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EXHIBIT 10.129
AMENDED AND RESTATED
CREDIT FACILITY AGREEMENT
THIS AMENDED AND RESTATED CREDIT FACILITY AGREEMENT ("Agreement")
entered into as of April 16, 1998, by FINOVA CAPITAL CORPORATION, a Delaware
corporation, and BLUEGREEN CORPORATION, a Massachusetts corporation.
RECITALS
A. Lender and Borrower have previously entered into a Credit Facility
Agreement dated as of December 14, 1994, as amended by instrument dated as of
October 17, 1996 (as so amended, "Existing Loan Agreement").
B. Lender and Borrower wish to amend the Existing Loan Agreement and to
restate the Existing Loan Agreement in its entirety, all as more fully set forth
herein.
AGREEMENT
I. DEFINITIONS.
As used in this Agreement and the other Documents (as defined below)
unless otherwise expressly indicated in this Agreement or the other Documents,
the following terms shall have the following meanings (such meanings to be
applicable equally both to the singular and plural terms defined).
1.1 "Acquisition Advance": an Advance made solely for the purpose of
paying, or reimbursing Borrower for, the Acquisition Cost of Real
Property which is the subject of the Loan under which the Advance is
made.
1.2 "Acquisition Cost": with respect to any Real Property, its actual
purchase price, together with all reasonable and ordinary closing
costs, attorneys' fees and other due diligence expenses incurred in
connection with the acquisition of the Real Property.
1.3 "Acquisition Loan": a Loan which is disbursed in a single Advance and
is made solely for the purpose of paying, or reimbursing Borrower for,
the Acquisition Cost of the Real Property which is the subject of the
Acquisition Loan.
1.4 "Advance": an advance of the proceeds of a Loan by Lender to a Borrower
in accordance with the terms and conditions of this Agreement.
1.5 "Advance Formula for Acquisition Advance": with respect to any Real
Property, an amount equal to eighty percent (80%) of the lesser of (a)
its Acquisition Cost or (b) its Appraised Value; PROVIDED that if an
appraisal is not required pursuant to paragraph 4.2(b), then the
Advance Formula shall be an amount equal to eighty percent (80%) of the
Acquisition Cost.
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1.6 "Affidavit of Borrower": a sworn Affidavit of Borrower (and such other
parties as Lender may require) in the form of EXHIBIT G-3, to accompany
a Work-Related Advance Request.
1.7 "Affiliate": with respect to any individual or entity, any other
individual or entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control
with, such individual or entity.
1.8 "Agreement": this Amended and Restated Credit Facility Agreement, as it
may be from time to time renewed, amended, restated or replaced.
1.9 "Applicable Usury Law": the usury law chosen by the parties pursuant to
the terms of paragraph 8.10 or such other usury law which is applicable
if such usury law is not.
1.10 "Appraised Value": with respect to any Real Property, its fair market
value as reported in the appraisal required pursuant to paragraph
4.2(b) and approved by Lender.
1.11 "Architect/Engineer": with respect to any Improvements, an architect,
design professional or engineer employed by a Borrower to perform
architectural, design or engineering services in connection with such
Improvements.
1.12 "Architect/Engineer Agreement": with respect to the Improvements being
financed in whole or in part under a Development Loan, a contract
(written or oral, now or hereafter in effect) between the Borrower
under the Development Loan and an Architect/Engineer for the
performance of architectural, design or engineering services in
connection with such Improvements, as approved by Lender in writing and
modified from time to time in accordance with the terms of the
Documents.
1.13 "Articles of Organization": the charter, articles, operating agreement,
partnership agreement, by-laws and any other written documents
evidencing the formation, organization and continuing existence of an
entity.
1.14 "Assignment(s)": with respect to a Loan, a written assignment or
assignments, which may be separate from and/or included within the
Mortgage encumbering such Real Property, executed by the Borrower under
the Loan and creating in favor of Lender, to facilitate Performance of
the Obligations of such Borrower, a perfected, direct, first and
exclusive assignment (subject only to the Permitted Encumbrances) of
all leases, sales contracts, rents and sales and other proceeds
pertaining to or arising from such Real Property or any business of
such Borrower conducted thereon or with respect thereto; Contracts,
Licenses, Permits and Other Intangibles related to such Real Property
(including, without limitation, Architect/Engineer Agreements and
Construction Contracts if the Loan is a Development Loan); and all of
the Developer's Rights with respect to such Real Property; as such
assignments may be from time to time renewed, amended, restated or
replaced.
1.15 "Bluegreen Entity": Parent or a Subsidiary.
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1.16 "Borrower": with respect to a Loan, the Bluegreen Entity which has
requested the Loan and to whom the Loan is to be or has been made; and
with respect to any Real Property, the Bluegreen Entity which owns the
fee simple interest in the Real Property and is the seller of Parcels
of the Real Property.
1.17 "Borrowing Term": subject to the provisions of paragraph 2.2, the
period during which a Bluegreen Entity may obtain a Loan, commencing on
the date of this Agreement and ending on March 31, 2001.
1.18 "Business Day": any day other than a Saturday, a Sunday or a day on
which banks in Phoenix, Arizona are required to be closed.
1.19 "Collateral": all Real Property, Personal Property, Insurance Policies
and other property now or hereafter serving as security for the
Performance of any portion of the Obligations, and all products and
proceeds thereof.
1.20 "Completion": with respect to the Work being done in connection with a
Development Loan, the occurrence, after Substantial Completion of such
Work, of the following:
(a) final completion of such Work (including "punch-list" items),
in accordance with the related Plans and Specifications, the
related Construction Contract(s), all applicable laws, the
Documents, sound construction, engineering and architectural
principles and commonly accepted safety-standards, free of
liens and free of defective materials and workmanship; and
(b) receipt by Lender of the following in form and substance
satisfactory to it: (i) a certificate of completion from the
Borrower under the Development Loan, Architect(s)/Engineer(s)
designated by Lender, and, if Lender elects, from Lender's
Inspector to the effect that such Work has been so completed
and final payment is due under all related Construction
Contracts between Borrower and Contractors; (ii) final lien
waivers for such Work; and (iii) the title policy endorsements
required in connection with such event pursuant to the terms
of the Documents after final completion of such Work; and
(c) expiration of the statutory period in which mechanics' liens
and similar liens can be filed on account of such Work.
1.21 "Construction Budget": with respect to the Work being done in
connection with a Development Loan, a detailed budget cost itemization
prepared by Borrower and approved in writing by Lender, which specifies
by item the cost and source of payment of: (a) all labor, materials and
services necessary for Completion of such Work in accordance with the
related Plans and Specifications, the related Construction Contract(s),
the Documents, all Legal Requirements, sound construction, engineering
and architectural principles, and commonly accepted safety standards;
(b) interest on the Development Loan; and (c) all other expenses
incidental to Completion of such Work. Each Construction Budget shall
include within the
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costs of the Work to be paid from the Development Loan a contingency
reserve determined to be adequate by Lender. Without limiting Lender's
discretion in approving the Construction Budget, Lender shall be
satisfied that any "construction overhead" contained therein does not
constitute a developer fee of any kind.
1.22 "Construction Contract": with respect to the Work being done in
connection with a Development Loan, a contract (written or oral, now or
hereafter in effect) between Borrower and a Contractor, between a
Contractor and any other person or entity relating in any way to the
construction of such Work, including the performing of labor and the
furnishing of equipment, materials or services (other than
architectural, design or engineering services), as approved by Lender
in writing and modified from time to time.
1.23 "Contractor": with respect to the Work being done in connection with a
Development Loan, a contractor employed by a Borrower to provide labor
and/or to furnish equipment, materials or services (other than
architectural, design or engineering services) for any portion of such
Work.
1.24 "Contracts, Licenses, Permits and Other Intangibles": with respect to
any Real Property, the property so described in EXHIBIT A.
1.25 "Credit Facility": the credit facility made available pursuant to this
Agreement.
1.26 "Credit Facility Modification Fee Installment Payment": the meaning
given to it in paragraph 6.15.
1.27 "Default Rate": the meaning given to it in the Notes.
1.28 "Developer's Rights": with respect to any Real Property, all special
rights and privileges of a Borrower under any declaration of covenants,
conditions and restrictions and/or other documents governing the Real
Property which are not enjoyed by all other owners of portions of the
Real Property.
1.29 "Development Loan": a Loan made for the purpose of paying or
reimbursing a Borrower for the costs of constructing Improvements on
the Real Property which is the subject of the Development Loan and
otherwise performing Work with respect to such Improvements; PROVIDED,
HOWEVER, that a Development Loan may also include an Acquisition
Advance.
1.30 "Development Loan Advance": an Advance of a Development Loan.
1.31 "Development Loan Borrowing Term": with respect to a Development Loan,
the period during which the Borrower under the Development Loan may
obtain Development Loan Advances under such Development Loan, which
period shall commence when all conditions precedent to the initial
Development Loan Advance under such Development Loan have been
satisfied and terminating on the Required Completion Date for the
Improvements being financed in whole or in part under such Development
Loan.
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1.32 "Documents": this Agreement and any and all Requests for Advance,
Notes, Mortgages, Security Agreements, Assignments, Environmental
Certificates, and other documents now or hereafter executed in
connection with the Credit Facility, as they be from time to time
renewed, amended, restated or replaced.
1.33 "Environmental Certificate": with respect to a Loan, a certificate
executed by the Borrower under the Loan in form and substance
satisfactory to Lender, and containing representations, warranties and
covenants regarding the environmental condition of the Real Property
which is the subject of the Loan.
1.34 "Event of Default": the meaning set forth in paragraph 7.1.
1.35 "Force Majeure Event": an "act of God," a fire, a strike, a
governmental order and/or injunction which is issued by a court of
competent jurisdiction for reasons other than for a Borrower's acts or
omissions which would constitute a default under this Agreement, or a
similar event beyond a Borrower's reasonable control.
1.36 "Guaranty": a primary, joint and several guaranty made by Parent
guarantying the repayment of a Loan made to a Subsidiary, together with
interest thereon as provided in the Note evidencing such Loan, and the
payment and performance of all other Obligations pertaining to the Real
Property against which the Loan has been made.
1.37 "Improvements": with respect to a Development Loan, the infrastructure
improvements to be constructed upon, added to or made (on-site or
off-site) to or for the benefit of the Real Property which is the
subject of the Development Loan, all as more fully set forth in the
related Plans and Specifications and the related Construction Budget.
1.38 "Incipient Default": an event which after notice and/or lapse of time
would constitute an Event of Default.
1.39 "Insurance Policies": the insurance policies that a Borrower is
required to maintain and deliver pursuant to paragraph 6.5.
1.40 "Interest Reserve Advance": a Development Loan Advance made to pay
accrued and unpaid interest on any portion of the Development Loan.
1.41 "Interest Reserve Fund": that portion of a Development Loan which is
allocated within the related Construction Budget for the monthly
payment of interest on the Development Loan.
1.42 "Legal Requirements": (a) all present and future judicial decisions,
statutes, regulations, permits or certificates of any governmental
authority in any way applicable to a Borrower or any Collateral; (b)
all covenants, conditions and restrictions contained in any document by
which any Collateral is bound; (c) all business association agreements
forming, or granting and/or limiting the powers of, a Borrower; and (d)
all contracts or agreements (written or oral) by which a Borrower is
bound or, if compliance therewith would otherwise be in
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conflict with any of the Documents, by which a Borrower becomes
bound with Lender's prior written consent.
1.43 "Lender": FINOVA Capital Corporation and its successors and assigns.
1.44 "Lender's Inspector": the meaning given to it in paragraph 9.1.
1.45 "Loan": an Acquisition Loan or a Development Loan.
1.46 "Maturity Date": with respect to a Loan, the date determined by Lender
prior to the initial Advance of the Loan and so identified in the Note
evidencing the Loan, but in no event later than the date forty-eight
(48) months after the initial Advance of the Loan.
1.47 "Maximum Credit Facility Amount": at anytime, the positive difference
between Thirty-Five Million Dollars ($35,000,000) and the unpaid
principal balance of the PRFC Loan.
1.48 "Maximum Loan Amount": (a) with respect to an Acquisition Loan, an
amount equal to the lesser of (i) the amount requested by the Borrower
under the Acquisition Loan or (ii) the Advance Formula of the Real
Property which is the subject of the Acquisition Loan; and (b) with
respect to a Development Loan, an amount determined by Lender prior to
the initial Development Loan Advance, but in no event to exceed the
least of (i) the amount requested by the Borrower under the Development
Loan, (ii) (A) eighty percent (80%) of the cost of Completion of the
Work, as shown on the original related Construction Budget, which is
being financed in whole or in part under the Development Loan plus (B)
if there is an Acquisition Advance, an amount determined in accordance
with the Advance Formula for Acquisition Advance with respect to the
Real Property which is the subject of the Development Loan, or (iii)
eighty percent (80%) of its Appraised Value, determined as if
Completion of the Work being financed in whole or in part under the
Development Loan had occurred.
1.49 "Mortgage": with respect to a Loan, a mortgage or deed of trust, as
required by Lender, executed by the Borrower under the Loan and under
the terms of which the Borrower has conveyed or granted in favor of
Lender, as security for Performance of the Obligations of such
Borrower, a perfected, direct, first and exclusive priority lien
(subject only to the Permitted Encumbrances) upon the Real Property
which is the subject of the Loan, as it may be from time to time
renewed, amended, restated or replaced.
1.50 "Note": a promissory note issued by a Borrower in the form of EXHIBIT B
to evidence the Advance(s) of a Loan which has been obtained by or
committed to such Borrower, as it may be from time to time renewed,
amended, restated or replaced.
1.51 "Obligations": all obligations, agreements, duties, covenants and
conditions that Parent and/or the Borrowers are now or hereafter
required to Perform under the Documents.
1.52 "Parcels": the meaning given to it in paragraph 3.2(a).
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1.53 "Parent": Bluegreen Corporation, a Massachusetts corporation.
1.54 "Partial Release": the meaning given to it in paragraph 3.2(a).
1.55 "Partial Release Payment": the meaning give to it in paragraph 3.3.
1.56 "Performance" or "Perform": full, timely and faithful performance.
1.57 "Permitted Encumbrances": with respect to any Property, rights,
restrictions, reservations, easements and liens of record which do not
materially adversely lessen the value or affect the use of such
Property for purposes approved by Lender and Lender has agreed in
writing to accept, but excluding monetary liens other than liens for
taxes and assessments not yet due and payable, and inchoate artisans'
liens and mechanics' liens for amounts not yet due and payable.
1.58 "Personal Property": with respect to any Real Property, the property
described in EXHIBIT A.
1.59 "Plans and Specifications": with respect to the Improvements being
financed in whole or in part under a Development Loan, the
architectural, structural, mechanical, electrical and other plans and
specifications for the construction of such Improvements and the
completion of the rest of the Work related thereto prepared by
Architect(s)/Engineer(s), as approved by Lender as modified from time
to time with Lender's prior written consent.
1.60 "Principal Work-Related Items": with respect to the Improvements being
financed in whole or in part under a Development Loan and related Work,
the Plans and Specifications and all agreements between the Borrower
under the Development Loan and third parties pertaining thereto,
including, without limitation, Construction Contract(s) and
Architect/Engineer Agreement(s), as approved by Lender in writing and
modified from time to time in accordance with the terms of the
Documents.
1.61 "Property": with respect to a Loan, the Real Property which is the
subject of the Loan and the related Personal Property.
1.62 "PRFC Loan": the meaning given to it in paragraph 10.1(a).
1.63 "Real Property": real property which meets the criteria set forth in
EXHIBIT C.
1.64 "Request for Advance": with respect to an Acquisition Advance, the
request for the Advance executed by the Borrower under the Loan
pursuant to which the Acquisition Advance is being made and in form and
substance identical to EXHIBIT D-1 OR D-2, as applicable; and with
respect to a Work-Related Advance, a Work-Related Advance Request.
1.65 "Required Completion Assurance Deposit": with respect to the Uncovered
Cost of any Work, a cash deposit (to be made by the Borrower under the
related Development Loan and held by Lender) in an amount equal to such
Uncovered Cost.
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1.66 "Required Completion Date": with respect to the Improvements being
financed in whole or in part under a Development Loan, the date
determined by Lender prior to the initial Advance of the Development
Loan and so identified in the Request for Advance executed in
connection with the initial Advance, plus such additional time which is
necessary to achieve Completion of the related Work and is due solely
to the occurrence of one or more Force Majeure Events.
1.67 "Resolution": a resolution of a corporation certified as true and
correct by an authorized officer of such corporation, a certificate
signed by the manager of a limited liability company and/or such
members whose approval is required, or a partnership certificate signed
by all of the general partners of such partnership and such other
partners whose approval is required.
1.68 "Security Agreement": with respect to a Loan, a written security
agreement which may be separate from and/or included within a Mortgage
or this Agreement, executed by the Borrower under the Loan and creating
in favor of Lender, as security for the Performance of the Obligations,
a perfected, direct, first and exclusive security interest (subject
only to the Permitted Encumbrances) in the Personal Property related to
the Real Property which is the subject of the Loan, as it may be from
time to time renewed, amended, restated or replaced.
1.69 "Security Documents": any and all Mortgages, Security Agreements,
Assignments and other documents from time to time delivered to Lender
to create or perfect a Security Interest in the Collateral, as they may
be from time to time renewed, amended, restated or replaced.
1.70 "Security Interest": a perfected, direct and exclusive first priority
lien on, security interest in, assignment of or other charge upon the
Collateral, as the case may be, subject only to the Permitted
Encumbrances.
1.71 "Subsidiary": a wholly-owned subsidiary of Parent.
1.72 "Substantial Completion": with respect to the Work being done in
connection with a Development Loan, the occurrence of:
(a) substantial completion (as defined in AIA Document A201, most
current version) of such Work, in accordance with the related
Plans and Specifications, the related Construction
Contract(s), all Legal Requirements, the Documents, sound
construction, engineering and architectural principles and
commonly accepted safety- standards, free of liens and free of
defective materials and workmanship;
(b) receipt by Lender of the following in form and substance
satisfactory to it: (i) a certificate of substantial
completion from the Borrower under such Loan and the related
Architect(s)/ Engineer(s) and, if Lender elects, from Lender's
Inspector to the effect that such Work has been so completed,
and final payment is due under all related Construction
Contracts between such Borrower and Contractors (subject only
to retention for "punch-list" items); (ii) a certificate of
completion or acceptance (or its equivalent) from the
appropriate governmental authority having jurisdiction over
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such Work which has the effect of allowing the use of the
Improvements constructed as part of such Work for the intended
purposes, to the extent such a certificate is customarily
issued or available; (iii) if Legal Requirements provide that
the recording of a notice of completion will cause the
expiration upon a date certain of the statutory period within
which mechanics' and similar liens can be filed, verification
of the recording of such notice in the manner prescribed by
such laws; (iv) final lien waivers, other than lien waivers
for Work remaining to be performed prior to Completion and for
which Lender is still holding Basic Retainage [as defined in
paragraph 2.1(a)] or Additional Retainage [as defined in
paragraph 2.1(a)] sufficient to cover such Work; (v) the
as-built survey required in connection with such event
pursuant to the terms of the Documents; (vi) the title policy
endorsements required in connection with such event pursuant
to the terms of the Documents; and (vii) if the related
Improvements were intended to be dedicated to a governmental
authority, evidence that such dedication has occurred and that
the governmental authority has accepted such Improvements,
subject only to customary warranty obligations on the part of
the Borrower under the Development Loan.
1.73 "Tangible Personal Property": the Personal Property described in
paragraph 3 of EXHIBIT A.
1.74 "Term": the duration of this Agreement, commencing on the date as of
which this Agreement is entered into and ending when all of the
Obligations shall have been Performed.
1.75 "Third Party Consents": with respect to a Loan, those consents which
Lender requires the Borrower under such Loan to obtain, or which such
Borrower or (if not the Borrower) Parent is contractually or legally
obligated to obtain, from others in connection with the making of the
Loan or the Performance of such entity's Obligations.
1.76 "Threshold Amount": with respect to Parent, Two Hundred Fifty Thousand
Dollars ($250,000); and with respect to any Subsidiary, Fifty Thousand
Dollars ($50,000).
1.77 "Title Insurer": with respect to a Title Policy, the title insurance
company which has issued it.
1.78 "Title Policy": with respect to a Loan, a policy of title insurance in
an amount not less than the Loan insuring Lender's interest in the
Mortgage executed in connection with the Loan as a perfected, direct,
first and exclusive lien on the Real Property which is the subject of
the Loan, subject only to the Permitted Encumbrances for such Real
Property, and issued by a title insurance company acceptable to Lender.
