Contract

Exhibit 10.1

 

EXECUTION COPY



AMENDED AND RESTATED
CREDIT AGREEMENT

among

BLUEGREEN CORPORATION, a Florida corporation,

as Borrower,



THE GUARANTORS
FROM TIME TO TIME PARTY HERETO,



THE LENDERS
FROM TIME TO TIME PARTY HERETO,



And



FIFTH THIRD BANK, an Ohio banking corporation,
as Administrative Agent and L/C Issuer



DATED AS OF DECEMBER 16, 2016

_________________________________________________

BANK OF AMERICA, N.A.
AND
ZB, N.A., DBA NATIONAL BANK OF ARIZONA,
as Co-Syndication Agents

FIFTH THIRD BANK, as Lead Arranger and Sole Bookrunner

 


 

 

TABLE OF CONTENTS



 

 



 

 



SectionHeadingPAGE



DEFINITIONS; INTERPRETATION.1

Definitions.1

Interpretation.28

Change in Accounting Principles.28

Rounding.28

THE CREDIT FACILITIES.29

Term Facility29

Revolving Facility.29

Letters of Credit.29

Applicable Interest Rates.33

Manner of Borrowing Loans and Designating Applicable Interest Rates.34

Minimum Borrowing Amounts; Maximum Eurodollar Loans.37

Repayment of Loans.37

Prepayments of Loans.38

Place and Application of Payments.39

Termination or Reduction of Commitments.41

Swing Loans.41

Evidence of Indebtedness.43

Fees.44

Assignment and Reallocation of Existing Loans and Commitments.45

Increase in Facilities.46

CONDITIONS PRECEDENT.47

All Credit Events.47

Initial Credit Event.48

THE COLLATERAL AND GUARANTIES.50

Collateral.50

Liens on Real Property.51

Guaranties.51

Further Assurances.51

Cash Collateral.52

REPRESENTATIONS AND WARRANTIES.53

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Organization and Qualification.53

Authority and Enforceability.54

Financial Reports.54

No Material Adverse Change.54

Litigation and Other Controversies.55

True and Complete Disclosure.55

Use of Proceeds; Margin Stock.55

Taxes Generally; Property Taxes and Fees.55

ERISA.56

Subsidiaries.56

Compliance with Laws.56

Environmental Matters.57

Investment Company.57

Intellectual Property.58

Good Title.58

Labor Relations.58

Governmental Authority and Licensing.58

Approvals.58

Affiliate Transactions.58

Solvency.59

Brokers Generally; No Broker Fees.59

No Default.59

OFAC.59

Other Agreements and Documents.59

EEA Financial Institutions.  No Loan Party is an EEA Financial Institution.59

Regulation H.59

COVENANTS.60

Information Covenants.60

Inspections; Field Examinations.62

Maintenance of Property and Insurance; Environmental Matters.63

Compliance with Laws.64

ERISA.64

Payment of Taxes.64

Preservation of Existence.64

Contracts with Affiliates.64

Restrictions or Changes and Amendments.65

Change in the Nature of Business.65

Indebtedness.65

Liens.66

Consolidation, Merger, and Sale of Assets.67

Advances, Investments, and Loans.68

Restricted Payments.68

Limitation on Restrictions.69

Restrictive Covenants.69

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Limitation on the Creation of Subsidiaries; Sales and Marketing Agreements, etc.69

Operating Accounts.70

Financial Covenants.70

Compliance with OFAC Sanctions Programs.70

Post-Closing Delivery of Access Agreement.70

EVENTS OF DEFAULT AND REMEDIES.71

Events of Default.71

Non-Bankruptcy Defaults.73

Bankruptcy Defaults.73

Collateral for Undrawn Letters of Credit.74

Notice of Default.74

CHANGE IN CIRCUMSTANCES AND CONTINGENCIES.74

Funding Indemnity74

Illegality74

Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR75

Increased Costs.75

Discretion of Lender as to Manner of Funding76

Defaulting Lenders.77

THE ADMINISTRATIVE AGENT.79

Appointment and Authorization of Administrative Agent.79

Administrative Agent and Its Affiliates.80

Exculpatory Provisions.80

Reliance by Administrative Agent.81

Delegation of Duties.82

Non-Reliance on Administrative Agent and Other Lenders.82

Resignation of Administrative Agent and Successor Administrative Agent.82

L/C Issuer and Swing Line Lender.83

Hedging Liability and Bank Product Liability Arrangements.83

No Other Duties; Designation of Additional Agents.84

Authorization to Enter into, and Enforcement of, the Collateral Documents and Guaranty.84

Administrative Agent May File Proofs of Claim.85

Collateral and Guaranty Matters.85

MISCELLANEOUS.86

Taxes.86

Mitigation Obligations; Replacement of Lenders90

No Waiver, Cumulative Remedies.91

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Non-Business Days.91

Survival of Representations.91

Survival of Indemnities.91

Sharing of Payments by Lenders.92

Notices; Effectiveness; Electronic Communication.92

Successors and Assigns; Assignments and Participations.94

Amendments.99

Headings.100

Expenses; Indemnity; Damage Waiver.100

Set-off.102

Governing Law; Jurisdiction; Etc.103

Severability of Provisions104

Excess Interest.104

Construction.105

Lender’s and L/C Issuer’s Obligations Several.105

USA Patriot Act.105

Waiver of Jury Trial.105

Treatment of Certain Information; Confidentiality.105

Effect of Amendment and Restatement of the Existing Credit Agreement106

No Advisory or Fiduciary Responsibility107

Electronic Execution107

Acknowledgement and Consent to Bail-In of EEA Financial Institutions108

Counterparts; Integration; Effectiveness.108

THE GUARANTEES.108

The Guarantees.108

Guarantee Unconditional.109

Discharge Only upon Facility Termination Date; Reinstatement in Certain Circumstances.110

Subrogation.110

Subordination.110

Waivers.111

Limit on Recovery.111

Stay of Acceleration.111

Benefit to Guarantors.111

Keepwell.111

Guarantor Covenants.111

Signature Pages  ...................................................................................................................S-1

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EXHIBITS



Exhibit AForm of Notice of Payment Request

Exhibit BForm of Notice of Borrowing

Exhibit CForm of Notice of Continuation/Conversion

Exhibit D-1Form of Revolving Note

Exhibit D-2Form of Term Note

Exhibit D-3Form of Swing Note

Exhibit EForm of Compliance Certificate

Exhibit FForm of Assignment and Assumption

Exhibit GForm of Additional Guarantor Supplement

Exhibit HForm of Access Agreement

Exhibit IForm of Funding Indemnity Letter





SCHEDULES



Schedule 1.1Commitments

Schedule 1.2Guarantors

Schedule 1.3Non-Guarantors

Schedule 5.5Litigation

Schedule 5.10Subsidiaries

Schedule 5.12Environmental Matters

Schedule 5.24Material Agreements

 

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AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of December 16, 2016, by and among BLUEGREEN CORPORATION, a Florida corporation (the Borrower), the direct and indirect Subsidiaries of the Borrower from time to time party to this Agreement, as Guarantors, the various institutions from time to time party to this Agreement, as Lenders, and FIFTH THIRD BANK, an Ohio banking corporation, as Administrative Agent and L/C Issuer.

PRELIMINARY STATEMENTS:

Pursuant to that certain Credit Agreement, dated as of November 5, 2014 (as amended, supplemented or otherwise modified prior to the Closing Date, the “Existing Credit Agreement”), among the Borrower, the Guarantors, the various financial institutions from time to time party thereto (collectively, the “Existing Lenders”) and the Administrative Agent, the Existing Lenders agreed to make extensions of credit to the Borrower on the terms and conditions set forth therein, including making loans (the “Existing Loans”) to the Borrower.

The Borrower has requested that the Existing Credit Agreement be amended and restated in its entirety to become effective and binding on the Loan Parties pursuant to the terms of this Agreement, and the Lenders (including certain of the Existing Lenders) have agreed (subject to the terms of this Agreement) to amend and restate the Existing Credit Agreement in its entirety to read as set forth in this Agreement, and it has been agreed by the parties to the Existing Credit Agreement that (a) the commitments which the Existing Lenders have agreed to extend to the Borrower under the Existing Credit Agreement shall be extended or advanced upon the amended and restated terms and conditions contained in this Agreement; and (b) the Existing Loans and other Secured Obligations (as defined in the Existing Credit Agreement) shall be governed by and deemed to be outstanding under the amended and restated terms and conditions contained in this Agreement and the other Loan Documents, with the intent that the terms of this Agreement shall supersede the terms of the Existing Credit Agreement (each of which shall hereafter have no further effect upon the parties thereto, other than for accrued fees and expenses, and indemnification provisions accrued and owing, under the terms of the Existing Credit Agreement on or prior to the Closing Date or arising (in the case of indemnification) under the terms of the Existing Credit Agreement).

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

SECTION 1.

DEFINITIONS; INTERPRETATION.

Definitions.

The following terms when used herein shall have the following meanings:

“2020 Notes Agreement” means that certain Note Purchase and Collateral Trust and Security Agreement dated as of March 26, 2013, among the Borrower, BVU,  BRM and TFRI-2013-1 LLC, as obligors, Bluegreen Nevada, LLC, as guarantor, U.S. Bank National Association, as collateral agent, note register and paying agent, AIG Asset Management (U.S.) LLC, as designated representative, and each of the holder party thereto.

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“2020 Notes Documents” means the 2020 Notes Agreement and each material agreement, instrument or documents delivered in connection therewith.

“Access Agreement” means an Access Agreement substantially in the form attached hereto as Exhibit H.

“Adjusted EBITDA” means, for any accounting period, without duplication, the Borrower’s Income (Loss) (but, in all cases, excluding combined Income (Loss) of Bluegreen Communities), plus, for the same accounting period, the sum of: (a) Other Interest Expense; (b) Provision (Benefit) For Income Taxes; (c) Depreciation and Amortization; (d) Stock Compensation Expense; (e) Non-Cash Legacy Asset Impairment Charges; and (f) LTIP Expense; less, for the same accounting period, the sum of: (x) Other Interest Income and (y) Recoveries.

“Adjusted LIBOR” means, for any Borrowing of Eurodollar Loans, a rate per annum equal to the quotient of (a) LIBOR, divided by (b) one minus the Reserve Percentage;  provided that if the Adjusted LIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Agreement (except that, during any period when any Hedge Agreement is in place in respect of all or any portion of the Loans, the foregoing “zero floor” shall not be applicable to any such Loans).

“Administrative Agent” means Fifth Third Bank, an Ohio banking corporation, as contractual representative for itself and the other Lenders and any successor pursuant to Section 9.7.

“Administrative Questionnaire” means, with respect to each Lender, an Administrative Questionnaire in a form supplied by the Administrative Agent and duly completed by such Lender.

“Affiliate” means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, another Person. A Person shall be deemed to control another Person for the purposes of this definition if such Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise; provided that, in any event for purposes of this definition, any Person that owns, directly or indirectly, 5% or more of the securities having the ordinary voting power for the election of directors or governing body of a corporation or 5% or more of the partnership or other ownership interest of any other Person (other than as a limited partner of such other Person) will be deemed to control such corporation or other Person. Notwithstanding anything to the contrary contained in this definition, (a) under no circumstances shall the Borrower be deemed an Affiliate of any 5% or greater shareholder of the Borrower or any Affiliate of such shareholder who is not a Direct Affiliate of the Borrower, nor shall any such shareholder be deemed to be an Affiliate of the Borrower; and (b) BFC Financial Corporation shall not be deemed to be an Affiliate of the Borrower. For purposes of this definition, any Person included in the Borrower’s GAAP consolidated financial statements shall be an Affiliate of the Borrower (a “Direct Affiliate”).

“Agreement” means this Credit Agreement.

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“Applicable Margin  means, for any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Leverage Ratio), it being understood that the Applicable Margin for (a) Revolving Loans that are Base Rate Loans shall be the percentage set forth under the column “Revolving Loans” and “Base Rate”, (b) Revolving Loans that are Eurodollar Loans shall be the percentage set forth under the column “Revolving Loans” and “Eurodollar & L/C Participation Fee”, (c) that portion of the Term Loans comprised of Base Rate Loans shall be the percentage set forth under the column “Term Loans” and “Base Rate”, (d) that portion of the Term Loans comprised of Eurodollar Loans shall be the percentage set forth under the column “Term Loans” and “Eurodollar & L/C Participation Fee”, (e) the L/C Participation Fee shall be the percentage set forth under the column “Revolving Loans” and “Eurodollar & L/C Participation Fee”, and (f) the Commitment Fee shall be the percentage set forth under the column “Commitment Fee”:

Applicable Margin



 

Level

 

Leverage
Ratio

Eurodollar

&  L/C Participation Fee


Base Rate

 

Commitment
Fee

Revolving Loans

Term
Loans

Revolving Loans

Term
Loans

1

< 1.00 to 1.00

2.75%  2.75%  1.75%  1.75%  0.30% 

2

≥ 1.00 to 1.00
but

< 2.00 to 1.00

3.00%  3.00%  2.00%  2.00%  0.40% 

3

≥ 2.00 to 1.00

3.25%  3.25%  2.25%  2.25%  0.50% 


Any increase or decrease in the Applicable Margin resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.1(c); provided that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 3 shall apply, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered.

Notwithstanding anything to the contrary contained in this definition, (a) the determination of the Applicable Margin for any period shall be subject to the provisions of Section 2.4(e), and (b) the initial Applicable Margin shall be set forth in Level 1 until the first Business Day immediately following the date a Compliance Certificate is delivered to the Administrative Agent pursuant to Section 6.1(c) for the first full fiscal quarter to occur following the Closing Date.  Any adjustment in the Applicable Margin shall be applicable to all applicable Obligations then existing or subsequently made or issued.

“Application” is defined in Section 2.3(b).

“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

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“Arranger” means Fifth Third Bank, in its capacity as Lead Arranger and Sole Bookrunner of the Facilities.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.9(b)(iii)), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent.

“Association” means each non-profit corporation or entity or unincorporated association or cooperative association under applicable law, which is responsible for the management and maintenance of a Resort, including any master association which governs a Resort, pursuant to the terms of a related declaration and/or other governing documents.

“Authorized Representative” means those persons shown on the list of officers provided by the Borrower pursuant to Section 3.2 or on any update of any such list provided by the Borrower to the Administrative Agent, or any further or different officers of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Administrative Agent.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank Products” means each and any of the following bank products and services provided to any Loan Party by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards, and (c) depository, cash management, and treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

“Bank Product Liability” of the Loan Parties means any and all of their obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Bank Products.

“Base Rate” means for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced by Fifth Third Bank, an Ohio banking corporation, from time to time as its “prime rate” as in effect on such day, with any change in the Base Rate resulting from a change in said prime rate to be effective as of the date of the relevant change in said prime rate (it being acknowledged that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate, plus (ii) .50% and (c) the sum of (i) the Adjusted LIBOR that would be applicable to a Eurodollar Loan with a 1 month Interest Period advanced on such day (or if such day is not a Business Day, the immediately preceding Business Day), plus (ii) 1.00%;  provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes

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of this Agreement (except that, during any period when any Hedge Agreement in in place in respect of all or any portion of the Loans, the foregoing “zero floor” shall not be applicable to any such Loans).

“Base Rate Loan” means a Loan bearing interest at a rate specified in Section 2.4(a).

“BFC Controlled Affiliate” means any other Person that is controlled by, or under common control with, BFC Financial Corporation. For purposes of this definition, “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise.

“Bluegreen/Big Cedar” means Bluegreen/Big Cedar Vacations, LLC.

“Bluegreen Communities” means Borrower’s lot communities business segment which acquired, developed and subdivided property and marketed residential land homesites and whereby substantially all the assets of such business segment was sold in 2012.

“Borrower” is defined in the introductory paragraph of this Agreement.

“Borrowing” means the total of Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by the applicable Lenders on a single date and, in the case of Eurodollar Loans, for a single Interest Period. Borrowings of Loans are made and maintained ratably from each of the applicable Lenders according to their Percentages. A Borrowing is “advanced” on the day Lenders advance funds comprising such Borrowing to the Borrower, is “continued” on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is “converted” when such Borrowing is changed from one type of Loans to the other, all as requested by the Borrower pursuant to Section 2.5(a). Borrowings of Swing Loans are made by the Administrative Agent in accordance with the procedures set forth in Section 2.11.

“BRM” means Bluegreen Resorts Management, Inc., a Delaware corporation.

“Business Day” means (a) with respect to all notices and determinations in connection with LIBOR, any day (other than a Saturday or Sunday) on which commercial banks are open in London, England, New York, New York, and Cincinnati, Ohio for dealings in deposits in the London Interbank Market; and (ii) in all other cases, any day on which commercial banks in Cincinnati, Ohio are required by law to be open for business.  Periods of days referred to in this Agreement will be counted in calendar days unless Business Days are expressly prescribed.

“BVU” means Bluegreen Vacations Unlimited, Inc., a Florida corporation.

“Capital Lease” means any lease of Property which in accordance with GAAP is required to be capitalized on the balance sheet of the lessee.

“Capitalized Lease Obligation” means, for any Person, the amount of the liability shown on the balance sheet of such Person in respect of a Capital Lease determined in accordance with GAAP.

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“Cash Collateral” shall have a meaning correlative to the cash or deposit account balances referred to in the definition of Cash Collateralize set forth in this Section 1.1 and shall include the proceeds of such cash collateral and other credit support.

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Administrative Agent, the L/C Issuer, the Swing Line Lender, and the Lenders, as collateral for L/C Obligations, obligations in respect of Swing Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Borrower, (b) the Administrative Agent and (c) the L/C Issuer or the Swing Line Lender, as applicable.

“Cash Equivalents” means, as to any Person, cash equivalents, as determined in accordance with GAAP.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means the occurrence of any of the following events: (a) a change in ownership or control of the Borrower effected through a transaction or series of transactions whereby any Person or group of Persons who are Affiliates directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of securities of the Borrower possessing more than fifty percent (50%) of the total combined voting power of the Borrower’s securities outstanding immediately after such acquisition, whether by means of a sale, merger, consolidation or otherwise, or (b) any direct or indirect acquisition or purchase of over fifty percent (50%) in fair market value of the consolidated assets of the Borrower and its Affiliates other than through the sale of Vacation Ownership Interests to consumers in the ordinary course of business of the Borrower and its Affiliates, other than with respect to transactions between BFC Controlled Affiliates.

“Closing Date” means the date of this Agreement or such later Business Day upon which each condition described in Section 3.2 shall be satisfied or waived in a manner acceptable to the Administrative Agent in its discretion.

“Club Trust Agreement” means that certain Bluegreen Vacation Club Amended and Restated Trust Agreement, dated as of May 18, 1994, by and among Bluegreen Vacations 

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Unlimited, Inc., Bluegreen Resorts Management, Inc., Bluegreen Vacation Club, Inc., and Vacation Trust, Inc., as Trustee.

