen on behalf of Borrowers
hereby represent and warrant to Lender:
1. No Event of Default exists, and no event exists which, with
the passage of time or notice or both, would constitute an Event of Default or
will occur as a result of the Advance requested herein.
2. The representations and warranties contained in the Agreement
are true, correct and complete in all material respects on and as of the date of
funding of each Advance except for any representation or warranty limited by its
terms to a specific date or affected by the transactions permitted by the
Agreement and taking into account any amendments to the schedules or exhibits as
a result of any subsequent disclosures made by Borrowers in writing to and
approved by Lender, and except to the extent of changes occurring in the
ordinary course of business that, either singly or in the aggregate, have not
had and could not reasonably be expected to have a Material Adverse Effect.
3. Borrowers are in compliance with each and every one of its
covenants, agreements and obligations under the Agreement.
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4. Borrowers have no defenses or offsets with respect to the
payment of any amounts due Lender.
6. Lender has performed all of its obligations to Borrowers.
7. All Receivables listed on Schedule A attached hereto meet all
of the requirements of Eligible Receivables and relate to the ________ Resort.
8. Borrowers shall grant Lender a security interest in and lien
upon those certain Receivables and Receivables Collateral set forth in Schedule
A attached hereto.
9. Advances shall be wired to Bluegreen's account #___________.
10. All Receivables arising from the Resorts listed on Schedule A
attached hereto have been originated by the applicable Borrower set forth
opposite such Resort below:
RESORT BORROWER
------ --------
Mountain Loft Resort Bluegreen Corporation
Laurel Crest Resort Bluegreen Corporation
Shore Crest Resort Bluegreen Vacations Unlimited, Inc.
Harbour Lights Resort Bluegreen Vacations Unlimited, Inc.
Falls Village Resort Bluegreen Vacations Unlimited, Inc.
Christmas Mountain Campground Bluegreen Vacations Unlimited, Inc.
The Timbers at Christmas Mountain Bluegreen Vacations Unlimited, Inc.
Christmas Mountain Campground, The Bluegreen Vacations Unlimited, Inc.
Timbers at Christmas Mountain, The Villas at
Christmas Mountain, Mountain Landmark
Holiday Beach Resort, Ocean Towers Beach
Club, Panama City Resort and Club, Surfrider
Beach Club, Tropical Sands Resort, Resort
Sixty Six, Via Roma Beach Resort, Orlando's
Sunshine Resort, Gulfstream Manor, Dolphin
Beach Club, Fantasy Island Resort II,
Outrigger Beach Club, Petit Crest Resort
BLUEGREEN CORPORATION
By:
-----------------------------
Name:
-----------------------------
Its:
-----------------------------
68
74
SCHEDULE A
Description of Pledged Receivables
and Pledged Receivables Collateral
69
75
EXHIBIT E
Form of Allonge
ALLONGE
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Loan and Security Agreement:
"Pay to the order of Xxxxxx Financial, Inc., with recourse."
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
The foregoing endorsement shall have the same effect as though it were
written directly on the note or instrument identified above.
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Sale and Contribution Agreement:
"Pay to the order of Bluegreen Receivables Finance Corporation III,
without recourse, representation or warranty except as provided in the
Sale and Contribution Agreement."
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
The foregoing endorsement shall have the same effect as though it were
written directly on the note or instrument identified above.
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Purchase Facility:
"Pay to the order of Xxxxxx Financial, Inc., without recourse,
representation or warranty except as provided in the Asset
Purchase Agreement."
By:
--------------------------------------
Name:
------------------------------------
Its:
-------------------------------------
76
The foregoing endorsement shall have the same effect as though it were
written directly on the note or instrument identified above.
77
EXHIBIT F
Servicing Agreement
78
EXHIBIT G
RESERVED
79
EXHIBIT H
List of Permitted Liens
(including therein the condominium declarations)
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 4.4;
(b) carriers', warehouseman's, mechanics', materialmen's, repairmen' and
other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30
days or are being contested in compliance with Section 4.4;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course
of business; and
(e) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of any Borrower or any
Subsidiary.
