EXHIBIT 10.144
AMENDMENT NUMBER FIVE TO LOAN AND SECURITY AGREEMENT
This Amendment Number Five to Loan and Security Agreement ("Amendment") is
entered into as of September 1, 2003, by and between BLUEGREEN CORPORATION,
f/k/a Xxxxxx Corporation, a Massachusetts corporation ("Borrower"), and XXXXX
FARGO FOOTHILL, INC., a California corporation, f/k/a/ Foothill Capital
Corporation ("Foothill"), in light of the following:
FACT ONE: Borrower and Foothill have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of September 23,
1997, as Amended by that certain Amendment Number One to Loan and Security
Agreement dated as of December 1, 2000, as further amended by that certain
Amendment Number Two to Loan and Security Agreement dated as of November 9,
2001, that certain Amendment Number Three to Loan and Security Agreement dated
as of August 28, 2002, and that certain Amendment Number Four to Loan and
Security Agreement dated as of March 26, 2003 (as amended, the "Agreement").
FACT TWO: Borrower and Foothill desire to amend the Agreement as provided
for and on the conditions herein.
NOW, THEREFORE, Borrower and Foothill hereby amend and supplement the
Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The following new definitions are added to Section 1.1 of the
Agreement:
""Base Libor Rate" means the rate per annum, determined by
Foothill in accordance with its customary procedures, and
utilizing such electronic or other quotation sources as it
considers appropriate (rounded upwards, if necessary, to the
next 1/100%), to be the rate at which Dollar deposits (for
delivery on the first day of the requested Interest Period)
are offered to major banks in the London interbank market 2
Business Days prior to the commencement of the requested
Interest Period, for a term and in an amount comparable to the
Interest Period and the amount of the LIBOR Rate Loan
requested (whether as an initial LIBOR Rate Loan or as a
continuation of an extant LIBOR Rate Loan or as a conversion
of a Reference Rate Loan to a LIBOR Rate Loan) by Borrower in
accordance
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with this Agreement, which determination shall be conclusive
in the absence of manifest error."
""Funding Losses" has the meaning set forth in Section
2.10(b)(ii)."
""Interest Period" means, with respect to each LIBOR Rate
Loan, a period commencing on the date of the making of such
LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or
the conversion of a Reference Rate Loan to a LIBOR Rate Loan)
and ending 1, 2, or 3 months thereafter; provided, however,
that (a) if any Interest Period would end on a day that is not
a Business Day, such Interest Period shall be extended
(subject to clauses (c)-(e) below) to the next succeeding
Business Day, (b) interest shall accrue at the applicable rate
based upon the LIBOR Rate from and including the first day of
each Interest Period to, but excluding, the day on which any
Interest Period expires, (c) any Interest Period that would
end on a day that is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (d) with
respect to an Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period), the Interest Period shall end on the
last Business Day of the calendar month that is 1, 2, or 3
months after the date on which the Interest Period began, as
applicable, and (e) Borrower may not elect an Interest Period
which will end after the Maturity Date."
""LIBOR Deadline" has the meaning set forth in Section
2.10(b)(i)."
""LIBOR Notice" means a written notice set in accordance with
the provisions of Section 2.10(b)(i)."
""LIBOR Option" has the meaning set forth in Section 2.10(a)."
""LIBOR Rate" means, for each Interest Period for each LIBOR
Rate Loan, the rate per annum determined by Foothill (rounded
upwards, if necessary, to the next 1/100%) by dividing (a) the
Base LIBOR Rate for such Interest Period, by (b) 100% minus
the Reserve Percentage. The LIBOR Rate shall be adjusted on
and as of the effective day of any change in the Reserve
Percentage."
""LIBOR Rate Loan" means each portion of an Obligation (other
than Obligations incurred pursuant to Section 2.2 above) that
bears interest at a rate determined by reference to the LIBOR
Rate."
""LIBOR Rate Margin" means three and one-half (3 1/2)
percentage points."