“Code” means the Internal Revenue Code of 1986, or any successor statute thereto.

“Collateral” means all properties, rights, interests, and privileges from time to time subject to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral Documents.

“Collateral Account” is defined in Section 4.5(a).

“Collateral Documents” means the Mortgages, the Security Agreement, and all other security agreements, pledge agreements, control agreements, assignments, financing statements and other documents pursuant to which Liens are granted to the Administrative Agent by the Loan Parties or such Liens are perfected, and as shall from time to time secure or relate to the Secured Obligations or any part thereof, but not including any Hedge Agreements or agreements governing Bank Product Liabilities.

“Collateral Report” means a report in the form of Exhibit A to the Security Agreement, or in such other form acceptable to the Administrative Agent, to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.1(d).

“Commitment” means a Term Commitment or a Revolving Commitment, as the context may require.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

“Communications” is defined in Section 10.8(d)(ii).

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Controlled Group” means all members of a controlled group of corporations, limited liability companies, partnerships and all trades or businesses (whether or not incorporated) under common control which, together with any Loan Party, are treated as a single employer under Section 414(b) or (c) of the Code and, for purposes of Section 302 of ERISA and Section 412 of the Code, under section 414(b), (c), (m), and (o) of the Code.

“Credit Event” means the advancing of any Loan, the continuation of or conversion into a Eurodollar Loan (but excluding an advance of a Revolving Loan made for the purpose of repaying Swing Loans or paying unpaid Reimbursement Obligations), or the issuance of, or extension of the expiration date or increase in the amount of, any Letter of Credit.

“Damages” means all damages, including punitive damages, liabilities, costs, expenses, losses, judgments, diminutions in value, fines, penalties, demands, claims, cost recovery actions, lawsuits, administrative proceedings, orders, response action, removal and remedial costs, 

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compliance costs, investigation expenses, consultant fees, attorneys’ and paralegals’ fees and litigation expenses.

“Debt” means, with respect to any Person at any date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices or amounts payable under “earn out” arrangements as and solely to the extent future revenues are realized and equal or exceed the amount of such “earn out”), (b) all obligations of such Person under capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, and (e) all indebtedness of other Persons to the extent guaranteed by such Person, but excluding (x) Subordinated Debt of such Person and (y) all recourse and non-recourse Receivable-Backed Notes Payable of such Person.

“Debtor Relief Laws” means the United States Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect.

“Defaulting Lender” means, subject to Section 8.6(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its Loans or participation in Letters of Credit or Swing Loans) within two Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or

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any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 8.6(b)) upon delivery of written notice of such determination to the Borrower, the L/C Issuer, and each Lender.

“Depreciation and Amortization” means, for any accounting period, the consolidated depreciation and amortization for the Borrower, determined in accordance with GAAP, excluding amortization of debt issuance costs for such accounting period, if such amortization is also included in Other Interest Expense.

“Designated Officer” means each of the Chief Executive Officer, Chief Financial Officer, President, any Senior Vice President, Treasurer, Assistant Treasurer, and any comparable officer of the Borrower or any other Loan Party.

“Disproportionate Advance” is defined in Section 2.5(e).

“Dollars” and “$” each means the lawful currency of the United States of America.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means any Person that satisfies the requirements to and/or restrictions on becoming an assignee under Section 10.9(b)(iii), 10.9(b)(v) and 10.9(b)(vi) (subject to such consents, if any, as may be required under Section 10.9(b)(iii)).

“Environmental Claim” means any notice of violation, demand, allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, restriction or claim (whether administrative, judicial or private in nature) arising pursuant to or in connection with: (a) an actual or alleged violation of any Environmental Law, (b) any Hazardous Material, (c) any actual or threatened abatement, removal, investigation, remediation or corrective or response action required by Environmental Laws or any Governmental Authority, or (d) any actual, or 

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written allegation of, damage, injury, threat or harm to human health, safety natural resources or the environment.

“Environmental Law” means any applicable Legal Requirement pertaining to (a) the protection, conservation, use or management of the environment, human health and safety, natural resources and wildlife, (b) the protection or use of surface water or groundwater, (c) the management, manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, Release, threatened Release, investigation, abatement, removal, remediation or handling of, or exposure to, any Hazardous Material, or (d) any Release of Hazardous Materials to air, land, surface water or groundwater, and any amendment, rule, regulation, order or directive issued thereunder.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Eurodollar Loan” means a Loan bearing interest at the rate specified in Section 2.4(b).

“Event of Default” means any event or condition identified as such in Section 7.1.

Excess Interest” is defined in Section 10.16.

Excluded Subsidiary” means (a) as of the Closing Date, each Non-Guarantor; and additionally (b) at all times thereafter (subject to the notification requirements set forth in this Agreement), (i) each SPE Subsidiary, (ii) each Immaterial Subsidiary, (iii) each Permitted Joint Venture and (iv) any other Subsidiaries approved in writing by the Administrative Agent.

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on 

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amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment (or otherwise pursuant to any Loan Document) pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 10.2(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 10.1, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Lender’s failure to comply with Section 10.1(g), and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Existing Credit Agreement” is defined in the preliminary statements of this Agreement.

Existing Lenders is defined in the preliminary statements of this Agreement.

“Existing Loans” is defined in the preliminary statements of this Agreement.

“Facility” means the Term Facility or the Revolving Facility, as the context may require.

“Facility Termination Date” means the date on which the Commitments are terminated, all Letters of Credit that are not Cash Collateralized pursuant to Section 4.5 have expired, and the principal of and interest on the Loans and all other Obligations payable by the Borrower and the other Loan Parties under this Agreement and all other Loan Documents (other than any contingent or indemnification obligations not then due) and, if then outstanding and unpaid, all Hedging Liability and Bank Product Liability shall have been paid in full or collateralized in a manner reasonably acceptable to the Lender or Affiliate of a Lender to whom such obligations are owed.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Rate” means for any day, the weighted average (rounded upwards, if necessary, to the next higher 1/100 of 1%) of the rates per annum on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on such day (or, if such day is not a Business Day, on the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upward, if necessary, to the next higher 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

“Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Adjusted EBITDA, less Unfinanced Capital Expenditures for the four (4) quarters then ended,  less dividends, stock repurchases and other restricted payments, including any restricted payments made to BFC Financial Corporation or any BFC Controlled Affiliate in accordance with the Tax Sharing Agreement, in each case, paid in cash during such four (4) quarter-period,  

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less, without duplication, the aggregate amount of federal, state, local and foreign income taxes, in each case, paid in cash during such four (4) quarter-period, to (b) the sum of (i) the aggregate principal amount of regularly scheduled or mandatory redemptions or similar acquisitions for value of outstanding Debt for borrowed money or regularly scheduled principal payments (and, for the avoidance of doubt, not voluntary prepayments) made during the four (4) quarters then ended (other than any such payments made in respect of recourse and non-recourse Receivable-Backed Notes Payable of the Borrower and its Subsidiaries or any such payments made in respect of Debt of the Borrower and its Subsidiaries that is secured by timeshare inventory of the Borrower or any of its Subsidiaries and such payments are required to be made as such timeshare inventory is sold (which inventory is expensed by the Borrower and/or each applicable Subsidiary as cost of goods sold)), and (ii) Other Interest Expense paid in cash during such four (4) quarter-period.

“Flood Hazard Property” means any Mortgaged Premises that is in an area designated by the Federal Emergency Management Agency as having special flood or mudslide hazards.

“Foreign Lender” means a Lender that is not a U.S. Person.

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with Section 4.5, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Percentage of outstanding Swing Loans other than Swing Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with Section 4.5.

“Funding Indemnity Letter” means a funding indemnity letter in form and substance reasonably satisfactory to the Administrative Agent in substantially similar form as Exhibit I and providing for indemnity by the Borrower to the Lenders in respect of costs and expenses of the type referred to in Section 8.1.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination.

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

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“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

“Guarantors” means and includes each direct and indirect Subsidiary of the Borrower (other than the Excluded Subsidiaries), and the Borrower, in its capacity as a guarantor of the Secured Obligations of another Loan Party. The Borrower and the Lenders acknowledge and agree that all Guarantors as of the Closing Date are listed on Schedule 1.2.

“Guaranty Agreements” means and includes the Guarantee of the Loan Parties provided for in Section 11, and any other guaranty agreement executed and delivered in order to guarantee the Secured Obligations or any part thereof in form and substance acceptable to the Administrative Agent.

“Hazardous Material” means any hazardous, toxic or harmful chemical, substance, waste, compound, material, product or byproduct subject to or regulated under Environmental Laws, including but not limited to radon, asbestos, polychlorinated biphenyls, petroleum (including crude oil or any fraction thereof) and lead.

“Hedge Agreement” means any (a) agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of any Loan Party or its Subsidiaries shall be a Hedge Agreement or (b) any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other similar master agreement.

“Hedging Liability” means the liability (after taking into account the effect of any legally enforceable netting agreements related thereto and not including any Excluded Swap Obligations) of any Loan Party to any of the Lenders, or any Affiliates of such Lenders, in respect of any Hedge Agreement as such Loan Party, as the case may be, may from time to time enter into with any one or more of the Lenders party to this Agreement or their Affiliates, equal to (a) for any such date on or after the date such Hedge Agreement has been closed out and termination value determined in accordance therewith, such termination value and (b) for any 

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date before the date referenced in clause (a), the amount determined as the mark-to market value for such Hedge Agreement; provided that, with respect to any Guarantor, Hedging Liability Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.

“Immaterial Subsidiary” means any Subsidiary designated as such in writing by the Borrower to the Administrative Agent from time to time; provided that (i) the book value of the assets, determined in accordance with GAAP, of any such Immaterial Subsidiary may not exceed $5,000,000 at any time, and (ii) the book value of the aggregate assets, determined in accordance with GAAP, of all Immaterial Subsidiaries may not exceed $10,000,000 at any time (and the Borrower will designate in writing to the Administrative Agent on a quarterly basis the Subsidiaries which will cease to be treated as “Immaterial Subsidiaries” in order to comply with the foregoing limitations).

“Income (Loss)” means, for any accounting period, the amount for such accounting period disclosed with the caption “Net Income (Loss)” or its equivalent, on the Borrower’s consolidated statement of income (or consolidated statement of operations, as applicable) prepared in accordance with GAAP. For avoidance of doubt, such amount is meant to reflect the Borrower’s consolidated income or loss for such accounting period after income tax, but before (a) net income (or loss) attributable to Bluegreen Communities; and (b) net income (or loss) attributable to non-controlling interest.

“Increase Effective Date” is defined in Section 2.15(d).

“Incremental Commitments” is defined in Section 2.15(a).

“Incremental Revolving Commitment” is defined in Section 2.15(a).

“Incremental Term Commitment” is defined in Section 2.15(a).

“Indebtedness” means for any Person (without duplication) the sum of the following: (a) indebtedness for borrowed money, including non-recourse and subordinated indebtedness; (b) obligations evidenced by bonds, debentures, notes or other similar instruments; (c) obligations to pay the deferred purchase price of property or services relative to the purchase of long term assets in accordance with GAAP (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices or amounts payable under “earn out” arrangements as and solely to the extent future  revenues are realized and equal or exceed the amount of such “earn out”); (d) obligations as lessee under leases which have been or should be, in accordance with GAAP, recorded as capital leases; (e) obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities or property; (f) obligations of such Person to reimburse any bank or other Person in respect of amounts actually paid under a letter of credit or similar instrument; (g) indebtedness or obligations of others secured by a lien on any asset of such Person, whether or not such indebtedness or obligations are assumed by such Person (to the extent of the value of the asset); (h) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to 

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in clauses (a) though (g) above; and (i) liabilities in respect to unfunded vested benefits under plans covered by Title IV of the Employee Retirement Income Security Act of 1974.

“Indemnified Taxes” means (a) all Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” is defined in Section 10.12(b).

“Interest Payment Date” means (a) with respect to any Eurodollar Loan, the last day of each Interest Period with respect to such Eurodollar Loan and on the maturity date and, if the applicable Interest Period is longer than three (3) three months, on each day occurring every three (3) months after the commencement of such Interest Period, (b) with respect to any Base Rate Loan (other than Swing Loans), the last Business Day of every calendar month and on the maturity date, and (c) as to any Swing Loan, the last day of the Interest Period with respect to such Swing Loan, and on the maturity date.

“Interest Period” means, with respect to Eurodollar Loans and Swing Loans, the period commencing on the date a Borrowing of Loans is advanced, continued or created by conversion and ending: (a) in the case of a Eurodollar Loan, 1, 2 or 3 months thereafter, as the Borrower may elect (or, solely in connection with any Borrowing on the Closing Date, such shorter, “stub” period as the Borrower and the Administrative Agent may mutually agree), and (b) in the case of a Swing Loan, on the date 1 to 5 Business Days thereafter as mutually agreed to by the Borrower and the Swing Line Lender; provided that:

(i) no Interest Period with respect to any Loans shall extend beyond the Termination Date;

(ii) whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be extended to the next succeeding Business Day, provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day; and

(iii) for purposes of determining an Interest Period for a Borrowing of Eurodollar Loans, a month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month; provided that if there is no numerically corresponding day in the month in which such an Interest Period is to end or if such an Interest Period begins on the last Business Day of a calendar month, then such Interest Period shall end on the last Business Day of the calendar month in which such Interest Period is to end.

“Investment” means any investment in any Person, whether by means of a loan or advance, guarantee of obligations, purchase of equity or obligations, acquisition of all or any substantial part of the assets or business of any Person or any division thereof, entry into joint ventures or partnerships, purchase or ownership of a futures contract or otherwise becoming liable for the purchase or sale of currency or other commodities at a future date in the nature of a 

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futures contract. For purposes of clarity, “Investment” shall not include any purchase of Vacation Ownership Interests.

“IRS” means the United States Internal Revenue Service.

“L/C Issuer” means Fifth Third Bank, an Ohio banking corporation, and any successor pursuant to Section 10.9(g).

“L/C Obligations” means, at any time the same is to be determined, the sum of (i) the full amount available for drawing under all outstanding Letters of Credit and (ii) all unpaid Reimbursement Obligations.

“L/C Participation Fee” is defined in Section 2.13(b).

“L/C Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Revolving Facility.  The L/C Sublimit is part of, and not in addition to, the Revolving Facility.

“Legal Requirement” means any treaty, convention, statute, law, common law, regulation, ordinance, license, permit, governmental approval, injunction, judgment, order, consent decree, restriction or other requirement of any Governmental Authority.

“Lenders” means and includes the banks, financial institutions and other lenders from time to time party to this Agreement, as a “Lender” hereunder, including each permitted assignee Lender pursuant to Section 10.9. Unless the context requires otherwise, the term “Lenders” includes the Swing Line Lender.

“Letter of Credit” is defined in Section 2.3(a).

“Leverage Ratio” means, with respect to any Person as of a date of determination, the ratio of (a) the Debt of such Person on such date to (b) the Adjusted EBITDA of such Person for the four (4) quarters then ended, calculated as of the end of each fiscal quarter.

“LIBOR” means, for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in Dollars in immediately available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) 2 Business Days before the beginning of such Interest Period by 3 or more major banks in the interbank eurodollar market selected by the Administrative Agent for delivery on the first day of and for a period equal to such Interest Period and in an amount equal or comparable to the principal amount of the Eurodollar Loan scheduled to be made by the Administrative Agent as part of such Borrowing.

“LIBOR Index Rate” means, for an Interest Period for any Borrowing of Eurodollar Loans, the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in Dollars for a period equal to such Interest Period, which appears on the Reuters Screen LIBOR01 Page as of 11:00 a.m. (London, England time) on the day two Business Days before the commencement of such Interest Period;  provided 

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that at any time during which any Hedge Agreement is in place in respect of all or any portion of the Loans, the provisions contained in this Agreement which round up the interest rate applicable to such Loans to the nearest one hundred-thousandth shall be disregarded and no longer of any force and effect as to such Loans, notwithstanding anything herein to the contrary.

“Lien” means any lien, mortgage, deed of trust, pledge, assignment as collateral security, security interest, charge, or encumbrance in the nature of security in respect of any Property, including the interests of a vendor or lessor under any conditional sale, Capital Lease or other title retention arrangement, and any option, trust, UCC financing statement or other preferential arrangement having the practical effect of any of the foregoing.

“Limited Joinder” means, with respect to any Sales and Marketing Agreement, a joinder to certain miscellaneous sections of such Sales and Marketing Agreement which does not in any way affect BVU’s (or any other applicable Loan Party’s) rights to receive payments in respect of any of the Pledged Receivables (as defined in the Security Agreement).

“Loan” means any Revolving Loan, Term Loan or Swing Loan, whether outstanding as a Base Rate Loan or Eurodollar Loan or otherwise as permitted hereunder, each of which is a “type” of Loan hereunder.

“Loan Documents” means this Agreement, the Notes (if any), the Applications, the Collateral Documents, the Guaranty Agreements and each other agreement, instrument or document to be delivered hereunder or thereunder or otherwise in connection therewith, other than Hedge Agreements. In no event shall any Hedge Agreements or agreements governing Bank Product Liabilities constitute a Loan Document.

“Loan Party” means the Borrower and each of the Guarantors.

“LTIP Expense” means, for any accounting period, the aggregate expense incurred in such accounting period in accordance with GAAP for the Borrower’s long-term incentive compensation plan (“LTIP”).  For avoidance of doubt, LTIP expense excludes payments of base salary and annual bonus compensation.

Management Agreement” means the Amended and Restated Management Agreement, dated as of May 18, 1994, by and between BRM and Vacation Trust, Inc., and any other management agreement entered into by any of the Loan Parties or their Subsidiaries with the applicable Association, pursuant to which such Loan Parties or Subsidiaries will manage the applicable Resort for a fee agreed-upon in such management agreement.

“Margin Stock” shall have the meaning given to such term in Regulation U of the Board of Governors of the Federal Reserve System.

“Material Adverse Effect” means any material and adverse change in, or a change which has a material adverse effect upon, any of: (a) the business, properties, operations, liabilities, profits or condition (financial or otherwise) of the Borrower, which, with the giving of notice or passage of time, or both, could reasonably be expected to result in either (i) the Borrower failing to comply with any of the financial covenants pursuant to Section 6.20 or (ii) the Borrower’s inability to perform its Obligations pursuant to the terms of the Loan Documents; (b) the 

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Collateral; (c) the legal or financial ability of the Borrower, individually, or the Guarantors, collectively, to perform their obligations under the Loan Documents and to avoid any Potential Default or Event of Default; or (d) the legality, validity, binding effect or enforceability against any Loan Party of any Collateral Document or related Lien in accordance with its terms.

