SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
("Amendment") is made and entered into this 24th day of March, 1997, by and
between BLUEGREEN CORPORATION, f/k/a XXXXXX CORPORATION, a Massachusetts
corporation, with its chief executive office located at 0000 Xxxx Xxxxxx Xxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Bluegreen") , BLUEGREEN CORPORATION OF
THE ROCKIES, f/k/a XXXXXX CORPORATION WEST, a Delaware corporation, with its
chief executive office located at 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 ("Bluegreen/Rockies") and FOOTHILL CAPITAL CORPORATION, a
California corporation, with a place of business located at 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 ("Foothill"), and is
made with reference to the following facts:
W I T N E S S E T H:
WHEREAS, on or about October 29, 1993, Foothill and Bluegreen
entered into that certain Loan and Security Agreement which provided for
borrowings from time to time by Bluegreen and pledges of various security
interests to secure the repayments of such borrowings, all on the terms and
conditions set forth therein; and
WHEREAS, on or about December 23, 1993, Bluegreen and Foothill entered into that
certain First Amendment to Loan Agreement; and
WHEREAS, on or about February 16, 1995, Bluegreen and Foothill entered into that
certain Amendment. No. Two to the Loan and Security Agreement: Xxxxxx
Corporation; and
WHEREAS, on or about March 28, 1995, Bluegreen and Foothill entered into that
certain Amendment No. Three to the Loan and Security Agreement: Xxxxxx
Corporation; and
WHEREAS, on or about June 15, 1995, Bluegreen and Foothill entered into that
certain Amendment No. Four to the Loan and Security Agreement: Xxxxxx
Corporation ("Fourth Amendment"); and
WHEREAS, on or about June 26, 1995 Bluegreen, Bluegreen/Rockies and Foothill
entered into that certain Fourth [sic] Amendment to Loan and Security
Agreement ("Fifth Amendment"); and
WHEREAS, on or about March 8, 1996 Bluegreen, Bluegreen/Rockies and Foothill
entered into that certain Sixth Amendment to Loan and Security Agreement
("Sixth Amendment"; The Loan Agreement, as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, and the Sixth Amendment is hereafter referred to as the "Loan
Agreement"); and
WHEREAS, Bluegreen, Bluegreen/Rockies, and Foothill desire to amend the Loan
Agreement on the terms and conditions specifically set forth herein,
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. The definition of "Loan Documents" in Section 1.1 of the Loan Agreement is
deleted in its entirety and the following substituted in its place and stead:
"Loan Documents" means this Agreement, the Pledge Agreement, the Lock Box
Agreements, the Mortgages, the Term Note, the C-Term Note, any other note or
notes executed by Borrower and payable to Foothill, and any other agreement
entered into in connection with this Agreement."
2. The definition of "Note Mortgages" in Section 1.1 of the Loan
Agreement is deleted in its entirety and the following substituted in its place
and stead:
"Note Mortgage(s)" means those certain deeds of trust, mortgages or
security interests encumbering certain real property, which serves as collateral
for the repayment of the Pledged A Notes, the Pledged B Notes, and the Pledged C
Notes."
3. The definition of "Obligations" in Section 1.1 of the Loan Agreement is
deleted in its entirety and the following substituted in its place and stead:
"Obligations" means all loans, advances, debts, principal, interest
(including any interest that, but for the provisions of the Bankruptcy Code,
would have accrued), premiums, liabilities (including all amounts charged to
Borrower's loan account pursuant to any agreement authorizing Foothill to charge
Borrower's loan account), obligations, fees (including Early Termination
Premiums), lease payments guaranties, covenants, and duties owing by
Borrower to Foothill of any kind and description (whether pursuant to or
evidenced by the Loan Documents, by any note or other instrument (including the
Term Note and the Term-C Note), or pursuant to any other agreement between
Foothill and Borrower, and irrespective of whether for the payment of money),
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including all interest not paid when due and
all Foothill Expenses that Borrower is required to pay or reimburse by the Loan
Documents, by law, or otherwise."
4. The definition of "Pledged Notes (s)" in Section 1.1 of the Loan
Agreement is deleted in its entirety and the following substituted in its
place and stead: "Pledged Note(s)" means collectively the Pledged A Notes, the
Pledged B Notes, and the Pledged C Notes."
5. A new definition is added to Section 1.1 of the Loan Agreement as
follows:
"Pledged C Notes" means all of the notes and other evidences of
indebtedness, along with all security securing the repayment of same (including
the Mortgages), which are more particularly described in Schedule PN-C attached
hereto and incorporated by reference hereby."
6. A new definition is added to Section 1.1 of the Loan agreement as
follows:
"Term-C Note" has the meaning set forth in Section 2.3 hereof."