80
EXHIBIT I
List of Resorts Encumbered by Resort Blanket Mortgages
81
EXHIBIT J
List of Project Loan Documents
82
EXHIBIT K
Structuring Fee Letter
83
EXHIBIT L
Time Share Documents
84
EXHIBIT M
Legal Description of Resorts
85
EXHIBIT N
Commitment Letter dated March 30, 1998
86
SCHEDULE 2.1
Material Project Loan Default
A "Material Project Loan Default" shall mean:
(a) Any indebtedness evidenced, governed or secured by any of the
Project Loan Documents is not paid within five (5) Business
Days of the date when due, whether by acceleration or
otherwise;
(b) Any statement, representation or warranty in the Project Loan
Agreement, any of the Project Loan Documents, any financial
statement or any other writing delivered by the Borrowers or
any Subsidiary thereof to Lender in connection with the
Project Loan Agreement is false, misleading or incorrect in
any material respect as of the date made and has a Material
Adverse Effect; or
(c) Any failure to comply with the financial covenants set forth
in Section 3 of the Project Loan Agreement (which shall be the
same financial covenants as set forth in the Loan and Security
Agreement)
87
SCHEDULE 3.2
List of Deliveries For All Advances
Pursuant to Section 3.2 of the Agreement, Lender shall not be obligated
to fund any Advance unless Lender and Custodian shall have received, in form and
substance satisfactory to Lender, all documents, instruments and information as
follows:
To Lender at least five (5) Business
Days prior to the requested funding date:
1. A Request for Advance (in the form of Exhibit D to the
Agreement) listing all Receivables and Receivables Collateral to be financed.
2. A computer diskette or magnetic tape prepared in accordance
and in the form provided by Exhibit 1 attached hereto which shall include, but
not be limited to, the aging report and Credit Code relating to the Receivables
to be pledged in connection with the Advance.
3. UCC-1 financing statements, executed by the Borrowers in favor
of the Lender relating to and describing the Lender's security interest in the
contract rights evidenced by the conditional sales contract.
4. To the extent that the title commitment hereinafter described
has not been issued with respect to a Resort Blanket Mortgage at a Resort other
than the Resorts approved as of the date of the Closing of the Loan, a
commitment for title insurance insuring each individual Resort Blanket Mortgage
as a valid first lien on such Intervals being financed subject only to the
Permitted Liens; provided that a title policy shall be delivered within sixty
(60) days after the date of the Advance or as soon as practicable.
5. Such additional information as Lender may reasonably require.
To Custodian at least five (5) Business
Days prior to the requested funding date:
1. A Request for Advance (in the form of Exhibit D to the
Agreement) listing all Receivables and Receivable Collateral to be financed.
2. Originals of all Receivables and Receivables Collateral, and
the form of Assignment attached hereto as Exhibit B (with only such
modifications to such form as are necessary to properly identify the collateral
and to cause the document to be properly recorded), covering all of the
Receivables and Receivables Collateral to be pledged in relation with such
Advance except that copies of the recordable Purchase Money Mortgages and
Assignments, to extent applicable, shall be satisfactory provided that recorded
originals are delivered to the Custodian within sixty (60) days after the
Advance date or as soon as practicable after received), all in forms approved by
Lender, with each Receivable endorsed with (i) an allonge in the form
88
attached hereto as Exhibit E in respect of Receivables evidenced by notes and
mortgages (which such allonge may be signed via facsimile signature), (ii) an
assignment in the form of Exhibit B in respect of Receivables evidenced by
conditional sales contracts, or (iii) other appropriate form acceptable to
Lender.
3. A current aging report for the Receivables and Receivables
Collateral to be pledged in connection with the requested Advance.
4. UCC-1 financing statements, executed by Borrowers in favor of
Lender relating to and describing Lender's security interest in the contract
rights evidenced by the CSC.
All documents to be delivered to Lender should be sent to:
Xxxxx Xxxxxx
Portfolio Administrator, Vacation Ownership
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
All documents to be delivered to the Custodian should be sent to:
Xxxx Xxxxxx
Norwest Bank Minnesota, N.A.
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, XX 00000
Mail Station 0031
Tel: (000) 000-0000
Fax: (000) 000-0000
89
EXHIBIT O
Borrowers Closing Checklist
90
EXHIBIT P
Resort Closing Checklist
91
EXHIBIT Q
Additional Resort Closing Checklist
92
EXHIBIT R
Club Closing Checklist
93
SCHEDULE 4.5
List of Litigation Matters
94
SCHEDULE 4.13(A)
Trade Names other than Name of Borrowers
Bluegreen Corporation
Bluegreen Resorts, Inc.
Bluegreen Vacations Unlimited, Inc.
Xxxxxx Corporation
Xxxxxx Resorts, Inc.
Mountain Loft Resort
Laurel Crest Resort
Shore Crest Resort
Harbour Lights Resort
Falls Village Resort
RDI Resources, Inc.
Christmas Mountain Campground
The Timbers at Christmas Mountain
The Villas at Christmas Mountain
95
SCHEDULE 4.13(B)
Mergers and Corporate Reorganizations
96
SCHEDULE 5.2
Insurance
97
SCHEDULE 5.15
Additional Indebtedness for Borrowed Money; Additional Obligations