“Material Agreement” means any of the following:

(a) any agreement under which Borrower or any Subsidiary of the Borrower has advanced or loaned any amount to any of its managers, officers, and employees outside the ordinary course of business consistent with past custom and practice (including with respect to quality and frequency);

(b) any agreement under which the consequences of a default or termination would have a Material Adverse Effect; and

(c) any other agreement (or group of related agreements) entered into other than in the ordinary course of business, the performance of which involves consideration in excess of $10,000,000.

“Maximum Rate” is defined in Section 10.16.

“Moody’s” means Moody’s Investors Service, Inc.

“Mortgaged Premises” means, collectively, the real property commonly known as (a) S947 Christmas Mountain Road, Wisconsin Dells, Wisconsin, (b) 12400 International Drive, Orlando, Florida, and (c) 7021 Crossland Drive, Orlando, Florida.

“Mortgages” means, collectively, each mortgage, deed of trust or other security instrument delivered by the Borrower or another Loan Party to the Administrative Agent relating to such Loan Party’s real property, fixtures and interests in all or any portion of the Mortgaged Premises.

“Net Income” means, the net income (or loss), including any non-controlling interest, of any Person for such period taken as a single accounting period determined in conformity with GAAP.

“New Lenders” is defined in Section 2.15(c).

“New Mortgaged Premises” is defined in Section 4.2.

“Non-Cash Legacy Asset Impairment Charges” means, for any accounting period, without duplication, the sum of non-cash charges in accordance with GAAP included in the Borrower’s consolidated statement of income (or statement of operations, as applicable) resulting from: (a) write-downs in the carrying value of the Borrower’s vacation ownership inventory (including completed Vacation Ownership Interests, work-in-process and land), if such inventory relates to a resort location acquired or developed by the Borrower prior to January 1, 2009; (b) write-downs of the carrying value of the Borrower’s property and equipment, if such property and equipment was acquired or developed prior to January 1, 2009; or (c) increases to the 

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allowance for loan losses or other write-downs related to the Borrower’s notes receivable, if such allowance for loan losses or other write-downs relate to notes receivable which were originated prior to January 1, 2009.

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders or all Lenders, in each instance in accordance with the terms of Section 10.10, and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-Guarantor” means each of the Subsidiaries listed on Schedule 1.3.

“Note” and “Notes” mean and include the Revolving Notes, the Term Notes and the Swing Note.

“Obligations” means all obligations of the Borrower to pay principal and interest on the Loans (including all after the commencement of an insolvency proceeding regardless of whether allowed or allowable in whole or in part as a claim in such insolvency proceeding), all Reimbursement Obligations owing under the Applications, all fees and charges payable hereunder, and all other payment obligations of any Loan Party arising under or in relation to any Loan Document, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired, and including all interest costs, fees, and charges after commencement of an insolvency proceeding regardless of whether allowed or allowable in whole or in part as a claim in such insolvency proceeding.

OFAC” means the United States Department of Treasury Office of Foreign Assets Control.

OFAC Event” means the event specified in Section 6.21(c).

OFAC Sanctions Programs” means all laws, regulations, and Executive Orders administered by OFAC, including the Bank Secrecy Act, anti-money laundering laws (including the Patriot Act)), and all economic and trade sanction programs administered by OFAC, any and all similar United States federal laws, regulations or Executive Orders, and any similar laws, regulations or orders adopted by any State within the United States.

OFAC SDN List” means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC.

“Organization Documents” means, (a) for any corporation, the certificate or articles of incorporation, the bylaws, or code of regulations, or other similar document and any certificate of designations or instrument relating to the rights of shareholders of such corporation, (b) for any partnership, the partnership agreement or other similar agreement and, if applicable, certificate of limited partnership, (c) for any limited liability company, the operating agreement, limited liability company agreement, or other similar agreement, and articles or certificate of 

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formation of such limited liability company, and (d) with respect to any joint venture, trust or other form of business entity, the joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a Lien under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Interest Expense” means, for any accounting period, the amount for such accounting period disclosed with the caption “Interest Expense,” or its equivalent, on the    Borrower’s consolidated statement of income (or consolidated statement of operations, as applicable) prepared in accordance with GAAP, less the aggregate amount of interest expense incurred on the Borrower’s recourse and non-recourse Receivable-Backed Notes Payable for such accounting period.

“Other Interest Income” means, for any accounting period, the amount for such accounting period disclosed with the caption “Interest Income,” or its equivalent, on the Borrower’s consolidated statement of income (or consolidated statement of operations, as applicable) prepared in accordance with GAAP, less the aggregate amount of interest income incurred on the Borrower’s notes receivable for such accounting period.

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.2(b)).

“Ownership Interest” means all shares, interests, participations, rights to purchase, options, warrants, general or limited partnership interests, limited liability company interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the Rules and Regulations promulgated by the Securities and Exchange Commission (17 C.F.R. § 240.3a11-1) under the Securities and Exchange Act of 1934).

“Participant” is defined in Section 10.9(d).

“Participant Register” is defined in Section 10.9(d).

“Participating Interest” is defined in Section 2.3(d).

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“Participating Lender” is defined in Section 2.3(d).

“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56.

“PBGC” means the Pension Benefit Guaranty Corporation or any Person succeeding to any or all of its functions under ERISA.

“Percentage” means (a) in respect of the Term Facility, with respect to any Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by (i) on or prior to the Closing Date,  such Term Lender’s Term Commitment at such time and (ii) thereafter, the outstanding principal amount of such Term Lender’s Term Loans at such time, and (b) in respect of the Revolving Facility, with respect to any Revolving Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Facility represented by such Revolving Lender’s Revolving Commitment at such time, subject to adjustment as provided in this Agreement.  If the Commitment of all of the Revolving Lenders to make Revolving Loans and the obligation of the L/C Issuer to issue Letters of Credit have been terminated pursuant to the terms hereof, or if the Revolving Commitments have expired, then the Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments.  The Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 1.1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Perfection Certificate” means that certain Perfection Certificate dated as of the Closing Date from the Borrower to the Administrative Agent.

“Permitted Joint Venture” means an Investment in a Subsidiary (other than Bluegreen/Big Cedar) organized under the laws of any State in the United States or the District of Columbia and whose assets are located in the United States that are not Wholly-owned Subsidiaries; provided that the aggregate amount of such Investments in Permitted Joint Ventures does not exceed $10,000,000 at any one time outstanding.

“Permitted Lien” is defined in Section 6.12.

“Person” means any natural person, partnership, corporation, limited liability company, association, trust, unincorporated organization or any other entity or organization, including a Governmental Authority.

“Plan” means any employee pension benefit plan covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code that either (a) is maintained by a member of the Controlled Group (including the Borrower) for current or former employees of a member of the Controlled Group (including the Borrower) and to which a member of the Controlled Group (including the Borrower) is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions or under which a member of the Controlled Group (including the Borrower) is reasonably expected to incur liability or (b) is maintained pursuant to a collective bargaining agreement or 

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any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group (including the Borrower) is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions or under which a member of the Controlled Group (including the Borrower) is reasonably expected to incur liability.

“Platform” is defined in Section 10.8(d).

“Potential Default” means any event or condition the occurrence of which would, if remaining uncured with the giving of applicable notice or passage of time, as applicable, constitute an Event of Default.

“Property” means, as to any Person, all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent balance sheet of such Person and its Subsidiaries under GAAP.

“Provision (Benefit) For Income Taxes” means, for any accounting period, the amount for such accounting period disclosed with the caption “Provision (Benefit) For Income Taxes” or its equivalent, on the Borrower’s consolidated statement of income (or consolidated statement of operations, as applicable) prepared in accordance with GAAP, plus franchise tax expense for such accounting period, without duplication.

Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Receivable-Backed Notes Payable” means, with respect to the Borrower and its Subsidiaries at any date, Debt shown on the Borrower’s consolidated balance sheet under the captions “Receivable-backed notes payable — recourse”, “Receivable-backed notes payable — non-recourse”, and any substantially similar debt.

“Receivable Debt Financing” means any facility whose Debt qualifies as a Receivable-Backed Note Payable.

“Receivable Debt Documents” means the trust agreement, the indenture and any other operative document relating to or delivered in connection with any Receivable Debt Financing.

“Recipient” means (a) the Administrative Agent, (b) any Lender, and (c) the L/C Issuer.

“Recoveries” means, for any accounting period, without duplication, the sum of incremental profits recognized in accordance with GAAP included in the Borrower’s consolidated statement of income (or statement of operations, as applicable) (a) resulting solely from the previous recognition of Non-Cash Legacy Asset Impairment Charges and (b) (i) gains 

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on the sale of the Borrower’s property and equipment; and (ii) gains on the sale of the Borrower’s notes receivable.

“Register” is defined in Section 10.9(c).

“Reimbursement Obligation” is defined in Section 2.3(c).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release” means any placing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or migrating into the environment, including the exacerbation of existing environmental conditions and the abandonment or discarding of barrels, drums, containers, tanks or other receptacles containing or previously containing any Hazardous Material.

“Removal Effective Date” is defined in Section 9.7(b).

“Required Lenders” means, as of the date of determination thereof, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that the amount of any participation in any Swing Loan and Reimbursement Obligations that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.    For the purposes of this definition, (a) any Lender and its Affiliates shall constitute a single Lender, and (b) in no event shall Required Lenders include fewer than two (2) Lenders at any time there are two (2) or more Lenders.

“Reserve Percentage” means, for any Borrowing of Eurodollar Loans, the daily average for the applicable Interest Period of the maximum rate, expressed as a decimal, at which reserves (including any supplemental, marginal, and emergency reserves) are imposed during such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or in respect of any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets that include loans by non-United States offices of any Lender to United States residents), subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the Eurodollar Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D.

“Resignation Effective Date” is defined in Section 9.7(a).

“Resort” means any timeshare project owned by the Borrower or any of its Subsidiaries.

“Resort Title” means Resort Title Agency, Inc.

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Restricted Payments” means (i) any dividends on or any other distributions in respect of any class or series of Ownership Interests, and (ii) any purchase, redemption or other acquisition or retirement of Ownership Interests.

“Reuters Screen LIBOR01 Page” means the display designated as the “LIBOR01 Page” on the Reuters Service (or on any successor or substitute page of such service or such other service that may be nominated by the ICE Benchmark Administration as the information vendor for the purpose of displaying ICE Benchmark Administration Interest Settlement Rates for U.S. Dollar Deposits (“ICE LIBOR”), or such other commercially available source providing quotations of ICE LIBOR as reasonably designated by the Administrative Agent from time to time).

“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Loans of the same type and, in the case of Eurodollar Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.2.

“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.2, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.1 under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The Revolving Commitment of all of the Revolving Lenders on the Closing Date shall be $75,000,000.

“Revolving Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swing Loans at such time.

“Revolving Facility” means, at any time, the aggregate amount of the Revolving Lenders’ Revolving Commitments at such time.

“Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swing Loans at such time.

“Revolving Loan” is defined in Section 2.2 and, as so defined, includes a Base Rate Loan or a Eurodollar Loan, each of which is a “type” of Revolving Loan hereunder.

“Revolving Note” is defined in Section 2.12(d).

“S&P” means Standard & Poor’s Ratings Services Group, a Standard & Poor’s Financial Services LLC business.

“Sales and Marketing Agreement” means any sales and marketing agreement entered into by any of the Loan Parties or their Subsidiaries, pursuant to which such Loan Parties or 

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Subsidiaries will market and sell vacation ownership projects in the United States and internationally through their “fee-based services” platform.

“Secured Obligations” means the Obligations, Hedging Liability, and Bank Product Obligations, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all interest, costs, fees, and charges after the entry of an order for relief against any Loan Party in a case under the United States Bankruptcy Code or any similar proceeding, whether or not such interest, costs, fees and charges would be an allowed claim against such Loan Party in any such proceeding); provided that, with respect to any Guarantor, Secured Obligations Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.

“Security Agreement” means that certain Amended and Restated Security Agreement, dated as of the date hereof, by and among the Borrower, BVU, BRM and the Administrative Agent.

“Solvent” or “Solvency” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay all liabilities of such Person as such liabilities mature and (c) such Person does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“SPE Subsidiary” means any bankruptcy remote special purpose entity established for the sole purpose of financing assets associated with the sale of Vacation Ownership Interests. The Borrower and the Lenders acknowledge and agree that all SPE Subsidiaries as of the Closing Date are listed on Schedule 1.3.

“Specified Resorts” means, collectively, the Resorts commonly referred to as the Fountains Resort and the Lake Eve Condominium Resort, each located in Orlando, Florida.

“Stock Compensation Expense” means, for any accounting period, the amount for such accounting period disclosed with the caption “Non-cash stock compensation expense”, or its equivalent, on the Borrower’s consolidated Statement of Cash Flows.

Subordinated Debt” means Indebtedness represented by the Borrower’s junior subordinated debentures or such other Indebtedness incurred by the Borrower on or prior to the Closing Date, which is treated as subordinated indebtedness in accordance with GAAP and is unsecured.

“Subsidiary” means, as to any particular parent corporation or organization, any other corporation or organization more than 50% of the outstanding Voting Stock of which is at the time directly or indirectly owned by such parent corporation or organization or by any one or more other entities which are themselves subsidiaries of such parent corporation or organization. Unless otherwise expressly noted herein, the term “Subsidiary” means a Subsidiary of the Borrower or of any of its direct or indirect Subsidiaries.

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Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.

“Swing Line” means the credit facility for making one or more Swing Loans described in Section 2.11.

“Swing Line Lender” means Fifth Third Bank, an Ohio banking corporation, and any successor pursuant to Section 10.9(g).

“Swing Line Lender’s Quoted Rate” is defined in Section 2.11(c).

“Swing Line Sublimit” means $5,000,000.00, as reduced pursuant to the terms hereof.

“Swing Loan” and “Swing Loans” each is defined in Section 2.11.

“Swing Note” is defined in Section 2.12(d).

“Tax Sharing Agreement” means that certain Agreement to Allocate Consolidated Income Tax Liabilities and Benefits, effective as of May 1, 2015, by and among BFC Financial Corporation and its Subsidiaries named therein.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax, liabilities or penalties applicable thereto.

“Term Borrowing” means a borrowing consisting of simultaneous Term Loans of the same type and, in the case of Eurodollar Loans, having the same Interest Period made by each of the Term Lenders pursuant to Section 2.1.



“Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to the Borrower pursuant to Section 2.1 in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule 1.1 under the caption “Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.  The Term Commitment of all of the Term Lenders on the Closing Date shall be $25,000,000.



“Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term Commitments at such time and (b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time.



“Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that holds Term Loans at such time.



“Term Loan” means an advance made by any Term Lender under the Term Facility.

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Term Note” is defined in Section 2.12(d).



“Termination Date” means December 16, 2021 or such earlier date on which the Commitments are terminated in whole pursuant to Section 2.10, 7.2 or 7.3.



“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, Revolving Exposure and the aggregate outstanding principal amount of all Term Loans, in each case, of such Lender at such time.

UCC” is defined in Section 1.2.

“Unfinanced Capital Expenditures” shall mean the purchase by the Borrower and its Subsidiaries of property, plant and equipment or other fixed assets (as opposed to inventory) which is not funded with purchase money Indebtedness or other term Indebtedness.

“Unit” means an apartment, condominium, cooperative, lodge, hotel or motel room which is situated on real or personal property as part of a Resort which is designated for occupancy in connection with a Vacation Ownership Interest.

“Unused Commitments” means, at any time, the difference between (a) the Revolving Commitments then in effect and (b) the aggregate outstanding principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding (other than L/C Obligations that are Cash Collateralized); provided that Swing Loans outstanding from time to time shall be deemed to reduce only the Unused Commitment of the Administrative Agent and not of any other Lender for purposes of computing the commitment fee under Section 2.13(a).

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” is defined in Section 10.1(g)(ii).

“Vacation Ownership Interests” means, with respect to any Resort, (x) an undivided fee simple ownership interest as a tenant in common, a timeshare estate, or license, freehold estate, estate for years, or interest in a condominium, or (y) a Resort Interest (as defined in the Club Trust Agreement) that is an ownership interest in real property substantially similar to an ownership interest described in clause (x) above, in either case with respect to any Unit in such Resort, with a right to use such Unit, or a Unit of such type generally, for one (1) week or a portion of one (1) week annually or biennially (useable in either odd or even numbered years), together with all appurtenant rights and interests as more particularly described in, with respect to any Resort, any and all documents evidencing or relating to the creation and sale of Vacation Ownership Interests, the applicable declarations, the applicable governing documents of the applicable Associations, any rules and regulations of the applicable Associations, and the related Management Agreements.

“Voting Stock” of any Person means Ownership Interests of any class or classes (however designated) having ordinary power for the election of directors or other similar 

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governing body of such Person (including general partners of a partnership), other than Ownership Interests having such power only by reason of the happening of a contingency.

“Welfare Plan” means a “welfare plan” as defined in Section 3(1) of ERISA.

“Wholly-owned Subsidiary” means, at any time, any Subsidiary of which all of the issued and outstanding Ownership Interests (other than directors’ qualifying Ownership Interests as required by law) are owned by any one or more of the Borrower and the Borrower’s other Wholly-owned Subsidiaries at such time.

“Withholding Agent” means any Loan Party and the Administrative Agent.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Interpretation.

The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and any successor of such law or regulation and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. All references to time of day herein are references to Cincinnati, Ohio, time unless otherwise specifically provided. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent with the specific provisions of this Agreement. All terms that are used in this Agreement which are defined in the Uniform Commercial Code of the State of New York as in effect from time to time (“UCC”) shall have the same meanings herein as such terms are defined in the UCC, unless this Agreement shall otherwise specifically provide.

Change in Accounting Principles.

If, after the date of this Agreement, there shall occur any change in GAAP from those used in the preparation of the financial

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statements referred to in Section 5.3 and such change shall result in a change in the method of calculation of any financial covenant, standard or term found in this Agreement, either the Borrower or the Required Lenders may by notice to the Lenders and the Borrower, respectively, require that the Lenders and the Borrower negotiate in good faith to amend such covenant, standard, and term so as equitably to reflect such change in accounting principles, with the desired result being that the criteria for evaluating the financial condition of the Borrower and its Subsidiaries or such covenant, standard or term shall be the same as if such change had not been made. No delay by the Borrower or the Required Lenders in requiring such negotiation shall limit their right to so require such a negotiation at any time after such a change in accounting principles. Until any such covenant, standard, or term is amended in accordance with this Section 1.3, financial covenants (and all related defined terms) and applicable covenants, terms and standards shall be computed and determined in accordance with GAAP in effect prior to such change in accounting principles.

Rounding.

Any financial ratios required to be maintained pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under this Agreement) shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

SECTION 2.

THE CREDIT FACILITIES.