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""Reference Rate Loan" means the portion of the Advances that
bears interest at a rate determined by reference to the
Reference Rate."
""Reserve Percentage" means, on any day, for Foothill, the
maximum percentage prescribed by the Board of Governors of the
Federal Reserve System (or any successor Governmental
Authority) for determining the reserve requirements (including
any basic, supplemental, marginal, or emergency reserves) that
are in effect on such date with respect to eurocurrency
funding (currently referred to as "eurocurrency liabilities")
of Foothill, but so long as Foothill is not required or
directed under applicable regulations to maintain such
reserves, the Reserve Percentage shall be zero."
(b) Section 2.1(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
"(a) In addition to the Land Inventory Advances set forth in
Section 2.2 hereof, the Term Loan and B Line Advances set
forth in Section 2.3 hereof, the Pledged T Note Advances set
forth in Section 2.8 hereof, and the C Line Advances set forth
in Section 2.9, hereof, subject to the terms and conditions of
this Agreement, and further for a period through and including
December 31, 2006 only, and further provided Borrower is not
in default hereunder (subject to grace periods, if any),
including, specifically, Section 6.13 hereof, Foothill agrees
to make advances to Borrower upon the pledge to Foothill of
the Pledged A Notes ("A Line Advances") in an amount not to
exceed the A Line Borrowing Base."
(c) Section 2.2(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
"(a) In addition to the A Line Advances set forth in Section
2.1 hereof, the Term Loan and B Line Advances set forth in
Section 2.3 hereof, the Pledged T Note Advances set forth in
Section 2.8 hereof, and the C Line Advances set forth in
Section 2.9 hereof, subject to the terms and conditions of
this Agreement, and further for a period through and including
December 31, 2006 only, and provided Borrower is not in
default hereunder (subject to grace periods, if any),
including, specifically, Section 6.13 hereof, Foothill agrees
to make non-revolving advances to Borrower in an amount not to
exceed the Land Inventory Borrowing Base ("Land Inventory
Advances") to enable it to buy and develop Approved Land
Projects for subsequent resale to the public. Land Inventory
Advances shall be used for this and for no other purpose. All
such acquired assets shall become Collateral. At Foothill's
request, Borrower shall execute a Secured Promissory Note to
evidence the borrowings under this Section 2.2. "
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(d) Section 2.3(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
"(a) In addition to the A Line Advances set forth in Section
2.1 hereof, the Land Inventory Advances set forth in Section
2.2 hereof, the Pledged T Note Advances set forth in Section
2.8 hereof, and the C Line Advances set forth in Section 2.9
hereof, subject to the terms and conditions of this Agreement,
and for a period through and including December 31, 2006 only,
and further provided Borrower is not in default hereunder
(subject to grace periods, if any), including, specifically,
Section 6.13 hereof, Foothill agrees to make advances to
Borrower upon the pledge to Foothill of the Pledged B Notes
("B Line Advances") in an amount not to exceed the lesser of
(i) Five Million Dollars ($5,000,000); or (ii) the B Line
Borrowing Base."
(e) Section 2.4(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
"(a) Interest Rate. All Obligations (other than Obligations
incurred pursuant to Section 2.2 above) shall bear interest,
on the actual Daily Balance, computed as follows: (i) should
the average monthly outstanding loan balance on advances made
pursuant to Sections 2.1 2.3, 2.8, and 2.9 above equal or
exceed $15,000,000 for any consecutive ninety day (or longer)
period, then the interest rate charged on all Obligations
(other than Obligations incurred pursuant to Section 2.2
above) for such ninety day (or longer) period shall be
computed at a rate equal to one-quarter (1/4) of one
percentage point above the Reference Rate; (ii) should the
average monthly outstanding loan balance on advances made
pursuant to Sections 2.1, 2.3, 2.8 and 2.9 be less than
$15,000,000 for any consecutive ninety (90) day period, then
the interest rate charged on all Obligations (other than
Obligations incurred pursuant to Section 2.2 above) for the
period of time commencing with the first day of the calendar
month preceding the date on which the Obligations dropped
below $15,000,000 until the first day of the next subsequent
ninety (90) day (or longer) period (applied retroactive to
said first day) when the Obligations have once again equaled
or exceeded $15,000,000 for a consecutive ninety (90) day (or
longer) period shall be computed at a rate equal to the
greater of: (i) four percent (4%) per annum; or (ii) one-half
(1/2) of one percentage point above the Reference Rate. The
Obligations arising out of Land Inventory Advances set forth
in Section 2.2 shall bear interest on the average Daily
Balance, at a rate of one and one-quarter (1.25) percentage
points above the Reference Rate."