1.79 "Uncovered Cost of the Work" or "Uncovered Cost": with respect to the
Work being financed in whole or in part under a Development Loan and
covered by a line-item within the related Construction Budget, the
amount equal to the excess (if any) of (a) the remaining unpaid cost of
Completion of the Work covered by such line-item over (b) the
undisbursed portion of the Development Loan committed for such Work and
the remaining balance of any Required Completion Assurance Deposits
held by Lender for such Work.
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1.80 "Work": with respect to a Development Loan, the construction of the
related Improvements as shown on or described in the related Plans and
Specifications or the related Construction Contract(s).
1.81 "Work Progress Schedule": with respect to a Development Loan, the
schedule for the Completion of the related Work and parts thereof, as
approved by Lender in writing.
1.82 "Work-Related Advance": a Development Loan Advance made for the purpose
of paying or reimbursing the Borrower under the Loan for costs of any
portion of the related Work, excluding interest on the Development
Loan.
1.83 "Work-Related Advance Request": with respect to a Development Loan, the
written application of the Borrower under the Development Loan made on
Lender's standard forms by such Borrower and such other parties as
Lender may require specifying by name and amount all parties to whom
such Borrower is obligated for labor, materials, equipment or services
supplied for the performance of related Work and all other expenses
incidental to the Development Loan, the Real Property which is the
subject of the Development Loan and the Completion of the related Work,
and requesting a Development Loan Advance for payment of such items,
accompanied by an Affidavit of Borrower, certificates of the
Architect/Engineer and the related Contractor and such schedules,
affidavits, certificates, releases, waivers, statements, invoices,
bills and other documents as Lender may reasonably request.
II. CREDIT FACILITY COMMITMENT; USE OF PROCEEDS.
2.1 CREDIT FACILITY COMMITMENT. Lender hereby agrees, if all of the
Obligations then due to be Performed have been Performed, to make Loans
and Advances of such Loans to Bluegreen Entities. Each Acquisition
Advance shall be in an amount equal to the lesser of (a) the amount
requested by the Borrower or (b) the Advance Formula of the Real
Property which is the subject of the Advance. Subject to the provisions
of paragraph 4.7, the amount of each Interest Reserve Advance under a
Development Loan shall be in the amount of interest then accrued and
unpaid on the portion of the Development Loan for which payment of
interest is allocated within the related Construction Budget. The
amount of each Work-Related Advance under a Development Loan shall be
equal to the costs of the Work for related Improvements covered by the
applicable Work-Related Advance Request and allocated within the
related Construction Budget for payment out of the Development Loan
less an amount equal to the sum of (a) an amount ("Basic Retainage")
equal to ten percent (10%) of the "hard" costs of such Work and (b) any
additional retainage in excess of the amount of the Basic Retainage
("Additional Retainage") required under the applicable Construction
Contract(s); PROVIDED, HOWEVER, that Work-Related Advances shall not be
made for stored or ordered materials not yet incorporated into the
Improvements. The Basic Retainage shall apply only to "hard" costs of
the Work. The Additional Retainage shall be disbursed as part
of the next Development Loan Advance occurring after Lender has
reasonably determined that a Contractor is entitled to it under the
applicable Construction Contract. The Basic Retainage Work-Related
Advances under a Development Loan shall be disbursed at the time of
Substantial Completion of the related Work to the extent Contractor(s)
who have
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performed such Work are then entitled to it under the applicable
Construction Contract(s), subject to Lender's right to keep such
portion of the Basic Retainage as it may determine to be necessary to
ensure Completion of the related Work, with such retained portion to be
disbursed promptly after Completion of the related Work. Lender shall
have no obligation to make a Development Loan Advance if, after giving
effect to such Development Loan Advance, the sum of (a) the unpaid
principal balance of the Development Loan under which the Development
Loan Advance is made, (b) the committed and undisbursed portion of such
Development Loan, and (c) the Uncovered Cost of the Work being financed
under such Development Loan exceeds the Maximum Loan Amount for such
Development Loan. Lender shall have no obligation to make an Advance of
a Loan if, after giving effect to such Advance, the sum of (a) the
unpaid principal balance of the Loans, (b) the committed and
undisbursed portion of the Loans, and (c) the Uncovered Cost of the
Work being financed in whole or in part under all Development Loans
exceeds the Maximum Credit Facility Amount.
2.2 REVOLVING CREDIT FACILITY. Subject to the terms of the following
sentence, the Credit Facility is a revolving line of credit (i.e.,
Advances may be obtained against Real Property; and as those Advances
are repaid, other Advances may be obtained). Only one Advance may be
obtained under the Credit Facility for the purpose of paying or
reimbursing any Borrower for the Acquisition Costs of the same Real
Property; only one Development Loan may be obtained under the Credit
Facility for the purposes of paying or reimbursing any Borrower for
"hard" and "soft" costs of the Work performed on the same Real
Property; and the total Advances under a Loan may not exceed the
Maximum Loan Amount for such Loan. Each Loan shall be viewed as a
separate loan. Bluegreen Entities shall not be entitled to obtain Loans
after the expiration of the Borrowing Term unless Lender agrees in
writing with Parent to make Loans thereafter on terms and conditions
satisfactory to Lender. Subject to the provisions of paragraph 4.7, a
Borrower under a Development Loan may not obtain a Development Loan
Advance under the Development Loan after the Development Loan Borrowing
Term for such Development Loan has expired unless Lender agrees in
writing with such Borrower to do so.
2.3 USE OF ADVANCES. Parent will use the proceeds of each Advance made to
it as a Borrower, and will cause each Subsidiary which is a Borrower,
to use the proceeds of each Advance made to such Subsidiary, only for
the following purposes: if an Acquisition Advance, to pay (or reimburse
the Borrower for) the Acquisition Cost of the related Real Property
which is the subject of the Loan under which the Advance is made; and
if a Development Advance, to pay (or reimburse the Borrower for) "hard"
and "soft" costs of the related Work; PROVIDED, HOWEVER, that proceeds
disbursed to the Borrower in reimbursement of costs paid to it may be
used by the Borrower for any lawful purpose. If the amount needed by
the Borrower under a Development Loan for any line-item expense set
forth in the related Construction Budget is less than the Budgeted
Amount to be paid from such Development Loan for the line-item expense,
such excess may be reallocated to other line items in such Construction
Budget, as approved by Lender in writing. Notwithstanding anything
herein to the contrary, Lender shall have no obligation to approve any
Interest Reserve Fund and may approve or disapprove an Interest Reserve
Fund in its discretion.
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2.4 OUTSTANDING LOANS. Lender and Borrower acknowledge that there is no
principal or interest currently outstanding under any Loan.
III. SECURITY.
3.1 MAINTENANCE OF SECURITY; CROSS COLLATERALIZATION. Parent will and will
cause each Subsidiary which is a Borrower: to deliver to Lender at the
times required pursuant to Article IV, the Guaranties, the
subordination agreements required pursuant to paragraph 6.8(b), the
Security Documents and all other security required to be given to
Lender by such entity pursuant to the terms of this Agreement; and,
subject to the provisions of the last sentence of this paragraph, to
maintain such Documents in full force and effect until all of their
respective Obligations have been Performed (except as otherwise
expressly provided in such Document or this Agreement). The Security
Documents executed by a Borrower in connection with an Advance shall,
at Lender's option, secure the repayment of all other Advances made to
such Borrower and the payment and performance of all other Obligations
of such Borrower under Documents executed by it; and in the case of
Parent shall secure the other Obligations described in paragraph 9.1.
However, if no Event of Default or Incipient Default then exists under
any Document executed by such Borrower, the Security Documents executed
by a Borrower in connection with an Advance shall be released when the
Obligations (other than those arising from a cross-collateralization
provision) under the Documents executed in connection with such Loan
have been paid and performed in full and no default exists under any
other obligation owing to Lender which is secured under such Security
Documents.
3.2 (a) SALE OF PARCELS; PARTIAL RELEASE OF PARCELS. A Borrower may
enter into a contract for the sale of portions ("Parcels") of
its Real Property encumbered by a Mortgage so long as the
contract is entered into in good faith in the ordinary course
of such Borrower's business when no Event of Default exists,
the transaction complies with applicable laws and, until
closing of the contract, the contract is subject to the terms
and conditions of the Security Documents. A Borrower shall be
entitled to close a contract entered into satisfying the
conditions of the preceding sentence and to have the Parcel
being sold and other Collateral exclusively-related to such
Parcel released from the effect of the Security Documents
encumbering such Property if (but only if):
(i) no Event of Default or Incipient Default shall exist
at the time of such partial release ("Partial
Release");
(ii) the Parcel requested to be released ("Release
Parcel") is a legally subdivided parcel and Lender
has received adequate evidence thereof;
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(iii) such Borrower shall have delivered to Lender a
written request for a partial release of the Release
Parcel from the Mortgage, which request shall specify
a date for the consummation of the proposed Partial
Release ("Partial Release Date");
(iv) such Borrower shall have delivered to Lender for
execution by Lender a partial release/deed of release
and reconveyance of the Mortgage which is in
recordable form, contains an appropriate legal
description of the proposed Release Parcel and is
otherwise in form and substance satisfactory to
Lender;
(v) unless (i) waived in writing by Lender or (ii) the
Release Parcel is a platted single-family residential
lot and a copy of the plat for the subdivision in
which such Release Parcel is located has been
delivered to and approved by Lender (such approval
not to be unreasonably withheld), Borrower shall have
delivered to Lender a 1992 ALTA/ACSM survey certified
to Lender and prepared by a land surveyor reasonably
satisfactory to Lender showing the Release Parcel and
the Real Property remaining subject to the lien of
the Mortgage immediately after giving effect to the
Partial Release;
(vi) the Partial Release shall not impair or adversely
affect Lender's security in the Real Property
remaining subject to the lien of the Mortgage
immediately after giving effect to the Partial
Release or any provision of the Mortgage as it
pertains to the remaining Real Property; and without
limiting the generality of the foregoing, unless the
Release Parcel is a platted single-family residential
lot and a copy of the plat for which such Release
Parcel is located has been delivered to and approved
by Lender (such approval not to be unreasonably
withheld), Lender shall be entitled at the time of
the Partial Release to have the Release Parcel made
subject to such easements and restrictive covenants
as Lender may reasonably determine to be necessary
for the benefit of the remaining Real Property;
(vii) unless it has previously delivered the items to
Lender, such Borrower shall have delivered to Lender
and Lender shall have approved in writing a written
plan with respect to the development of the Real
Property, the size and anticipated sales prices of
parcels to be released, and the pattern in which
Partial Releases of Parcels is to occur; and
(viii) Borrower has paid, or simultaneously with the Partial
Release will pay, the Partial Release Payment and all
recording and escrow fees and other reasonable
out-of-pocket expenses of Lender incurred in
connection with the Partial Release of the Release
Parcel and any other exclusively-related Property.
If the preceding sentence does not specify another date by
which items must be delivered to Lender, such items shall be
delivered to Lender at least five (5) Business Days prior to
the Partial Release Date. Notwithstanding anything herein to
the contrary, Lender shall not be obligated to partially
release Parcels more than once per week.
(b) PARTIAL RELEASE OF RELATED PROPERTY. Notwithstanding anything
in the Documents to the contrary, if a partial release of a
Release Parcel is executed by Lender and recorded in the real
estate records where the Mortgage encumbering it is recorded
and Lender receives the applicable Partial Release Payment,
there shall IPSO FACTO be
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released from the lien, assignment and security interest of
the Security Documents: (a) so long as no Event of Default
then exists, any contract for the sale by Borrower of such
Release Parcel, all instruments, chattel paper and general
intangibles evidencing or representing purchase money
indebtedness owing to Borrower in connection with the sale of
such Release Parcel, and any and all proceeds paid or payable
thereunder; (b) any tangible Personal Property appurtenant to
such Release Parcel; and (c) any other property expressly
described in the recorded partial release. However, if
requested by a Borrower, Lender shall from time to time
execute amendments to UCC financing statements and other
documents which have been prepared and delivered by Borrower
to Lender, are reasonably necessary to effectuate the release
of such Property from the Security Documents, and are in form
and substance satisfactory to Lender.
3.3 DETERMINATION OF PARTIAL RELEASE PAYMENTS. As used in this Agreement,
the term "Partial Release Payment" means an amount to be paid in
consideration of the Partial Release of a Release Parcel and
exclusively-related Personal Property. Partial Release Payments for
Parcels shall be determined by Lender at the time of the first Advance
under a Loan made for the purpose of paying (or reimbursing Borrower
for) the costs of acquiring or improving the Real Property of which the
Parcel is a part. In making its determination, Lender may consider the
projected sales volume of Parcels and the number of Parcels into which
the Real Property has been subdivided; PROVIDED, HOWEVER, that the
minimum Partial Release Payment for any such Parcel which is a
single-family residential lot shall be equal to the greater of
(assuming all single-family residential lots are of approximately
comparable value):
(a) the quotient determined by dividing (i) the Maximum Loan
Amount for such Loan by (ii) the product of (A) 0.80 times (B)
the number of single-family residential lots into which such
Real Property has been subdivided; or
(b) the quotient determined by dividing (i) the Maximum Loan
Amount for such Loan by (ii) the product of (A) 0.80 times (B)
the projected gross sales volume of single-family residential
lots into which the Real Property has been subdivided.
3.4 OTHER DEVELOPMENTAL MATTERS AFFECTING SECURITY. If a Borrower desires
Lender to give its consent to or take any other action concerning a
matter affecting the zoning, platting, development or sale of or title
to any of its Real Property encumbered by a Mortgage, it shall comply
with the procedures set forth in EXHIBIT K. The provisions of the
preceding sentence shall not apply to Borrower's desire to obtain
Partial Releases or to obtain Advances, the procedures for which are
set forth elsewhere in this Agreement.
IV. CONDITIONS PRECEDENT TO THIS AGREEMENT AND TO ADVANCES.
4.1 CONDITIONS PRECEDENT TO LOAN AGREEMENT. Lender's obligation to enter
into this Agreement shall be subject to and conditioned upon Parent
having delivered to Lender the Articles of Organization of Parent, the
terms of the Rule 144A financing which Parent recently closed, and
following Documents, duly executed, delivered and in form and substance
satisfactory to Lender:
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(a) the Resolutions of Parent;
(b) a favorable opinion from independent counsel for Parent in
form and substance satisfactory to Lender;
(c) this Agreement;
(d) the Third Party Consents required with respect to Parent's
execution of the Documents and Performance of its Obligations;
(e) the documents required pursuant to paragraph 9.1(c) in
connection with the PRFC Loan [as defined in paragraph
9.1(a)]; and
(f) such other documents as Lender may reasonably require.
4.2 CONDITIONS PRECEDENT TO FIRST ADVANCE OF ANY LOAN. Lender's obligation
to make the first Advance of a Loan to a Borrower shall be subject to
and conditioned upon the terms and conditions set forth in the
following subparagraphs and elsewhere in this Agreement being satisfied
at the time of such Advance:
(a) DOCUMENTS. Such Borrower shall have delivered to Lender the
following Documents, duly executed, delivered, recorded/filed,
if applicable, and otherwise in form and substance
satisfactory to Lender:
(i) a Note in the amount of the Loan;
(ii) a Mortgage encumbering the Real Property which is the
subject of the Loan;
(iii) a Security Agreement covering the Personal Property
relating to the Real Property which is the subject of
the Loan;
(iv) the Assignments pertaining to the Real Property which
is the subject of the Loan;
(v) UCC financing statements for filing and/or recording,
as appropriate, where necessary to perfect the
Security Interest in the Collateral covered by the
Security Documents required to be delivered to Lender
in connection with the Loan;
(vi) an Environmental Certificate pertaining to the Real
Property which is the subject of the Loan;
(vii) if the Loan is a Development Loan, a Certificate and
Agreement of Borrower Regarding Construction-Related
Matters in form and substance identical to EXHIBIT I;
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(viii) if the Borrower is a Subsidiary, a Certificate and
Agreement of Subsidiary Borrower (Basic) in form and
substance identical to EXHIBIT J;
(ix) if the Borrower is a Subsidiary, a Guaranty;
(x) if the Borrower is a Subsidiary, the subordination
agreement, if any, required pursuant to paragraph
6.8(b);
(xi) a Title Policy insuring the Mortgage required to be
delivered to Lender in connection with the Loan (or
an unconditional commitment for the delivery of the
Title Policy promptly after delivery of the Loan);
(xii) a favorable opinion from independent counsel for the
Borrower and, if the Borrower is a Subsidiary, from
Parent with respect to the matters described in
EXHIBIT E; and
(xiii) a Request for Advance in the applicable form.
(b) ORGANIZATIONAL PROJECT AND OTHER DUE DILIGENCE DOCUMENTS.
Unless waived in writing by Lender in its discretion, such
Borrower shall have delivered to Lender at least fifteen (15)
Business Days prior to the date of the first Advance of the
Loan in form and substance satisfactory to Lender:
(i) if the Borrower is a Subsidiary, the Articles of
Organization of such Borrower;
(ii) if the Borrower is a Subsidiary, the Resolutions of
such Borrower;
(iii) current certificates of good standing for such
Borrower and Guarantor from their respective states
of incorporation; and, in the case of Borrower, in
the state where the Real Property which is the
subject of the Loan is located;
(iv) a Level I environmental assessment of the Real
Property which is the subject of the Loan and a "Haz
Map Report" for such Real Property;
(v) evidence that taxes and assessments on the Real
Property which is the subject of the Loan and related
Personal Property have been paid;
(vi) evidence that Borrower has good and marketable title
to an undivided fee simple interest in the Real
Property, together with a title commitment or
preliminary title report for the issuance of the
required Title Policy, together with copies of all
documents referred to therein;
(vii) a 1992 ALTA/ACSM survey of the Real Property which is
the subject of the Loan certified to Lender and
prepared by a licensed land surveyor acceptable to
Lender, showing such Real Property, all easements
necessary to the
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appropriate use of such Real Property and such other
details as Lender may reasonably require;
(viii) a written plan for the proposed use, development and
sale of the Real Property which is the subject of the
Loan (including, without limitation, sales
projections and a detailed list of remaining
development/construction items, with a breakdown of
costs and completion schedules and bonds for
completion and maintenance of improvements) and
demonstrating that the gross profit margin of such
Real Property (as developed in accordance with such
plan) will be at least fifty percent (50%), evidence
that the Real Property has been platted or otherwise
legally subdivided into not less than fifty (50)
single-family residential lots in accordance with
such plan, and all licenses and certificates
(exclusive of licenses and certificates dependent
upon completion of improvements to be constructed by
the purchasers of Parcels) for the intended use of
such Real Property, including environmental permits;
(ix) evidence that the Real Property which is the subject
of the Loan is zoned for the intended uses and that
all approvals under applicable Legal Requirements
have been obtained;
(x) unless deferred by Lender in writing, evidence that
such Borrower has complied with all applicable laws
and obtained all permits and approvals needed by it
to sell single-family residential lots into which the
Real Property which is the subject of the Loan has
been subdivided, including, without limitation, a
copy of the registrations/consents to sell and the
final subdivision public reports/public offering
statements and/or prospectuses and approvals thereof
required to be issued by or used in the state where
the Real Property is located.
(xi) unless deferred by Lender in writing, a copy of the
form of the purchase contract, deed, promissory note,
real property security document, credit applications
and disclosures which will be used by such Borrower
in connection with the sale of Parcels into which the
Real Property has been subdivided, together with the
project governing documents, the project management
agreement (if any) and project advertising materials;
(xii) unless deferred by Lender in writing, owners'
association budgets, if applicable, and other owner
association information required by Lender;
(xiii) the Insurance Policies;
(xiv) evidence that the Real Property which is the subject
of the Loan is not located within a flood prone area,
except for such portion thereof which does not
materially adversely affect the development, use or
value of the Real Property (taken as a whole) which
is the subject of the Advance;
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(xv) evidence of the current and continued availability of
adequate utilities to serve the Real Property which
is the subject of the Loan for the intended use of
such Real Property;
(xvi) evidence of access to the Real Property which is the
subject of the Loan, which is adequate to serve such
Real Property for its intended use;
(xvii) if the Loan includes an Acquisition Advance, a copy
of the purchase contract pursuant to which such
Borrower purchased or is to purchase the Real
Property which is the subject of the Loan, closing
settlement statements, paid invoices, canceled checks
and other items reasonably satisfactory to Lender to
verify the Acquisition Cost of such Real Property;
(xviii) evidence that such Borrower continues to have
invested in the Real Property which is the subject of
the Loan cash in an amount determined as follows: (A)
not less than twenty percent (20%) of the Acquisition
Cost of such Real Property, if the Loan is an
Acquisition Loan; or (B) not less than twenty percent
(20%) of the sum of the Acquisition Cost of such Real
Property plus the cost, as shown in the Construction
Budget, of Completion of the Work which is being
financed in whole or in part under the Loan, if the
Loan is a Development Loan;
(xix) a geological and soils test report or other evidence
with respect to the suitability of the soils on the
Real Property which is the subject of the Loan for
the intended use;
(xx) if the Loan exceeds Two Million Dollars ($2,000,000)
and otherwise if required by Lender in writing, an
MAI appraisal of the Real Property which is the
subject of the Loan reflecting a fair market value in
an amount satisfactory to Lender;
(xxi) unless waived or deferred by Lender in writing, a
hydrological study with respect to the Real Property
which is the subject of the Loan;
(xxii) unless waived or deferred by Lender in writing, an
archaeological study with respect to the Real
Property which is the subject of the Loan;
(xxiii) market data with respect to the Real Property which
is the subject of the Loan, including data or the
price and absorption of lots in competing projects
within such market;
(xxiv) if the Loan is a Development Loan, the items listed
in EXHIBIT F; and
(xxv) such other items as Lender requests which are
reasonably necessary to evaluate the request for the
Advance and the satisfaction of the conditions
precedent to the Advance.