Term Facility

.  Each Term Lender severally and not jointly agrees, subject to the terms and conditions hereof, to make a single loan to the Borrower, in Dollars, on the Closing Date in an aggregate principal amount not to exceed such Term Lender’s Percentage of the Term Facility.  The Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with their respective Percentage of the Term Facility.  Term Borrowings repaid or prepaid may not be reborrowed.  Term Loans may be, at Borrower’s option, Base Rate Loans or Eurodollar Loans, as further provided herein;  provided that any Term Borrowing made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter to the Administrative Agent prior to the Closing Date.

Revolving Facility.

Prior to the Termination Date, each Revolving Lender severally and not jointly agrees, subject to the terms and conditions hereof, to make revolving loans (each individually a “Revolving Loan” and, collectively, the “Revolving Loans”) in Dollars to the Borrower from time to time up to the amount of such Revolving Lender’s Revolving Commitment in effect at such time; provided that (a) the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of all Commitments in effect at such time, and (b) any Revolving Borrowings made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrower delivers a Funding Indemnity Letter to the Administrative Agent prior to the Closing Date.  Each Borrowing of Revolving Loans shall be made ratably by the Lenders in proportion to their respective Percentages. As provided in Section 2.5(a), and subject to the terms hereof, the Borrower may elect that each Borrowing of Revolving Loans be either Base Rate Loans or Eurodollar Loans.

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Revolving Loans may be repaid and reborrowed before the Termination Date, subject to the terms and conditions hereof.

Letters of Credit.

  General Terms. Subject to the terms and conditions hereof, the L/C Issuer shall issue standby letters of credit (each a “Letter of Credit”) for the Borrower’s account in an aggregate undrawn face amount up to the L/C Sublimit; provided the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the Revolving Facility in effect at such time. Each Revolving Lender shall be obligated to reimburse the L/C Issuer for such Revolving Lender’s Percentage of the amount of each drawing under a Letter of Credit and, accordingly, each Letter of Credit shall constitute usage of the Revolving Commitment of each Revolving Lender pro rata in an amount equal to its Percentage of the L/C Obligations then outstanding.    

(a) Applications. At any time before the Termination Date, the L/C Issuer shall, at the request of the Borrower, issue one or more Letters of Credit in Dollars, in form and substance acceptable to the L/C Issuer, with expiration dates no later than the earlier of 12 months from the date of issuance (or which are cancelable not later than 12 months from the date of issuance and each renewal) or 30 days prior to the Termination Date (unless the Borrower has provided Cash Collateral in compliance with the requirements of Section 4.5 as security for such Letter of Credit in an amount equal to 105% of the full amount then available for drawing under such Letter of Credit) in an aggregate face amount as set forth above, upon the receipt of a duly executed application for the relevant Letter of Credit in the form then customarily prescribed by the L/C Issuer for the Letter of Credit requested (each an “Application”). Notwithstanding anything contained in any Application to the contrary: (i) the Borrower shall pay fees in connection with each Letter of Credit as set forth in Section 2.13(b), and (ii) if the L/C Issuer is not timely reimbursed for the amount of any drawing under a Letter of Credit on the date such drawing is paid, the Borrower’s obligation to reimburse the L/C Issuer for the amount of such drawing shall bear interest (which the Borrower hereby promises to pay) from and after the date such drawing is paid at a rate per annum equal to the sum of the Applicable Margin for Revolving Loans plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed). Without limiting the foregoing, the L/C Issuer’s obligation to issue, amend or extend the expiration date of a Letter of Credit is subject to the terms or conditions of this Agreement (including the conditions set forth in Section 3.1 and the other terms of this Section 2.3). Notwithstanding anything herein to the contrary, the L/C issuer shall be under no obligation to issue, extend or amend any Letter of Credit if any Revolving Lender is at such time a Defaulting Lender hereunder unless the Borrower or such Defaulting Lender has provided Cash Collateral in compliance with Section 4.5 sufficient to eliminate the L/C Issuer’s risk with respect to such Defaulting Lender.

(b) The Reimbursement Obligations. Subject to Section 2.3(b), the obligation of the Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement Obligation”) shall be governed by the Application related to such Letter of Credit and this Agreement, except that reimbursement shall be paid by no later than 12:00 Noon (Cincinnati time) on the date which each drawing is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or before 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid or, if notice of such drawing is given to the Borrower after 11:30 a.m. (Cincinnati time) on the date when such drawing is to be paid, by the end of such day, in all 

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instances in immediately available funds at the Administrative Agent’s principal office in Cincinnati, Ohio or such other office as the Administrative Agent may designate in writing to the Borrower, and the Administrative Agent shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds. If the Borrower does not make any such reimbursement payment on the date due and the Participating Lenders fund their participations in the manner set forth in Section 2.3(d) below, then all payments thereafter received by the Administrative Agent in discharge of any of the relevant Reimbursement Obligations shall be distributed in accordance with Section 2.3(d) below. In addition, for the benefit of the Administrative Agent, the L/C Issuer and each Revolving Lender, the Borrower agrees that, notwithstanding any provision of any Application, its obligations under this Section 2.3(c) and each Application shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the relevant Application, under all circumstances whatsoever, and irrespective of any claim or defense that the Borrower may otherwise have against the Administrative Agent, the L/C Issuer or any Revolving Lender, including (i) any lack of validity or enforceability of any Loan Document; (ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Loan Document; (iii) the existence of any claim, set-off, defense, or other right of the Borrower may have at any time against a beneficiary of a Letter of Credit (or any Person for whom a beneficiary may be acting), the Administrative Agent, the L/C Issuer, any Revolving Lender or any other Person, whether in connection with this Agreement, another Loan Document, the transaction related to the Loan Document or any unrelated transaction; (iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by the Administrative Agent or a L/C Issuer under a Letter of Credit against presentation to the Administrative Agent or a L/C Issuer of a draft or certificate that does not comply with the terms of the Letter of Credit, or (vi) any other act or omission to act or delay of any kind by the Administrative Agent or a L/C Issuer, any Revolving Lender or any other Person or any other event or circumstance whatsoever that might, but for the provisions of this Section 2.3(c), constitute a legal or equitable discharge of the Borrower’s obligations hereunder or under an Application. None of the Administrative Agent, the Revolving Lenders, or the L/C Issuer shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the L/C Issuer; provided that the foregoing shall not be construed to excuse the L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower and each other Loan Party to the extent permitted by applicable law) suffered by the Borrower or any other Loan Party that are caused by the L/C Issuer’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer (as determined by a court of competent jurisdiction by final and nonappealable judgment), the L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to 

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documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the L/C Issuer may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(c) The Participating Interests. Each Revolving Lender (other than the Revolving Lender acting as L/C Issuer) severally and not jointly agrees to purchase from the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Revolving Lender (a “Participating Lender”), an undivided participating interest (a “Participating Interest”) to the extent of its Percentage in each Letter of Credit issued by, and each Reimbursement Obligation owed to, the L/C Issuer. Upon Borrower’s failure to pay any Reimbursement Obligation on the date and at the time required, or if the L/C Issuer is required at any time to return to the Borrower or to a trustee, receiver, liquidator, custodian or other Person any portion of any payment of any Reimbursement Obligation, each Participating Lender shall, not later than the Business Day it receives a certificate in the form of Exhibit A hereto from the L/C Issuer (with a copy to the Administrative Agent) to such effect, if such certificate is received before 1:00 p.m. (Cincinnati time), or not later than 1:00 p.m. (Cincinnati time) the following Business Day, if such certificate is received after such time, pay to the Administrative Agent for the account of the L/C Issuer an amount equal to such Participating Lender’s Percentage of such unpaid or recaptured Reimbursement Obligation together with interest on such amount accrued from the date the L/C Issuer made the related payment to the date of such payment by such Participating Lender at a rate per annum equal to: (i) from the date the L/C Issuer made the related payment to the date two Business Days after payment by such Participating Lender is due hereunder, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for each such day and (ii) from the date two Business Days after the date such payment is due from such Participating Lender to the date such payment is made by such Participating Lender, the Base Rate in effect for each such day. Each such Participating Lender shall, after making its appropriate payment, be entitled to receive its Percentage of each payment received in respect of the relevant Reimbursement Obligation and of interest paid thereon, with the L/C Issuer retaining its Percentage thereof as a Revolving Lender hereunder.

The several obligations of the Participating Lenders to the L/C Issuer under this Section 2.3 shall be absolute, irrevocable and unconditional under any and all circumstances and shall not be subject to any set-off, counterclaim or defense to payment which any Participating Lender may have or has had against the Borrower, the L/C Issuer, the Administrative Agent, any Revolving Lender or any other Person. Without limiting the generality of the foregoing, such obligations shall not be affected by any Potential Default or Event of Default (or by any reduction or termination of the Commitment of any Revolving Lender with respect to Letters of Credit issued prior to such reduction or termination), and each payment by a Participating Lender under this Section 2.3 shall be made without any offset, abatement, withholding or reduction whatsoever.

(d) Indemnification. The Participating Lenders shall, severally, to the extent of their respective Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrower) against any cost, expense (including reasonable counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the L/C Issuer’s gross negligence or willful 

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misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued by it. The obligations of the Participating Lenders under this Section 2.3(e) and all other parts of this Section 2.3 shall survive termination of this Agreement and of all Applications, Letters of Credit, and all drafts and other documents presented in connection with drawings thereunder.

(e) Manner of Requesting a Letter of Credit. The Borrower shall provide at least three Business Days’ advance written notice to the Administrative Agent (or such lesser notice as the Administrative Agent and the L/C Issuer may agree in their sole discretion) of each request for the issuance of a Letter of Credit, each such notice to be accompanied by a properly completed and executed Application for the requested Letter of Credit and, in the case of an extension or amendment or an increase in the amount of a Letter of Credit, a written request therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case, together with the fees called for by this Agreement. The Administrative Agent shall promptly notify the L/C Issuer of the Administrative Agent’s receipt of each such notice (and the L/C Issuer shall be entitled to assume that the conditions precedent to any such issuance, extension, amendment or increase have been satisfied unless notified to the contrary by the Administrative Agent or the Required Lenders) and the L/C Issuer shall promptly notify the Administrative Agent and the Revolving Lenders of the issuance of a Letter of Credit.

(f) Conflict with Application. In the event of any conflict or inconsistency between this Agreement and the terms of any Application, the terms of this Agreement shall control. Notwithstanding anything else to the contrary in this Agreement, any Application or any other document related to issuing a Letter of Credit, any grant of a security interest pursuant to any Application shall be null and void.

(g) Applicability of ISP; Limitation of Liability.   Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each standby Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

Applicable Interest Rates.

 

   Base Rate Loans. Each Base Rate Loan made or maintained by a Lender under a particular Facility shall bear interest (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced or created by conversion from a Eurodollar Loan until, but excluding, the date of repayment thereof at a rate per annum equal to the sum of the Applicable Margin for such

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Facility plus the Base Rate from time to time in effect, payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).

(h) Eurodollar Loans. Each Eurodollar Loan made or maintained by a Lender under a particular Facility shall bear interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Base Rate Loan until, but excluding, the date of repayment thereof at a rate per annum equal to the sum of the Applicable Margin for such Facility plus the Adjusted LIBOR applicable for such Interest Period, payable by the Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).

(i) Default Rate. While any Event of Default exists or after acceleration, the Borrower shall pay interest (after as well as before entry of judgment thereon to the extent permitted by law) on the principal amount of all Loans and Reimbursement Obligations, L/C Participation Fees and other amounts owing by it at a rate per annum equal to:

(i) for any Base Rate Loan and any Swing Loan bearing interest at the Base Rate, the sum of 2.00% per annum plus the rate otherwise applicable thereto; and

(ii) for any Eurodollar Loan and any Swing Loan bearing interest at the Swing Line Lender’s Quoted Rate, the sum of 2.00% per annum plus the rate of interest in effect thereon at the time of such Event of Default until the end of the Interest Period applicable thereto and, thereafter, at a rate per annum equal to the sum of 2.00% plus the Applicable Margin for Base Rate Loans under the applicable Facility plus the Base Rate from time to time in effect;

(iii) for any Reimbursement Obligation, the sum of 2.00% plus the amounts due under Section 2.3 with respect to such Reimbursement Obligation;

(iv) for any Letter of Credit, the sum of 2.00% plus the L/C Participation Fee due under Section 2.13(b) with respect to such Letter of Credit; and

(v) for any other amount owing hereunder not covered by clauses (i) through (iv) above, the sum of 2.00% plus the Applicable Margin for Revolving Loans that are Base Rate Loans plus the Base Rate from time to time in effect;

provided that in the absence of acceleration, any increase in interest rates pursuant to this Section and any conversion of Loans into Base Rate Loans shall be made at the election of the Administrative Agent, acting at the request or with the consent of the Required Lenders, with written notice to the Borrower (which election may be retroactively effective to the date of such Event of Default). While any Event of Default exists or after acceleration, accrued interest shall be paid on demand of the Administrative Agent at the request or with the consent of the Required Lenders.

(j) Rate Determinations. Consistent with Borrower’s election pursuant to Section 2.5, the Administrative Agent shall determine each interest rate applicable to the Loans and the 

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Reimbursement Obligations hereunder, and its determination thereof shall be conclusive and binding except in the case of manifest error.

(k) Financial Statement Adjustments or RestatementsIf, as a result of any restatement of or other adjustment to the financial statements of the Borrower and its Subsidiaries or, for any other reason, the Borrower or the Lenders determine that (i) the Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly upon (and in any event within 5 Business Days of) demand therefor by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the Default Rate or under Section 7.  The Borrower’s obligations under this paragraph shall survive the Termination Date.  Notwithstanding the foregoing, any restatement or other adjustment to the financial statements for any prior period solely pursuant to a change in accounting principles (to the extent any such change is otherwise permitted hereunder, including under Section 1.3) shall not result in any additional interest or fee payments for such prior periods.

Manner of Borrowing Loans and Designating Applicable Interest Rates.



  Notice to the Administrative Agent. The Borrower shall give notice to the Administrative Agent by no later than 10:00 a.m. (Cincinnati time): (i) at least 3 Business Days before the date on which the Borrower requests the Lenders to advance a Borrowing of Eurodollar Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing of Base Rate Loans;  provided, that the request for a Borrowing on the Closing Date may, at the discretion of the Administrative Agent, be given later than the times specified herein. The Loans included in each Borrowing shall bear interest initially at the type of rate specified in such notice. Thereafter, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing or, subject to Section 2.6, a portion thereof, as follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of the Interest Period applicable thereto, the Borrower may continue part or all of such Borrowing as Eurodollar Loans or convert part or all of such Borrowing into Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into Eurodollar Loans for an Interest Period or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting the advance, continuation or conversion of a Borrowing to the Administrative Agent by email (with a pdf copy of the applicable fully-executed notice), telephone, or telecopy (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing in a manner acceptable to the Administrative Agent), substantially in the form attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable, or in such other form acceptable to the Administrative Agent. Notice of the continuation of a Borrowing of Eurodollar Loans for an additional Interest Period or of the

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conversion of part or all of a Borrowing of Base Rate Loans into Eurodollar Loans must be given by no later than 10:00 a.m. (Cincinnati time) at least 3 Business Days before the date of the requested continuation or conversion. All notices concerning the advance, continuation or conversion of a Borrowing shall specify the date of the requested advance, continuation or conversion of a Borrowing (which shall be a Business Day), the applicable Facility under which the Loans will be advanced, continued or converted, the amount of the requested Borrowing to be advanced, continued or converted, the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period applicable thereto. The Borrower agrees that the Administrative Agent may rely on any such email, telephonic or telecopy notice given by any person the Administrative Agent in good faith believes is an Authorized Representative without the necessity of independent investigation (the Borrower hereby indemnifies the Administrative Agent from any liability or loss ensuing from such reliance) and, in the event any such notice by telephone conflicts with any written confirmation, such telephonic notice shall govern if the Administrative Agent has acted in reliance thereon.

(l) Notice to the Lenders. The Administrative Agent shall give prompt telephonic, telecopy, or email notice to each Lender under the applicable Facility of any notice from the Borrower received pursuant to Section 2.5(a) above and, if such notice requests such Lenders to make Eurodollar Loans, the Administrative Agent shall give notice to the Borrower and each such Lender of the interest rate applicable thereto promptly after the Administrative Agent has made such determination.

(m) Borrower’s Failure to Notify; Automatic Continuations and Conversions; Automatic Extensions of Revolving Loans if Reimbursement Obligations Not Repaid. If the Borrower fails to give proper notice of the continuation or conversion of any outstanding Borrowing of Eurodollar Loans before the last day of its then current Interest Period within the period required by Section 2.5(a) or, whether or not such notice has been given, one or more of the conditions set forth in Section 3.1 for the continuation or conversion of a Borrowing of Eurodollar Loans would not be satisfied, and such Borrowing is not prepaid in accordance with Section 2.8(a), such Borrowing shall automatically be converted into a Borrowing of Base Rate Loans. In the event the Borrower fails to give notice pursuant to Section 2.5(a) of a Borrowing equal to the amount of a Reimbursement Obligation and has not notified the Administrative Agent by 1:00 p.m. (Cincinnati time) on the day such Reimbursement Obligation becomes due that it intends to repay such Reimbursement Obligation through funds not borrowed under this Agreement, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans under the Revolving Credit (or, at the option of the Administrative Agent, under the Swing Line) on such day in the amount of the Reimbursement Obligation then due, which Borrowing, if otherwise available hereunder, shall be applied to pay the Reimbursement Obligation then due.

(n) Disbursement of Loans. Not later than 2:00 p.m. (Cincinnati time) on the date of any requested advance of a new Borrowing, subject to Section 3, each Lender under the applicable Facility shall make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Administrative Agent in Cincinnati, Ohio. The Administrative Agent shall make the proceeds of each new Borrowing available to the Borrower at the Administrative Agent’s principal office in Cincinnati, Ohio.

