EXHIBIT 10.143
AMENDMENT NUMBER FOUR TO LOAN AND SECURITY AGREEMENT
This Amendment Number Four to Loan and Security Agreement ("Amendment") is
entered into as of March 26, 2003, by and between BLUEGREEN CORPORATION, f/k/a
Xxxxxx Corporation, a Massachusetts corporation ("Borrower"), and FOOTHILL
CAPITAL CORPORATION, a California 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
and that certain Amendment Number Three to Loan and Security Agreement dated as
of August 28, 2002 (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:
""Bluegreen Communities" means BLUEGREEN COMMUNITIES OF
GEORGIA, LLC, a Georgia limited liability company."
""Fourth Amendment" means that certain Amendment Number Four
to Loan and Security Agreement dated as of March 26, 2003,
executed by Borrower and Foothill."
""Land Inventory Borrowing Base" means an amount equal to the
lesser of (a) Eight Million Five Hundred Thousand Dollars
($8,500,000.00), (b) seventy-five percent (75%) of the sum of
acquisition costs of real property plus sixty-five percent
(65%) of Borrower's actual costs of improvements to be erected
thereon, or (c) Foothill's in-house appraisal of the Real
Property. The foregoing provision of (b) notwithstanding, the
computation of the Land Inventory Borrowing Base shall be
further limited for each
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such subsection by a project to project limitation of seventy
percent (70%) of the Orderly Liquidation Value of each
project.."
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""Mulberry Deed to Secure Debt" means that certain Deed to
Secure Debt, Assignment of Rents, Security Agreement and
Fixture Filing executed by Bluegreen Communities dated
contemporaneously to the date of the Fourth Amendment, which
secures the Obligations of the Mulberry Note and the Agreement
(excluding Advances made pursuant to sections 2.1, 2.3, 2.8,
and 2.9 of the Loan Agreement), and which encumbers the
Mulberry Property."
""Mulberry Note" means that certain "Land Inventory Advance
Note (Secured) ($8,500,000.00) executed by Borrower and
Bluegreen Communities dated contemporaneously to the date of
the Fourth Amendment and Secured by the Mulberry Deed to
Secure Debt."
""Mulberry Property" means the property commonly known as
Xxxxxxx in Braselton, f/k/a Mulberry Plantation, situate in
Xxxxxxx County, Georgia, as more particularly described in the
Mulberry Deed to Secure Debt."
(b) 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, the Mulberry Note, the Mulberry Deed to Secure
Debt, any other note or notes executed by Borrower and payable
to Foothill, and any other agreement entered into in
connection with this Agreement."
(c) The definition of "Mortgages" in Section 1.1 of the Loan
Agreement is deleted in its entirety and the following substituted in its
place and stead:
""Mortgages" means one (1) or more deeds of trust, mortgages
or deeds to secure debt, executed by Borrower or any Affiliate
of Borrower in favor of Foothill, the form and substance of
which shall be satisfactory to Foothill, that encumber the
Real Property and the related improvements thereto. The term
"Mortgages" includes the Mulberry Deed to Secure Debt."
(d) 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, 2005 only, and further provided Borrower is not
in default hereunder (subject to grace periods, if any),
including,
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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."
(e) 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, 2005 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. "
(f) 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, 2005 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."
(g) 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 2.8, and 2.9 above equal or exceed
$10,000,000 for any month, then the interest rate
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charged on all Obligations (other than Obligations incurred
pursuant to Section 2.2 above) for such month shall be
computed at a rate equal to three-quarters (3/4) percentage
point above the Reference Rate; (ii) should the average
monthly outstanding loan balance on advances made pursuant to
Sections 2.1, 2.8 and 2.9 be less than $10,000,000 for any
consecutive ten 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 $10,000,000 until the first day
of the subsequent month when the Obligations have once again
equaled or exceeded $10,000,000 shall be computed at a rate
equal to the greater of: (i) seven percent (7%) per annum; or
(ii) one (1) 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."
(h) Section 2.4(c) of the Loan Agreement is amended by deleting the
first sentence therein in its entirety.
(i) Section 2. 7(b) of the Loan Agreement is amended by adding the
following sentence at the conclusion thereof:
"Accordingly, with the funding of the Land Inventory Advance
evidenced by the Mulberry Note, a one time funding fee of
Eighty Five Thousand Dollars ($85,000.00) shall be owing,
which such fee is fully earned and payable and which shall be
added to the Obligations."