(f) Section 2.8(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
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"(a) In addition to the Pledged A Note Advances set forth in
Section 2.1 hereof, the Land Inventory Advances set forth in
Section 2.2 hereof, the Term Loan and B Line Advances set
forth in Section 2.3 hereof, and the C Line Advances set forth
in Section 2.9, subject to the terms and conditions of this
Agreement, and further for a period through and including
December 31, 2006 only, and further provided Borrower is not
in default hereunder (subject to grace periods, if any),
including, specifically, Section 6.13 hereof, Foothill agrees
to make advances to Borrower upon the pledge to Foothill of
the Pledged T Notes ("T Line Advances") in an amount not to
exceed the T Line Borrowing Base."
(g) Section 2.9(a) of the Loan Agreement is deleted in its entirety
and the following substituted in its place and stead:
"(a) In addition to the Pledged A Note Advances set forth in
Section 2.1 hereof, the Land Inventory Advances set forth in
Section 2.2 hereof, the Term Loan and B Line Advances set
forth in Section 2.3 hereof, and the Pledged T Note Advances
set forth in Section 2.8 hereof, subject to the terms and
conditions of this Agreement, and further for a period through
and including December 31, 2006 only, and further provided
Borrower is not in default hereunder (subject to grace
periods, if any), including, specifically, Section 6.13
hereof, Foothill agrees to make advances to Borrower upon the
pledge to Foothill of the Pledged C Notes ("C Line Advances")
in an amount not to exceed the C Line Borrowing Base."
(h) There is added a new Section 2.10 of the Loan Agreement as
follows:
"2.10 LIBOR Option.
"(a) Interest and Interest Payment Dates. In lieu of
having interest charged at the rate based upon the Reference
Rate, Borrower shall have the option (the "LIBOR Option") to
have interest on all or a portion of the Obligations (other
than Obligations incurred pursuant to Section 2.2 above) to be
charged at a rate of interest based upon the LIBOR Rate.
Interest on LIBOR Rate Loans shall be payable on the earliest
of (i) the last day of the Interest Period applicable thereto,
(ii) the occurrence of an Event of Default in consequence of
which Foothill has elected to accelerate the maturity of all
or any portion of the Obligations, or (iii) termination of
this Agreement pursuant to the terms hereof. On the last day
of each applicable Interest Period, unless Borrower properly
has exercised the LIBOR Option with respect thereto, the
interest rate applicable to such LIBOR Rate Loan automatically
shall convert to the rate of interest then applicable to
Reference Rate Loans of the same type hereunder. At any time
that an Event of Default has occurred and is continuing,
Borrower no longer shall have the option to request that
Obligations bear interest at the LIBOR Rate and Foothill shall
have the
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right to convert the interest rate on all outstanding LIBOR
Rate Loans to the rate then applicable to Reference Rate Loans
as more fully set forth in Section 2.4(b) hereunder.