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(c) LITIGATION AND JUDGMENT SEARCHES. Lender shall have received
the following in form and substance satisfactory to Lender:
(i) the results of current UCC, lien, litigation,
judgment and bankruptcy searches for such Borrower
and Parent conducted in such jurisdictions as Lender
deems appropriate; and
(ii) the results of a site inspection of the Real Property
which is the subject of the Loan made by Lender's
employees.
4.3 CONDITIONS PRECEDENT TO SUBSEQUENT ADVANCES OF DEVELOPMENT LOAN. For
each Development Loan Advance other than an Interest Reserve Advance,
Lender's obligation to make such Advance shall be subject to the terms
and conditions set forth in EXHIBIT G, including delivery to Lender of
the items called for therein at least ten (10) Business Days prior to
the date of such Advance.
4.4 GENERAL CONDITIONS PRECEDENT TO ALL ADVANCES. Lender's obligation to
fund any Advance is subject to and conditioned upon the additional
terms and conditions set forth in the following subparagraphs remaining
satisfied at the time of such Advance:
(a) NO CHANGE IN COLLATERAL, BORROWER OR PARENT. No material,
adverse change shall have occurred in the Collateral or in the
business or financial condition of Parent or any Subsidiary
which is a Borrower since the date of the latest financial and
operating statements given to Lender by or on behalf of Parent
or any Subsidiary which is a Borrower.
(b) NO CHANGE IN REPRESENTATIONS AND WARRANTIES. There shall have
been no material, adverse change in the warranties and
representations made in the Documents by Parent or any
Subsidiary which is a Borrower.
(c) NO EVENT OF DEFAULT OR INCIPIENT DEFAULT. Neither an Event of
Default nor Incipient Default shall have occurred and be
continuing.
(d) INTEREST RATE NOT USURIOUS. The interest rate applicable to
the Advance (before giving effect to any savings clause) will
not exceed the maximum rate permitted by the Applicable Usury
Law.
(e) PAYMENT OF FEES. Lender has received the Credit Facility
Modification Fee Installment Payment and all other fees
required to be paid at the time of the Advance.
4.5 DISBURSEMENT OF ADVANCES. Advances under a Loan may be disbursed to the
Borrower under such Loan; or if requested by Borrower and approved in
writing by Lender or if required by Lender in connection with a
Work-Related Advance under a Development Loan, to others, either
severally or jointly with such Borrower, for the credit or benefit of
such Borrower. Advances under a Loan shall be disbursed by wire
transfer or, at the option of the Borrower under such Loan exercised by
written request to Lender, by check or drafts. A Borrower will
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pay Lender's charge in connection with any wire transfer requested by
it, which is currently Twenty-Five Dollars ($25). Lender may, at its
option, withhold from an Advance any sum (including costs and expenses)
then due to it under the terms of the Documents by the Borrower
requesting the Advance or which such Borrower would be obligated to
reimburse Lender pursuant to the Documents if first paid directly by
Lender. Lender reserves the right to require that Work-Related Advances
under Development Loans be disbursed through a "control escrow."
4.6 NO WAIVER. Although Lender shall have no obligation to make an Advance
unless and until all of the conditions precedent to the Advance have
been satisfied, Lender may, at its sole discretion, make Advances prior
to that time without waiving or releasing any of the Obligations.
4.7 INTEREST RESERVE ADVANCES. If neither an Event of Default nor an
Incipient Default exists and subject to the terms and conditions
applicable to Interest Reserve Advances under a Development Loan,
during the Borrowing Term of a Development Loan and, in Lender's
discretion, after expiration of such Borrowing Term to the extent the
Interest Reserve Fund under such Development Loan has not been
exhausted, Lender will charge the Interest Reserve Fund, IF ANY, under
such Development Loan until it has been exhausted for monthly interest
xxxxxxxx on such Development Loan. If the Interest Reserve Fund, IF
ANY, under a Development Loan is exhausted or is not otherwise
available for such use, the Borrower under such Development Loan will
pay to Lender the monthly installments of interest due in connection
with such Development Loan in accordance with the terms of the related
Note and this Agreement.
V. NOTES, PAYMENTS; SALES AND PARTIAL RELEASES.
5.1 REPAYMENT OF LOANS. Each Loan shall be evidenced by a separate Note and
shall be repaid in immediately available funds with interest according
to the terms of the form of the Note executed in connection with such
Loan. Each Note executed in connection with a Loan made on or after
April 16, 1998, shall be in form and substance substantially identical
to EXHIBIT B; PROVIDED, HOWEVER, that in addition to the principal
payments required pursuant to paragraph 5.2, Lender may require that
the Borrower under such Loan make principal payments on each
anniversary of the initial Advance of such Loan in amounts which are
established in writing by Lender prior to such Advance and are
specified in the Note evidencing such Loan.
5.2 PARTIAL RELEASE PRINCIPAL PAYMENTS. Until a Note has been paid in full,
the Borrower obligated thereunder will make to Lender at the time of
each Partial Release of a Release Parcel from the Mortgage encumbering
the Note a principal payment equal to the Partial Release Payment for
such Release Parcel, and the Partial Release Payment shall be applied
to such Obligation.
5.3 PREPAYMENTS. Except as required pursuant to paragraph 5.1 or 5.2 or as
permitted pursuant to the following sentence, no Note shall be entitled
to be prepaid in whole or in part. The prohibition on prepayment shall
not apply to a one-time prepayment made pursuant to a
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consent letter dated as of March 30, 1998, from Lender to Parent, with
respect to Loans made prior to such date; PROVIDED, HOWEVER, this
Agreement shall survive any such prepayment.
5.4 APPLICATION OF PROCEEDS. Notwithstanding anything in the Documents to
the contrary other than the provisions of paragraph 3.2 or 5.2 hereof
pertaining to the application of Partial Release Payments, the amount
of all payments or amounts received by Lender with respect to each Loan
shall be applied to the extent applicable under the Documents: (i)
first, to any past due payments of interest on such Loan and to accrued
interest on such Loan through the date of such payment, including any
default interest; (ii) then, to any interest on delinquent interest,
late fees, overdue risk assessments, examination fees and expenses,
collection fees and expenses and any other fees and expenses due to
Lender under the Documents in connection with such Loan; and (iii)
last, the remaining balance, if any, to the unpaid principal balance of
such Loan; PROVIDED, HOWEVER, while an Event of Default or Incipient
Default exists, each payment with respect to such Loan shall be applied
to such amounts owed to Lender by the applicable Borrower as Lender in
its discretion may determine. In calculating interest and applying
payments as set forth above: (i) interest on each Loan shall be
calculated and collected through the date payment is actually received
by Lender; (ii) interest on the outstanding balance of such Loan shall
be charged during any grace period permitted under the Documents; (iii)
on each annual anniversary of the closing date of such Loan, all past
due interest and other past due charges provided for under the
Documents with respect to such Loan shall be added to the principal
balance of such Loan; and (iv) to the extent that the applicable
Borrower makes a payment or Lender receives any payment or proceeds of
the Collateral for Borrower's benefit that is subsequently invalidated,
set aside or required to be repaid to any other person or entity, then,
to such extent, the Obligations in connection with such Loan intended
to be satisfied shall be revived and continue as if such payment or
proceeds had not been received by Lender and Lender may adjust the
balance of such Loan as Lender, in its discretion, deems appropriate
under the circumstances.
5.5 BORROWER'S UNCONDITIONAL OBLIGATION TO MAKE PAYMENTS. Whether or not
the proceeds from the Collateral shall be sufficient for that purpose,
each Borrower will pay when due all payments required to be made
pursuant to any of the Documents executed by it, such Borrower's
Obligation to make such payments being absolute and unconditional.
VI. BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 (a) GOOD STANDING. Parent is and will remain, and will cause each
Subsidiary which is a Borrower to be and remain, duly
organized, validly existing and in good standing under the
laws of their respective state of organization and qualified
to do business and in good standing in each jurisdiction in
which the location or nature of their respective properties or
their respective businesses makes such qualification
necessary. Parent has, and will cause each Subsidiary which is
a Borrower to have, full authority to Perform their respective
Obligations and to carry on their respective business and own
their respective property.
(b) POWER AND AUTHORITY; ENFORCEABILITY. Parent has and will
maintain, and will cause each Subsidiary which is a Borrower
to have and maintain, full power and authority
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to grant the Security Interest, to execute and deliver the
Documents required of it in connection with the Loans; and to
Perform their respective Obligations. All action necessary and
required by the Articles of Organization of Parent and all
applicable laws for the obtaining of the Credit Facility and
for the execution and delivery of the Documents which have
been or will be executed and delivered by it in connection
with the Credit Facility has been duly and effectively taken.
The Documents which have been or will be executed by any
Bluegreen Entity are and shall be legal, valid, binding and
enforceable against it and do not and will not constitute a
default or result in the imposition of a lien under the terms
or provisions of any agreement to which it is a party. No
consent of any governmental agency or any other person not a
party to such Document is or will be required as a condition
to the execution, delivery or enforceability of any Documents
required of it hereunder by or against Parent or any
Subsidiary which is a Borrower.
6.2 NO LITIGATION. There is no action, litigation or other proceeding
pending or, to Parent's knowledge, threatened before any arbitration
tribunal, court, governmental agency or administrative body against
Parent, which might materially adversely affect the Collateral, the
Performance of its Obligations, the business or financial condition of
Parent, or the ability of Parent to Perform its Obligations. Parent
will promptly notify Lender if any action, litigation or proceeding is
pending or threatened against Parent or any Subsidiary which is a
Borrower, which might materially, adversely affect the Collateral, the
business or financial condition of Parent or any such Subsidiary, or
the ability of Parent or any such Subsidiary to Perform its
Obligations.
6.3 COMPLIANCE WITH LAWS. Parent has complied, and will comply and cause
each Subsidiary which is a Borrower to comply, with all Legal
Requirements where the failure to do so might materially, adversely
affect the Collateral, the business or financial condition of Parent or
any such Subsidiary, or the ability of Parent or any such Subsidiary to
Perform its Obligations.
6.4 RESTRICTIONS ON TRANSFERS, LIENS AND CHANGE OF CONTROL . Unless
expressly permitted in this Agreement or in any of the Security
Documents, without the prior written consent of Lender, Parent will
not, and will not permit any Subsidiary which is a Borrower, to do any
of the following: (a) except for sales and transfers of damaged,
obsolete or worn-out items of tangible Personal Property or other
non-material items of tangible Personal Property in accordance with the
terms of the Security Documents, sell, convey, pledge, hypothecate,
encumber or otherwise transfer any Collateral; (b) permit or suffer to
exist any liens, security interests or other encumbrances on any
Collateral, except for the Permitted Encumbrances and liens and
security interests expressly granted to Lender; (c) permit or suffer
the sale, lease, transfer or disposal of all or substantially all of
their respective assets to another entity; or (d) only in the case of a
Subsidiary, permit or suffer to exist any transfer of ownership
interests in or control of such entity.
6.5 INSURANCE. Parent will pay the cost of, will maintain, or cause to be
maintained, and will deliver or cause to be delivered to Lender
evidence of insurance policies required by Lender, and written by
insurers and in amounts and on forms satisfactory to Lender.
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6.6 (a) NO MISREPRESENTATIONS. The Documents and all certificates,
financial statements and written materials furnished to Lender
by or on behalf of Parent or any Subsidiary which is a
Borrower in connection with the Credit Facility do not and
will not contain any untrue statement of a material fact or
omit to state a fact which materially adversely affects or in
the future may materially adversely affect the Collateral, the
business or financial condition of Parent or any Subsidiary
which is a Borrower, or the ability of Parent or any such
Subsidiary to perform its Obligations.
(b) RELIANCE. Lender's examination, inspection or receipt of
information pertaining to Parent, any Subsidiary which is a
Borrower, or the Collateral shall not in any way be deemed to
reduce the full scope and protection of the warranties,
representations and Obligations contained in the Documents.
6.7 (a) FINANCIAL INFORMATION. Parent will furnish or cause to
be furnished to Lender, within one hundred twenty (120) days
after the end of each fiscal year of Parent, a copy of the
current annual consolidated financial statements of Parent;
and will furnish to Lender, within forty-five (45) days after
the end of each interim quarterly fiscal period of Parent, a
copy of the current consolidated financial statements of
Parent for the period commencing with the first day of the
fiscal year and concluding with such quarter end. Such
financial statements shall contain a balance sheet as of the
end of the relevant fiscal period and statements of income and
of cash flow for such fiscal period (together, in each case,
with the comparable figures for the corresponding period of
the previous fiscal year), all in reasonable detail. All
financial statements shall be prepared in accordance with
generally accepted accounting principles, consistently
applied. All financial statements required pursuant to this
paragraph shall be certified by the chief financial officer of
Parent. Annual statements shall be audited and certified by a
recognized firm of certified public accountants reasonably
satisfactory to Lender. Lender acknowledges that, as of the
date hereof, the firm of Ernst & Young is acceptable to it.
Together with such financial statements, Parent will deliver
to Lender a certificate signed by Parent's chief financial
officer stating that there exists no Event of Default or
Incipient Default or, if any such Event of Default or
Incipient Default exists, specifying the nature and period of
its existence and what action Parent and any pertinent
Subsidiary proposes to take with respect to it.
(b) RIGHT TO INSPECT. Parent will permit, and will cause each
Subsidiary which is a Borrower to permit, Lender and its
representatives at all reasonable times to inspect, audit and
copy, as appropriate, the Collateral, and their respective
records.
(c) ADDITIONAL INFORMATION. Parent will make available, and will
cause each Subsidiary which is a Borrower to make available,
to Lender such further information as Lender may from time to
time reasonably request.
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6.8 SUBORDINATION OF INDEBTEDNESS.
(a) All obligations of Parent to Lender are intended to, and do,
constitute "Senior Indebtedness" as such term is defined in
and for purposes of the Indenture dated as of May 15, 1987
("Indenture") between Parent and Shawmut Bank, N.A., as
trustee, pursuant to which the Borrower's eight and
one-quarter percent (8 1/4%) Convertible Subordinated
Debentures due 2012 ("Debentures") were issued, and will be
entitled to all the benefits associated with being "Senior
Indebtedness" under the Indenture, including, without
limitation, ranking senior to the Debentures.
(b) Parent will cause each Borrower which is a Subsidiary to cause
any and all indebtedness owing by such Subsidiary to its
shareholders, directors or officers, Parent, or the Affiliates
of such Borrower or the foregoing and all liens, security
interests and other charges on the assets of such Borrower in
respect of such indebtedness, including, without limitation,
the Collateral, to be fully subordinated in all aspects to the
Obligations of such Borrower pursuant to written agreements
satisfactory to Lender; PROVIDED, HOWEVER, that such
subordination shall not extend to reasonable salaries and fees
at normal and customary rates for services actually rendered
or, if neither an Event of Default nor an Incipient Default is
outstanding, to payments or distributions of any kind to
Parent. Any such creditor shall execute a subordination
agreement in form and substance satisfactory to Lender.
6.9 NO DEFAULT FOR THIRD PARTY OBLIGATIONS. Parent is not in default under
any other agreement evidencing, guaranteeing or securing borrowed money
or a receivables purchase financing involving an obligation in excess
of the Threshold Amount to make a payment of principal or interest or
to repurchase receivables or any other material default by Parent
permitting the acceleration of the payment or repurchase obligations of
Parent, which payment or repurchase obligations entitled to be
accelerated are in excess of the Threshold Amount in the aggregate.
Parent is not in violation of or in default under any material term in
any other material agreement, instrument, order, decree or judgment of
any court, arbitration or governmental authority to which it is a party
or by which it is bound.
6.10 NET WORTH MAINTENANCE. Parent will at all times maintain an Adjusted
Tangible Net Worth, determined in accordance with generally accepted
accounting principles, in an amount not less than Eighty-Five Million
Dollars ($85,000,000). As used herein, the term "Adjusted Tangible Net
Worth" shall mean net worth less goodwill, determined in accordance
with generally accepted accounting principles, consistently applied,
plus the principal balance outstanding under the Indenture and other
debt subordinated to the Obligations pursuant to agreements
satisfactory to Lender (collectively, "Subordinated Debt").
6.11 INTENTIONALLY LEFT BLANK.
6.12 ADJUSTED LEVERAGE RATIO. Parent will not permit the ratio of its
Adjusted Total Liabilities to Adjusted Tangible Net Worth at any time
to be greater than 3.0 to 1.0. As used herein, the term "Total
Liabilities" shall mean the aggregate of Parent's current liabilities
and non-current liabilities; and the term "Adjusted Total Liabilities"
shall mean Total Liabilities less Subordinated Debt.
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6.13 LIMITATION ON MARKETING AND G&A EXPENSES. Parent will not incur, and
will not permit any consolidated subsidiary to incur, combined selling,
general and administrative expenses that exceed fifty-five percent
(55%) of net sales from the real estate owned by them, calculated as of
the end of each calendar quarter on a twelve (12) month rolling basis.
As used herein, the term "selling, general and administrative expenses"
shall mean selling, general and administrative expenses properly
allocable to real estate calculated in accordance with generally
accepted accounting principles, as previously reflected in the
financial statements of Parent provided to Lender.
6.14 PAYMENT OF TAXES. Parent has filed or will file and cause each
Subsidiary which is a Borrower to file all tax returns required to be
filed by such entity, and Parent has paid or will pay and will cause
each Subsidiary which is a Borrower to pay all taxes, assessments,
levies and penalties, if any, required to be paid by such entity, to
any governmental or quasi- governmental authority or subdivision,
including real estate taxes and assessments relating to the Collateral,
unless and only to the extent the item shall be contested in good faith
and by appropriate proceedings by such entity, such entity shall set
aside and cause on its books adequate reserves with respect to the
contested item and, in connection with any tax assessment, levy or
penalty levied against the Collateral, the entity granting the Security
Interest in such Collateral shall comply with the terms of Security
Documents pertaining to such contest.
6.15 CREDIT FACILITY MODIFICATION FEE INSTALLMENT PAYMENT AND OTHER FEES AND
EXPENSES. In addition to all fees paid or required to be paid to Lender
in connection with Advances made to Borrowers prior to April 16, 1998,
Parent will pay, or will cause each Subsidiary which is a Borrower to
pay, to Lender at the time of each Advance an amount equal to one
percent (1%) of the amount of the Advance (each such payment amount, a
"Credit Facility Modification Fee Installment Payment") until Lender
has received in the aggregate Credit Facility Modification Fee
Installment Payments equal to Six Hundred Twelve Thousand Five Hundred
Dollars ($612,500) ("Credit Facility Modification Fee"); PROVIDED,
HOWEVER, that Parent shall pay to Lender on June 30, 1999, the
acceleration of any portion the Credit Facility or the termination by
Parent of the Credit Facility, whichever event first occurs, the excess
of the Credit Facility Modification Fee over the aggregate of all
Credit Facility Modification Fee Installment Payments previously
received by Lender. After Lender has received the full amount of the
Credit Facility Modification Fee, no further Credit Facility
Modification Fee Installment Payments will be due. Furthermore,
Borrower will pay to Lender on April 1, 1999, and each April 1
thereafter through and including April 1, 2001, a fee equal to one
percent (1%) of the excess of (a) Twenty Million Dollars ($20,000,000)
over (b) the aggregate principal amount of Advances made during the
twelve (12) month period ending on the preceding day (i.e., April 31).