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(o) Administrative Agent Reliance on Lender Funding. Unless the Administrative Agent shall have received notice from a Lender prior to (or, in the case of a Borrowing of Base Rate Loans, by 2:00 p.m. (Cincinnati time) on) the date on which such Lender is scheduled to make available to the Administrative Agent its share of a Borrowing (which notice shall be effective upon receipt) that such Lender does not intend to make such share available, the Administrative Agent may assume that such Lender has made such share available in accordance with Section 2.5(d) when due and the Administrative Agent, in reliance upon such assumption, may (but shall not be required to) make available to the Borrower a corresponding amount (each such advance, a “Disproportionate Advance”) and, if such Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, such Lender shall, on demand, make available to the Administrative Agent the Disproportionate Advance attributable to such Lender together with interest thereon in respect of each day during the period commencing on the date such Disproportionate Advance was made available to the Borrower and ending on (but excluding) the date such Lender makes available such Disproportionate Advance to the Administrative Agent at a rate per annum equal to: (i) from the date the Disproportionate Advance was made by the Administrative Agent to the date 2 Business Days after payment by such Lender is due hereunder, the greater of, for each such day, (x) the Federal Funds Rate and (y) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any standard administrative or processing fees charged by the Administrative Agent in connection with such Lender’s non-payment and (ii) from the date 2 Business Days after the date such share of the applicable Borrowing is due from such Lender to the date such payment is made by such Lender, the Base Rate in effect for each such day. If such amount is not received from such Lender by the Administrative Agent immediately upon demand, the Borrower will, promptly following written demand from the Administrative Agent, repay to the Administrative Agent the proceeds of the Loan attributable to such Disproportionate Advance with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Loan, but without such payment being considered a payment or prepayment of a Loan under Section 8.1 so that the Borrower will have no liability under such Section with respect to such payment. If the Borrower and such Lender shall pay interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower under this Section shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

Minimum Borrowing Amounts; Maximum Eurodollar Loans.

 

(p) Each Borrowing of Base Rate Loans advanced hereunder shall be in an amount not less than $500,000 or such greater amount that is an integral multiple of $50,000. Each Borrowing of Eurodollar Loans advanced, continued or converted hereunder shall be in an amount equal to $1,000,000 or such greater amount that is an integral multiple of $100,000. 

(q) Without the Administrative Agent’s consent:

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(i) after giving effect to all Term Borrowings, all conversions of Term Loans from one type to the other, and all continuations of Term Loans as the same type, there shall not be more than three (3) Interest Periods in effect in respect of the Term Facility; and

(ii) after giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one type to the other, and all continuations of Revolving Loans as the same type, there shall not be more than five (5) Interest Periods in effect in respect of the Revolving Facility.

Repayment of Loans.

 

(r) Revolving Loans.  The Revolving Loans, both for principal and interest not sooner paid, shall mature and become due and payable by the Borrower on the Termination Date.

(s) Term Loans.    The Borrower shall repay to the Term Lenders the aggregate principal amount of all Term Loans outstanding on the last Business Day of each fiscal quarter of the Borrower occurring during the period set forth below in the respective amounts set forth opposite such period (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.8), unless accelerated sooner pursuant to Section 7:

Payment Dates

Principal Repayment Installments

January 1, 2017 through (and including) December 31, 2018

$312,500.00 

January 1, 2019 through (and including) December 31, 2020

$468,750.00 

January 1, 2021 through (and including) September 30, 2021

$625,000.00 

Termination Date

$16,875,000.00 



provided that the final principal repayment installment of the Term Loans shall be repaid on the Termination Date and in any event shall be in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date.



Prepayments of Loans.



 Voluntary.   The Borrower may prepay without premium or penalty (except as set forth in Section 8.1 below) and in whole or in part any Borrowing of Eurodollar Loans at any time upon 3 Business Days prior notice by the Borrower to the Administrative Agent or, in the case of a Borrowing of Base Rate Loans or Swing Loans bearing interest at the Swing Line Lender’s Quoted Rate, notice delivered by the Borrower to the Administrative Agent no later than 10:00 a.m. (Cincinnati time) on the date of prepayment (or, in any case, such shorter time period then agreed to by the Administrative Agent), such prepayment to be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans, accrued interest thereon to the date fixed for prepayment plus any amounts due the Lenders under Section 8.1; provided the Borrower may not partially repay a Borrowing (i) if such Borrowing is of Base Rate

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Loans (other than a Swing Loan), in a principal amount less than $500,000, (ii) if such Borrowing is of Eurodollar Loans, in a principal amount less than $1,000,000, and (iii) in each case, unless it is in an amount such that the minimum amount required for a Borrowing pursuant to Section 2.6 remains outstanding.    Each prepayment of the outstanding Term Loans pursuant to this Section shall be applied to the principal repayment installments thereof on a pro rata basis.    

(t) Mandatory.  

(i) The Borrower shall, on each date the Revolving Facility is reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Facility has been so reduced.

(ii) Promptly upon the occurrence of any Change of Control and, in any event, no later than the end of the third Business Day following the date on which such Change of Control first occurs, the Borrower shall, without notice or demand, (x) pay all outstanding principal of and interest on the Loans and any and all other Obligations then outstanding (including any amounts payable pursuant to Section 8.1), (y) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations, and (z) cause all Hedging Liability and Bank Product Liability then outstanding to be paid in full or collateralized in a manner reasonably acceptable to the Lender or Affiliate of a Lender to whom such obligations are owed. In addition and without limiting Section 2.10(b)(ii), immediately upon the occurrence of any Change of Control, the Revolving Facility and all other obligations of the Lenders to extend further credit pursuant to any of the terms of this Agreement shall immediately and automatically terminate.

(iii) Each prepayment of Loans pursuant to the foregoing clause (ii) shall be applied, first, to the principal repayment installments of the Term Loan in inverse order of maturity, including the final principal repayment installment on the Termination Date and, second, to the Revolving Facility, in each case, in the manner set forth in clause (iv) hereof.  Subject to Section 8.6, such prepayments shall be paid to the Lenders in accordance with their respective Percentages in respect of the relevant Facilities.

(iv) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire.  Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.

(u) Lender Notification; Payment Application. The Administrative Agent will promptly advise each Lender under the applicable Facility of any notice of prepayment it receives from the Borrower, and in the case of any partial prepayment, such prepayment shall be

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applied to the remaining amortization payments on the relevant Loans in the inverse order of maturity.

Place and Application of Payments.



 General Payments. All payments of principal of and interest on the Loans and the Reimbursement Obligations, and of all other Obligations payable by the Borrower under this Agreement and the other Loan Documents, shall be made by the Borrower to the Administrative Agent by no later than 12:00 Noon (Cincinnati time) on the due date thereof at the office of the Administrative Agent in Cincinnati, Ohio (or such other location as the Administrative Agent may designate to the Borrower in writing) for the benefit of the Lender or Lenders entitled thereto. Any payments received after such time shall be deemed to have been received by the Administrative Agent on the next Business Day. All such payments shall be made in Dollars, in immediately available funds at the place of payment, in each case without set-off or counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on Loans and on Reimbursement Obligations in which the Lenders have purchased Participating Interests ratably to the Lenders and like funds relating to the payment of any other amount payable to any Lender to such Lender, in each case to be applied in accordance with the terms of this Agreement.

(v) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or L/C Issuer, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate per annum equal to: (i) from the date the distribution was made to the date 2 Business Days after payment by such Lender is due hereunder, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) from the date 2 Business Days after the date such payment is due from such Lender to the date such payment is made by such Lender, the Base Rate then in effect for each such date.

(w) Application of Collateral Proceeds after Default. Anything contained herein to the contrary notwithstanding, (x) pursuant to the exercise of remedies under Sections 7.2 and 7.3 or (y) after written instruction by the Required Lenders after the occurrence and during the continuation of an Event of Default, all payments and collections received in respect of the Obligations and all proceeds of the Collateral received, in each instance, by the Administrative Agent or any of the Lenders shall be remitted to the Administrative Agent and distributed as follows:

(i) first, to the payment of any outstanding costs and expenses incurred by the Administrative Agent, and any security trustee therefor, in monitoring,

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verifying, protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving or enforcing rights under the Loan Documents, which the Borrower has agreed to pay the Administrative Agent under Section 10.12 (such funds to be retained by the Administrative Agent for its own account unless it has previously been reimbursed for such costs and expenses by the Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them for payments theretofore made to the Administrative Agent);

(ii) second, to the payment of principal and interest on the Swing Loans until paid in full;

(iii) third, to the payment of any outstanding interest (other than on Swing Loans) and fees due under the Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

(iv) fourth, to the payment of principal on the Loans (other than Swing Loans), unpaid Reimbursement Obligations, together with Cash Collateral for any outstanding L/C Obligations pursuant to Section 7.4 (until the Administrative Agent is holding Cash Collateral equal to 105% of the then outstanding amount of all such L/C Obligations), and Hedging Liability, the aggregate amount paid to, or held as collateral security for, the Lenders and, in the case of Hedging Liability, their Affiliates to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof;

(v) fifth, to the payment of all other Secured Obligations (including Bank Product Liability) to be allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder thereof; and

(vi) sixth, to the Borrower or whoever else may be lawfully entitled thereto.

Notwithstanding anything contained herein to the contrary, no proceeds of any Collateral or payment made under or in respect of any Guaranty Agreement received from any person who is not an “eligible contract participant” as defined in the Commodities Exchange Act and regulations thereunder shall be applied to the payment of any Hedging Liability, but appropriate adjustments shall be made with respect to payments from the Loan Parties to preserve the allocation to Hedging Liability otherwise set forth in this Section.

Termination or Reduction of Commitments.

 

(x) Optional.  The Borrower shall have the right at any time and from time to time, upon 3 Business Days prior written notice to the Administrative Agent (or such shorter period of time agreed to by the Administrative Agent), to terminate the Revolving Facility, the L/C Sublimit or the Swing Line Sublimit, in any case, in whole or in part, any partial termination to be (i) in an amount not less than $1,000,000 or any greater amount that is an integral multiple of $100,000 and (ii) allocated ratably among the Revolving Lenders in proportion to their respective Percentages, provided that the Borrower shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any concurrent prepayments hereunder, 

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the sum of the aggregate principal amount of Revolving Loans, Swing Loans and of L/C Obligations then outstanding would exceed the Revolving Facility, (B) the L/C Sublimit if, after giving effect thereto, the aggregate principal amount of L/C Obligations then outstanding and not fully Cash Collateralized hereunder would exceed the L/C Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the aggregate principal amount of Swing Loans then outstanding would exceed the Swing Line Sublimit. Any termination of the Revolving Facility below the L/C Sublimit then in effect shall reduce the L/C Sublimit by a like amount. Any termination of the Revolving Facility below the Swing Line Sublimit then in effect shall reduce the Swing Line Sublimit by a like amount. The Administrative Agent shall give prompt notice to each Revolving Lender of any such termination of the Revolving Facility. Any termination of the Revolving Facility pursuant to this clause (a) of Section 2.10 may not be reinstated.

(y) Mandatory.

(i) The aggregate Term Commitments shall be automatically and permanently reduced to zero on the Closing Date immediately following the Term Borrowing on such date.

(ii) The Revolving Facility shall be automatically and permanently reduced to zero immediately upon the occurrence of a Change of Control.

Swing Loans.



 Generally. Subject to the terms and conditions hereof, as part of the Revolving Facility, the Swing Line Lender may, in its discretion, make loans in Dollars to the Borrower under the Swing Line (individually a “Swing Loan” and collectively the “Swing Loans”) which shall not in the aggregate at any time outstanding exceed the Swing Line Sublimit; provided the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations at any time outstanding shall not exceed the sum of the Revolving Facility in effect at such time. The Swing Loans may be availed of by the Borrower from time to time and borrowings thereunder may be repaid and used again during the period ending on the Termination Date; provided that each Swing Loan must be repaid on the last day of the Interest Period applicable thereto. Each Swing Loan shall be in a minimum amount of $250,000 or such greater amount which is an integral multiple of $100,000.  Notwithstanding anything herein to the contrary, the Swing Line Lender shall be under no obligation to make any Swing Loan if any Revolving Lender is at such time a Defaulting Lender hereunder unless the Borrower or such Defaulting Lender has provided Cash Collateral in compliance with Section 4.5 sufficient to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender.

(z) Interest on Swing Loans. Each Swing Loan shall bear interest until maturity (whether by acceleration or otherwise) at a rate per annum equal to, at the option of the Borrower, (i) the sum of the Base Rate plus the Applicable Margin for Revolving Loans that are Base Rate Loans as from time to time in effect (computed on the basis of a year of 365 or 366 days, as the case may be, for the actual number of days elapsed) or (ii) the Swing Line Lender’s Quoted Rate (computed on the basis of a year of 360 days for the actual number of days

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elapsed). Interest on each Swing Loan shall be due and payable prior to its maturity on the last day of each Interest Period applicable thereto.

(aa) Requests for Swing Loans. The Borrower shall give the Administrative Agent prior notice (which may be written or oral), no later than 10:00 a.m. (Cincinnati time) on the date upon which the Borrower requests that any Swing Loan be made, of the amount and date of such Swing Loan, and the Interest Period requested therefor. The Administrative Agent shall promptly advise the Swing Line Lender of any such notice received from the Borrower. Within 30 minutes after receiving such notice, the Swing Line Lender shall in its discretion quote an interest rate to the Borrower at which the Swing Line Lender would be willing to make such Swing Loan available to the Borrower for the Interest Period so requested (the rate so quoted for a given Interest Period being herein referred to as “Swing Line Lender’s Quoted Rate”). The Borrower acknowledges and agrees that the interest rate quote is given for immediate and irrevocable acceptance. If the Borrower does not so immediately accept the Swing Line Lender’s Quoted Rate for the full amount requested by the Borrower for such Swing Loan, the Swing Line Lender’s Quoted Rate shall be deemed immediately withdrawn and such Swing Loan shall bear interest at the rate per annum determined by adding the Applicable Margin for Revolving Loans that are Base Rate Loans to the Base Rate as from time to time in effect.  Subject to the terms and conditions hereof, the proceeds of such Swing Loan shall be made available to the Borrower on the date so requested at the offices of the Swing Line Lender in Cincinnati, Ohio. Anything contained in the foregoing to the contrary notwithstanding (i) the obligation of the Swing Line Lender to make Swing Loans shall be subject to all of the terms and conditions of this Agreement and (ii) the Swing Line Lender shall not be obligated to make more than one Swing Loan during any one day.

(bb) Refunding of Swing Loans. In its sole and absolute discretion, the Swing Line Lender may at any time, on behalf of the Borrower (which the Borrower hereby irrevocably authorizes the Swing Line Lender to act on its behalf for such purpose) and with notice to the Borrower and the Administrative Agent, request each Revolving Lender to make a Revolving Loan in the form of a Base Rate Loan in an amount equal to such Lender’s Percentage of the amount of the Swing Loans outstanding on the date such notice is given. Unless an Event of Default described in clause (i) or (j) of Section 7.1 exists with respect to the Borrower, regardless of the existence of any other Event of Default, each Revolving Lender shall make the proceeds of its requested Revolving Loan available to the Administrative Agent, in immediately available funds, at the Administrative Agent’s principal office in Cincinnati, Ohio, on the Business Day such notice is given. The proceeds of such Borrowing of Revolving Loans shall be immediately applied to repay the outstanding Swing Loans.

(cc) Participations. If any Revolving Lender refuses or otherwise fails to make a Revolving Loan when requested by the Swing Line Lender pursuant to Section 2.11(d) above (because an Event  of Default described in clause (i) or (j) of Section 7.1 exists with respect to the Borrower or otherwise), such Revolving Lender will, by the time and in the manner such Revolving Loan was to have been funded to the Administrative Agent, purchase from the Swing Line Lender an undivided participating interest in the outstanding Swing Loans in an amount equal to its Percentage of the aggregate principal amount of Swing Loans that were to have been repaid with such Revolving Loans; provided that the foregoing purchases shall be deemed made hereunder without any further action by such Revolving Lender, the Swing Line Lender or the

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Administrative Agent. Each Revolving Lender that so purchases a participation in a Swing Loan shall thereafter be entitled to receive its Percentage of each payment of principal received on the Swing Loan and of interest received thereon accruing from the date such Revolving Lender funded to the Swing Line Lender its participation in such Loan. The several obligations of the Revolving Lenders under this Section shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Revolving Lender may have or have had against the Borrower, any other Lender or any other Person whatsoever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Potential Default or Event of Default or by any reduction or termination of the Revolving Commitment of any Revolving Lender, and each payment made by a Revolving Lender under this Section shall be made without any offset, abatement, withholding or reduction whatsoever.

Evidence of Indebtedness.



 Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(dd) The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the type thereof and, with respect to Eurodollar Loans and Swing Loans, the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

(ee) The entries maintained in the accounts maintained pursuant to Sections 2.12(a) and (b) shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

(ff) Any Lender may request that its Loans be evidenced by a promissory note or notes in the forms, as applicable, of Exhibit D-1 (in the case of its Revolving Loans and referred to herein as a “Revolving Note”), Exhibit D-2 (in the case of its Term Loans and referred to herein as a Term Note”) or Exhibit D-3 (in the case of its Swing Loans and referred to herein as a “Swing Note”), as applicable. In such event, the Borrower shall prepare, execute and deliver to such Lender a Note payable to the order of such Lender in the amount of the Commitment or Swing Line Sublimit, as applicable. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 10.9) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 10.9, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in subsections (a) and (b) above.

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(gg) In addition to the accounts and records referred to in Sections 2.12(a) and (b), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Loans. 

(hh) In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of the matters described in Sections 2.12(a), (b) and (d), the accounts and records of the Administrative Agent shall control in the absence of manifest error.

Fees.

 

 Commitment Fee. The Borrower shall pay to the Administrative Agent for the ratable account of the Revolving Lenders according to their Percentages a commitment fee at the rate per annum equal to the Applicable Margin for Commitment Fees (computed on the basis of a year of 360 days and the actual number of days elapsed) on the average daily Unused Commitments. Such commitment fee shall be payable quarterly in arrears on the last Business Day of each March, June, September, and December in each year (commencing on the first such date occurring after the Closing Date) and on the Termination Date, unless the Revolving Facility is terminated in whole on an earlier date, in which event the commitment fee for the period to the date of such termination in whole shall be paid on the date of such termination.

(ii) Letter of Credit Fees. On the date of issuance or extension, or increase in the amount, of any Letter of Credit pursuant to Section 2.3, the Borrower shall pay to the L/C Issuer for its own account a fronting fee equal to .125% of the face amount of (or of the increase in the face amount of) such Letter of Credit.  Quarterly in arrears, on the last Business Day of each March, June, September, and December, commencing on the first such date occurring after the Closing Date, the Borrower shall pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders according to their Percentages, a letter of credit fee (the “L/C Participation Fee”) at a rate per annum equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number of days elapsed) in effect during each day of such quarter applied to the daily average face amount of Letters of Credit outstanding during such quarter. In addition, the Borrower shall pay to the L/C Issuer for its own account the L/C Issuer’s standard issuance, drawing, negotiation, amendment, transfer and other administrative fees for each Letter of Credit. Such standard fees referred to in the preceding sentence may be established by the L/C Issuer from time to time.

(jj) Administrative Agent Fees. The Borrower shall pay to the Administrative Agent, for its own use and benefit, the fees agreed to between the Administrative Agent and the Borrower in that certain fee letter dated November 14,  2016, or as otherwise agreed to in writing between the Borrower and the Administrative Agent.

Section 2.2 Assignment and Reallocation of Existing Loans and Commitments.    