"(b) LIBOR Election
(i) Borrower may, at any time and from time to
time, so long as no Event of Default has occurred and is
continuing, elect to exercise the LIBOR Option by notifying
Foothill prior to 11:00 a.m. (California time) at least 3
Business Days prior to the commencement of the proposed
Interest Period (the "LIBOR Deadline"). Notice of Borrower's
election of the LIBOR Option for a permitted portion of the
Advances or the Term Loan and an Interest Period pursuant to
this Section shall be made by delivery to Foothill of a LIBOR
Notice received by Foothill before the LIBOR Deadline, or by
telephonic notice received by Foothill before the LIBOR
Deadline (to be confirmed by delivery to Foothill of a LIBOR
Notice received by Foothill prior to 5:00 p.m. (California
time) on the same day.
(ii) Each LIBOR Notice shall be irrevocable and
binding on Borrower. In connection with each LIBOR Rate Loan,
Borrower shall indemnify, defend, and hold Foothill harmless
against any loss, cost, or expense incurred by Foothill as a
result of (a) the payment of any principal of any LIBOR Rate
Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of
Default), (b) the conversion of any LIBOR Rate Loan other than
on the last day of the Interest Period applicable thereto, or
(c) the failure to borrow, convert, continue or prepay any
LIBOR Rate Loan on the date specified in any LIBOR Notice
delivered pursuant hereto (such losses, costs, and expenses,
collectively, "Funding Losses"). Funding Losses shall be
deemed to equal the amount determined by Foothill to be the
excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such LIBOR Rate Loan had
such event not occurred, at the LIBOR Rate that would have
been applicable thereto, for the period from the date of such
event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert, or
continue, for the period that would have been the Interest
Period therefor), minus (ii) the amount of interest that would
accrue on such principal amount for such period at the
interest rate which Foothill would be offered were it to be
offered, at the commencement of such period, Dollar deposits
of a comparable amount and period in the London interbank
market. A certificate of Foothill delivered to Borrower
setting forth any amount or amounts that Foothill is entitled
to receive pursuant to this Section shall be conclusive absent
manifest error.
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(iii) Borrower shall have not more than 5 LIBOR
Rate Loans in effect at any given time. Borrower only may
exercise the LIBOR Option for LIBOR Rate Loans of at least
$1,000,000 and integral multiples of $100,000 in excess
thereof.
"(c) Prepayments. Borrower may prepay LIBOR Rate Loans
at any time; provided, however, that in the event that LIBOR
Rate Loans are prepaid on any date that is not the last day of
the Interest Period applicable thereto, including as a result
of any automatic prepayment through the required application
by Foothill of proceeds of Collateral or for any other reason,
including early termination of the term of this Agreement or
acceleration of all or any portion of the Obligations pursuant
to the terms hereof, Borrower shall indemnify, defend, and
hold Foothill and its Participants harmless against any and
all Funding Losses in accordance with clause (b)(ii) above.
"(d) Special Provisions Applicable to LIBOR Rate.
(i) The LIBOR Rate may be adjusted by Foothill
on a prospective basis to take into account any additional or
increased costs to Foothill of maintaining or obtaining any
eurodollar deposits or increased costs due to changes in
applicable law occurring subsequent to the commencement of the
then applicable Interest Period, including changes in tax laws
(except changes of general applicability in corporate income
tax laws) and changes in the reserve requirements imposed by
the Board of Governors of the Federal Reserve System (or any
successor), excluding the Reserve Percentage, which additional
or increased costs would increase the cost of funding loans
bearing interest at the LIBOR Rate. In any such event,
Foothill shall give Borrower notice of such a determination
and adjustment and, upon its receipt of the notice from
Foothill, Borrower may, by notice to Foothill (y) require
Foothill to furnish to Borrower a statement setting forth the
basis for adjusting such LIBOR Rate and the method for
determining the amount of such adjustment, or (z) repay the
LIBOR Rate Loans with respect to which such adjustment is made
(together with any amounts due under clause (b)(ii) above).