Parent will also pay on demand any and all reasonable costs and
expenses incurred by Lender in connection with the initiation,
documentation, closing and modification of the Credit Facility and the
Loans, the making of Advances, the protection of the Collateral, and
the enforcement of the Obligations, including, without limitation: all
reasonable attorneys' and other professionals' fees and charges
(including, without limitation, normal charges for photocopy, telecopy
and computer services); the costs of credit reports and UCC, lien,
litigation, judgment and bankruptcy searches, and revenue, documentary
stamp and intangible taxes. Without limiting the
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generality of the foregoing, if a bankruptcy proceeding is commenced by
or against a Borrower or otherwise involving any Collateral for the
Obligations of a Borrower, Lender shall, to the extent not already
provided for herein, be entitled to recover, and such Borrower and, if
it is not the Borrower, Parent shall be obligated to pay, Lender's
reasonable attorneys' fees incurred in connection with: (i) any
determination of the applicability of the bankruptcy laws to the terms
of this Agreement and the other Documents executed by the Borrower or,
if it is not the Borrower, by Parent or to Lender's rights thereunder;
(ii) any attempt by Lender to enforce or preserve its rights under the
bankruptcy laws or to prevent Borrower or any other person from seeking
to deny Lender its rights thereunder; (iii) any effort by Lender to
protect, preserve or enforce its rights against any Collateral for the
Obligations of such Borrower or seeking authority to modify the
automatic stay of 11 U.S.C. Section 362 or otherwise seeking to engage
in such protection, preservation or enforcement; or (iv) any
proceeding(s) arising under the bankruptcy laws or arising in or
related to a case under bankruptcy laws.
6.16 INDEMNIFICATION. Parent will INDEMNIFY, PROTECT, HOLD HARMLESS, and
defend Lender, its successors, assigns and shareholders (including
corporate shareholders), and the directors, officers, employees, agents
and servants of the foregoing, for, from and against, except to the
extent arising from the indemnitee's gross negligence or willful
misconduct, any and all losses, costs, expenses (including, without
limitation, court costs and attorneys' fees), demands, claims, suits,
proceedings (whether civil or criminal), orders, judgments, penalties,
fines and other sanctions arising from or brought in connection with
(a) any of the Collateral, the terms of the Documents or the
transactions related thereto, or any act or omission of Parent or any
Subsidiary which is a Borrower or their respective employees or agents,
whether actual or alleged, and (b) any and all brokers' commissions or
finders' fees or other costs of similar type by any party engaged by
Parent or any Subsidiary which is a Borrower in connection with the
Credit Facility. On written request by a person or other entity covered
by the above agreement of indemnity, Parent will undertake, at its own
cost and expense, on behalf of such indemnitee, using counsel
satisfactory to the indemnitee, the defense of any legal action or
proceeding to which such person or entity shall be a party and for
which such indemnitee is entitled to be indemnified pursuant to this
paragraph 6.16. At Lender's option, Lender may at Borrower's expense
prosecute or defend any action involving the priority, validity or
enforceability of the Security Interests.
6.17 PERFECTION OF SECURITY INTERESTS. Parent will execute or cause to be
executed all documents, and do or cause to be done all acts, reasonably
necessary for Lender to perfect and to continue the perfection of
Security Interests or otherwise to effect the intent and purposes of
the Documents.
6.18 SURVIVAL AND ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants contained in this Article VI
are in addition to, and not in derogation of, the representations and
warranties contained elsewhere in the Documents and shall be deemed to
be made and reaffirmed prior to the making of each Advance.
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VII. DEFAULT.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events or
conditions shall constitute an Event of Default under the Documents:
(a) failure of Lender to receive within five (5) Business Days of
the date when due and payable (i) any amount payable under a
Note or (ii) any other payment due from Parent or any
Subsidiary which is a Borrower, except for the payment due at
the Maturity Date of a Note for which no grace period is
allowed;
(b) any representation or warranty which is made by a person other
than Lender and is contained in the Documents or in any
certificate furnished to Lender under the Documents by or on
behalf of Parent or any Subsidiary which is a Borrower proves
to be, in any material, adverse respect, false or misleading
as of the date deemed made;
(c) a default in the Performance of the Obligations set forth in
paragraph 6.4(a), 6.4(c), 6.4(d), 6.5, 6.8, 6.10, 6.12 or
6.13;
(d) a default by any Borrower in the Performance of the
Obligations or a violation of any term, covenant or provision
of the Documents (other than a default or violation referred
to elsewhere in this paragraph 7.1) which continues unremedied
(i) for a period of five (5) Business Days after notice of
such default or violation given by Lender to such Borrower in
the case of a default under or violation of paragraph 6.4(b)
or any other default or violation which can be cured by the
payment of money alone or (ii) for a period of twenty (20)
Business Days after notice to such Borrower in the case of any
other default or violation;
(e) an "Event of Default", as defined elsewhere in any of the
Documents;
(f) any default by Parent or any Subsidiary which is a Borrower
under any other agreement evidencing, guaranteeing or securing
borrowed money or a receivables purchase financing involving
an obligation in excess of the applicable Threshold Amount to
make a payment of principal or interest or to repurchase
receivables or any other material default by such entity under
any such agreement permitting the acceleration of the payment
or repurchase obligations, which accelerated repayment or
repurchase obligations are in the aggregate in excess of the
Threshold Amount applicable to such entity;
(g) any final, non-appealable judgment, decree or award for money
damages or for a fine or penalty against Parent or any
Subsidiary which is a Borrower which is not paid and
discharged or stayed within thirty (30) days thereafter and
when aggregated with all other judgment(s) or decree(s)
against such entity that have remained unpaid and undischarged
or stayed for such period is in excess of the applicable
Threshold Amount;
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(h) subject to any provisions of the Security Documents permitting
the contest of such liens or security interests, any party
holding a lien or security interest in any of the Collateral
commences foreclosure or similar sale thereof;
(i) Parent or any Subsidiary which is a Borrower shall (i)
generally not be paying its debts as they become due, (ii)
file, or consent by answer or otherwise to the filing against
it of, a petition for relief or reorganization, arrangement or
liquidation or any other petition in bankruptcy or insolvency
under the laws of any jurisdiction, (iii) make an assignment
for the benefit of its creditors, (iv) consent to the
appointment of a custodian, receiver, trustee or other officer
with similar powers for itself, any of the Collateral or any
substantial part of its property, (v) be adjudicated
insolvent, (vi) dissolve or commence to wind-up its affairs or
(vii) take any action for purposes of the foregoing; or a
petition for relief or reorganization, arrangement or
liquidation or any other petition in bankruptcy or insolvency
or the appointment of a custodian under the laws of any
jurisdiction is filed against Parent or any Subsidiary which
is a Borrower or a custodian is appointed for any of the
Collateral or any substantial part of the property of Parent
or any Subsidiary which is a Borrower, and such proceeding is
not dismissed and appointment vacated within ninety (90) days
thereafter;
(j) a material, adverse change in the Collateral or the business
or financial condition of Parent or any Subsidiary which is a
Borrower, which change is not enumerated in
(k) this paragraph 7.1 as the result of which Lender in good xxxxx
xxxxx the prospect of Performance of the Obligations of such
entity materially impaired or the Collateral materially
imperiled;
(l) failure of Lender to receive, within twenty (20) days of the
date Parent or any Subsidiary which is a Borrower knows or
should have known of such change, notice of any material,
adverse change in any representations or warranties in the
Documents or otherwise made in connection with the Credit
Facility; or at any time prior to Completion of the Work
related to a Development Loan under which it is a Borrower,
Parent or any Subsidiary (i) abandons the Work or (ii) delays
construction or suffers construction to be delayed for any
period of time, for any reason whatsoever not covered by item
(i) of this paragraph 7.1(l) so that Completion of the Work
cannot be accomplished in the ordinary course of construction,
in the reasonable judgment of Lender, on or before the
Required Completion Date.
7.2 REMEDIES. At any time after an Event of Default has occurred and while
it is continuing, Lender may but without obligation, in addition to the
rights and powers granted elsewhere in the Documents and not in
limitation thereof, do any one or more of the following:
(a) cease to make further Advances;
(b) declare the Notes, or any of them, together with any
applicable prepayment premium and all other sums owing to
Lender by Parent and/or any Subsidiaries which are
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Borrowers in connection with the Documents, immediately due
and payable without notice, presentment, demand or protest;
(c) apply the then balance of the Required Completion Assurance
Deposits given to Lender by or on behalf of any Borrower to
the satisfaction of the Obligations of such Borrower in such
order and manner as Lender may determine;
(d) with respect to any Work financed under a Development Loan, to
the extent Completion of such Work has not occurred: (i)
continue and/or cause Completion of the Work; (ii) take
exclusive possession of the Property or any part thereof which
is security for such Development Loan; (iii) expend such funds
as Lender may deem appropriate, including the Required
Completion Assurance Deposit(s) (if any), any other funds held
by Lender as security therefor and any sums which may remain
unadvanced hereunder, to continue and/or cause Completion of
such Work; (iv) demand and receive performances due under the
related Principal Work-Related Items and the other related
Contracts, Licenses, Permits and other Intangibles; (v) make
such changes to the scope of such Work and to the related
Principal Work- Related Items and other related Contracts,
Licenses, Permits and other Intangibles as may be necessary or
desirable in Lender's judgment; (vi) file claims, institute
enforcement actions and otherwise prosecute and defend all
actions or proceedings relating to such Work, the related
Principal Work-Related Items and the other related Contracts,
Licenses, Permits and other Intangibles as Lender may
determine to be necessary or desirable; (vii) pay, settle or
compromise all existing bills and claims which are or may be
liens against any of the Property which is security for such
Development Loan or as Lender may deem to be necessary or
desirable in Lender's judgment for the continuance or
Completion of such Work related thereto or the clearance of
title, all without notice to Borrower; (viii) execute in the
name of the Borrower under such Development Loan all
applications, certificates, notices and other instruments and
give all instructions and communications which may be required
or permitted by the related Principal Work-Related Items and
other related Contracts, Licenses, Permits and other
Intangibles as determined by Lender; (ix) cancel or surrender
any of the related Principal Work-Related Items and the other
related Contracts, Licenses, Permits and other Intangibles and
enter into new contracts for the Completion of such Work and
any changes to the scope of such Work; (x) do any and every
act with respect to the Completion of such Work, the related
Principal Work-Related Items and the other related Contracts,
Licenses, Permits and other Intangibles which the Borrower
under such Development Loan may do in its behalf; (xi) employ
such contractors, subcontractors, suppliers, agents,
attorneys, architects, accountants, appraisers, security
guards and inspectors as Lender may in its judgment deem
necessary or desirable to accomplish any of the above
purposes; and (xii) receive, collect, open and read all mail
of the Borrower under such Development Loan for the purpose of
obtaining all items pertaining to such Work, the related
Principal Work-Related Items and the other related Contracts,
Licenses, Permits and other Intangibles; and
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(e) proceed to protect and enforce its rights and remedies under
the Documents and to foreclose or otherwise realize upon the
Collateral, or to exercise any other rights and remedies
available to it at law, in equity or by statute.
7.3 APPLICATION OF PROCEEDS DURING AN EVENT OF DEFAULT. Notwithstanding
anything in the Documents to the contrary, while an Event of Default
exists, any cash (including Required Completion Assurance Deposits)
received and retained by Lender as part of the Collateral given by a
Borrower may be applied to payment of the Obligations of such Borrower
(and in the case of Parent, the Obligations of its Subsidiaries) in
such order and manner as Lender may determine.
7.4 LENDER'S RIGHT TO PERFORM. Lender may, at its option, and without any
obligation to do so, pay, perform and discharge any and all Obligations
(including, without limitation, the Obligations to maintain insurance)
agreed to be paid or performed in the Documents by Parent, any
Subsidiary which is a Borrower, or any other person liable for the
Performance of the Obligations if such person has failed to do so and
either (a) an Event of Default exists or (b) Lender in good xxxxx xxxxx
such action necessary to protect any of the Collateral or its value.
For such purposes Lender may use the proceeds of the Collateral. All
amounts expended by Lender in so doing or in exercising its remedies
under the Documents following an Event of Default shall become part of
the Obligations, shall be immediately due and payable to Lender upon
demand by Parent and (if any) the Subsidiary failing to perform, and
shall bear interest at the Default Rate from the dates of such
expenditures until paid.
7.5 NON-EXCLUSIVE REMEDIES. No remedy in any Document conferred on or
reserved to Lender is intended to be exclusive of any other remedy or
remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under any Document or now or
hereafter existing at law or in equity. No delay or omission to
exercise any right or power shall be construed to be a waiver of or
acquiescence to any default or a waiver of any right or power; and
every such right and power may be exercised from time to time and as
often as may be deemed expedient.
VIII. CONSTRUCTION AND GENERAL TERMS.
8.1 PAYMENT LOCATION. All monies payable under the Documents shall be paid
to Lender at its address set forth on the signature page of this
Agreement in lawful monies of the United States of America, unless
otherwise designated in the Documents or by Lender by notice.
8.2 ENTIRE AGREEMENT. The Documents executed from time to time shall
exclusively and completely state the rights and obligations of Lender,
Parent and Subsidiaries with respect to the Credit Facility. No
modification, variation, termination, discharge, abandonment, or waiver
of any of the terms or conditions of the Documents shall be valid
unless in writing and signed by duly authorized representatives of the
party sought to be bound by such action. The Documents supersede any
and all prior representations, warranties and/or inducements, written
or oral, heretofore made by Lender concerning this transaction,
including any commitment for financing.
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8.3 POWERS COUPLED WITH AN INTEREST. The powers and agency granted to
Lender by Parent or any Subsidiary which is a Borrower are coupled with
an interest and are irrevocable until the Obligations of such entity
have been performed and are granted as cumulative to Lender's other
remedies for collection and enforcement of the Obligations.
8.4 COUNTERPARTS. Any Document may be executed simultaneously in any number
of identical copies, each of which shall constitute an original for all
purposes.
8.5 NOTICES. All notices, requests or demands required or permitted to be
given under the Documents shall be in writing, and shall be deemed
effective (a) upon hand delivery, if hand delivered; (b) one (1)
Business Day after such are deposited for delivery via Federal Express
or other nationally recognized overnight courier service; or (c) three
(3) Business Days after such are deposited in the United States mails,
certified or registered mail, all with delivery charges and/or postage
prepaid, and addressed as shown below, or to such other address as
either party may, from time to time, designate in writing. Written
notice may be given by telecopy to the telecopier number shown below or
to such other telecopier number as either party may designate, from
time to time, in writing, provided that such notice shall not be deemed
effective unless it is confirmed within twenty-four (24) hours by hand
delivery, courier delivery or mailing of a copy of such notice in
accordance with the requirements set forth above.
If to Lender: FINOVA CAPITAL CORPORATION
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Vice President-Resort Finance
Telecopy: (000) 000-0000
with a copy to:
FINOVA CAPITAL CORPORATION
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Vice President-Group Counsel
Telecopy: (000) 000-0000
If to Parent or BLUEGREEN CORPORATION
any Borrower: 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
(provided that notice to any Borrower
which is a Subsidiary shall be addressed
to it c/o Parent)
8.6 SUCCESSORS AND ASSIGNS. All the covenants of Parent and the
Subsidiaries which are Borrowers and all the rights and remedies of the
Lender contained in the Documents shall
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bind Parent and such Subsidiaries, and, subject to the restrictions on
merger, consolidation and assignment contained in the Documents, their
respective successors and assigns, and shall inure to the benefit of
Lender, its successors and assigns, whether so expressed or not.
Neither Parent nor any Borrower may assign its rights in the Documents
in whole or in part. Except as may be expressly provided in a Document,
no person or other entity shall be deemed a third party beneficiary of
any provision of the Documents. Furthermore, no Subsidiary shall be
deemed be a third party beneficiary of Lender's obligations under this
Agreement to make Loans; but after the initial Advance of a Loan to a
Subsidiary, such Subsidiary, and not Parent, shall be deemed the real
party in interest with respect to the enforcement against Lender of the
terms and conditions of this Agreement and the other Documents executed
in connection with the Loan excluding any Guaranty.
8.7 SEVERABILITY. If any one or more of the provisions contained in any
Document shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained in the Document shall not in any way be affected
or impaired thereby. In lieu of each such enforceable provision, there
shall be added automatically as a part of such Document a provision
that is legal, valid, binding and enforceable and is as similar in
terms to such unenforceable provision as may be possible.
8.8 TIME OF THE ESSENCE. Time is of the essence in the Performance of the
Obligations.
8.9 MISCELLANEOUS. All headings are inserted for convenience only and shall
not affect any construction or interpretation of the Documents. Unless
otherwise indicated, all references in a Document to clauses and other
subdivisions refer to the corresponding paragraphs, clauses and other
subdivisions of the Document; the words "herein," "hereof," "hereto,"
hereunder" and words of similar import refer to the Document as a whole
and not to any particular paragraph, clause or other subdivision; and
reference to a numbered or lettered subdivision of an Article, or
paragraph shall include relevant matter within the Article or paragraph
which is applicable to but not within such numbered or lettered
subdivision. All Schedules and Exhibits referred to in this Agreement
are incorporated in this Agreement by reference.
8.10 (a) CHOICE OF LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED THEREIN, THE
DOCUMENTS AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES THERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF ARIZONA (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS) AND TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS
OF THE UNITED STATES, PROVIDED, HOWEVER, THAT THE INTERNAL LAWS OF THE
STATE WHERE REAL PROPERTY IS LOCATED (WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS) SHALL GOVERN THE PROCEDURES CONTROLLING THE
CREATION, PERFECTION AND FORECLOSURE OF THE LIEN, SECURITY INTERESTS,
ASSIGNMENT AND OTHER CHARGES INTENDED TO BE CREATED THE SECURITY
DOCUMENT ENCUMBERING SUCH REAL PROPERTY.
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(b) CHOICE OF JURISDICTION AND VENUE. EACH OF PARENT AND LENDER: (A)
HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS, JURISDICTION AND
VENUE OF THE COURTS OF THE STATE OF ARIZONA, MARICOPA COUNTY, AND TO
THE PROCESS, JURISDICTION, AND VENUE OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR
OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THE DOCUMENTS OR THE
SUBJECT MATTER THEREOF (EXCEPT AS MAY BE SPECIFICALLY PROVIDED TO THE
CONTRARY IN THE SECURITY DOCUMENTS), AND, IF LENDER INITIATES SUCH
ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, AND THE
CHOICE OF SUCH VENUE SHALL IN ALL INSTANCES BE AT THE LENDER'S
ELECTION; AND (B) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, DEFENSE OR
OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM THAT IT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS,
THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
EACH OF PARENT AND LENDER HEREBY WAIVES THE RIGHT TO COLLATERALLY
ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
(c) WAIVER OF JURY TRIAL. LENDER AND PARENT ACKNOWLEDGE AND AGREE THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE DOCUMENTS WOULD BE BASED
UPON DIFFICULT AND COMPLEX ISSUES; AND, THEREFORE, THEY AGREE THAT ANY
LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED BY A JUDGE
SITTING WITHOUT A JURY, AND KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY
JURY IN ANY SUCH PROCEEDING.
(d) BORROWER CONSENTS AND WAIVERS. PARENT WILL CAUSE EACH SUBSIDIARY WHICH
IS A BORROWER TO GRANT CONSENTS AND WAIVERS WHICH ARE APPLICABLE TO IT
SUBSTANTIALLY IDENTICAL TO THOSE SET FORTH IN THIS PARAGRAPH 8.10.
(e) INDUCEMENT TO LENDER. ALL OF THE PROVISIONS SET FORTH IN THIS PARAGRAPH
ARE MATERIAL INDUCEMENTS FOR LENDER'S EXTENDING THE CREDIT FACILITY TO
PARENT AND MAKING ADVANCES TO BORROWERS.
[Parent's (initials___)]
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8.11 COMPLIANCE APPLICABLE USURY LAW. It is the intent of the parties hereto
to comply with the Applicable Usury Law. Accordingly, notwithstanding
any provisions to the contrary in the Documents, in no event shall this
Agreement or the Documents require the payment or permit the collection
of interest in excess of the maximum contract rate permitted by the
Applicable Usury Law.
8.12 ATTORNEYS' FEES. Without limitation of the generality of any other
provision in the Documents, if Lender, Parent or any Subsidiary which
is a Borrower shall commence litigation to enforce the Documents or
otherwise related to the Credit Facility, the prevailing party shall be
entitled to its reasonable attorneys' fees and costs, to be determined
by a court and not by a jury.