7. Section 2.3 of the Loan Agreement is deleted in its entirety and the
following substituted in its place and instead:
2.3 Term Loan. Foothill has agreed to make:
(a) a term loan to Borrower in the original principal
amount of Eight Hundred Fifty Thousand Three Hundred Eleven Dollars and
Thirty-eight Cents ($850,311.38) Dollars, to be evidenced by and
repayable
in accordance with the terms and conditions of a
promissory note (the "Term Note"), of even date herewith, executed by
Borrower in favor of Foothill. All amounts evidenced by the Term Note
shall constitute Obligations; and
(b) a term loan to Borrower in the original principal
amount of Seven Hundred and Forty-One Thousand Dollars ($741,000), to
be evidenced by and repayable in accordance with the terms and
conditions of a promissory note (the "Term-C Note"), of even date
herewith, executed by Borrower in favor of Foothill. All amounts
evidenced by the Term Note shall constitute obligations."
8. Section 2.4 (f) of the Loan Agreement is deleted in its entirety and
the following substituted in its place and stead:
"In no event shall the interest rate or rates payable under this
Agreement,, the Term Note, or the Term-C Note, plus any other amounts paid in
connection herewith, exceed the highest rate permissible under any law that a
court of competent jurisdiction shall, in a final determination, deem
applicable, Borrower and Foothill, in executing this Agreement, the Term Note,
and the Term-C Note intend to legally agree upon the rate or rates of interest
and manner of payment stated within it; provided, however, that, anything
contained herein or in the Term-C Note or the Term Note to the contrary
notwithstanding, if said rate or rates of interest or manner of payment exceeds
the maximum allowable under applicable law, then, ipso facto as of the date of
this Agreement, the Term-C Note, and the Term Note, Borrower is and shall be
liable only for the payment of such maximum as allowed by law, and payment
received from Borrower in excess of such legal maximum, whenever received, shall
be applied to reduce the principal balance of the Obligations to the extent of
such excess."
9. A new Section 2.4 (g) shall be added to the Loan Agreement as follows:
"(g) Principal Reductions on the Term-C Note. In addition to the interest
payable on the Term-C Note, in accordance with the terms hereof, Borrower shall
reduce the outstanding principal balance on the Term-C Note in accordance with
the schedule set forth on Schedule 2.4(g) (1) attached hereto and incorporated
by
reference hereby. Should Borrower and Foothill agree to extend the Maturity
Date on or before June 30, 1997, the reduction schedule for the outstanding
principal balances shall be adjusted accordingly. Thus, by way of example, if
the Maturity Date is extended by five (5) years, Schedule 2.4(g)(1) would be
amended to reflect the figured set forth on Schedule 2.4(g) (2) attached hereto
and incorporated by reference hereby."
10. There are added new Sections 4.6 (vi) and 4.6 (vii) of the Loan
Agreement as follows:
(vi) with respect to payment received on the Pledged C Notes, to payment of
interest on the Term-C Note set forth in Section 2.3 hereof, then, the balance,
if any, to;
(vii) the Pledged C Notes, I.-o payment of principal on the Term-C Note set
forth in Section 2.3 hereof, then, the balance if any to pay off other
obligations in the manner decided by Foothill."
11. There shall be added a new Section 6.15 which reads as follows:
6.15 Within thirty (30) days of the funding of the Term-C Note, Borrower
shall deliver to Foothill the following:
(a) Conformed copies of the recorded assignments of
the Note Mortgages for the Pledged C Notes, which such assignments
assign the beneficial or mortgagee's interest in such Note Mortgages to
Foothill;
(b) A conformed copy of that certain Mortgage,
Assignment of Rents, Security Agreement and Fixture Filing encumbering
that certain real property owned by Bluegreen and which is the subject
of that certain Land Sale Contract dated as of September 18, 1995
entered into between Bluegreen and Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxx
("NY Mortgage");
(c) A 1970 ALTA form Lenders policy of title
insurance, in form and substance satisfactory to Foothill, insuring the
lien of the NY Mortgage; and
(d) the original policies of title insurance
insuring the Note Mortgages for the Pledged C Notes set
forth on Schedule PN-C2, along with a CLTA form 104.4 endorsement, in
form and substance satisfactory to Foothill."
12. In accordance with Section 7,5 of the Loan Agreement,
Foothill consents for one time only to the name change of Xxxxxx Corporation
West to BLUEGREEN CORPORATION OF THE ROCKIES,
13. Except as expressly modified herein, the Loan Agreement
remains in full force and effect and is reaffirmed by the parties hereto.
This agreement may be executed in counterparts, and by telefacsimile
signature. The delivery by either party of a telefacsimile signature
on any counterpart
shall fully bind such signatory, to the same extent as if an original signature
were delivered.