(ii) In the event that any change in market
conditions or any law, regulation, treaty, or directive, or
any change therein or in the interpretation of application
thereof, shall at any time after the date hereof, in the
reasonable opinion of Foothill, make it unlawful or
impractical for Foothill to fund or maintain LIBOR Rate Loans
or to continue such funding or maintaining, or to determine or
charge interest rates at the LIBOR Rate, Foothill shall give
notice of such changed circumstances to Borrower and (y) in
the case of any LIBOR Rate Loans that are outstanding, the
date specified in Foothill's notice shall be deemed to be
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the last day of the Interest Period of such LIBOR Rate Loans,
and interest upon the LIBOR Rate Loans thereafter shall accrue
interest at the rate then applicable to Reference Rate Loans,
and (z) Borrower shall not be entitled to elect the LIBOR
Option until Foothill determines that it would no longer be
unlawful or impractical to do so.
"(e) No Requirement of Matched Funding. Anything to the
contrary contained herein notwithstanding, neither Foothill,
nor any of its participants, if any, is required actually to
acquire eurodollar deposits to fund or otherwise match fund
any Obligation as to which interest accrues at the LIBOR Rate.
The provisions of this Section shall apply as if Foothill or
its participants, if any, had match funded any Obligation as
to which interest is accruing at the LIBOR Rate by acquiring
eurodollar deposits for each Interest Period in the amount of
the LIBOR Rate Loans."
(i) Section 3.5 of the Loan Agreement is deleted in its entirety and
the following substituted in its place and stead:
"3.5 Term. This Agreement shall become effective upon the
execution and delivery hereof by Borrower and Foothill and
shall continue in full force and effect for a term ending on
December 31, 2008. The foregoing notwithstanding: (i) that
portion of the Obligations evidencing Land Inventory Advances
borrowed pursuant to Section 2.2 hereof shall be all due and
payable on or before December 31, 2006; and (ii) Foothill
shall have the right to terminate its obligations under this
Agreement immediately and without notice upon the occurrence
and during the continuation of an Event of Default."
(j) Section 3.7 of the Loan Agreement is deleted in its entirety and
the following substituted in its place and stead:
"3.7 Early Termination by Borrower. Borrower has the option,
at any time upon ninety (90) days prior written notice to
Foothill, to terminate this Agreement by paying to Foothill,
in cash, the Obligations together with a premium ("Early
Termination Fee") equal to the applicable percentage of the
Maximum Amount as follows:
if the facility is so terminated on or before
December 31, 2003: 3%
if the facility is so terminated during
calendar year 2004: 2%
if the facility is so terminated after
calendar year 2004: 1%
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The foregoing notwithstanding, Borrower shall have the right
upon thirty (30) days prior written notice to Foothill, to
pay-off in full the Land Inventory Advances without the
payment of an Early Termination Fee, unless all the
Obligations are paid off contemporaneously therewith."
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill
that all of Borrower's representations and warranties set forth in the Agreement
are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrower hereby affirms to Foothill that no Event of
Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is expressly
conditioned upon receipt by Foothill of an executed copy of this Amendment.
6. COSTS AND EXPENSES. Borrower shall pay to Foothill all of Foothill's
out-of-pocket costs and expenses (including, without limitation, title fees,
search fees, filing and recording fees, documentation fees, appraisal fees,
travel expenses, and other fees, and the reasonable fees and expenses of its
counsel) arising in connection with the preparation, execution, and delivery of
this Amendment and all related documents.
7. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto. This Agreement may
be executed and the signature pages telecopied between the parties. A
telefacsimile signature is deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
XXXXX FARGO FOOTHILL, INC.,
a California corporation, f/k/a
FOOTHILL CAPITAL CORPORATION
By: /S/ XXXXX XXXXXXXX
------------------------------------
Title: VICE PRESIDENT
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BLUEGREEN CORPORATION,
a Massachusetts corporation
By: /S/ XXXXXX X. XXXXXXX
------------------------------------
Title: SENIOR VICE PRESIDENT
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