8.13 NO PARTNERSHIP OR JOINT VENTURE. THE RELATIONSHIP OF EACH BORROWER AND
LENDER WILL BE THAT OF DEBTOR AND CREDITOR. IT IS NOT THE INTENTION OF
EITHER OF PARENT OR LENDER BY ANY DOCUMENT BEING EXECUTED IN CONNECTION
WITH THE CREDIT FACILITY TO ESTABLISH A PARTNERSHIP BETWEEN ANY
BORROWER AND LENDER, AND THE BORROWERS AND LENDER SHALL NOT UNDER ANY
CIRCUMSTANCES BE CONSTRUED TO BE PARTNERS OR JOINT VENTURERS.
8.14 STANDARDS APPLIED TO LENDER'S ACTION. Unless otherwise specifically
stipulated elsewhere in the Documents, if a matter is left in the
Documents to the decision, requirement, request, determination,
judgment, opinion, approval, consent, satisfaction, acceptance,
agreement, option or discretion of Lender, its employees, Lender's
counsel or any agent for or contractor of Lender, such action shall be
deemed to be exercisable by Lender or such other person in its sole and
absolute discretion and according to standards established in its sole
and absolute discretion. Without limiting the generality of the
foregoing, "option" and "discretion" shall be implied by use of the
words "if" or "may."
8.15 MEANING OF SUBORDINATION. Any subordinations required to be given under
the Documents by third parties to Lender shall include the
subordination of and the deferral of the right to receive payments on
the subordinated obligations except to the extent expressly permitted
in this Agreement; the remittances to Lender of all prohibited payments
received by the third party; the subordination of all liens, security
interests, assignments and other encumbrances and claims held by a
third party on or against any of property of the person owing the
indebtedness which is being subordinated, except for Permitted
Encumbrances, to Lender's interest (whenever acquired) in such
property; and an agreement on the part of the third party not to
exercise any remedies against Borrower so long as all obligations under
the Documents have not been fully satisfied.
8.16 PUBLICITY. Lender routinely advertises the transactions to which it is
a party in newspapers, industry periodicals, and other miscellaneous
print and electronic literature. Borrower consents to such advertising
and authorizes Lender to use Borrower's name, logo, insignia,
descriptive art work, trade name, trademark, or other similar material,
whether or not protected by copyright (or otherwise), in any such
advertisement.
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IX. LENDER'S INSPECTOR.
9.1 RETENTION OF LENDER'S INSPECTOR. Lender may retain an
architectural/engineering firm ("Lender's Inspector") to do
the following in connection with Work being financed in whole
or in part under a Development Loan: (a) until Completion of
such Work and the making of the last Work-Related Advance
(including the disbursement of the Basic Retainage and
Additional Retainage) with respect to such Work, review the
related Principal Work-Related Items, the other related
Contracts, Licenses, Permits and the budget proposed to be the
Construction Budget for such Work and any changes to such
items; (b) inspect the Real Property prior to commencement of
such Work for purposes of determining the condition of the
Real Property and any existing improvements; (c) until
Completion of such Work and the making of the last Work-
Related Advance (including the disbursement of the Basic
Retainage and Additional Retainage) with respect to such Work,
make monthly inspections of the related Real Property and such
Work (whether or not Development Loan proceeds are to be used
to pay or reimburse Borrower for the costs of the portion of
such Work which has been completed) so that Lender may monitor
whether Borrower is in compliance with the terms and
conditions of this Agreement, and certifying that each Work-
Related Advance Request under the Development Loan is not in
excess of the portion of such Work completed and the amount to
which the Borrower under the Development Loan is entitled
under the terms and conditions of this Agreement; and (d)
provide evidence satisfactory to Lender prior to the funding
of any Work-Related Advance under the Development Loan that
(subject to completion thereof as part of such Work as
contemplated by this Agreement), all necessary street,
easements and utilities are available to the boundary of the
Real Property and that the respective lines and treatment or
generator plants are of adequate capacity and size for the
intended use of the related Property. Furthermore, Lender may
require an inspection by Lender's Inspector of Work which is
being financed under a Development Loan: (a) prior to each
Work-Related Advance under the Development Loan; (b) at least
once each month during the course of Completion of such Work;
(c) upon Substantial Completion of such Work; (d) upon
Completion of such Work; and (e) until Completion of such Work
and the making of the last Work-Related Advance (including the
disbursement of the Basic Retainage and Additional Retainage)
with respect to such Work, at such other times as Lender may,
in its judgment, deem necessary due to actual or suspected
non-compliance with the related Plans and Specifications, the
related Construction Contract(s), the Documents, applicable
Legal Requirements, engineering or construction principles or
commonly accepted safety standards, or failure of the Borrower
under the Loan to satisfy the requirements of the Documents.
Any Work which is completed and funded from sources other than
a Development Loan Advance shall be subject to inspection by
and the approval of Lender's Inspector.
9.2 NO DUTY OF LENDER TO SUPERVISE, ETC. Lender shall have no duty
to supervise or to review and inspect, in connection with any
Work, any of the related Principal Work-Related Items, any of
the other related Contracts, Licenses, Permits and other
Intangibles, any budget proposed to be a Construction Budget
for such Work, any
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books and records pertaining thereto or any changes to such
items or the construction of such Work. Any inspection made by
Lender shall be for the sole purpose of determining whether
the Obligations are being Performed and preserving Lender's
rights under these Documents. If Lender, or Lender's Inspector
acting on behalf of Lender, should review or inspect any
Principal Work-Related Item, any of the other Contracts,
Licenses, Permits and other Intangibles, any Construction
Budget, any books and records pertaining thereto or any
changes to such items or the construction of any Work, Lender
and Lender's Inspector shall have no liability or obligation
to Borrower or any third person arising out of such
inspection; and neither Borrower nor any third person shall be
entitled to rely upon any such inspection or review.
Inspection not followed by notice of an Event of Default shall
not constitute (a) waiver of any Event of Default then
existing; (b) an acknowledgment or representation by Lender or
Lender's Inspector that there has been or will be compliance
with any Principal Work-Related Item, any of the other
Contracts, Licenses, Permits and other Intangibles, any
Construction Budget, Legal Requirements, sound construction,
engineering or architectural principles or commonly accepted
safety standards, or that the construction is lien free or
free from defective materials or workmanship; or (c) a waiver
of Lender's right thereafter to insist that Completion of the
Work being financed in whole or in part under a Development
Loan occur in accordance with the related Principal
Work-Related Items, the other related Contracts, Licenses,
Permits and other Intangibles, the related Construction
Budget, the Documents, Legal Requirements, sound construction,
engineering or architectural principles or commonly-accepted
safety standards and free from defective materials and
workmanship. Lender and Lender's Inspector owe no duty of care
to any Borrower under a Development Loan or any third person
to protect against, or inform such Borrower or any third
person of, the existence of negligence, faulty, inadequate or
defective design or construction of the Work being financed in
whole or in part under such Development Loan. Without limiting
the generality of the foregoing, Lender will deliver or cause
to be delivered to Borrower, within a reasonable time after
their delivery to Lender, copies of any written reports of
Lender's Inspector.
X. SPECIAL PROVISIONS.
10.1 CROSS-COLLATERALIZATION AND CROSS-DEFAULT OF OTHER LOAN OBLIGATIONS.
(a) Lender and Xxxxxx Receivables Finance Corporation VI, a
Delaware corporation ("PRFC"), are parties to an Amended and
Restated Loan and Security Agreement ("PRFC Loan Agreement")
dated as of January 9, 1990, as amended, and a Subsidiary.
Pursuant to the PRFC Loan Agreement, Lender has committed to
make to PRFC a revolving line of credit loan ("PRFC Loan"), in
an amount not to exceed at any time to lesser of (i) the
positive difference between Thirty-Five Million Dollars
($35,000,000) and the unpaid principal balance of the Loans or
(ii) Twenty Million Dollars ($20,000,000), subject to the
terms and conditions of the PRFC Loan Agreement. As used in
this Agreement, the term "Other Credit Facilities" shall mean
at any time, all loans and credit facilities other than this
Credit Facility then
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outstanding between Borrower and/or any Affiliate of Borrower
on the one hand, and Lender on the other hand, including,
without limitation, the PRFC Loan; the term "Credit Facility"
means any one of the Other Credit Facilities or this Loan; the
term "PRFC Loan Documents" shall mean the PRFC Loan Agreement
and all other documents now or hereafter executed in
connection with the PRFC Loan, as they may be from time to
time renewed, amended, restated or replaced; and the term
"Other Credit Facilities Documents" shall mean the documents
now or hereafter executed in connection with the Other Credit
Facilities, including, without limitation, the PRFC Loan
Documents, as they may be from time to time renewed, amended,
restated or replaced.
(b) An Event of Default under the Documents shall constitute an
"Event of Default" as that term is defined in any of the Other
Credit Facilities Documents; or if an "Event of Default" is
not a defined term with respect to any of the Other Credit
Facilities, shall, without further condition or delay, permit
Lender to accelerate the payment of such Other Credit
Facility, cease funding under such Other Credit Facility or to
foreclose its lien or security interest on any of the
collateral for such Other Credit Facility. An "Event of
Default" as that term is defined in any of the Other Credit
Facilities Documents and/or any act or event which, without
further condition or delay, permits Lender to accelerate the
payment of any Other Credit Facility and/or exercise its
remedies to either cease funding under such Other Credit
Facility or foreclose its lien or security interest on any
collateral for any Other Credit Facility shall constitute an
Event of Default under the Documents.
(c) Without limiting the generality of any other provision
contained herein, the Security Interest granted by Parent
under the Documents and all Collateral now or hereafter given
by Parent as security for its Obligations under the Documents
is intended to and does secure Performance of all obligations
of PRFC and Parent under the PRFC Loan Documents ("PRFC Loan
Obligations"); and all collateral given under the PRFC Loan
Documents as security for the PRFC Loan Obligations is
intended to and does secure the Obligations of Parent. Parent
shall cause PRFC to execute all amendment documents required
by Lender to reflect this cross-collateralization and other
conditions of the Loans.
(d) If an Event of Default exists and Lender is entitled to apply
to the Obligations the proceeds of the Collateral now or
hereafter given by Parent as security for its Obligations
under the Documents, it may apply such proceeds to the
Obligations and to the PRFC Loan Obligations in such order and
manner as Lender may determine.
(e) If PRFC prepays the PRFC Loan other than for partial
prepayments permitted pursuant to the terms of the PRFC Loan
Documents and terminates its right to obtain advances of the
PRFC Loan, Parent shall prepay the Loans made to it and Lender
shall have no further obligation to make any Advances
hereunder.
(f) Neither (i) the exercise or the failure to exercise by Lender
of any rights or remedies conferred on it under the Other
Credit Facilities Documents, hereunder or existing
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at law or otherwise, or against any security for performance
of the obligations under the Other Credit Facility Documents
("Other Credit Facilities Obligations"), (ii) the commencement
of an action at law or the recovery of a judgment at law
against another borrower ("Third Party Borrower") under the
Other Credit Facility Documents or any other obligor ("Third
Party Obligor") for the Other Credit Facilities Obligations
and the enforcement thereof through levy or execution or
otherwise, (iii) the taking or institution or any other action
or proceeding against a Third Party Borrower or any other
Third Party Obligor, nor (iv) any delay in taking, pursuing or
exercising any of the foregoing actions, rights, powers or
remedies (even though requested by Parent) by Lender or anyone
acting for Lender, shall extinguish or affect the Obligations
of Parent under this paragraph 10.1. Subject to the provisions
of the last sentence of paragraph 3.1 pertaining to the
release of Security Documents, the provisions of this
paragraph 10.1 shall continue until all obligations of a Third
Party Obligor under an Other Credit Facility are fully paid
and performed and for one year and one day after such payment
and performance of such obligations [and without limiting
Parent's obligations under paragraph 10.1(k)], notwithstanding
the previous discharge (total or partial) from further
liability of any Third Party Borrower or any Third Party
Obligor.
(g) Parent hereby expressly waives: (i) notice of the existence,
creation or non-payment of all or any of the Other Credit
Facilities Obligations except as otherwise provided in the
Other Credit Facilities Documents; (ii) presentment, protest,
demand, dishonor, notice of dishonor, protest and all notices
whatsoever with respect to the Other Credit Facilities
Obligations; (iii) all diligence in collection or protection
of or realization on the Other Credit Facilities Obligations
or any part thereof, any Obligation under this paragraph 10.1,
or any security for or guarantee of any of the foregoing; (iv)
any defense based upon an election of remedies by Lender or
marshaling of assets; (v) any defense arising because of
Lender's election under Section 1111(b)(2) of the United
States Bankruptcy Code ("Bankruptcy Code") in any proceeding
instituted under the Bankruptcy Code; (vi) any defense based
on post-petition borrowing or the grant of a security interest
by a Third Party Borrower under Section 365 of the Bankruptcy
Code; (vii) any duty on the part of Lender to disclose to
Parent any facts Lender may now or hereafter know about any
Third Party Borrower, regardless of whether Lender has reason
to believe that any such facts materially increase the risk
beyond that which Parent intends to assume or has reason to
believe that such facts are known to Parent or has a
reasonable opportunity to communicate such facts to Parent,
because Parent represents and warrants that it is fully
responsible for being and keeping informed of the financial
condition of any Third Party Borrower and of all circumstances
bearing on the risk of non-payment of any obligation
guaranteed hereby; and (viii) any and all suretyship defenses
and defenses in the nature thereof under Arizona and/or any
other applicable law, including, without limitation, the
benefits of the provisions of Sections 12-1641 through
12-1646, of the Arizona Revised Statutes, Sections 17 and 21,
A.R.C.P., and all other laws and procedural rules of similar
import.
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(h) Without limiting the generality of the foregoing, Parent will
not assert against Lender any defense of waiver, release,
discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, usury,
illegality or unenforceability which may be available to any
Third Party Borrower with respect to the Other Credit
Facilities Documents, or any setoff available to any Third
Party Borrower against Lender, whether or not on account of a
related transaction.
(i) Anything else contained herein to the contrary
notwithstanding, Lender, from time to time, without notice to
Parent, may take all or any of the following actions without
in any manner affecting or impairing the obligations of Parent
under this paragraph 10.1: (i) obtain a lien on or a security
interest in any property to secure any of the Other Credit
Facilities Obligations; (ii) retain or obtain the primary or
secondary liability of any party or parties, in addition to
Parent, with respect to any of the Other Credit Facilities
Obligations; (iii) renew, extend or otherwise change the time
for payment or performance of any of the Other Credit
Facilities Obligations for any period; (iv) release or
compromise any liability of Parent hereunder or any liability
of any nature of any other party or parties with respect to
any of the Other Credit Facilities Obligations; (v) exchange,
enforce, waive, release and apply any security for the
performance of any of the Other Credit Facilities Obligations
and direct the order or manner of sale thereof as Lender may
in Lender's discretion determine; (vi) resort to the
Collateral for payment of any Other Credit Facilities
Obligations, whether or not Lender shall proceed against any
other party primarily or secondarily liable on any of the
Other Credit Facilities Obligations; (vii) agree to any
amendment (including, without limitation, any amendment which
changes the amount of interest to be paid under the Other
Credit Facilities Documents or extends the period of time
during which any Third Party Borrower may obtain advances of
the Other Credit Facilities), any alteration of the Other
Credit Facilities Documents or any waiver of any of the
provisions of the Other Credit Facilities Documents and/or
exercise Lender's rights to consent to any action or
non-action of any Third Party Borrower which may violate the
covenants and agreements contained in the Other Credit
Facilities Documents, with or without consideration and on
such terms and conditions as may be acceptable to Lender; or
(viii) exercise any of Lender's rights conferred by the Other
Credit Facilities Documents or by law.
(j) Notwithstanding anything herein to the contrary, if at any
time all or any part of any payment theretofore applied by
Lender to any of the Other Credit Facilities Obligations is or
must be rescinded or returned by Lender for any reason
whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of any Third Party Borrower),
such Other Credit Facilities Obligations, for purposes of this
paragraph 10.1, to the extent that such payment is or must be
rescinded or returned, shall be deemed to have never been
performed; and this paragraph 10.1 shall continue to be
effective or be reinstated, as the case may be, as to such
Other Credit Facilities Obligations, all as though such
application by Lender had not been made.
(k) Parent hereby waives any right it may have to be subrogated to
Lender's rights or remedies under the documents executed in
connection with the Other Credit
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Facilities Obligations or any right of indemnification,
reimbursement or contribution from any Third Party Borrower or
from any other Third Party Obligor with respect to the Other
Credit Facilities Obligations and any right to participate in
any collateral for the Other Credit Facility Obligations
(regardless of any payment on the Other Credit Facility
Obligations resulting from the provisions of this paragraph
10.1) until (i) all Other Credit Facilities Obligations have
been paid and performed in full and for a period of one year
thereafter and (ii) Lender has no further obligation to extend
credit to a Third Party Obligor; and Parent agrees that to the
extent any such right of subrogation, indemnification,
reimbursement, contribution or participation cannot be waived
or the waiver thereof is ineffective, any claims which Parent
may now or hereafter have against a Third Party Borrower or
any other Third Party Obligor by virtue of such right shall be
subordinated to Lender's rights against Parent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective name, personally or by their duly authorized
representatives as of the date above written.
PARENT: BLUEGREEN CORPORATION, a
Massachusetts corporation
Witness as to Bluegreen Corporation
By:
---------------------------------------- ---------------------------
Type/Print Name: Type/Print Name:
------------------------- --------------
Title:
------------------------
LENDER: FINOVA CAPITAL CORPORATION, a
Delaware corporation
By:
---------------------------
Type/Print Name:
--------------
Title:
------------------------
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STATE OF ARIZONA )
) ss.
County of Maricopa )
This instrument was acknowledged before me by _______________________,
the _________________________ of BLUEGREEN CORPORATION a Massachusetts
corporation, on behalf of such corporation. He/She is known to me and
produced ____________________ as identification.
------------------------------------
Notary Public
Type/Print Name:
--------------------
My commission expires:
----------------------------
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LIST OF EXHIBITS
EXHIBIT A Personal Property
EXHIBIT B-1 Promissory Note (Land Loan)
EXHIBIT B-2 Promissory Note (Development Loan)
EXHIBIT C Description of Real Property
EXHIBIT D-1 Request for Acquisition Advance, Certification and Agreement (Parent)
EXHIBIT D-2 Request for Acquisition Advance, Certification and Agreement (Subsidiary)
EXHIBIT E Opinion Matters of Borrower's/Guarantor's General and Local Counsel
EXHIBIT F Additional Conditions Precedent to Initial Advance of a Development Loan
EXHIBIT G Additional Conditions Precedent to Work-Related Advances
EXHIBIT H Intentionally Not Included
EXHIBIT I Certificate and Agreement of Borrower Regarding Construction-Related
Matters
EXHIBIT J Certificate and Agreement of Subsidiary Borrower (Basic)
EXHIBIT K Procedures for Requests for Lender's Consent to Developmental Matters.