(a) Assignment and ReallocationEach of the parties hereto severally and for itself agrees that on the Closing Date, each Existing Lender hereby irrevocably sells, transfers, conveys and assigns, without recourse, representation or warranty (except as expressly set forth

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herein), to each Lender, and each such Lender hereby irrevocably purchases from such Existing Lender, a portion of the rights and obligations of such Existing Lender under the Existing Credit Agreement and each other Loan Document in respect of its Existing Loans and Commitments under (and as defined in) the Existing Credit Agreement such that, after giving effect to the foregoing assignment and delegation and any increase in the Commitments effected pursuant hereto, each Lender’s Percentage of the Commitments and portion of the Loans for the purposes of this Agreement and each other Loan Document will be as set forth opposite such Person’s name on Schedule 1.1.

(b) Representation and WarrantyEach Existing Lender hereby represents and warrants to each Lender that, immediately before giving effect to the provisions of this Section, (i) such Existing Lender is the legal and beneficial owner of the portion of its rights and obligations in respect of its Existing Loans being assigned to each Lender as set forth above; and (ii) such rights and obligations being assigned and sold by such Existing Lender are free and clear of any adverse claim or encumbrance created by such Existing Lender.

(c) Lender AcknowledgementsEach of the Lenders hereby acknowledges and agrees that (i) other than the representations and warranties contained above, no Lender nor the Administrative Agent has made any representations or warranties or assumed any responsibility with respect to (A) any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Agreement, the Existing Credit Agreement or any other Loan Document or (B) the financial condition of any Loan Party or the performance by any Loan Party of the Obligations; (ii) it has received such information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; and (iii) it has made and continues to make its own credit decisions in taking or not taking action under this Agreement, independently and without reliance upon the Administrative Agent or any other Lender.

(d) Rights as LendersThe Borrower, each of the Lenders and the Administrative Agent also agree that each of the Lenders shall, as of the Closing Date, have all of the rights and interests as a Lender in respect of the Loans purchased and assumed by it, to the extent of the rights and obligations so purchased and assumed by it.

(e) FundingEach Lender which is purchasing any portion of the Existing Loans shall deliver to the Administrative Agent immediately available funds in the full amount of the purchase made by it and the Administrative Agent shall, to the extent of the funds so received, disburse such funds to the Existing Lenders that are making sales and assignments in the amount of the portions so sold and assigned.

Section 2.3 Increase in Facilities.

(a) Request for Increase.  Provided there exists no Potential Default or Event of Default, upon notice to the Administrative Agent (which shall promptly notify the applicable Lenders), the Borrower may from time to time, request an increase to the existing Revolving Facility (each, an “Incremental Revolving Commitment”) and/or (y) the establishment of one or more new term loan commitments (each, an “Incremental Term Commitment” and, together with the Incremental Revolving Commitment, collectively, the “Incremental Commitments”), by an

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aggregate amount (for all such requests) not in excess of $0.00;  provided that (i) any such request for an Incremental Commitment shall be in a minimum amount of $0.00, and (ii) the Borrower may make a maximum of three (3) such requests.  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the applicable Lenders (or such longer period (not exceeding thirty (30) days) as the Administrative Agent may require following its receipt of a written request from any Lender that needs such additional time to complete any necessary flood insurance due diligence and flood insurance compliance processes in respect of the Mortgaged Premises and in connection with the request for such increase));  provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment.

(b) Lenders Election to Increase.    Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to acquire an Incremental Commitment and, if so, whether by an amount equal to, greater than, or less than its Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to acquire an Incremental Commitment.

(c) Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase, and subject to the approval of the Administrative Agent, and, in the case of a request for an Incremental Revolving Commitment, the L/C Issuer and the Swing  Line Lender, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement (“New Lenders”) in form and substance satisfactory to the Administrative Agent and its counsel.

(d) Effective Date and Allocations.  If either Facility is increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the applicable Lenders and the New Lenders of the final allocation of such increase and the Increase Effective Date.

(e) Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by an Authorized Representative of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained herein and in the other Loan Documents are true and correct, on and as of the Increase Effective Date, and except that for purposes of this Section, the representations and warranties contained in Section 5.3 shall be deemed to refer to the most recent statements furnished pursuant to Section 6.1, and (B) both before and after giving effect to the Incremental Commitment, no Potential Default or Event of Default exists.  The Borrower shall deliver or cause to be delivered any other customary documents, including legal opinions as reasonably requested by the Administrative Agent in connection with any Incremental Commitment. The Borrower shall prepay any Revolving Loans outstanding on any applicable Increase Effective

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Date (and pay any additional amounts required pursuant to Section 8.1) to the extent necessary to keep the outstanding Revolving Loans ratable with any revised Percentages arising from any nonratable increase in the Revolving Commitments under this Section.

(f) Conflicting Provisions.  This Section shall supersede any provisions in Section 10.7 or 10.10 to the contrary.

SECTION 3.

CONDITIONS PRECEDENT.

The obligation of each Lender to advance, continue or convert any Loan (other than the continuation of, or conversion into, a Base Rate Loan) or of the L/C Issuer to issue, extend the expiration date (including by not giving notice of non-renewal) of or increase the amount of any Letter of Credit under this Agreement, shall be subject to satisfaction (or waiver) of the following conditions precedent:

All Credit Events.

At the time of each Credit Event hereunder:

(a) each of the representations and warranties set forth herein and in the other Loan Documents shall be and remain true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of said time, except to the extent the same expressly relate to an earlier date (and in such case shall be true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of such earlier date);

(b) no Potential Default or Event of Default shall have occurred and be continuing or would occur as a result of such Credit Event;

(c) after giving effect to such requested extension of credit, the aggregate principal amount of all Revolving Loans, Swing Loans and L/C Obligations under this Agreement shall not exceed the aggregate Commitments;

(d) in the case of a Borrowing, the Administrative Agent shall have received the notice required by Section 2.5, in the case of the issuance of any Letter of Credit, the L/C Issuer shall have received a duly completed Application for such Letter of Credit together with any fees required to be paid at such time under Section 2.13, and, in the case of an extension or increase in the amount of a Letter of Credit, the L/C Issuer shall have received a written request therefor in a form reasonably acceptable to the L/C Issuer together with fees required to be paid at such time under Section 2.13; and

(e) such Credit Event shall not violate any Legal Requirement applicable to the Administrative Agent, the L/C Issuer, or any Lender (including Regulation U of the Board of Governors of the Federal Reserve System) as then in effect; provided that, any such Legal Requirement shall not entitle any Lender that is not affected thereby to not honor its obligation hereunder to advance, continue or convert any Loan or, in the case of the L/C Issuer, to extend the expiration date of or increase the amount of any Letter of Credit hereunder.

Each request for a Borrowing hereunder and each request for the issuance of, increase in the amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a 

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representation and warranty by the Borrower on the date of such Credit Event as to the facts specified in subsections (a) through (d), both inclusive, of this Section, unless otherwise specified in writing by the Borrower.  For the avoidance of doubt, no Lender shall be required to make any Loans in the event that any of the conditions set forth in this Section 3.1 are not satisfied.

Initial Credit Event.

 Before or concurrently with the initial Credit Event:

(f) the Administrative Agent shall have received this Agreement duly executed by the Loan Parties and the Lenders;

(g) the Administrative Agent shall have received for each Lender requesting Notes, such Lender’s duly executed Notes of the Borrower, dated the date hereof and otherwise in compliance with the provisions of Section 2.12(d);

(h) the Administrative Agent shall have received (i) the Security Agreement duly executed by each applicable Loan Party, together with UCC financing statements to be filed against each of each such Loan Party,  each as debtor, in favor of the Administrative Agent, as secured party; (ii) a duly completed and executed Perfection Certificate; and (iii) a letter agreement re: escrow arrangement duly executed by Resort Title, which agreement shall be in form and substance reasonably satisfactory to the Administrative Agent;

(i) the Administrative Agent shall have received evidence of insurance required to be maintained under the Loan Documents, naming the Administrative Agent as additional insured, mortgagee and/or lenders loss payee, as applicable;

(j) the Administrative Agent shall have received copies of each Loan Party’s Organization Documents, certified in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or other officer acceptable to the Administrative Agent;

(k) the Administrative Agent shall have received copies of resolutions of each Loan Party’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with specimen signatures of the persons authorized to execute such documents on such Loan Party’s behalf, all certified in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or other officer acceptable to the Administrative Agent;

(l) the Administrative Agent shall have received copies of the certificates of good standing, or nearest equivalent in the relevant jurisdiction, for each Loan Party (dated no earlier than 30 days prior to the date hereof) from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable, and, solely with respect to Bluegreen Vacations Unlimited, Inc., from the office of the secretary of state or other appropriate governmental department or agency of the states of Wisconsin and Florida;

(m) the Administrative Agent shall have received a list of the Borrower’s Authorized Representatives;

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(n) the Administrative Agent shall have received for itself and for the Lenders the initial fees required by Section 2.13;

(o) the Administrative Agent shall have received certifications from an officer of the Borrower acceptable to the Administrative Agent as to the Solvency of the Loan Parties on a consolidated basis after giving effect to the initial Credit Event;

(p) the capital and organizational structure of the Loan Parties shall be reasonably satisfactory to the Administrative Agent;

(q) the Administrative Agent shall have received such evaluations and certifications as it may reasonably require in order to satisfy itself as to the value of the Collateral, the financial condition of the Loan Parties and their Subsidiaries, and the lack of material contingent liabilities of the Loan Parties, including: (i) a Collateral Report prepared by the Borrower as of September 30, 2016; and (ii) a certificate from the Borrower’s Chief Financial Officer or other officer of the Borrower acceptable to the Administrative Agent certifying that (A) since September 30, 2016, no Material Adverse Effect has occurred and (B) the Borrower is, as of September 30 2016, in pro forma compliance with the financial covenants set forth in clauses (a) and (c) of Section 6.20 (after giving effect to the transactions contemplated hereby, including the making of the Loans on the Closing Date);

(r) the Administrative Agent shall have received copies of all 2020 Notes Documents and Receivable Debt Documents as in effect on the Closing Date, as requested by the Administrative Agent for those documents not filed with the Securities Exchange Commission and publicly available;

(s) the Administrative Agent shall have received financing statement and, as appropriate, tax and judgment lien search results against the Loan Parties and their Property evidencing the absence of Liens thereon, except for Permitted Liens;

(t) the Administrative Agent shall have received (i) the favorable written opinions of counsel to the Loan Parties, in form and substance satisfactory to the Administrative Agent, and (ii) the opinion of Holland & Knight LLP, counsel to the Administrative Agent, with respect to enforceability of the Loan Documents under New York law;

(u) the Administrative Agent’s due diligence with respect to the Loan Parties shall be completed in a manner reasonably acceptable to the Administrative Agent, including without limitation, receipt of satisfactory management background checks;

(v) subject to Section 6.22(b), each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; and the Administrative Agent shall have received a fully executed IRS Form W-9 (or its equivalent) for each of the Loan Parties;

(w) the Administrative Agent shall have received the Mortgages (or any necessary or appropriate amendment or other modification to the existing Mortgages to give effect to the

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transactions contemplated hereby) duly executed by BVU, together, as necessary or appropriate, with fixture financing statements relating thereto to be filed against BVU, as debtor, in favor of the Administrative Agent, as secured party;

(x) the Administrative Agent shall have received a mortgagee’s title insurance policy (or binding commitment therefor) (or any necessary or appropriate amendment, update, “bring-down” or other applicable modification to any existing policy to give effect to the transactions contemplated hereby), in form and substance acceptable to the Administrative Agent:

(i) in an amount equal to $2,200,000, with respect to the Mortgaged Premises commonly known as 7021 Crossland Drive, Orlando, Florida,

(ii) in an amount equal to $2,400,000, with respect to the Mortgaged Premises commonly known as 12400 International Drive, Orlando, Florida, and

(iii) in an amount equal to $1,356,000,  with respect to the Mortgaged Premises commonly known as S947 Christmas Mountain Road, Wisconsin Dells, Wisconsin,

in each case, insuring the Lien of the Mortgage to be a valid first priority Lien, subject to no defects or objections that are not acceptable to the Administrative Agent, together with such endorsements as the Administrative Agent may require and are reasonably available;

(y) the Administrative Agent shall have received one or more appraisal reports prepared for the Administrative Agent by a state certified appraiser selected by the Administrative Agent, which appraisal reports describe the fair market value of the property subject to the Liens of the Mortgages and otherwise meets the requirements of applicable law for appraisals prepared for federally insured depository institutions; and

(z) the Administrative Agent shall have received such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request.

SECTION 4.

THE COLLATERAL AND GUARANTIES.

Collateral.

The Secured Obligations shall be secured by valid, perfected, and enforceable Liens of the Administrative Agent on all right, title, and interest of each Loan Party in certain personal property, fixtures, and real estate, as more fully described in the Collateral Documents, whether now owned or hereafter acquired or arising, and all proceeds thereof.

Liens on Real Property.

  In the event that any Loan Party owns or hereafter acquires any real property (or any portion thereof) in which the Administrative Agent will be granted a Lien to secure the Secured Obligations (such real property or portion thereof, each a “New Mortgaged Premises”), such Loan Party shall, subject to the proviso hereto, execute and deliver to the Administrative Agent (or a security trustee therefor) a mortgage or deed of trust acceptable in form and substance to the Administrative Agent for the purpose of granting to the Administrative Agent a Lien on such real property to secure the Secured Obligations, shall pay all Taxes, costs, and expenses incurred by the Administrative Agent in recording such

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mortgage or deed of trust, and shall supply to the Administrative Agent, at the Administrative Agent’s request and at Borrower’s cost and expense, a survey, a certification with regard to flood zone location (and, if such real property is a Flood Hazard Property, evidence of flood hazard insurance on such terms and in such amounts as required by the National Flood Insurance Reform Act of 1994 or as otherwise reasonably required by the Administrative Agent), environmental report, hazard insurance policy, appraisal report, and a mortgagee’s policy of title insurance from a title insurer acceptable to the Administrative Agent insuring the validity of such mortgage or deed of trust and its status as a first Lien (subject to Permitted Liens) on the real property encumbered thereby and such other instrument, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith;  provided that, prior to the applicable Loan Party executing and delivering any mortgage, deed of trust or other security agreement in respect of any New Mortgaged Premises,   each Lender shall have been provided reasonably sufficient time (and in any event no less than 45 days) to complete its flood insurance due diligence and flood insurance compliance processes in respect of such New Mortgaged Premises, the results of which shall be reasonably satisfactory to such Lender.  The parties hereto acknowledge and agree that, notwithstanding the foregoing, no Loan Party is obligated under the terms of any Loan Document in effect on the Closing Date to deliver a mortgage on any New Mortgaged Premises and such obligation shall only arise, if at all, in the context of an amendment or other modification (in accordance with Section 10.10) to the applicable Loan Documents.

Guaranties.

The payment and performance of the Secured Obligations shall at all times be jointly and severally guaranteed by each Guarantor pursuant to one or more Guaranty Agreements.

Further Assurances.

Each Loan Party agrees that it shall from time to time at the request of the Administrative Agent or the Required Lenders, execute and deliver such documents and do such acts and things as the Administrative Agent or the Required Lenders may reasonably request in order to provide for or perfect or protect such Liens on the Collateral as required by this Section 4. In the event any Loan Party forms or acquires any other Subsidiary (which, for the purposes of this Section 4.4, shall include any Subsidiary that ceases to be an Excluded Subsidiary) that is not an Excluded Subsidiary after the Closing Date, except as otherwise provided in the definition of Guarantor, the Loan Parties shall promptly upon such formation or acquisition cause such newly formed or acquired Subsidiary to execute a Guaranty Agreement and such Collateral Documents as the Administrative Agent may then require to comply with this Section 4, and the Loan Parties shall also deliver to the Administrative Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the Borrower’s cost and expense, such other instruments, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith. In the event any Loan Party (other than BVU) or any Subsidiary of a Loan Party (other than Resort Title, in its capacity as escrow agent, or any other Subsidiary, solely with respect to a Limited Joinder) becomes party to any Sales and Marketing Agreement, the Borrower shall promptly thereafter cause such Loan Party or Subsidiary, as applicable, to execute, to the extent it has not previously done so, a Guaranty Agreement and such Collateral Documents as the Administrative Agent may then reasonably require to cause such Person to be a Guarantor and to grant a Lien on all Pledged Receivables (as defined in the Security Agreement) that are owned by such Person and that relate to such Sales and Marketing Agreement, and the Borrower shall also deliver to the Administrative Agent, or 

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cause such Loan Party or Subsidiary, as applicable, to deliver to the Administrative Agent, at the Borrower’s cost and expense, such other instruments, documents, certificates, and opinions reasonably required by the Administrative Agent in connection therewith.

Cash Collateral.

Immediately upon the request of the Administrative Agent, the L/C Issuer, or the Swing Line Lender at any time that there shall exist a Defaulting Lender, or otherwise as required hereby, including as required by Sections 2.3(b), 7.4 and 8.6(a)(v), the Borrower shall deliver Cash Collateral to the Administrative Agent in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 8.6(a)(iv) and any Cash Collateral provided by the Defaulting Lender, if applicable) with respect to such Defaulting Lender or to cover such other amount required hereby.

(a) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be held by the Administrative Agent in one or more separate collateral accounts (each such account, and the credit balances, properties, and any investments from time to time held therein, and any substitutions for such account, any certificate of deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called the “Collateral Account”). The Collateral Account shall be held in the name of and subject to the exclusive dominion and control of the Administrative Agent for the benefit of the Administrative Agent, the Lenders (including the Swing Line Lender), and the L/C Issuer. If and when requested by the Borrower, the Administrative Agent shall invest funds held in the Collateral Account from time to time in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America with a remaining maturity of one year or less, provided that the Administrative Agent is irrevocably authorized to sell investments held in the Collateral Account when and as required to make payments out of the Collateral Account for application to amounts due and owing from the Borrower to the L/C Issuer, the Administrative Agent or the Lenders (including the Swing Line Lender).

Each of the Borrower and, to the extent Cash Collateral is provided by or on behalf of a Defaulting Lender pursuant to this Section 4.5 or 8.6(a)(ii),  such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees to maintain, a first priority security interest (subject to Permitted Liens) in the Collateral Account, all as security for the obligations to which such Cash Collateral may be applied pursuant to clause (b) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided (other than Permitted Liens), or that the total amount of such Cash Collateral is less than the Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender, will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.