(j) Section 2.7 of the Loan Agreement is amended by deleting
subsection (c) and (d) in their entirety and the following substituted in
their place and stead:
"(c) Financial Examination, Documentation, and Appraisal Fees.
Foothill's customary fee of Seven Hundred Fifty Dollars ($750)
per day per examiner, plus out-of-pocket expenses for each
financial analysis and examination of Borrower performed by
Foothill or its agents; Foothill's customary appraisal fee of
Seven Hundred Fifty Dollars ($750) per day per appraiser, plus
out-of-pocket expenses for each appraisal of the Collateral
performed by Foothill or its agents.
"(d) Servicing Fee. On the first day of each month following
the Effective Date during the term of this Agreement, and
thereafter so long as any Obligations are outstanding, a
servicing fee in an amount equal to Five Thousand Dollars
($5,000) per month.
(k) 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, 2005 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."
(1) 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, 2005 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. "
(m) 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, 2007. 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 March 10, 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."
(n) 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
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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 during calendar year
2005: 1%
if the facility is so terminated after December 31,
2005: .5%.
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."
(o) Section 4.8 of the Loan Agreement is deleted in its entirety and
the following substituted in its place and stead:
"4.8 Release of Security Interests in the Pledged Notes:
Release of Security when Advances are Equal to Zero.
"(a) Provided there shall not have occurred an Event of
Default, and provided further that Borrower shall pay in
full all interest and principal owing on the A Line
Advances at the time of release, Borrower shall have the
right to cause to be released from Foothill's lien all
(but not part of) the Pledged A Notes provided such
release is to enable Borrower to securitize the Pledged
A Notes by the issuance of note backed securities or
commercial paper. The Early Termination Fee provided for
in Section 3.7 hereof, shall not be payable, however the
minimum interest payment shall still be payable in
accordance with the provisions contained herein.
"(b) Provided there shall not have occurred an Event of
Default, and provided further that Borrower shall pay in
full all interest and principal owing on the B Line
Advances at the time of release, Borrower shall have the
right to cause to be released from Foothill's lien all
(but not part of) the Pledged B Notes provided such
release is to enable Borrower to securitize the Pledged
B Notes by the issuance of note backed securities or
commercial paper. The Early Termination Fee provided for
in Section 3.7 hereof, shall not be payable, however the
minimum interest
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payment shall still be payable in accordance with the
provisions contained herein.
"(c) Provided there shall not have occurred an Event of
Default, and provided further that Borrower shall pay in
full all interest and principal owing on the C Line
Advances at the time of release, Borrower shall have the
right to cause to be released from Foothill's lien all
(but not part of) the Pledged C Notes provided such
release is to enable Borrower to securitize the Pledged
C Notes by the issuance of note backed securities or
commercial paper. The Early Termination Fee provided for
in Section 3.7 hereof, shall not be payable, however the
minimum interest payment shall still be payable in
accordance with the provisions contained herein.
"(d) Provided there shall not have occurred an Event of
Default, and provided further that Borrower shall pay in
full all interest and principal owing on the T Line
Advances at the time of release, Borrower shall have the
right to cause to be released from Foothill's lien all
(but not part of) the Pledged T Notes provided such
release is to enable Borrower to securitize the Pledged
T Notes by the issuance of note backed securities or
commercial paper. The Early Termination Fee provided for
in Section 3.7 hereof, shall not be payable, however the
minimum interest payment shall still be payable in
accordance with the provisions contained herein."
(p) There is added a new Section 5.20 to the Loan Agreement as
follows:
"5.20 Bluegreen Communities. Borrower is the sole owner of the
equity interests in Bluegreen Communities."
(q) There is added a new Section 7.19 to the Loan Agreement as
follows:
"7.19 Execution of Mulberry Loan Documents. Execute a form of
the Mulberry Note or Mulberry Deed to Secure Debt other than
the final form provided to Borrower or its counsel, or fail to
obtain a policy of title insurance insuring the lien of the
same in accordance with the instructions of Foothill's
counsel."
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.
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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.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /S/ XXXXX XXXXXXXX
-------------------------
Print Name: Xxxxx Xxxxxxxx
Print Title: Vice President
BLUE GREEN CORPORATION,
a Massachusetts corporation
By /S/ XXXXXX X. XXXXXXX
-------------------------
Print Name: Xxxxxx X. Xxxxxxx
Print Title: Senior Vice President
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