43
EXHIBIT A
PERSONAL PROPERTY
With respect to any Real Property, all fixtures and tangible and
intangible personal property which now or hereafter is owned by Borrower or in
which Borrower has an interest and either is now or hereafter located on such
Real Property or is necessary or intended for the ownership, development,
construction, improvement, repair, use, operation, sale or lease of any of such
Real Property or any business of Borrower conducted thereon or with respect
thereto ("Personal Property"), including, without limitation, the following:
1. mineral rights, leases, subleases, licenses, concessions or other
agreements (whether written or oral or now or hereafter in effect) which grant a
possessory interest in and to, or the right to use, any portion of the Real
Property and/or any portion of the Personal Property;
2. rents, revenues, royalties, bonuses, delay rentals, issues, income,
proceeds, profits, security and other types of deposits, and other benefits now
or hereafter paid or payable for using, leasing, licensing, possessing,
operating, residing in, mining or otherwise enjoying any portion of the Real
Property or Personal Property or arising from the operation of any business of
Borrower conducted on or with respect to the Real Property or Personal Property,
including, without limitation, income from the rental or license of the use of
rooms for lodging, meeting or banquet purposes;
3. all furniture, furnishings, equipment, inventory and other goods
and other items of tangible personal property, including, without limitation:
all building and other materials; vehicles; machinery; engines; boilers,
furnaces, oil burners, coolers, refrigeration plants, water and sewer treatment
equipment, incinerators, appliances and equipment for generating, regulating or
distributing air, water, heat, electricity, light and fuel for ventilating,
cooling or sanitary purposes, for the exclusion of vermin or insects, or for the
removal of dust, refuse or garbage; sprinkling and irrigation systems; alarm
systems; reservation systems, telephone, communication, computer, surveillance
and other electronic systems; audio-visual equipment; wall safes; cabinets,
shelving, lockers, partitions, doors, vaults, elevators, awnings, window shades,
venetian blinds, drapes, drapery rods, brackets, screens, floor tile, linoleum,
carpets, art work, appliances, built-in furniture and bars, sofas, beds, lamps,
tables, chairs and linens; walk-in refrigerator boxes, deep freeze cabinets,
steam tables, dishwashers, bake ovens, set-up tables, kitchen ranges and any and
all other kitchen equipment; and cleaning equipment;
4. (i) deposits made by third parties (including tenants' security
deposits and escrow deposits under contracts of sale); (ii) bank accounts
pertaining to the Real Property and/or Personal Property, impound accounts for
the payment of taxes, insurance and other expenses pertaining to the Real
Property and funds deposited with Lender under the Documents; (iii) all of
action, documents, insurance policies, loan commitments, accounts, chattel
paper, contract rights, general intangibles and instruments, including those
pertaining to the sale of any portion of the Real Property or Personal Property
and related escrow and security agreements, which arise from or relate to the
Real Property or the Personal
44
Property or any transaction with respect thereto or any business of Borrower
conducted thereon or with respect thereto; (iv) tax refunds relating to the Real
Property or Personal Property and all other refundable or reimbursable fees,
deposits or other funds or evidences of credit or indebtedness pertaining to any
portion of the Real Property or Personal Property or any business of Borrower
conducted thereon or with respect thereto and now or hereafter deposited with
any governmental authority or other person or entity, including, without
limitation, tap fees, utility deposits, deposits on construction and materials
contracts, commitment fees and development costs; (v) books and records,
computer software, plans and specifications, shop drawings, bonds, construction
contracts, architect/engineer agreements, utility (including, without
limitation, cable television) contracts, option rights, management agreements,
marketing agreements, franchise agreements, exchange affiliation agreements,
equipment leases, maintenance contracts, service contracts and warranties which
relate to the ownership, development, operation, construction, use, improvement,
repair, sale or lease of the Real Property or Personal Property, or any business
of Borrower conducted thereon or with respect thereto; (vi) trade names,
trademarks, service marks, customer lists and copyrights used in connection with
the Real Property or Personal Property or any business of Borrower conducted
thereon or with respect thereto; (vii) all special rights and privileges of
Borrower under any declaration of covenants, conditions and restrictions and/or
other documents governing the Real Property which are not enjoyed by all other
owners of portions of the Real Property; and (viii) permits (including, without
limitation, building permits), licenses, franchises, certificates and other
rights and privileges obtained in connection with development, ownership,
construction, improvement, repair, use, operation, sale or lease of the Real
Property or Personal Property or any business of Borrower conducted thereon or
with respect thereto;
5. (i) water stock and other rights now or hereafter associated with
the Real Property or Personal Property, including, without limitation, all
rights to water located on or adjacent to the Real Property, and (ii) rights to
receive or install utility servicing, including, sewer, water, electricity, gas,
cable television and telephone;
6. all causes of action and claims of Borrower relating to any casualty
to or taking of the Real Property or the Personal Property or any rights
appurtenant thereto; and
7. all cash and non-cash proceeds (including, without limitation,
accounts, chattel paper, contracts rights, documents, instruments, general
intangibles, investment property and equipment, inventory and other goods) from
the Real Property or the Personal Property or any conversion of the Real
Property or the Personal Property, including hazard and title insurance proceeds
and awards and compensation for any taking (voluntary or involuntary, including
the change of grade of streets, curb cuts and other rights of access) for any
public or private purpose.
Nothing herein is intended to change the character of any item of real property
described herein to personal property.
The property described in subsections 4, 5 and 6 above are referred to as the
"Contracts, Licenses, Permits and Other Intangibles."
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EXHIBIT B
PROMISSORY NOTE
U.S. $_____________ ________________, 199__
FOR VALUE RECEIVED, the undersigned ________________________________,
a _________________ corporation (the "Maker"), promises to pay to FINOVA
CAPITAL CORPORATION, a Delaware corporation ("Lender"), or order, at its offices
at 0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, or at
such other place as the holder of this Note ("Holder") may from time to time
designate in writing, in lawful money of the United States of America, the
principal sum of_____________________________________________ DOLLARS
(U.S. $____________), together with interest on the unpaid principal balance
from time to time outstanding from the date hereof until paid, as more fully
provided for below. All payments hereunder shall be made in immediately
available funds.
This Note is executed pursuant to an Amended and Restated Credit
Facility Agreement dated as of April 16, 1998, between Bluegreen Corporation, a
Massachusetts corporation [Maker], and Lender (together with any and all
extensions, renewals, modifications and restatements thereof, "Credit Facility
Agreement") and evidences a Loan (as defined in and made pursuant to the Credit
Facility Agreement). Capitalized terms used but not defined herein shall have
the meaning given to them in the Credit Facility Agreement.
This Note is secured by, among other things, a [Deed of Trust]
[Mortgage] (With Security Agreement and Assignment of Leases, Rents, Sales
Documents, Sales Proceeds and Developer's Rights) encumbering real and personal
property owned by Maker and located in ___________________ County, _________
("Mortgage"). [This Note is further secured by those vendor liens retained in
those certain deeds from ______________________________________ to Maker.]
Except as otherwise provided herein, interest ("Basic Interest") shall
accrue at a variable interest rate per annum equal to the Base Rate (as
hereinafter defined) on the date of this Note plus one hundred fifty (150) basis
points ("Basic Interest Rate"), which rate shall be adjusted on each Interest
Rate Change Date (as defined below). The term "Base Rate" as used herein shall
mean the per annum rate of interest publicly announced, from time to time, by
Citibank, N.A., New York, New York ("Citibank"), as the base (or equivalent)
rate of interest charged by Citibank to its largest and most creditworthy
commercial borrowers notwithstanding the fact that some borrowers of Citibank
may borrow from Citibank at rates less than the announced base rate, or if
Citibank ceases to publish its base rate, then such other rate published by a
comparable money-center bank as Holder shall deem comparable in its sole and
absolute discretion. "Interest Rate Change Date" shall mean the first business
day of the publisher of the Base Rate during each calendar month following the
date of this Note. Basic Interest shall be calculated on the basis of the actual
number of days elapsed during the period for which interest is being charged
predicated on a year consisting of three hundred sixty (360) days.
46
As used in this Note, "Business Day" means a day other than a Saturday,
a Sunday or a day on which banks in Phoenix, Arizona, are required to be closed.
Payments of principal, interest and any other amounts due and payable
hereunder shall, at the option of Holder, earn Basic Interest AFTER they are due
at a rate ("Default Rate") equal to (a) the greater of (i) two hundred (200)
basis points above the rate of Basic Interest otherwise payable hereunder or
(ii) eighteen percent (18%) per annum, or (b) the maximum contract rate
permitted under the Applicable Usury Law, whichever of (a) or (b) is lesser. At
the option of Holder, while an Event of Default (as that term is defined in the
Credit Facility Agreement) exists, and in all events after an acceleration of
the Note by Holder, Basic Interest shall accrue on the entire outstanding
principal balance of this Note at the Default Rate.
The contracted for rate of interest of the Loan evidenced hereby,
without limitation, shall consist of the following: (i) the Basic Interest Rate,
calculated and applied to the principal balance in accordance with the
provisions of this Note; (ii) the Default Rate, calculated and applied to the
principal balance of this Note in accordance with the provisions hereof; (iii)
the late charge calculated and applied to an overdue payment in accordance with
the provisions hereof; (iv) any prepayment premium payable pursuant to the
Credit Facility Agreement in connection with the Loan evidenced by this Note;
(v) the Credit Facility Modification Fee Installment Payment (as defined in the
Credit Facility Agreement) in connection with the Loan evidenced by this Note;
and (vi) all Additional Sums (as hereinafter defined), if any. Maker agrees to
pay an effective contracted for rate of interest which is the sum of the
above-referenced elements but in no event to exceed the maximum contract rate
permitted under the Applicable Usury Law (as defined below). All fees, charges,
goods, things in action or any other sums or things of value [other than amounts
described in (i), (ii), (iii), (iv) and (v) hereof], pursuant to this Note, the
Credit Facility Agreement, the other Credit Facility Documents or any other
documents or instruments in any way pertaining to this lending transaction, or
otherwise with respect to this lending transaction, that under any applicable
law may be deemed to be interest with respect to this lending transaction, for
the purpose of any applicable law that may limit the maximum amount of interest
to be charged with respect to this lending transaction (the "Additional Sums"),
shall be payable by Maker as, and shall be deemed to be, additional interest,
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the Additional Sums.
On _____________, _____, and on the last Business Day of each
succeeding month thereafter ("Installment Date") until the date _______________
(_____) months from the date of this Note ("Maturity Date") or the date all
principal and interest on this Note are paid in full, whichever date first
occurs, Maker will pay to Holder a payment of accrued and unpaid interest on the
Note.
Upon the Partial Release (as defined in the Mortgage) of a Release
Parcel (as defined in the Mortgage), Maker will pay to Holder a principal
payment in an amount equal to the Release Payment (as defined in the Mortgage)
payable with respect to such Release Parcel.
In addition to the principal payments required pursuant to the
preceding paragraph, Maker will pay to Holder on _______________ the following
principal payments: ________________.
-2-
47
All payments under this Note shall be applied in accordance with the
terms of the Documents. However, if an Event of Default exists, Holder may apply
the proceeds of the security for this Note in such order and manner as Holder
may determine.
On the Due Date (as hereinafter defined), the entire unpaid principal
balance of this Note, all accrued and unpaid Basic Interest, and all other
charges or amounts owing in connection with the Loan evidenced hereby shall be
due and payable in full. The Due Date shall mean the earlier of (i) the Maturity
Date; (ii) the date of satisfaction of this Note through pre-payment by the
Maker pursuant to the terms of the Credit Facility Agreement; or (iii) the date
on which Lender or Holder accelerates payment of the this Note due to an Event
of Default by Maker.
If any installment of principal, interest or any other payment required
to be made in connection with this Note is not paid when due and, except in the
case of the final installment for which no grace period is allowed, such breach
continues for five (5) Business Days, or upon the occurrence of any other Event
of Default, Holder may at its option, without notice or demand of any type
whatsoever (including, without limitation, notice of intention to accelerate),
declare immediately due and payable the entire unpaid principal balance hereof,
all accrued and unpaid Basic Interest thereon, any prepayment premium required
under the Credit Facility Agreement in connection with the Loan evidenced by
this Note, and all other obligations owing in connection with the Credit
Facility advance evidenced hereby.
In the event that any monthly installment of principal and interest
shall not be paid within ten (10) Business Days of the date when due, a "late
charge" of two percent (2.0%) of the late payment may be charged by the Holder
for the purposes of defraying the expense incident to handling such delinquent
payments. Such late charge represents the reasonable estimate of Maker and
Lender of a fair average compensation for the loss which may be sustained by
Lender due to the failure of the Maker to make timely payments. All late charges
shall be due and payable monthly on the same dates provided herein for the
payment of installments.
Except as expressly provided in the Credit Facility Agreement,
prepayment of this Note will NOT be permitted in whole or in part.
Holder shall not by any act or omission be deemed to have waived any of
its rights or remedies hereunder unless such waiver be in writing and signed by
an authorized officer of Holder and then only to the extent specifically set
forth therein; a waiver on one occasion shall not be construed as continuing or
as a bar to or waiver of such right or remedy on any other occasion. All
remedies conferred upon Holder by this Note, the Mortgage, or any other
instrument or agreement related hereto shall be cumulative and none is
exclusive, and such remedies may be exercised concurrently or consecutively at
Holder's option.
If Holder undertakes to collect this Note following an Event of
Default, Maker will pay to Holder in addition to any indebtedness due and
unpaid, all costs and expenses of collection, including, without limitation,
attorneys' fees and expert witnesses' fees, whether or not legal proceedings
shall be instituted. In the event Holder institutes legal proceedings to enforce
this Note, the award of costs of collection, including attorneys' fees, shall be
made by the court (and not by a jury).
-3-
48
Maker, and every person or entity at any time liable for the payment of
the indebtedness evidenced by this Note, hereby absolutely and unconditionally
waive: presentment for payment, protest and demand; notice of dishonor, protest,
demand and nonpayment of this Note; and each and every other notice of any kind
except (including, without limitation, notice of intention to accelerate) for
notices expressly provided in this Note or in any of the other documents
securing payment of, or otherwise related to, this Note. Maker and every such
person or entity further consent to renewals or extensions of the payment of any
sums to be paid under this Note at any time and from time to time, without limit
as to the number or aggregate period of such renewals or extensions, at the
request of any other person or entity liable for them. Any such renewals or
extensions may be made without notice to any person or entity liable for the
payment of the indebtedness evidenced by this Note.
This Note is given and accepted as evidence of indebtedness only and
not in payment or satisfaction of any indebtedness or obligation.
Time is of the essence with respect to all of Maker's obligations and
agreements under this Note.
This Note and all its provisions, conditions, promises and covenants
shall be binding upon Maker, and its successors and assigns, provided nothing
herein shall be deemed Holder's consent to any assignment restricted or
prohibited by the terms of the Credit Facility Agreement or the Mortgage. If
more than one person or entity has executed this Note as Maker, the obligations
of such persons and entities shall be joint and several.
If any one or more of the provisions contained in this Note shall be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby; provided that where the provisions of any invalidating law
may be waived, they are waived by Maker to the fullest extent possible.
THIS NOTE AND THE RIGHTS, DUTIES AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF ARIZONA AND TO THE EXTENT THEY PREEMPT THE LAWS OF SUCH STATE, THE LAWS
OF THE UNITED STATES.
EACH OF HOLDER (BY ITS ACCEPTANCE HEREOF) AND MAKER: (A) HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE PROCESS, JURISDICTION AND VENUE OF THE COURTS
OF THE STATE OF ARIZONA, MARICOPA COUNTY, AND TO THE PROCESS, JURISDICTION, AND
VENUE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA, FOR THE
PURPOSES OF SUIT, ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
NOTE OR THE SUBJECT MATTER HEREOF (EXCEPT AS MAY BE SPECIFICALLY PROVIDED TO THE
CONTRARY IN THE DEED OF TRUST REFERRED TO BELOW), OR, IF HOLDER INITIATES SUCH
ACTION, ANY COURT IN WHICH HOLDER SHALL INITIATE SUCH ACTION AND THE CHOICE OF
SUCH VENUE SHALL IN ALL INSTANCES BE AT HOLDER'S ELECTION; AND (B) WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT TO ASSERT
BY WAY OF
-4-
49
MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS,
THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT
THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. MAKER HEREBY WAIVES
THE RIGHT TO COLLATERALLY ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
HOLDER (BY ACCEPTANCE HEREOF) AND MAKER ACKNOWLEDGE AND AGREE THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE CREDIT FACILITY DOCUMENTS WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES; AND HOLDER (BY ACCEPTANCE HEREOF); AND
THEREFORE AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE
TRIED BY A JUDGE SITTING WITHOUT A JURY, AND KNOWINGLY AND VOLUNTARILY WAIVE
TRIAL BY JURY IN ANY SUCH PROCEEDING.
MAKER HAS NO RIGHT TO EXTEND OR RENEW THIS NOTE OR THE INDEBTEDNESS
EVIDENCED HEREBY.
ALL OF THE PROVISIONS SET FORTH ABOVE ARE A MATERIAL INDUCEMENT FOR
LENDER'S MAKING ADVANCES OF THE LOAN EVIDENCED HEREBY TO MAKER.
_____ MAKER's Initials
It is the intent of the parties to comply with the applicable usury law
("Applicable Usury Law") chosen by Maker and Lender in the preceding paragraph,
or any other usury law applicable. Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Note, the Credit Facility
Agreement, or in any of the documents securing payment hereof or otherwise
relating hereto, in no event shall this Note or such documents require the
payment or permit the collection of interest in excess of the maximum contract
rate permitted by the Applicable Usury Law. If (a) any such excess of interest
otherwise would be contracted for, charged or received from Maker or otherwise
in connection with the Loan evidenced hereby, or (b) the maturity of the
indebtedness evidenced by this Note is accelerated in whole or in part, or (c)
all or part of the principal or interest of this Note shall be prepaid, so that
under any of such circumstances the amount of interest contracted for, charged
or received in connection with the Loan evidenced hereby, would exceed the
maximum contract rate permitted by the Applicable Usury Law, then in any such
event: (1) the provisions of this paragraph shall govern and control; (2)
neither Maker nor any other person or entity now or hereafter liable for the
payment hereof will be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum contract rate permitted by the
Applicable Usury Law; (3) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal amount hereof or
refunded to Maker, at the Holder's option; and (4) the effective rate of
interest will be automatically reduced to the maximum amount of interest
permitted by the Applicable Usury Law. It is further agreed, without limiting
the generality of the foregoing, that to the extent permitted by the Applicable
Usury Law: (x) all calculations of the rate of interest which are made for the
purpose of determining whether such rate would exceed the maximum contract rate
-5-
50
permitted by the Applicable Usury Law shall be made by amortizing, prorating,
allocating and spreading during the period of the full stated term of the Credit
Facility advance evidenced hereby, all interest at any time contracted for,
charged or received from Maker or otherwise in connection with the Loan
evidenced hereby; and (y) if the effective rate of interest on the Loan
evidenced hereby should at any time exceed the maximum contract rate allowed
under the Applicable Usury Law, such excess interest that would otherwise have
been collected had there been no ceiling imposed by the Applicable Usury Law
shall be paid to Holder from time to time, if and when the effective interest
rate on the Loan evidenced hereby otherwise falls below the maximum amount
permitted by the Applicable Usury Law, to the extent that interest paid to the
date of calculation does not exceed the maximum contract rate permitted by the
Applicable Usury Law, until the entire amount of interest which would have
otherwise been collected had there been no ceiling imposed by the Applicable
Usury Law has been paid in full. Maker further agrees that should the maximum
contract rate permitted by the Applicable Usury Law be increased at any time
hereafter because of a change in the law, then to the extent not prohibited by
the Applicable Usury Law, such increases shall apply to all indebtedness
evidenced hereby regardless of when incurred; but, again to the extent not
prohibited by the Applicable Usury Law, should the maximum contract rate
permitted by the Applicable Usury Law be decreased because of a change in the
law, such decreases shall not apply to the indebtedness evidenced hereby
regardless of when incurred.
Maker warrants and represents that the Loan evidenced hereby is for
business or investment purposes.
The notice provisions of the Credit Facility Agreement shall govern the
delivery of any notice or other communication required or permitted hereunder.
MAKER: , a
---------------------------------------
corporation
------------------
By:
-----------------------------------------
Type/Print Name:
----------------------------
Title:
--------------------------------------
STATE/COMMONWEALTH OF _______________ )
) ss.
County of ________________________ )
The foregoing instrument was acknowledged before me this _____ day of
____________, _____, by _____________________________________, the
________________________ of _________________________________________________, a
______________ corporation, for and on behalf of the corporation.
-6-
51
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------------
Notary Public
My commission expires:
----------------------
-7-
52
EXHIBIT C
DESCRIPTION OF REAL PROPERTY
1. The real property is owned in fee simple by the Bluegreen Entity
requesting a Loan to finance in whole or in part the acquisition and/or
improvement of such real property. Such Bluegreen Entity is the
developer of the real property.
2. Unless waived by Lender in its discretion in writing, the real property
meets the requirements for inclusion as an additional Project (as
defined in the PRFC Loan Agreement) under the PRFC Loan Documents,
whether or not set forth in paragraph 4.2. (As of August 16, 1998,
under the PRFC Loan Documents, an additional Project must be a
vacation/residential community approved by Lender in its discretion.)
53
EXHIBIT D-1
REQUEST FOR ACQUISITION ADVANCE, CERTIFICATION AND AGREEMENT
(PARENT AS BORROWER)
The undersigned ("Borrower") requests FINOVA CAPITAL CORPORATION, a
Delaware corporation ("Lender"), to advance the sum of _____________________
________________________________ ($_________) ("Acquisition Advance") upon
receipt hereof, pursuant to the Amended and Restated Credit Facility Agreement
between such parties dated as of April 16, 1998 (with any amendments,
"Agreement").
Except as otherwise defined herein or the context otherwise requires,
all capitalized terms used herein have the meaning given to them in the
Agreement.