(b) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 4.5 or Sections 2.3(b), 7.4, or 8.6(a)(v), or any other Section hereof in respect of Letters of Credit or Swing Loans, shall be applied to the satisfaction of the specific Reimbursement Obligations, Swing Loans, obligations to fund

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participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation), and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

(c) Release. (i) Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations giving rise thereto shall be released promptly following the elimination of the applicable Fronting Exposure and other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee)), or (ii), if such Cash Collateral (or the appropriate portion thereof) is not provided in connection with a Defaulting Lender, Cash Collateral (or the appropriate portion thereof) shall be released promptly after (A) the Borrower shall have made payment of all such obligations referred to in this Section 4.5 above, (B) all relevant preference or other disgorgement periods relating to the receipt of such payments have passed, and (C) no Letters of Credit, Commitments, Loans or other Obligations remain outstanding hereunder, and (iii) Cash Collateral (or the appropriate portion thereof) shall be released promptly following the Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided that (x) Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Potential Default or Event of Default (and following application as provided in this Section 4.5 may be otherwise applied in accordance with Section 2.9), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

SECTION 5.

REPRESENTATIONS AND WARRANTIES.

Each Loan Party represents and warrants to each Lender, the Administrative Agent, and the L/C Issuer as follows:

Organization and Qualification.

Each Loan Party (a) is duly organized and validly existing under the laws of the jurisdiction of its organization, (b) is in good standing under the laws of the jurisdiction of its organization, (c) has the power and authority to own its property and to transact the business in which it is engaged and proposes to engage and (d) is duly qualified and in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except, in each case of clauses (a), (b) (other than with respect to the Borrower where failure to maintain such good standing is not curable or results in the dissolution of the Borrower), (c) and (d), where the same could not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect.

Authority and Enforceability.

The Borrower has the power and authority to enter into this Agreement and the other Loan Documents executed by it, to make the borrowings herein provided for, to issue its Notes (if any), to grant to the Administrative Agent the Liens described in the Collateral Documents executed by the Borrower, and to perform all of its obligations hereunder and under the other Loan Documents executed by it. Each Guarantor has the power and authority to enter into the Loan Documents executed by it, to guarantee the Secured Obligations, to grant to the Administrative Agent the Liens described in the Collateral 

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Documents executed by such Person, and to perform all of its obligations under the Loan Documents executed by it. The Loan Documents delivered by the Loan Parties have been duly authorized by proper corporate and/or other organizational proceedings, executed, and delivered by such Persons and constitute valid and binding obligations of such Loan Parties enforceable against each of them in accordance with their terms, except as enforceability may be limited by Debtor Relief Laws and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law); and this Agreement and the other Loan Documents do not, nor does the performance or observance by any Loan Party of any of the matters and things herein or therein provided for, (a) contravene or violate any applicable Legal Requirement binding upon any Loan Party or any provision of the Organization Documents of any Loan Party, (b) violate or constitute a default under any covenant, indenture or agreement of or affecting the any Loan Party or any of its Property, in each case where such violation, contravention or default, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (c) result in the creation or imposition of any Lien on any Property of any Loan Party other than the Liens granted in favor of the Administrative Agent pursuant to the Collateral Documents.

Financial Reports.

The audited consolidated financial statements of the Borrower and its Subsidiaries as at December 31, 2015, and the unaudited interim consolidated financial statements of the Borrower and its Subsidiaries as at September 30, 2016, for the nine (9) months then ended, heretofore furnished to the Administrative Agent, fairly and adequately present the consolidated financial condition of the Borrower and its Subsidiaries as at said dates and the consolidated results of their operations and cash flows for the periods then ended in conformity with GAAP applied on a consistent basis. As of any date after the Closing Date, the audited consolidated financial statements of the Borrower and its Subsidiaries most recently furnished to the Administrative Agent pursuant to Section 6.1, fairly and adequately present in all material respects the consolidated financial condition of the Borrower and its Subsidiaries as at said dates and the consolidated results of their operations and cash flows for the periods then ended in conformity with GAAP applied on a consistent basis. As of the date of the most recently delivered annual financial statements, neither the Borrower nor any Subsidiary has contingent liabilities or judgments, orders or injunctions against it that are required by GAAP to be accrued that are material to it other than as indicated on such financial statements or, with respect to future periods, on the financial statements furnished pursuant to Section 6.1.

No Material Adverse Change.

Since September 30, 2016, there has been no change in the business condition (financial or otherwise), operations, performance, Properties or prospects of any Loan Party or any Subsidiary of any Loan Party except those occurring in the ordinary course of business, none of which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.

Litigation and Other Controversies.

Except as set forth on Schedule 5.5, there is no litigation, arbitration, labor controversy or governmental proceeding pending or, to the knowledge of any Loan Party, threatened against any Loan Party or any of its Subsidiaries, or any of their respective Property, that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

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True and Complete Disclosure.

All information furnished by or on behalf of the Loan Parties or any of their Subsidiaries to the Administrative Agent or any Lender for purposes of or in connection with this Agreement, or any transaction contemplated herein, does not contain any untrue statements of material fact or omit a material fact necessary to make the material statements herein or therein not misleading in any material respect in light of the circumstances under which such information was provided; provided that, with respect to projected financial information furnished by or on behalf of the Loan Parties or any of their Subsidiaries, the Loan Parties only represent and warrant that such information is prepared in good faith based upon assumptions and estimates believed to be reasonable at the time of preparation and at the time of delivery.

Use of Proceeds; Margin Stock.

 

(a) The Borrower shall use all proceeds of the Loans to fund the fees and expenses associated with the closing of the credit facilities set forth in this Agreement, to refinance existing Indebtedness, for working capital purposes and other general corporate purposes of the Borrower and its Subsidiaries.

(b) The Borrower shall not, directly or indirectly, use any Loan or Letter of Credit or the proceeds of any Loan or Letter of Credit for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 or  any other similar anti-corruption legislation in other jurisdictions.

(c) No part of the proceeds of any Loan or other extension of credit hereunder will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan or other extension of credit hereunder nor the use of the proceeds of Loans will violate or be inconsistent with the provisions of Regulations T, U or X of the Board of Governors of the Federal Reserve System and any successor to all or any portion of such regulations.  Margin Stock constitutes less than 25% of the value of those assets of the Loan Parties and their Subsidiaries that are subject to any limitation on sale, pledge or other restriction hereunder.

Taxes Generally; Property Taxes and Fees.

  Taxes Generally. Each Loan Party and each of its Subsidiaries has timely filed or caused to be timely filed all tax returns required to be filed by such Loan Party and/or any of its Subsidiaries, except where failure to so file could not be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect. Each Loan Party and each of its Subsidiaries has paid all Taxes payable by them other than Taxes which are not delinquent, except those that are being contested in good faith and by appropriate legal proceedings and as to which appropriate reserves have been provided for in accordance with GAAP and no Lien resulting therefrom attaches to any of its Property (other than any Permitted Liens).

(d) Property Taxes and Fees. Without limiting the foregoing clause (a), all real property taxes, maintenance fees, rents, assessments and like charges affecting any of the Mortgaged Premises have been fully paid to date, to the extent such items are due and payable.

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ERISA.

Each Loan Party and each other member of its Controlled Group has fulfilled its obligations under the minimum funding standards of, and is in compliance with, Section 302 of ERISA and Section 412 of the Code with respect to each Plan, except for any failure to fulfill such obligations or so comply that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Loan Parties and their Subsidiaries have no contingent liabilities with respect to any post-retirement benefits under a Welfare Plan, other than liability for continuation coverage described in part 6 of subtitle B of Title I of ERISA, except as would not reasonably be expected to have a Material Adverse Effect.

Subsidiaries.

Schedule 5.10 (as supplemented from time to time pursuant to Section 6.18) identifies (a) each Subsidiary (including Subsidiaries that are Loan Parties) and (b) the following information for each Loan Party: (i) jurisdiction of its organization; and (ii) the percentage of issued and outstanding interests of each class of its Ownership Interests owned by any Loan Party and/or its Subsidiaries; and, if such percentage is not 100% (excluding directors’ qualifying shares as required by law), a description of each class of its authorized Ownership Interests and the number of interests of each class issued and outstanding. All of the outstanding Ownership Interests of each Loan Party are validly issued and outstanding and fully paid and nonassessable and all such Ownership Interests indicated on Schedule 5.10 (as supplemented from time to time pursuant to Section 6.18) as owned by a Loan Party or another Subsidiary are owned, beneficially and of record, by such Loan Party or Subsidiary free and clear of all Liens, other than Permitted Liens. There are no outstanding commitments or other obligations of any Subsidiary to issue, and no options, warrants or other rights of any Person to acquire, any shares of any class of Ownership Interests of any Subsidiary.

Compliance with Laws.

  The Loan Parties and their Subsidiaries are in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of their businesses and the ownership of their Property, except such non-compliances as could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

(e) Without limiting the generality of the foregoing clause (a), the Borrower, BVU and the applicable Associations have, in all material respects, complied fully with all applicable laws in connection with the Specified Resorts, the Mortgaged Premises and the Collateral, and, to the best of the Borrower’s knowledge, the applicable Association has complied fully with all applicable laws in connection with each Specified Resort and the Mortgaged Premises, including, to the extent applicable, (i) the Interstate Land Sales Full Disclosure Act; (ii) any applicable condominium and timeshare statutes, rules, and regulations, including those governing the administration and operation of each applicable Association and those requiring registration of the units at a Specified Resort or the Mortgaged Premises as a legal prerequisite to the marketing and sale thereof, including the applicable timeshare act; (iii) Regulation Z of the Federal Reserve Board; (iv) the Equal Credit Opportunity Act; (v) Regulation B of the Federal Reserve Board; (vi) Section 5 and “Do Not Call” provisions of the Federal Trade Commission Act; (vii) all applicable state and federal securities laws; (viii) all applicable usury laws; (ix) all applicable trade practices, home and telephone solicitation, sweepstakes, lottery and other consumer credit and protection laws; (x) all applicable real estate sales licensing, disclosure, reporting, and escrow laws; (xi) the Americans with Disabilities Act of 1990 and all other accessibility requirements; (xii) the federal postal laws; (xiii) the Real Estate Settlement 

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Procedures Act; (xiv) the Fair Housing Act of 1968; (xv) the FTC Privacy Act; (xvi) the Patriot Act; and (xvii) all amendments to and rules and regulations promulgated under the foregoing, all if and as applicable, to the extent non-compliance is not reasonably expected to cause a Material Adverse Effect. Furthermore, each Specified Resort and the Mortgaged Premises, and in each case the material improvements thereat, have been constructed and are and will continue to be operated in accordance with all applicable zoning requirements, building codes, subdivision ordinances, licensing requirements, all covenants, conditions, and restrictions of record, and all other applicable laws to the extent non-compliance is not reasonably expected to cause a Material Adverse Effect. The Borrower’s marketing and sales practices are in compliance with all applicable laws, to the extent non-compliance is not reasonably expected to cause a Material Adverse Effect.

Environmental Matters.

  No Designated Officer of any the Loan Party or any Subsidiary has knowledge of any Environmental Claim or has received any written notice of any Environmental Claim and no proceeding has been instituted asserting any Environmental Claim against any Loan Party or any Subsidiary in connection with any Specified Resort or Mortgaged Premises.

(f) None of the Loan Parties nor any Subsidiary has knowledge of any facts that would reasonably be expected to give rise to any Environmental Claim emanating from, occurring on or in any way related to any Specified Resort or Mortgaged Premises.

(g) None of the Loan Parties nor any Subsidiary nor, to the knowledge of the Loan Parties, any third party, has stored, disposed or released any Hazardous Materials on any Specified Resort or Mortgaged Premises in a manner that is contrary to any Environmental Law that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(h) Except as set forth on Schedule 5.12, the Specified Resorts and Mortgaged Premises are and, to the knowledge of the Designated Officers of the Loan Parties and their Subsidiaries, have in the in the past been in compliance with applicable Environmental Laws and the Loan Parties have timely obtained, maintain and are in compliance with all permits, authorizations and licenses required under Environmental Laws for the development, use and occupancy of the Specified Resorts and Mortgaged Premises as they are currently being used.

(i) The Loan Parties have made available to Administrative Agent accurate and complete copies of all material environmental reports, studies, assessments, investigations, audits, correspondence and other documents relating to environmental, safety and health matters with respect to the Specified Resorts and the Mortgaged Premises that are in the Loan Parties’ possession or control.

Investment Company.

 No Loan Party nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.

Intellectual Property.

Each Loan Party and each of its Subsidiaries owns or has obtained licenses or other rights of whatever nature to all the patents, trademarks, service 

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marks, trade names, copyrights, trade secrets, know-how or other intellectual property rights necessary for the present conduct of its businesses, in each case without any known conflict with the rights of others except for such conflicts and any failure to own or obtain such licenses and other rights, as the case may be, as could not reasonably be expected to result in a Material Adverse Effect.

Good Title.

The Borrower and its Subsidiaries have good and marketable title, or valid leasehold interests, to any and all of the Collateral, and such Collateral subject to no Liens, other than Permitted Liens. As of the Closing Date, BVU is the only entity that owns any Collateral.

Labor Relations.

No Loan Party nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no strike, labor dispute, slowdown, or stoppage pending against any Loan Party or any of its Subsidiaries or, to the best knowledge of the Loan Parties and their Subsidiaries, threatened against any Loan Party or any of its Subsidiaries and (b) to the best knowledge of the Loan Parties and their Subsidiaries, no union representation proceeding is pending with respect to the employees of any Loan Party or any of its Subsidiaries and no union organizing activities are taking place, except (with respect to any matter specified in clause (a) or (b) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.

Governmental Authority and Licensing.

The Loan Parties and their Subsidiaries have received all licenses, permits, and approvals of each Governmental Authority necessary to conduct their businesses, in each case where the failure to obtain or maintain the same could reasonably be expected to have a Material Adverse Effect. No investigation or proceeding that, if adversely determined, could reasonably be expected to result in revocation or denial of any license, permit or approval is pending or, to the knowledge of the Loan Parties, threatened, except where such revocation or denial could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

Approvals.

No authorization, consent, license or exemption from, or filing or registration with, any Governmental Authority, nor any approval or consent of any other Person, is or will be necessary to the valid execution, delivery or performance by any Loan Party of any Loan Document, except for (a) such approvals, authorizations, consents, licenses or exemptions from, or filings or registrations which have been obtained prior to the date of this Agreement and remain in full force and effect, (b) filings which are necessary to release Liens granted pursuant to the document related to the Indebtedness to be refinanced on the Closing Date, and (c) filings, authorizations, consents, licenses, exemptions or registrations which are necessary to perfect the security interests created under the Collateral Documents.

Affiliate Transactions.

 No Loan Party nor any of its Subsidiaries is a party to any contracts or agreements with any of its Affiliates (other than with Wholly-owned Subsidiaries) on terms and conditions which are less favorable to such Loan Party or such Subsidiary than would be usual and customary in similar contracts or agreements between Persons not affiliated with each other.

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Solvency.

Each Loan Party is Solvent, and the Loan Parties and their Subsidiaries are, on a consolidated basis, Solvent.

Brokers Generally; No Broker Fees.

  Brokers Generally. All marketing and sales activities have been and will be performed by employees or independent contractors of the Company and its Affiliates, all of whom are and will be properly licensed or exempt from licensing in accordance with applicable Legal Requirements. The Company or its Affiliates will retain a duly licensed broker of record for each Specified Resort and the Mortgaged Premises as may be required by applicable law in the State in which each such Specified Resort or Mortgaged Premises is located.

(j) No Broker Fees. No broker’s or finder’s fee or commission will be payable with respect hereto or any of the transactions contemplated thereby; and the Loan Parties hereby agree to indemnify the Administrative Agent, the L/C Issuer, and the Lenders against, and agree that they will hold the Administrative Agent, the L/C Issuer, and the Lenders harmless from, any claim, demand, or liability for any such broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any expenses (including reasonable attorneys’ fees) arising in connection with any such claim, demand, or liability.

No Default.

 No Potential Default or Event of Default has occurred and is continuing.

OFAC.

Each Loan Party is in compliance with the requirements of all OFAC Sanctions Programs applicable to it. Each Subsidiary of each Loan Party is in compliance with the requirements of all OFAC Sanctions Programs applicable to such Subsidiary. Each Loan Party has provided to the Administrative Agent, the L/C Issuer, and the Lenders all information regarding such Loan Party and its Affiliates and Subsidiaries necessary for the Administrative Agent, the L/C Issuer, and the Lenders to comply with all applicable OFAC Sanctions Programs. To the best of each Loan Party’s knowledge, neither any Loan Party nor any of its Affiliates or Subsidiaries is, as of the date hereof, named on the current OFAC SDN List. No part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

Other Agreements and Documents.

As of the Closing Date, except as set forth on Schedule 5.24, all Material Agreements are in full force and effect and no defaults currently exist under such agreements which individually or in the aggregate could reasonably be expected to have a Material Adverse Effect. There does not exist any violation of any Organization Documents which could reasonably be expected to have a Material Adverse Effect.

Section 5.4 EEA Financial Institutions.    No Loan Party is an EEA Financial Institution.

Section 5.5 Regulation H.    No Mortgaged Premises is a Flood Hazard Property unless the Administrative Agent shall have received the following: (a) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Administrative Agent (i) as to

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the fact that such Mortgaged Property is a Flood Hazard Property, (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (iii) such other flood hazard determination forms, notices and confirmations thereof as reasonably requested by the Administrative Agent and (b) copies of insurance policies or certificates of insurance of the applicable Loan Party evidencing flood insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as loss payee on behalf of the Lenders.  All flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.

SECTION 6.

COVENANTS.

Each Loan Party covenants and agrees that, so long as any credit is available to or in use by the Borrower hereunder and until the Facility Termination Date:

Information Covenants.

The Loan Parties will furnish to the Administrative Agent, with sufficient copies for each Lender:

(a) Quarterly Reports. Within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, commencing with the fiscal quarter of the Borrower ending March 31, 2017, the Borrower’s consolidated balance sheet as at the end of such fiscal quarter and the related consolidated statements of income and comprehensive income and of cash flows for such fiscal quarter and for the elapsed portion of the fiscal year-to-date period then ended, each in reasonable detail, prepared by the Borrower in accordance with GAAP, setting forth comparative figures for the corresponding fiscal quarter in the prior fiscal year, all of which shall be certified by the chief financial officer or other financial or accounting officer of the Borrower acceptable to the Administrative Agent that they fairly present in all material respects in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as of the dates indicated and the results of their operations and changes in their cash flows for the periods indicated, subject to normal year-end audit adjustments and the absence of footnotes.

(b) Annual Statements. Within 120 days after the close of each fiscal year of the Borrower, a copy of the Borrower’s consolidated balance sheet as of the last day of the fiscal year then ended and the Borrower’s consolidated statements of income and comprehensive income, and cash flows for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion of Grant Thornton LLP or another firm of independent public accountants of recognized national standing, selected by the Borrower and acceptable to the Administrative Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Borrower and its Subsidiaries as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with  generally accepted auditing standards.

