EXHIBIT 10.133
AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT
This Amendment Number Two to Loan and Security Agreement ("Amendment") is
entered into as of November 9, 2001, 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
(the "Loan Agreement").
FACT TWO: Borrower and Foothill have previously entered into that certain
Amendment Number One to Loan and Security Agreement, dated as of December 1,
2000 (the "First Amendment": the Loan Agreement as amended by the First
Amendment is hereinafter referred to as the "Agreement").
FACT THREE: 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:
""Pledged T Notes" means a note or notes which corresponds to the sale
by Borrower of time-share intervals in properties owned by Borrower,
and otherwise conforms to the standards set forth in Schedule PN-A
attached hereto and incorporated by reference hereby, and which is
pledged to secure advances under the T Line Advances."
""T Line Advances" has the meaning set forth in Section 2.8 hereof."
""T Line Borrowing Base" means an amount equal to the sum of ninety
percent (90%) of the unpaid principal balance, at the time of the
advance with respect to Pledged T Notes, discounted to thirteen percent
(13%), at the time of the advance with respect to fixed rate notes if
the minimum weighted average coupon rate of the entire Pledged T Note
Pool is less than thirteen percent (13%)."
(b) The definition of "Note Mortgages" in Section 1.1 of the Agreement is
deleted in its entirety and the following substituted in its place and stead:
""Note Mortgages" means those certain deeds of trust, mortgages or
security interests, including those securing the repayment of the
interests of the note makers of Pledged T Notes, encumbering certain
real property or real or personal property interests, which serves as
collateral for the repayment of the Pledged A Notes, the Pledged B
Notes, and the Pledged T Notes."
(c) The definition of "Pledged Notes" in Section 1.1 of the Agreement is
deleted in its entirely and the following substituted in its place and stead:
""Pledged Notes" means collectively the Pledged A Notes, the Pledged B
Notes, and the Pledged T Notes."
(d) Sections 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 and
2.8 above equal or exceed $5,000,000 for any month, then the interest
rate 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 one-half (1/2) percentage point above the Reference Rate;
(ii) should the average monthly outstanding loan balance on advances
made pursuant to Sections 2.1 and 2.8 above be less than $5,000,000 for
any month, then the interest rate 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 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 (1) percentage point above the Reference
Rate."
(e) The first sentence of Section 2.4(c) of the Loan Agreement, as added to
the Loan Agreement by the First Amendment, is deleted in its entirety and the
following substituted in its place and stead:
"In no event shall the rate of interest chargeable hereunder be less
than seven percent (7%) per annum."
(f) Section 2.7(c) of the Loan Agreement is deleted in its entirety and the
following substituted in its place and stead:
"Financial Examination, Documentation, and Appraisal Fees. Foothill's
customary fee of Six Hundred Dollars ($600) per day per examiner, plus
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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."
(g) Section 2.7(d) of the Loan Agreement is deleted in its entirety and the
following substituted in its place and stead:
"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 Two
Thousand Dollars ($2,000) per month."
(h) There is added a new Section 2.7(e) to the Loan Agreement as follows:
"Pledged T Note Financing Fee. On each and every Pledged T Note Advance
made pursuant to Section 2.8 hereof, Borrower shall pay to Foothill a
fee in an amount equal to one percent (1%) of the total of each such
advance."
(i) There is added a new Section 2.8 to the Loan Agreement as follows:
"2.8 Advances Against Pledged T Notes.
"(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, and the Term Loan and B Line Advances
set forth in Section 2.3 hereof, subject to the terms and
conditions of this Agreement, and further for a period
through and including December 31, 2003 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.
"(b) Anything to the contrary in subsection (a) above
notwithstanding, Foothill may reduce its advance rates
without declaring an event of default if it determines, in
its reasonable discretion, that there is a material
impairment of the prospect of repayment of any or all or any
portion of its Obligations, or a material impairment of the
value or priority of Foothill's security interests in the
Collateral.
"(c) Foothill shall have no obligation to make T Line Advances to
the extent that T Line Advances exceed the sum of Ten
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Million Dollars ($10,000,000) and/or total lending to
Borrower would exceed the Maximum Amount.
"(d) Borrower agrees to establish and maintain a designated
deposit account for the purpose of receiving the proceeds of
the advances made by Foothill hereunder. Unless otherwise
agreed to in writing by Foothill and Borrower, any advance
requested by Borrower and made by Foothill hereunder shall
be made to such designated deposit account.