Borrower hereby represents and warrants to Lender that (i) the Advance
Formula for the Real Property described in Exhibit A attached hereto is
$___________________, computed as set forth in Schedule 1 attached hereto and by
this reference incorporated herein; (ii) no material adverse change has occurred
in the Collateral or in the business financial condition of Borrower or any
Subsidiary which is a Borrower since ____________________, _____, the date of
the last financial statements delivered to Lender by or on behalf of Borrower or
any Subsidiary which is a Borrower; (iii) all representations and warranties
contained in the Agreement are true and correct as of the date hereof; (iv)
neither an Event of Default nor an Incipient Default exists; (v) the Agreement
and the Documents required of it in connection with the Acquisition Advance do
not violate the Applicable Usury Law; and (vi) Borrower has performed and
complied with all agreements and conditions required by the Agreement to be
performed and complied with prior to or at the date of the requested
disbursement of the Acquisition Advance.
DATED: ______________________, _____.
BORROWER: BLUEGREEN CORPORATION, a Massachusetts
corporation
By:
-------------------------------------
Type/Print Name:
-------------------------
Title:
-----------------------------------
54
SCHEDULE 1 TO
REQUEST FOR ACQUISITION ADVANCE, CERTIFICATION AND AGREEMENT
COMPUTATION OF ADVANCE FORMULA AND
MAXIMUM ADVANCE AMOUNT
The following are determined as of the date of the Request for Advance,
Certification and Agreement, assuming all other currently requested but
undisbursed Advances will be made:
1. 80% times the Acquisition Cost of the Real Property $
---------
2. if the requested Advance exceeds $2,000,000, 80%
times the Appraised Value $
---------
3. Advance Formula (the lesser of 1 or 2; or 1 if the
requested Advance does not exceed $2,000,000) $
---------
4. Unpaid Principal Balance of Credit Facility
before Advance $
---------
5. Credit Facility Availability ($35,000,000 - 4) $
---------
6. Unpaid Principal Balance of PRFC Credit Facility $
---------
7. Unpaid Principal Balance of Lake Ridge Loan $
---------
8. Overall Credit Facility Availability
($35,000,000 - 4 - 6-7) $
---------
9. Maximum Advance Amount (the least of 3, 5 or 8) $
---------
55
EXHIBIT D-2
REQUEST FOR ACQUISITION ADVANCE, CERTIFICATION AND AGREEMENT
(SUBSIDIARY AS BORROWER)
The undersigned ("Borrower") requests FINOVA CAPITAL CORPORATION, a
Delaware corporation ("Lender"), to advance the sum of _____________________
________________________________ ($_________) ("Acquisition Advance") upon
receipt hereof, pursuant to the Amended and Restated Credit Facility Agreement
between Bluegreen Corporation and Lender dated as of April 16, 1998 (with any
amendments, "Agreement").
Except as otherwise defined herein or the context otherwise requires,
all capitalized terms used herein have the meaning given to them in the
Agreement.
Borrower hereby represents and warrants to Lender that (i) the Advance
Formula for the Real Property described in Exhibit A attached hereto is
$___________________, computed as set forth in Schedule 1 attached hereto and by
this reference incorporated herein; (ii) no material adverse change has occurred
in the Collateral or in the business financial condition of Parent, Borrower or
any other Subsidiary which is a Borrower since ____________________, ____, the
date of the last financial statements delivered to Lender by or on behalf of
Parent or any Subsidiary which is a Borrower; (iii) neither an Event of Default
nor an Incipient Default exists; and (vi) Parent has performed and complied with
all agreements and conditions required by the Agreement to be performed and
complied with prior to or at the date of the requested disbursement of the
Acquisition Advance.
DATED: ______________________, _____.
BORROWER: ______________________________________, a
________________________________
By:
--------------------------------------
Type/Print Name:
-------------------------
Title:
-----------------------------------
56
SCHEDULE 1 TO
REQUEST FOR ACQUISITION ADVANCE, CERTIFICATION AND AGREEMENT
COMPUTATION OF ADVANCE FORMULA AND
MAXIMUM ADVANCE AMOUNT
The following are determined as of the date of the Request for Advance,
Certification and Agreement, assuming all other currently requested but
undisbursed Advances will be made:
1. 80% times the Acquisition Cost of the Real Property $
----------
2. If the requested Advance exceeds $2,000,000, 80%
times the Appraised Value $
----------
3. Advance Formula (the lesser of 1 or 2; or 1 if the
requested Advance does not exceed $2,000,000) $
----------
4. Unpaid Principal Balance of Credit Facility
before Advance $
----------
5. Credit Facility Availability ($35,000,000 - 4) $
----------
6. Unpaid Principal Balance of PRFC Credit Facility $
----------
7. Unpaid Principal Balance of Lake Ridge Loan $
----------
8. Overall Credit Facility Availability
($35,000,000 - 4 - 6-7) $
----------
9. Maximum Advance Amount (the least of 3, 5 or 8) $
----------
57
EXHIBIT E-1
OPINION MATTERS OF THE BORROWER'S AND
GUARANTOR'S GENERAL COUNSEL OPINIONS
Lender will require legal opinions from the Borrower's and Guarantor's
general counsel as to such matters as Lender deems appropriate. Without limiting
the generality of the preceding sentence, opinions will be required as to due
organization, good standing and structure of the Borrower, Guarantor and (if
any) other sureties for the Performance of the Obligations who are not natural
persons; due authorization, execution and delivery of the Documents executed by
the Borrower, Guarantor and (if any) other sureties for the Performance of the
Obligations who are not natural persons in connection with the Loan;
enforceability of such Documents (including choice of law provisions); the
absence of conflict between such Documents and Legal Requirements; non-
materiality of pending and threatened litigation; compliance by the Borrower
with applicable laws (other than compliance with local laws to which Borrower's
and Guarantor's local counsel is opining).
58
EXHIBIT E-2
OPINION MATTERS OF THE BORROWER'S AND GUARANTOR'S LOCAL
COUNSEL OPINIONS
Lender will require legal opinions as to such matters as Lender deems
appropriate from counsel to the Borrower and Guarantor authorized to practice
law in the state in which the Real Property which is the subject of the Loan is
located. Without limiting the generality of the preceding sentence, opinions
will be required as to enforceability of the Agreement and other Documents
executed in connection with Loan (including choice of law provisions);
compliance of the Loan with usury laws; the absence of conflict between such
Documents and Legal Requirements; compliance by the Borrower with Legal
Requirements; zoning of such Real Property; and compliance of the project
governing documents and project consumer documents with applicable laws; and
proper perfection of the required liens and security interests.
59
EXHIBIT F
ADDITIONAL DUE DILIGENCE ITEMS FOR EACH DEVELOPMENT LOAN
1. all grading permits, foundation permits, building permits,
environmental permits, and other permits, licenses, approvals and
certificates for the construction of the related Improvements;
2. a copy of all marketing contracts, development agreements and other
agreements, as are necessary or desirable for the sale and development
of the Real Property which is the subject of the Development Loan,
otherwise expressly required with respect to the terms of this
Agreement;
3. unless waived or deferred by Lender in writing, a flood and drainage
study with respect to the Real Property which is the subject of the
Loan and the related Improvements;
4. the Architect/Engineer Agreement for each Architect/Engineer for the
related Improvements and such certificates as Lender may require from
each Architect/Engineer for the related Improvements regarding the
adequacy of the related Plans and Specifications and the related
Construction Budget and such other matters as Lender may deem
pertinent;
5. Plans and Specifications for the related Improvements complete in all
respects (subject only to Lender's approval);
6. the Construction Budget for the related Work complete in all respects
(subject only to Lender's approval);
7. a detailed draw schedule for the Development Loan;
8. the Work Progress Schedule for the related Work complete in all
respects (subject only to Lender's approval);
9. a list of all Contractors for the related Work with whom the Borrower
under the Development Loan has contracted and all subcontractors and
materialmen responsible for major portions of the such Work, all whom
must be satisfactory to Lender;
10. guaranteed maximum price Construction Contracts necessary for
Completion of the related Work between the Borrower under the
Development Loan and Contractors and for all subcontractors and
materialmen responsible for major portions of such Work; and such
certificates as Lender may request from the Contractors for such Work
regarding the adequacy of the related Construction Budget and such
other matters as Lender may reasonably deem appropriate; all
information as Lender may reasonably require regarding all Contractors
for the related Work, and, if required by Lender, the subcontractors
and materialmen responsible for major portions of such Work (which,
among other things, may consist of financial statements for the last
two years, federal employer tax identification numbers, a Dun &
Bradstreet report, credit references and a Better Business Bureau
report);
11. if required by Lender, a payment bond which complies with all Legal
Requirements of the state where the Real Property is located and which
is issued by a surety satisfactory to Lender and is for the
construction of the related Improvements adequate to cause all persons
providing labor, materials, equipment or services with respect thereto
to look solely to such bond, rather than the Real Property which is the
subject of the Development Loan and other Collateral, in the event of
non-payment;
12. if required by Lender, a performance bond or bonds which
complies/comply with all Legal Requirements of the state where the Real
Property is located which is/are issued by a surety satisfactory to
Lender, covering Construction Contracts for at least the major portions
of the related Work and naming Lender as a co-obligee; and
13. the report of Lender's Inspector with respect to the Construction
Budget, Plans and Specifications, Contracts, Work Progress Schedule,
and other construction-related items which pertain to the related Work;
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60
EXHIBIT G
FINOVA CAPITAL CORPORATION ("LENDER")
STANDARD CONSTRUCTION LOAN
ADMINISTRATIVE PROCEDURES
I. With each Work-Related Advance Request a Borrower must complete,
execute and deliver to Lender:
A. A Request for Work-Related Advance for all direct costs (Exhibit G-1
hereof for format and type of information required).
B. Request for Advance - Indirect Costs (Exhibit G-2 hereof).
C. Borrower's Affidavit for Advance (Exhibit G-3 hereof).
D. Check Sheet Form (Exhibit G-4 hereof).
E. Waiver of Liens (Exhibit G-5 hereof or such form as is required by law)
for previous application payments.
F. Change Order Approval Request (AIA Document G714) when applicable
(Exhibit G-6 hereof).
G. Invoices supporting amounts shown in columns E and F of AIA Document
G702 and G703.
H. Any surveys required pursuant to the Agreement and/or other Documents
executed by the Borrower in connection with the Development Loan.
I. Such other items as Lender requests which are reasonably necessary to
evaluate the request for the Work-Related Advance and the satisfaction
of the conditions precedent thereto.
II. The following events must take place prior to each Work-Related
Advance:
A. Contractor requests site inspection from Lender's Inspector.
B. Contractor provides Lender's Inspector with a copy of the Request for
Work-Related Advance.
C. Lender's Inspector will perform a physical inspection to review the
Work in place, including, without limitation, Work which has been
financed from sources other than a Work-Related Advance, and make a
certification and recommendation to Lender. Lender's Inspector forwards
his report, certification and recommendation to Lender.
61
D. At Lender's option, Lender will request the applicable Title Insurer to
review public records, advise Lender of same, and forward to Lender
endorsement(s) as required pursuant to the Agreement and/or other
Documents executed in connection with the Development Loan.
E. Lender will review the Work-Related Advance Request, input of Lender's
Inspector and the title company's input. The Work-Related Advance
Request must be appropriate, complete and in proper order. The order of
the Work-Related Advance Request package will determine the processing
time needed.
F. All other conditions of the Agreement and/or other Documents executed
in connection with the Development Loan are satisfied.
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62
EXHIBIT G-1
AIA FORMS G702 AND G703
63
EXHIBIT G-2
REQUEST FOR ADVANCE - INDIRECT COST
Borrower: ________________________________ Application No.: _______________
Project: _________________________________ Date: __________________________
Description of Scheduled Previous This Paid & Pay- Balance
Indirect Cost Value Payments Request able to Date To Finish
A B C D E F G
1 Perm. Lender's Commitment Fee
2 Interim Loan Fee
3 Real Estate Commissions
4 Architect's Fees
5 Surveyor's Fees
6 Attorney's Fees - Borrower
7 Title Insurance Premium
8 Recording Fees
9 Real Estate Taxes
10 Mortgage Recording Tax
11 State Stamps on Note
12 Hazard Insurance Premium
13 Performance Bond Premium
14 Progress Inspector Fee
15 Disbursement Agent's Fee
16 Appraisal Fees
17 Advertising and Promotion Exp.
18 Organizational Expense
19 Existing Prior Mtg. Liens
20 Existing Prior Other Liens
21 Land Purchase Cost
22 Cons. Cost Analyst Fee
23 Engineer's Fees
24 Allowance for Contingencies
25 Interest Reserve
26 Discount Fee
27 Legal Fees - Lender
28 Standby Commitment Fee
29 Credit Report Fee
30 Non-Refundable Loan Proc. Fee
31 Building Permits
32
33
34
35
36
37
38
39
40
TOTAL
64
EXHIBIT G-3
BORROWER'S AFFIDAVIT FOR WORK-RELATED ADVANCE
Borrower: __________________________________________________
Date: ________________, ______
Loan Name
and
Request No.: ________; Request No. ______________
Period: _________________ to ____________________
Amount: _______________________________
In connection with and in order to induce FINOVA Capital Corporation
("Lender") to make a Work-Related Advance in the amount requested above and with
respect to the Development Loan identified above, Borrower hereby represents,
warrants and stipulates as follows:
1. The work listed in this Development Loan Advance Request Package
("Request") has been completed in accordance with the Amended and
Restated Credit Facility Agreement dated April 16, 1998, between the
Bluegreen Corporation and Lender (with any amendments, "Agreement");
all obligations for work submitted and received on previous Borrower's
Affidavit for Work-Related Advance submitted in connection with the
Development Loan identified above have now been paid in full (except
for retainage); the funds requested at this time shall be applied only
to the obligations for work set forth in this Request; and all
Insurance Policies (including without limitation, Builder's Risk and
General Liability Coverage policies) as required by the Agreement are
in full force and effect.
2. Attached hereto are the names of all architects, engineers, design
professionals, contractors, subcontractors, suppliers and materialmen
who have performed or who will be performing Work being financed in
whole or in part under the Development Loan identified above and whose
names have not been previously delivered to Lender in writing. Copies
are attached hereto of contracts with all such architects, engineers,
design professionals, contractors, subcontractors, suppliers and
materialmen whose contracts are required to be, but have not yet been,
delivered to Lender pursuant to the terms of the Agreement.
3. Attached hereto are any updates to the approved Plans and
Specifications for the Work being financed in whole or in part under
the Development Loan identified above.
4. The amounts and percentages set forth on the attached schedules, along
with supporting documentation for each budgeted item and the Balance To
Finish in accordance with AIA 702 and 703 forms submitted herewith are
true and correct to the best of Borrower's knowledge.
65
5. The following are included as part of this Request:
Application and Certificate for Payment (AIA G702)
Continuation Sheets (AIA G703)
Request for Advance - Indirect Costs
Check Sheet Form
6. No material adverse change has occurred in the Improvements being
financed in whole or in part by the Development Loan identified above or,
since __________________, _____, the date of the latest financial
statements given by or on behalf of such person to Lender, in the
financial condition or the business and operations of Borrower.
7. All representations and warranties of Borrower and any person other than
Lender contained in the Agreement and the other Documents executed in
connection with the Development Loan are true and correct as of the date
hereof.
8. Neither an Event of Default nor Incipient Default exists.
9. Borrower has performed and complied with all other agreements or
conditions required by the Agreement and the other Documents executed in
connection with the Development Loan to be performed or complied with
prior to or at the date of the requested Advance.
10. Capitalized terms not otherwise defined herein shall have the meaning
given to them in the Agreement.
BORROWER
---------------------------------------
By:
------------------------------------
Type/Print Name:
-----------------------
Title:
---------------------------------
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EXHIBIT G-4
CHECK SHEET FORM
________________________________ CONSTRUCTION DRAW NO. ______________
1. TOTAL COMPLETED & STORED TO DATE $_________________
LESS RETAINAGE $_________________
TOTAL COMPLETED LESS RETAINAGE $_________________
LESS PREVIOUS PAYMENTS $_________________
CURRENT PAYMENTS DUE $_________________
2. WORK COMPLETED THIS APP. (WORK IN PLACE) $_________________
WORK COMPLETED THIS APP. (STORED MATERIALS) $_________________
INCREASE IN RETAINAGE - CURRENT PERIOD $_________________
AMOUNT OF DISBURSEMENT $_________________
3. TOTAL OF BORROWER/
GENERAL CONTRACTOR CHECKS $_________________
4. PREVIOUS APPLICATIONS $_________________
PLUS WORK IN PLACE $_________________
PLUS STORED MATERIALS $_________________
TOTAL COMPLETED & STORED TO DATE (A) $_________________
SCHEDULED VALUE (B) $_________________
PERCENTAGE COMPLETED (A) DIVIDED BY (B) $_________________
SCHEDULED VALUE $_________________
MINUS TOTAL COMPL. & STORED TO DATE $_________________
BALANCE TO FINISH $_________________
State/Commonwealth of ____________________
County of __________, to wit:
Subscribed and sworn to before me on
this _____ day of _____________, _____.
----------------------------------
Notary Public
My commission expires:
----------------------
(Notary Seal)
67
EXHIBIT G-5
WAIVER OF LIEN
68
EXHIBIT G-6
AIA FORM G714
69
EXHIBIT I
CERTIFICATE AND AGREEMENT OF BORROWER
REGARDING CONSTRUCTION-RELATED MATTERS
The undersigned ("Borrower"), in order (A) to induce FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), to make or commit to make a loan
("Development Loan") in a maximum principal amount not to exceed _______________
$________________ pursuant to the Amended and Restated Credit Facility Agreement
between such parties dated as of April 16, 1998 (with any amendments,
"Agreement") and (B) to satisfy certain conditions precedent to the initial
Advance of the Subject Development Loan, hereby represents, warrants, covenants
and agrees with Lender as follows:
1. Except as otherwise defined herein or the context otherwise requires,
all capitalized terms used herein have the meaning given to them in the
Agreement.
2. Borrower represents and warrants to Lender as follows with respect
to the Subject Development Loan and related matters:
(a) ADEQUACY OF PRINCIPAL WORK-RELATED ITEMS. The Principal
Work-Related Items delivered to Lender for the related Work are
adequate, and will continue at all times to be adequate, for
Completion of the related Work. The Principal Work-Related Items
delivered to Lender for the related Work in full force and effect
at all times necessary to assure Completion of the related Work; no
third party bound thereby is in default of its obligations
thereunder or has threatened to terminate Borrower's rights
thereunder; Borrower has paid all sums and performed all other
obligations it has under them; and no third party bound thereby has
any defense to the enforcement of Borrower's rights thereunder.
Except as disclosed to Lender in writing, no moratorium or other
legal impediment exists or, to the knowledge of Borrower, is
threatened with respect to the issuance of any permit or approval
necessary to use the related Improvements for the intended purposes
upon Completion of the related Work.
(b) ADEQUACY OF CONSTRUCTION BUDGET. Borrower will cause the related
Construction Budget to accurately and completely set forth the
types and estimated maximum amounts of all costs which must be
incurred for Completion of the related Work to occur.
(c) ADEQUACY OF STREETS AND UTILITIES. All streets, easements, and
utilities (including potable water, storm and sanitary sewer, gas,
electric, telephone and cable television facilities and garbage
removal) necessary for the Completion of the related Work and use
of the Real Property which is the subject of the Subject
Development Loan for the purposes have been completed, paid for in
full and are available at the boundaries of such Real Property; or
they are being constructed as part of the related Improvements and
upon Completion of the related Work, will be completed, paid for in
full, located within the Real Property which is the subject of the
Subject Development Loan, and adequate for the intended use of such
Real Property. All water and sewer treatment plants and power
generation
-4-
70
facilities intended to serve the related Improvements have been
constructed and are operational; and upon Completion of the related
Work, will have adequate capacity and size to serve the intended
use of the related Improvements.
(d) STATUS OF WORK; BREAK IN PRIORITY. No work, equipment, materials or
services of any kind that may give rise to any mechanics or similar
statutory lien (whether for work performed prior to or after
recordation of the related Mortgage) which will have priority over
the lien of the related Mortgage, including, without limitation,
the destruction or removal of existing related Improvements, site
work, cleaning, curbing, draining or fencing of the Real Property
which is the subject of the Subject Development Loan, has been or
will be performed or commenced on the Real Property which is the
subject of the Subject Development Loan prior to recordation of the
related Mortgage. Lender may waive such condition in its
discretion; and as a condition precedent to such waiver, such work,
equipment, materials, services or work of any kind has been
performed or provided with respect to the Real Property which is
the subject of the Subject Development Loan that may give rise to
any mechanics or similar statutory lien which will have priority to
the lien of the related Mortgage (including, without limitation,
the destruction or removal of existing Improvements, site work,
clearing, grubbing, draining or fencing of the Real Property which
is the subject of the Subject Development Loan), such work,
equipment, materials and services must be fully disclosed in
writing to Lender and the applicable Title Insurer prior to
recordation of the related Mortgage, such work, equipment,
materials and services must be satisfactory to Lender and Lender's
Inspector, and the applicable Title Insurer must insure the
priority of the related Mortgage over all such liens.