"Bluegreen"
BLUEGREEN CORPORATION
f/k/a XXXXXX CORPORATION,
a Massachusetts corporation
By
"Bluegreen/Rockies"
BLUEGREEN CORPORATION OF THE
ROCKIES,
a Delaware corporation
By
"Foothill:
FOOTHILL CAPITAL CORPORATION,
a California corporation
By
Ben Silver
NOTICE TO BORROWER:
THIS DOCUMENT CONTAINS PROVISIONS FOR INTEREST RATE AND PAYMENT AMOUNT
ADJUSTMENTS
SECURED PROMISSORY NOTE
$741,000,00 March 24, 1997
1. FOR VALUE RECEIVED, the undersigned BLUEGREEN CORPORATION, f/k/a XXXXXX
CORPORATION, a Massachusetts corporation, with its chief executive office
located at 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
"Bluegreen") and BLUEGREEN CORPORATION OF THE ROCKIES, f/k/a XXXXXX
CORPORATION WEST, a Delaware corporation, with its chief executive office
located at 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000
("Bluegreen/Rockies": Bluegreen and Bluegreen/Rockies are sometimes
hereinafter jointly and severally referred to as "Maker") hereby promise to
pay to the order of FOOTHILL CAPITAL CORPORATION, a California corporation
(hereinafter "Lender"),, as hereinafter provided, in such coin or currency
of the United States which shall be legal tender in payment of all debts
and dues, public and private, at the time of payment, the principal sum of
SEVEN HUNDRED FORTY-ONE THOUSAND DOLLARS ($741,000.00) (the "principal
sum') together with interest thereon from the date advanced until paid, in
accordance with the provisions of that certain Loan and Security Agreement
dated October 29, 1993 entered into between Maker and Lender, as amended by
those certain Seven (7) amendments thereto ("Loan Agreement").
2. The principal sum, interest rate, and default rate of interest shall be due
and payable in accordance with the terms of the Loan Agreement.
3. In no contingency or event whatsoever, whether by reason of advancement of
the proceeds hereof, or otherwise shall the amount paid or agreed to he
paid to Lender for the use,, forbearance, or detention of the money
advanced or to be advanced hereunder exceed the highest lawful rate
permissible under any law which a court of competent jurisdiction may deem
applicable hereto. If any amount is received in excess of such highest
lawful rate, such amount shall be applied by Lender in reduction of the
principal sum.
4. Maker, for itself and its legal representatives, successors and assigns,
expressly waives presentment, demand, protest, notice of dishonor, notice
of non-payment, notice of maturity, notice of protest, presentment for the
purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption under the homestead exemption laws, if any, or any other
exemption or insolvency laws, and consents that Lender may release or
surrender, exchange or substitute any real estate and/or personal property
or other collateral security now held or which may hereafter be held as
security for the payment of this Note, and may extend the time.
for payment or otherwise modify the terms of the payment of any part or
the whole of the debt evidenced hereby.
5. This Note is secured by, inter alia, the Loan Agreement and the other
documents and Collateral set forth therein ("Security Documents") . All of
the terms, covenants, and conditions of the Security Documents and all
other instruments evidencing and/or securing the indebtedness evidenced by
this Note are hereby made a part of this Note and are deemed incorporated
herein in full. Any default in any of the conditions, covenants,
obligations, or agreements contained in this Note, the Security Documents
or any other instruments securing and/or evidencing the indebtedness
evidenced by this Note shall constitute a default under this Note and shall
entitle Lender to accelerate the entire indebtedness evidenced by this Note
and take such other action as may be provided for in the Security
Documents,
6. Maker agrees to pay all charges incident to, arising out of or in
connection with the preparation, execution, delivery and enforcement of
this Note, including, without limitation, all attorneys' fees and
disbursements incurred by Lender, whether incurred prior to litigation, or
in litigation at trial, arbitration or on appeal and all expenses,
including, without limitation, attorneys' fees and disbursements incident
to the enforcement of payment of this Note, by any action or participation
in, or in connection with, a case or proceeding under Chapters 7 or 11 of
the Bankruptcy Code or any successor statute thereto.
7. THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW,
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
OR, AT THE SOLE OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL
INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER
JURISDICTION OVER THE MATTER IN CONTROVERSY. EACH OF MAKER AND LENDER
WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW ANY RIGHT EACH MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE
TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION,
MAKER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON
LAW OR STATUTORY CLAIMS. MAKER AND LENDER REPRESENT THAT EACH HAS REVIEWED
THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION A
COPY OF THE AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
8. This Note and the indebtedness evidenced hereby shall be governed by the
laws of the state of California.
9. This Note may be executed and delivered by telefacsimile signature. The
delivery by Maker of a telefacsimile signature on a copy of this Note shall
fully hind each signatory, to the same extent as if an original signature
were delivered.
IN WITNESS WHEREOF, Maker has executed and delivered this Note on the day
and year first above written,
"MAKER"
"Bluegreen"
BLUEGREEN CORPORATION,
f/k/a XXXXXX CORPORATION,
a Massachusetts corporation
By
"Bluegreen/Rockies"
BLUEGREEN CORPORATION OF THE
ROCKIES,
a Delaware corporation
By