"(e) T Line Advances made pursuant to this Section 2.8 shall not
be made more frequently than monthly, or in amounts less
than Five Hundred Thousand Dollars ($500,000) per advance."
(j) The introductory sentence to Section 3.4 and Sub-sections 3.4(a), (b)
and (c) of the Agreement are deleted in their entirely and the following
substituted in its place and stead:
"3.4 Conditions Precedent to A Line, B Line, and T Line Advances. The
following shall be additional conditions precedent to all A Line, B
Line and T Line Advances hereunder:
"(a) Foothill shall have received the originals of the Pledged A Notes
and/or the Pledged B Notes and/or the Pledged T Notes, properly
endorsed to Foothill or its agent;
"(b) Foothill shall have received the originals (except for
assignments of the Note Mortgages, for which Foothill shall
receive a copy) of all security which serves as security for the
repayment of the Pledged A Notes and/or the Pledged B Notes,
including the Note Mortgages and policies of title insurance
insuring same, properly assigned to Foothill or its agent; and
"(c) the standards for Pledged A Notes and Pledged T Notes set forth
in Schedule PN-A herein shall be fully complied with and the
standards for Pledged B Notes set forth in Schedule PN-B herein
shall be fully complied with."
(k) The following sentence is added to the end of Section 4.1 of the Loan
Agreement:
"The foregoing notwithstanding, Foothill agrees not to assert a
security interest in any timeshare interval notes (provided the same
are not Pledged T Notes) which are sold or pledged by Borrower to
Credit Suisse First Boston."
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(l) The Heading for Schedule PN-A shall be amended to read:
"PLEDGED A AND PLEDGED T NOTE STANDARDS"
(m) Paragraph 3 of Schedule PN-A is deleted in its entirely and the
following substituted in its place and stead:
"(3) (a) With respect to Pledged A Notes, Borrower has received from
the purchaser a minimum cash down payment of 10% of the
total sales price, no part of which, to Borrower's
knowledge, had been advanced or loaned to such purchaser or
borrower, directly or indirectly and the average down
payment of the entire portfolio of Pledged A Notes must be
at least 20%.
"(b) With respect to Pledged T Notes, Borrower has received from
the purchaser a minimum cash down payment of 10% of the
total sales price, no part of which, to Borrower's
knowledge, had been advanced or loaned to such purchaser or
borrower, directly or indirectly and the average down
payment of the entire portfolio of Pledged T Notes must be
at least 10%."
(n) Paragraph 6 of Schedule PN-A is deleted in its entirely and the
following substituted in its place and stead:
"(6) With respect to Pledged A Notes, Notes generated by purchasers of
real property in New York, Connecticut, Rhode Island, Vermont,
New Hampshire, Pennsylvania or Maine which provide for an
interest rate during the first two years of prime plus two
hundred (200) basis points, and interest thereafter of at least
prime plus three hundred and forty (340) basis points will be
acceptable, if all other standards are met."
(o) Paragraph 8 of Schedule PN-A is deleted in its entirely and the
following substituted in its place and stead:
"(8) (a) With respect to Pledged A Notes, the maker of the Pledged A
Note is acceptable to Foothill for credit purposes in its
sole judgment; has or will acquire marketable title to a
purchase parcel from Borrower; and has not purchased more
than four parcels in any project.
"(b) With respect to Pledged T Notes, the maker of the Pledged T
Note is acceptable to Foothill for credit purposes in its
sole judgment; has or will acquire marketable title to a
timeshare interval purchased from Borrower; and has not
purchased an aggregate of more than four weeks of intervals
in all of Borrower's projects."
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(p) Paragraph 9 of Schedule PN-A is deleted in its entirely and the
following substituted in its place and stead:
"(9) No Pledged Note will be delinquent more than sixty (60) days past
its due date at the time of the advance."
(q) There shall be added two new paragraphs to Schedule PN-A as follows:
"(19) With respect to Pledged T Notes, such Pledged T Note shall be
aged at least thirty (30) days from the date of execution
thereof.
"(20) With respect to Pledged T Notes, Foothill shall have received
the originals of: (i) the recorded Note Mortgages and assignments
of Note Mortgages within eight (8) weeks of the funding of the
same by Foothill; and (ii) all other security which serves as
security for the repayment of the Pledged T Notes at the time of
funding of the same by Foothill.
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.
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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
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Title: Vice President
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BLUEGREEN CORPORATION,
a Massachusetts corporation
By: /S/ Xxxx X. Xxxxxx
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Title: Senior Vice President & Treasurer
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