3. Borrower covenants and agrees with Lender that Borrower will in
connection with the related Work:
(a) cause the progress of the Work to occur in substantial compliance
with the related Work Progress Schedule, subject to Force Majeure
Events, all in accordance with the related Plans and
Specifications, related Construction Contract(s), Legal
Requirements, the Documents, sound construction engineering and
architectural principles and commonly accepted safety standards,
lien free and free from defective materials and workmanship; and
cause Completion of the Work to occur on or before _____________
______________________________________ ("Required Completion
Date").
(b) (i) pay when due all costs, expenses and claims pertaining to the
Work; (ii) deliver to Lender during the course of the Work in order
to monitor and/or provide assurance that the Work is proceeding
lien free in accordance with the related Plans and Specifications,
the related Construction Contract(s), Legal Requirements, the
Documents, sound construction, engineering and architectural
principles and commonly accepted safety standards: bills of sale,
conveyances and paid invoices pertaining to the Work; all waivers
and releases of lien or claims on the Real Property which is the
subject of the Subject Development Loan and/or the related
Improvements in connection with the Work which Lender may determine
to be necessary or may otherwise
-5-
71
reasonably request for its protection; from persons acceptable to
Lender, additional engineering or architectural studies and reports
as Lender or Lender's Inspector may reasonably require in
connection with the Work; and (iii) record all notices of
commencement/completion and similar notices permitted by Legal
Requirements which have the effect of shortening periods within
which mechanics and similar liens may be filed;
(c) allow Lender, Lender's Inspector and/or its agents and employees to
inspect the Real Property which is the subject of the Subject
Development Loan and the Work at all reasonable times, with the
costs of such inspections to be borne by Borrower;
(d) not enter into any related Architect/Engineer Agreement or related
Construction Contract except upon terms and with such parties as
Lender may approve in writing, such approval not to be unreasonably
withheld;
(e) deliver all related Principal Work-Related Items to Lender promptly
after obtaining them (or at such earlier time as may be required
pursuant to Article IV of the Agreement);
(f) not amend any of the related Principal Work-Related Items except
for change orders which (i) do not change the cost of Completion of
the Work by more than Ten Thousand Dollars ($10,000) individually
or Fifty Thousand Dollars ($50,000) in the aggregate beyond that
shown in the related Construction Budget as originally approved by
Lender, and (ii) do not affect the design, structural integrity or
quality of the related Improvements;
(g) perform all its obligations and preserve its rights under the
related Principal Work- Related Items and secure the performance of
the other parties to the related Principal Work-Related Items;
(h) deliver to Lender: (i) promptly after the pouring of a street,
material curbstone or material slab in close proximity to the
property lines of adjacent real property or the completion of
construction of a foundation for any building forming part of the
related Improvements, a survey for the Real Property which is the
subject of the Subject Development Loan certified to Lender and the
Title Insurer by a licensed surveyor or engineer acceptable to
Lender (A) showing such improvement and that the location thereof
is entirely within the property lines of the Real Property which is
the subject of the Subject Development Loan and does not encroach
upon, breach, or violate any set back line easement or similar
restriction and (B) meeting ALTA standards and other reasonable
requirements of Lender and the applicable Title Insurer; promptly
after substantial completion of the related Improvements, a survey
certified to Lender and the applicable Title Insurer by a licensed
surveyor or engineer acceptable to Lender, showing all Improvements
"as built" and otherwise meeting the criteria of items (i)(A) and
(i)(B) of this paragraph;
-6-
72
(i) deliver to Lender: prior to each related Work-Related Advance, at
Lender's option, an endorsement ("date down endorsement") issued by
the applicable Title Insurer to the Title Policy insuring the
related Mortgage insuring Lender against any loss by reason of
defects in, mechanic's or similar statutory liens upon or
unmarketability of the title to the Real Property which is the
subject of the Subject Development Loan, as well as insuring that
the related Mortgage, at the time of each related Work-Related
Advance, constitutes a valid first lien upon such Real Property,
subject only to the Permitted Encumbrances; promptly after the
construction of the foundation for any building forming part of the
related Improvements, an endorsement insuring that such foundation
is located on the Real Property which is the subject of the Subject
Development Loan within all side and set-back lines and does not
encroach upon any easements, rights-of- way (public or private) or
upon any adjoining landowner's property; and promptly after
substantial completion of the related Improvements has occurred, an
endorsement insuring that the related Improvements are located upon
the Real Property which is the subject of the Subject Development
Loan within all side and set-back lines and do not encroach upon
any easements, rights-of-way (public or private) or upon any
adjoining landowner's property; and upon Completion of the Work, a
date down endorsement;
(j) after obtaining knowledge or receiving notice thereof, correct or
cause to be corrected (i) any material defect in the Work, (ii) any
material departure in the completion of the Work from the related
Plans and Specifications or the related Construction Contract(s)
(unless expressly permitted in this Agreement or consented to in
writing by Lender), any Legal Requirements, sound, construction,
engineering or architectural principles or commonly accepted safety
standards or (iii) any encroachment of any part of the related
Improvements on any building line, easement line or restricted
area, or any adjacent landowner's property;
(k) promptly deliver to Lender any and all notices received by Borrower
that it is not complying with Legal Requirements pertaining to the
Work or that the Work is not being completed in accordance with the
related Plans and Specifications, the related Construction
Contract(s), sound construction, engineering and architectural
principles and commonly accepted safety standards;
(l) if at any time there exists or appears likely to exist any
Uncovered Cost of the Work, Borrower will notify Lender within
fifteen (15) Business Days (and in any event prior to the next
Advance) after obtaining knowledge thereof; within the earlier of
such fifteen (15) Business Day period or fifteen (15) Business Days
after Lender's demand that it do so, Borrower will deliver to
Lender the Required Completion Assurance Deposit; in the event of
any dispute, the necessity for and amount of the Required
Completion Assurance Deposit shall be determined by Lender; the
Required Completion Assurance Deposit may be deposited in a
non-interest-bearing account and need not be segregated from any of
Lender's other funds, provided that Lender will disburse the
Required Completion Assurance Deposit to pay and/or reimburse
Borrower for the costs of the Work prior to any further
disbursement of the Subject Development Loan for such purpose, but
subject to the terms and conditions of this Agreement
-7-
73
pertaining to the disbursement of Subject Development Loan
Advances; and Lender is hereby granted a security interest in all
Required Completion Assurance Deposits, together with interest
accruing thereon, from time to time held by Lender;
(m) cause all materials supplied for or intended to be utilized in the
Completion of the Work, but previously not affixed to or
incorporated into the Improvements, to be stored on the Real
Property which is the subject of the Subject Development Loan with
adequate safeguards, as reasonably required by Lender, to prevent
loss, theft, damage or commingling with other materials; and
(n) promptly after receipt by Borrower (but in no event later than the
Required Completion Date), deliver to Lender copies of all
marketing contracts, management contracts, service contracts,
operating agreements, equipment leases and any and all other
contracts, agreements, licenses and permits (including, without
limitation, certificates of acceptance and occupancy related to the
Work) as are necessary or desirable for the sale, operation and
intended time-share use and use of the Real Property which is the
subject of the Development Loan.
DATED: ______________________, _____.
BORROWER: _______________________________________,
a _____________________________ corporation
By:
--------------------------------------
Type/Print Name:
-------------------------
Title:
------------------------------------
ACCEPTED:
FINOVA CAPITAL CORPORATION
By:
--------------------------------
Type/Print Name:
-------------------
Title:
-----------------------------
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74
EXHIBIT J
CERTIFICATE AND AGREEMENT
OF SUBSIDIARY BORROWER (BASIC)
The undersigned ("Borrower"), in order (A) to induce FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender"), to make or commit to make a loan
("Subject Loan") in a maximum principal amount not to exceed $________________
pursuant to the Amended and Restated Credit Facility Agreement between such
parties dated as of April 16, 1998 (with any amendments, "Agreement") and (B) to
satisfy certain conditions precedent to the initial Advance of the Subject Loan,
hereby represents, warrants, covenants and agrees with Lender as follows:
1. Except as otherwise defined herein or the context otherwise requires,
all capitalized terms used herein have the meaning given to them in the
Agreement.
2. Borrower represents, warrants and covenants to and for the benefit
of Lender as follows:
(a) INCORPORATION OF PROVISIONS OF AGREEMENT. Borrower agrees to be
bound by all the terms and conditions of the Agreement applicable generally to
Loans and Advances in connection with the Subject Loan, Borrower and the
Documents, all of which are herein incorporated by this reference.
(b) GOOD STANDING. Borrower is and will remain duly organized, validly
existing and in good standing under the laws of the state of its organization;
and is qualified to do business and in good standing in each jurisdiction in
which the location or nature of its properties or its business makes such
qualification necessary. Borrower has full authority to Perform its Obligations
and to carry on its business and own its property.
(c) POWER AND AUTHORITY; ENFORCEABILITY. Borrower has and will maintain
full power and authority to grant the Security Interest in the Real Property
which is the subject of the Subject Loan and the Personal Property related to
such Real Property, to execute Subject Loan and to Perform its Obligations under
such Documents. All action necessary and required by the Articles of
Organization of Borrower and all applicable laws for the obtaining of the
Advance and for the execution and delivery of the Documents required of it in
connection with the Advance has been duly and effectively taken. The Documents
are and shall be legal, valid, binding and enforceable against it and do not
violate the Applicable Usury Law or constitute a default or result in the
imposition of a lien under the terms or provisions of any agreement to which it
is a party. No consent of any governmental agency or any other person not a
party to the Agreement is or will be required as a condition to the execution,
delivery or enforceability by or against it of the Documents required of it in
connection with the Advance.
(d) NO LITIGATION. There is no action, litigation or other proceeding
pending or, to Borrower's knowledge, threatened before any arbitration tribunal,
court, governmental agency or administrative body against Borrower, which might
materially adversely affect the Performance of its Obligations, the business or
financial condition of Borrower, or the ability of Borrower to Perform its
Obligations. Borrower will promptly notify Lender if any action, litigation or
proceeding is pending or threatened
75
against it, which might materially, adversely affect the Collateral given under
the Security Documents required of it in connection with the Subject Loan, the
business or financial condition of Borrower, or the ability of Borrower to
Perform its Obligations.
(e) COMPLIANCE WITH LAWS. Borrower has complied, and will comply, with
all applicable laws and regulations where the failure to do so might materially,
adversely affect the Collateral, the business or financial condition of Borrower
on the ability of Borrower to perform its Obligations.
(f) RESTRICTIONS ON TRANSFERS, LIENS AND CHANGE OF CONTROL. Borrower is
a wholly-owned subsidiary of Bluegreen Corporation, a Massachusetts corporation.
Unless expressly permitted in the Agreement or in any of the Security Documents,
Borrower without the prior written consent of Lender: (i) sell, convey, pledge,
hypothecate, encumber or otherwise transfer any Collateral given under the
Security Documents required of it in connection with the Subject Loan; (ii)
permit or suffer to exist any liens, security interests or other encumbrances on
any Collateral given under the Security Documents required of it in connection
with the Subject Loan, except for Permitted Encumbrances and liens and security
interests expressly granted to Lender; (iii) permit or suffer the sale, lease,
transfer or disposal of all or substantially all of its assets to another
entity; or (iv) permit or suffer to exist any transfer of ownership interests in
or control of such entity.
(g) NO MISREPRESENTATIONS. The Documents and all certificates,
financial statements and written materials furnished to Lender by or on behalf
of Borrower in connection with the Subject Loan do not and will not contain any
untrue statement of a material fact or omit to state a fact which materially
adversely affects or in the future may materially adversely affect the
Collateral given under the Security Documents required of it in connection with
the Subject Loan or the business or financial condition of Borrower.
(h) RELIANCE. Lender's examination, inspection or receipt of
information pertaining to the Collateral given under the Security Documents
required of it in connection with the Subject Loan shall not in any way be
deemed to reduce the full scope and protection of the warranties,
representations and Obligations contained in the Documents required of it in
connection with the Subject Loan.
(i) RIGHT TO INSPECT. Borrower will permit Lender and its
representatives at all reasonable times to inspect, audit and copy, as
appropriate, the Collateral given under the Security Documents required of it in
connection with the Subject Loan, and their respective records.
(j) ADDITIONAL INFORMATION. Borrower will make available to Lender such
further information as Lender may from time to time reasonably request.
(k) SUBORDINATION OF INDEBTEDNESS. Borrower will cause any and all
indebtedness owing by it to its shareholders, directors or officers, Parent, or
the Affiliates of Borrower or the foregoing and all liens, security interests
and other charges on the assets of Borrower, including, without limitation, the
Collateral granted under the Security Documents required of it in connection
with the Subject Loan, to be fully subordinated in all aspects to the
Obligations of Borrower pursuant to written agreements satisfactory to Lender;
PROVIDED, HOWEVER, that such subordination shall not extend to reasonable
salaries and fees at normal and customary rates for services actually rendered
or, if neither
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76
an Event of Default nor an Incipient Default is outstanding, to payments or
distributions of any kind to Parent. Any such creditor shall execute a
subordination agreement in form and substance satisfactory to Lender.
(l) NO DEFAULT FOR THIRD PARTY OBLIGATIONS. Borrower is not in default
under any other agreement evidencing, guaranteeing or securing borrowed money or
a receivables purchase financing involving an obligation in excess of the
Threshold Amount to make a payment of principal or interest or to repurchase
receivables or any other material default by Borrower permitting the
acceleration of the payment or repurchase obligations of Borrower, which payment
or repurchase obligations entitled to be accelerated are in excess of the
Threshold Amount in the aggregate. Borrower is not in violation of or in default
under any material term in any other material agreement, instrument, order,
decree or judgment of any court, arbitration or government authority to which it
is a party or by which it is bound.
(m) PAYMENT OF TAXES. Borrower has filed all tax returns, and Borrower
has paid or will pay all taxes, assessments, levies and penalties, if any,
required to be filed by it or paid by it to any governmental or
quasi-governmental authority or subdivision, including real estate taxes and
assessments relating to the Collateral granted under the Security Documents
required of it in connection with the Subject Loan, unless and only to the
extent the item shall be contested in good faith and by appropriate proceedings
by Borrower, Borrower shall set aside and cause on its books adequate reserves
with respect to the contested item and, in connection with any tax assessment,
levy or penalty levied against the Collateral, Borrower shall comply with the
terms of Security documents pertaining to such contest.
(n) CREDIT FACILITY MODIFICATION FEE AND OTHER FEES AND EXPENSES.
Borrower will pay to Lender the Credit Facility Modification Fee Installment
Payment (if any) payable in connection with the initial Advance of the Subject
Loan pursuant to the terms of the Agreement. Borrower will pay on demand any and
all reasonable costs and expenses incurred by Lender in connection with the
initiation, documentation and closing of the Subject Loan, the making of the
Subject Loan, the protection of the Collateral granted by it under the Documents
required of it in connection with the Subject Loan, or the enforcement of
Borrower's Obligations under the Documents against Borrower, including, without
limitation: all reasonable attorneys' (except as provided in the following
sentence) and other professionals' fees and charges (including, without
limitation, normal charges for photocopy, telecopy and computer services); the
costs of credit reports and UCC, lien, litigation, judgment and bankruptcy
searches, and revenue, documentary stamp and intangible taxes.
(o) INDEMNIFICATION. Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS,
and defend Lender, its successors, assigns and shareholders (including corporate
shareholders), and the directors, officers, employees, agents and servants of
the foregoing, for, from and against, except to the extent arising from the
indemnitee's gross negligence or willful misconduct, any and all losses, costs,
expenses (including, without limitation, court costs and attorneys' fees),
demands, claims, suits, proceedings (whether civil or criminal), orders,
judgments, penalties, fines and other sanctions arising from or brought in
connection with (a) any of the Collateral granted by it under the Documents
required of it in connection with the Subject Loan, the terms of the Documents
required of it in connection with the Subject Loan or the transactions related
thereto, or any act or omission of Borrower or its employees or agents, whether
actual or alleged, and (b) any and all brokers'
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77
commissions or finders' fees or other costs of similar type by any party,
engaged by Borrower in connection with the Subject Loan. On written request by a
person or other entity covered by the above agreement of indemnity, Borrower
will undertake, at its own cost and expense, on behalf of such indemnitee, using
counsel satisfactory to the indemnitee, the defense of any legal action or
proceeding to which such person or entity shall be a party and for which such
indemnitee is entitled to be indemnified pursuant to this paragraph. At Lender's
option, Lender may at Borrower's expense prosecute or defend any action
involving the priority, validity or enforceability of the Security Interests.
(p) PERFECTION OF SECURITY INTERESTS. Borrower will execute or cause to
be executed all documents, and do or cause to be done all acts, reasonably
necessary for Lender to perfect and to continue the perfection of the Security
Interest of Lender in the Collateral required of it or otherwise to effect the
intent and purposes of the Documents required of it.
(q) SURVIVAL AND ADDITIONAL REPRESENTATIONS. The representations,
warranties and covenants contained in this Certification and Agreement are in
addition to, and not in derogation of, the representations and warranties
contained elsewhere in the Documents required of it in connection with the
Subject Loan; and the representations and warranties contained herein and
elsewhere in the Documents required of it in connection with the Subject Loan
shall be deemed to be made and reaffirmed prior to the making of each Advance
under the Subject Loan.
DATED: ______________________, _____.
BORROWER: ________________________________________, a
________________________________
By:
----------------------------------------
Type/Print Name:
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Title:
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ACCEPTED:
FINOVA CAPITAL CORPORATION
By:
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Type/Print Name:
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Title:
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78
EXHIBIT K
STANDARD PROCEDURES PERTAINING TO
DEVELOPMENTAL MATTERS REQUESTS
A. If a Borrower desires Lender to give its consent to or to take any
other action concerning a matter affecting the zoning, platting, development or
sale of or title to such Borrower's Real Property, then such Borrower will
endeavor to deliver to Lender a written request ("Developmental Matters
Request") at least fifteen (15) Business Days prior to the date such Borrower
desires Lender to take such action.
B. The Developmental Matters Request shall contain in reasonable detail
the following: (1) a description of the action which the Borrower desires Lender
to take; (2) the date by which the Borrower desires that Lender take the action
and any special factors affecting the Borrower's desire that Lender take the
requested action by such date (such as the desire to present an amended plat to
a governmental entity on a scheduled hearing date and the length of time before
another hearing date can be scheduled); (3) the reason that the Borrower desires
the action to be taken by Lender, a description as to how the matter which is
the subject of the request for Lender's action alters the plan required to be
given by the Borrower to Lender pursuant to paragraph 4.2(b) of this Agreement
regarding the use, development or sale of the subject Real Property; and (4) a
description of any amendments or waivers required with respect to the Documents.
At the same time, it delivers the Developmental Matters Request to Lender, the
Borrower will also endeavor to deliver to Lender at least two (2) copies of all
items as would be reasonably required by a reasonable and prudent lender in
order to evaluate the request. The Borrower will in any event promptly deliver
to Lender any information which Lender may reasonably request concerning the
Developmental Matters Request.
C. To the extent Lender's consent is requested to a plat, a plat
amendment or covenants, conditions and restrictions affecting Real Property,
such consent shall specifically state, in addition to such other matters as
Lender may require, that nothing contained in the consent shall otherwise
affect, alter, or modify in any manner whatsoever the terms of the Mortgage on
the Real Property, that the lien of the Mortgage shall be prior to the lien for
all assessments, and that execution of the consent by the Lender is not intended
to and shall not diminish the obligation of the Borrower under the Mortgage,
excuse the Borrower from any liability for failure to perform any such
obligation, or impair any of the Lender's rights against the Borrower under the
Mortgage.
D. Notwithstanding the provisions of paragraph 8.5, a Developmental
Matters Request and all items delivered to Lender in connection therewith shall
be addressed to :
FINOVA CAPITAL CORPORATION
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx-Xxxxxx
Telecopy No.: (000) 000-0000
79
E. The provisions of paragraphs 6.15 and 8.14 of the Agreement shall be
applicable to each Developmental Matters Request.
F. The procedures set forth in this Exhibit shall not apply to a
request for a Partial Release of a Release Parcel or to obtain Advances, the
procedures for which are set forth elsewhere in this Agreement.
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