(c) Compliance Certificates. At the time of the delivery of the financial statements provided for in Sections 6.1(a) and (b), a certificate of the chief financial officer or other

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financial or accounting officer of the Borrower acceptable to Administrative Agent in the form of Exhibit E, (A) stating no Potential Default or Event of Default has occurred during the period covered by such statements of, if a Potential Default or Event of Default exists, a detailed description of the Potential Default or Event of Default and all actions the Borrower is taking with respect to such Potential Default or Event of Default, (B) confirming that the representations and warranties stated in Section 5 remain true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of said time, except to the extent such representations and warranties relate to an earlier date (and in such case, confirming they are true and correct (or, in the case of any representation or warranty not qualified as to materiality, true and correct in all material respects) as of such earlier date), (C) listing all Excluded Subsidiaries as of the last day of the relevant calendar year, and (D) showing the Borrower’s compliance with the covenants set forth in Section 6.20.

(d) Collateral Reports. As soon as available, and in any event no later than 60 days after the end of each of fiscal quarter of the Borrower, a Collateral Report detailing the information specified therein with respect to the Collateral as of the close of business on the last day of such fiscal quarter, prepared by the Borrower and/or BVU, as applicable, and certified to by the chief financial officer or other financial or accounting officer of the Borrower and/or BVU, as applicable, acceptable to Administrative Agent.

(e) Budgets. As soon as available, but in any event no later than 30 days after the first day of each fiscal year of the Borrower (commencing with the 2018 fiscal year), a budget in form satisfactory to the Administrative Agent (including a breakdown of the projected results of each line of business of the Borrower and its Subsidiaries, and budgeted consolidated statements of income, and sources and uses of cash and balance sheets for the Borrower and its Subsidiaries) of the Borrower and its Subsidiaries in reasonable detail satisfactory to the Administrative Agent for each fiscal quarter and the four fiscal quarters of the immediately succeeding fiscal year and, with appropriate discussion, the principal assumptions upon which such budget is based.

(f) Notice of Default or Litigation, Labor Materials and Contracts. Promptly, and in any event within five Business Days after any officer of any Loan Party obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Potential Default or an Event of Default or any other event which could reasonably be expected to have a Material Adverse Effect, which notice shall specify the nature thereof, the period of existence thereof and what action the Loan Parties propose to take with respect thereto, (ii) the commencement of, or any significant development in, any litigation, labor controversy, arbitration or governmental proceeding pending against any Loan Party or any of its Subsidiaries which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (iii) any labor dispute to which any Loan Party or any of its Subsidiaries may become a party and which may have a Material Adverse Effect, and (iv) any strikes, walkouts, or lockouts relating to any of the Loan Parties’ or any of their Subsidiaries’ facilities which could reasonably be expected to have a Material Adverse Effect, and (v) any Material Agreements entered into after the Closing Date to the extent reasonably requested by the Administrative Agent.

(g) Management Letters. Promptly after any Loan Party’s receipt thereof, a copy of any “management letter” or other report that has recommendations equivalent to a “management letter” submitted to any Loan Party or any of its Subsidiaries by those certified public

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accountants that opine on any of the Loan Parties’ annual financial statements, and the management’s responses thereto.

(h) Other Reports and Filings. Promptly upon request of the Administrative Agent, copies of all financial information, proxy materials and other material information, certificates, reports, statements and completed forms, if any, which the Borrower or any of its Subsidiaries has delivered to holders of, or to any agent or trustee with respect to, Indebtedness of the Borrower or any of its Subsidiaries in their capacity as such a holder, agent or trustee to the extent that the aggregate principal amount of such Indebtedness exceeds (or upon the utilization of any unused commitments may exceed) $10,000,000.

(i) Environmental Matters. Promptly upon, and in any event within five Business Days after any Designated Officer of any Loan Party obtains knowledge thereof, notice of one or more of the following environmental matters with respect to or affecting any Specified Resort or Mortgaged Premises which individually, or in the aggregate, could reasonably be expected to have a Material Adverse Effect: (i) any violation of Environmental Law by, or notice of an Environmental Claim; (ii) any Release or threatened Release of Hazardous Substances, in each case that (x) is not in compliance with applicable Environmental Laws or (y) could reasonably be expected to form the basis of an Environmental Claim against any Loan Party or any of its Subsidiaries or any such real property; (iii) any condition or occurrence that could reasonably be expected to cause such Specified Resort or Mortgaged Premises to be subject to any restrictions on its ownership, occupancy, use or transferability under any Environmental Law; and (iv) any investigative, removal or remedial actions to be taken in response to the actual or alleged presence of any Hazardous Material to the extent required by any Environmental Law or Governmental Authority. All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and such Loan Party’s or such Subsidiary’s response thereto. In addition, the Loan Parties agree to provide the Lenders with copies of all material written communications by the Loan Parties or any of their Subsidiaries with any Person or Governmental Authority relating to any of the matters set forth in clauses (i)-(iv) above, and such detailed reports relating to any of the matters set forth in clauses (i)-(iv) above as may reasonably be requested by the Administrative Agent or the Required Lenders.

(j) Receivable Debt Financing Information. Within ten (10) calendar days of the Borrower’s receipt of the Administrative Agent’s written request therefor, to the extent permitted by applicable law and the terms of the applicable Receivable Debt Documents, the final offering memorandum (if applicable) for any Receivable Debt Financing incurred on or after the Closing Date.

(k) Redesignation of Mortgaged Premises.    Promptly upon, and in any event within 20 days after any Designated Officer of any Loan Party obtains knowledge thereof, notify the Administrative Agent of any Mortgaged Premises that is, or becomes, a Flood Hazard Property.

(l) Other Information. From time to time, such other information or documents (financial or otherwise) as the Administrative Agent or any Lender may reasonably request.

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Inspections; Field Examinations.

The Loan Party will, and will cause each of its Subsidiaries and applicable Associations to, permit officers, representatives and agents of the Administrative Agent or any Lender, to visit and inspect any Specified Resorts, Mortgaged Premises and Collateral of such Loan Party or such Subsidiary, and to examine the financial records and corporate books of such Loan Party or such Subsidiary, and discuss the affairs, finances, and accounts of such Loan Party or such Subsidiary with its and their officers and independent accountants, all at such reasonable times as the Administrative Agent or any Lender may request; provided that, so long as no Potential Default or Event of Default exists, prior written notice of any such visit, inspection, or examination shall be provided to the Borrower and such visit, inspection, or examination shall be performed at reasonable times to be agreed to by the Borrower, which agreement will not be unreasonably withheld. The Borrower shall pay to the Administrative Agent for its own use and benefit reasonable charges for examinations of the Collateral performed by the Administrative Agent or its agents or representatives in such  amounts as the Administrative Agent may from time to time request (the Administrative Agent acknowledging and agreeing that such charges shall be computed in the same manner as it at the time customarily uses for the assessment of charges for similar collateral examinations); provided that in the absence of any Potential Default and Event of Default, the Borrower shall not be required to pay the Administrative Agent for more than two such examinations per calendar year.

Maintenance of Property and Insurance; Environmental Matters.

 

 Each Loan Party will, and will cause each of its Subsidiaries and applicable Associations to, (i) maintain and keep, or cause to be to be maintained and kept, their respective Properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times; provided that this clause shall not prevent any Loan Party, its Subsidiaries or the applicable Associations from discontinuing the operation and maintenance of any of its Properties if such discontinuance is desirable in the conduct of its business and the Borrower has concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (ii) maintain in full force and effect with financially sound and reputable insurance companies insurance which provides substantially the same (or greater) coverage and against at least such risks as is in accordance with industry practice, and shall furnish to the Administrative Agent upon request full information as to the insurance so carried. In any event, each Loan Party shall, and shall cause each of its Subsidiaries and applicable Associations to, maintain insurance on the Collateral to the extent required by the Collateral Documents.

(m) Without limiting the generality of Sections 6.3(a) and 6.4, each Loan Party and its Subsidiaries shall: (i) obtain and maintain in full force and effect all material permits, licenses and approvals required for its operations and the occupancy of the Specified Resorts and Mortgaged Premises by Environmental Laws; (ii) cure as soon as reasonably practicable any violation of applicable Environmental Laws which individually or in the aggregate may reasonably be expected to have a Material Adverse Effect; (iii) not, and shall not permit any other Person to, own or operate on any of its properties any underground storage tank in violation of applicable law, landfill, dump or hazardous waste treatment, storage or disposal facility as defined pursuant to Environmental Laws; and (iv) not use, generate, treat, store, 

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Release or dispose of Hazardous Materials at or on the Specified Resorts and Mortgaged Premises except in the ordinary course of its business and in compliance with all Environmental Laws. Each Loan Party and its Subsidiaries shall conduct any investigation, study, sampling and testing, abatement, cleanup, removal, remediation or other response or preventative action necessary to remove, remediate, prevent, cleanup, abate or otherwise fully address any Release or threatened Release of Hazardous Materials or any migration or continuation thereof required by Environmental Laws.

Compliance with Laws.

Each Loan Party shall, and shall cause each of its Subsidiaries and the applicable Associations to, comply in all respects with the requirements of all laws, rules, regulations, ordinances and orders of any Governmental Authority (including Environmental Laws) applicable to such Loan Party or any of its Subsidiaries’ Property or business operations, where any such non-compliance, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or result in a Lien upon any of its Property (other than Permitted Liens).

ERISA.

Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly pay and discharge all obligations and liabilities arising under ERISA of a character which if unpaid or unperformed could reasonably be expected to have a Material Adverse Effect or result in a Lien upon any of its Property. Each Loan Party shall, and shall cause each of its Subsidiaries to, promptly notify the Administrative Agent and each Lender of: (a) the occurrence of any reportable event (as defined in ERISA) with respect to a Plan except for a reportable event for which the PBGC has waived the notice requirement, (b) receipt of any notice from the PBGC of its intention to seek termination of any Plan or appointment of a trustee therefor, (c) its intention to terminate or withdraw from any Plan, and (d) the occurrence of any event with respect to any Plan which would result in the incurrence by any Loan Party or any of its Subsidiaries of any material liability, fine or penalty, or any material increase in the contingent liability of any Loan Party or any of its Subsidiaries with respect to any post-retirement Welfare Plan benefit.

Payment of Taxes.

Each Loan Party shall, and shall cause each of its Subsidiaries and, to the extent possible, applicable Associations to, pay and discharge, all Taxes imposed upon it or any of its Property, before becoming delinquent and before any penalties accrue thereon, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and as to which appropriate reserves have been provided for in accordance with GAAP.

Preservation of Existence.

Each Loan Party shall, and shall cause each of its Subsidiaries and, to the extent possible, applicable Associations to, do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect, its franchises, authority to do business, licenses, patents, trademarks, copyrights that are necessary for the Loan Parties and their Subsidiaries and applicable Associations to conduct their respective businesses as presently conducted, except for such patents, trademarks, copyrights, and other proprietary rights which, in the Loan Parties’ reasonable good faith determination, are no longer used, useful, or valuable to their respective businesses; provided that nothing in this Section 6.7 shall prevent, to the extent permitted by Section 6.13, sales of assets by the Loan

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Parties or any of their Subsidiaries or applicable Associations, the dissolution or liquidation of any Subsidiary of any Loan Party or any applicable Association, or the merger or consolidation between or among the Subsidiaries of any Loan Party.

Contracts with Affiliates.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, enter into any contract, agreement or business arrangement with any of its Affiliates (other than the Borrower or another Subsidiary that is a Loan Party), except upon fair and reasonable terms no less favorable to such Loan Party or such Subsidiary than would be obtainable in a comparable arm’s-length transaction between Persons not affiliated with each other.

Restrictions or Changes and Amendments.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, change its fiscal year or fiscal quarters from its present basis or amend or change, or allow to be amended or changed: (a) its Organization Documents in any way that would reasonably be expected to have a Material Adverse Effect, or change its state of organization, without giving the Administrative Agent at least thirty (30) days prior written notice, or (b) any Material Agreement in a manner that could reasonably be expected to have a Material Adverse Effect, without giving the Administrative Agent at least thirty (30) days prior written notice.

Change in the Nature of Business.

Without the prior written consent of the Required Lenders (which consent will not be unreasonably delayed, withheld or denied), no Loan Party shall, nor shall it permit any of its Subsidiaries to, engage in any business or activity if, as a result, the general nature of the business in which the Loan Parties and their Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Loan Parties and their Subsidiaries, taken as a whole, are engaged on the Closing Date.

Indebtedness.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, including liabilities under any Hedging Agreement, except;

(n) the Secured Obligations of the Loan Parties and their Subsidiaries owing to the Administrative Agent and the Lenders (and their Affiliates);

(o) Indebtedness owed pursuant to Hedge Agreements entered into in the ordinary course of business and not for speculative purposes with Persons other than Lenders (or their Affiliates);

(p) intercompany Indebtedness or advances among the Loan Parties;

(q) intercompany Indebtedness or advances between Borrower and Resort Title;

(r) intercompany advances from time to time owing between a Loan Party and an Excluded Subsidiary (other than an SPE Subsidiary, Resort Title or Bluegreen/Big Cedar) in the ordinary course of business to finance working capital needs; provided that the aggregate amount of such advances outstanding to all Excluded Subsidiaries (other than an SPE Subsidiary, Resort

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Title or Bluegreen/Big Cedar), together with any Investments in such Excluded Subsidiaries permitted under Section 6.14, do not exceed $50,000,000 at any one time outstanding;

(s) Indebtedness of the Borrower and its applicable Subsidiaries owed pursuant to the 2020 Notes Documents, as reduced by permitted payments thereon;

(t) Receivable Debt Financing;

(u) (i) purchase money Indebtedness and Capitalized Lease Obligations of the Loan Parties and their Subsidiaries and (ii) other non-receivable-backed secured Indebtedness of the Loan Parties and their Subsidiaries; provided that the aggregate amount of all such Indebtedness under this subsection (h) shall not exceed $75,000,000 at any one time outstanding (for purposes of clarity, this clause (h) shall not restrict the Indebtedness of Bluegreen/Big Cedar that is permitted by Section 6.11(m));

(v) unsecured Subordinated Debt, as reduced by permitted payments thereon;

(w) Indebtedness of the SPE Subsidiaries, solely to the extent such Indebtedness is not secured by any of the Collateral and not more than $25,000,000 of such Indebtedness is at any time recourse to the Loan Parties (for purposes of clarity, this clause (j) shall not restrict the Indebtedness of Bluegreen/Big Cedar that is permitted by Section 6.11(m));

(x) endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;

(y) replacements, renewals, refinancings or extensions of any Indebtedness described in subsections (f), (h) and (i) of this Section that (i) does not exceed the aggregate principal amount (plus accrued interest and applicable premium and associated fees and expenses) of the Indebtedness being replaced, renewed, refinanced or extended unless such excess amount is otherwise permitted by this Section 6.11, (ii) does not have a weighted average life to maturity at the time of such replacement, renewal, refinancing or extension that is less than the weighted average life to maturity of the Indebtedness being replaced, renewed, refinanced or extended, (iii) does not rank at the time of such replacement, renewal, refinancing or extension senior to the Indebtedness being replaced, renewed, refinanced or extended, and (iv) to the extent such Indebtedness constitutes Subordinated Debt, is governed by an agreement or agreements which provide for terms and conditions (including rights of prepayment, covenants, and defaults) materially no more restrictive than those provided for in the instrument, agreement, or indenture governing the Subordinated Debt outstanding prior to giving effect to such replacement, renewal, refinancing or extension;

(z) Indebtedness of Bluegreen/Big Cedar incurred in the ordinary course of business consistent with past practice and any Guarantee thereof; 

(aa) unsecured Indebtedness of the Loan Parties and their Subsidiaries not otherwise permitted by this Section in an amount not to exceed $10,000,000 in the aggregate at any one time outstanding.

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Liens.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, create, incur or suffer to exist any Lien on any of its Property; provided that the foregoing shall not prevent the following (the Liens described below, the “Permitted Liens”):

(bb) inchoate Liens for the payment of Taxes which are not yet delinquent or the payment of which is not required by Section 6.6;

(cc) Liens arising by statute in connection with worker’s compensation, unemployment insurance, old age benefits, social security obligations, Taxes, assessments, statutory obligations or other similar charges (other than Liens arising under ERISA), good faith cash deposits in connection with bids, tenders, contracts or leases to which any Loan Party or any Subsidiary of any Loan Party is a party or other cash deposits required to be made in the ordinary course of business, provided in each case that the obligation is not for borrowed money and that the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest and for which adequate reserves have been established in accordance with GAAP;

(dd) mechanics’, workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings which prevent enforcement of the matter under contest and for which adequate reserves have been established in accordance with GAAP;

(ee) Liens created by or pursuant to this Agreement and the Collateral Documents;

(ff) Liens on Property (other than the Collateral) of any Loan Party or any Subsidiary of any Loan Party created solely for the purpose of securing Indebtedness permitted by Section 6.11 (a), (b), (f), (g), (h), (j), (k), (l) and (m);

(gg) easements, permits, rights-of-way, encroachments, restrictions, zoning or building codes or ordinances, other land use laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Authority and other similar encumbrances against real property incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not materially detract from the value of the Property subject thereto or materially interfere with the ordinary conduct of the business of any Loan Party or any Subsidiary of any Loan Party;

(hh) Liens on the assets of any Subsidiary of the Borrower that is not a Wholly-owned Subsidiary and is a joint venture in which Persons that are not Affiliates of the Borrower hold Ownership Interests, which Liens are in favor of the equity owners of such Subsidiary; and

(ii) Liens arising in connection with (i) the incurrence by the Borrower or any Subsidiary of current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices or (ii) amounts payable under “earn out” arrangements as and solely to the extent future revenues are realized and equal to or exceeding the amount of such “earn out”, in either case, which were not incurred in connection with the borrowing of money.

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Consolidation, Merger, and Sale of Assets.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or merge or consolidate, or convey, sell, lease, or otherwise dispose of all or any part of its Property, including any disposition as part of any sale-leaseback transactions except that this Section shall not prevent:

(jj) the sale and lease of inventory in the ordinary course of business;

(kk) the sale, transfer or other disposition of any assets that, in the reasonable judgment of the Loan Parties or their Subsidiaries, has become obsolete, or worn out, or is no longer used or useful in the business of the Loan Parties and their Subsidiaries;

(ll) the disposition or sale of Cash Equivalents in consideration for cash;

(mm) the disposition of real estate (other than the Collateral) in the ordinary course of business, including, but not limited to, dispositions of inventory and land held for development in connection with any Loan Party’s existing business strategy whether disposed as an asset or through the sale (whether directly or through a merger) of a single-asset Subsidiary the sole asset of which is such real estate;

(nn) any winding up, liquidation or dissolution of the affairs of any Excluded Subsidiary, or the merger or consolidation of any Excluded Subsidiary, so long as both immediately before and immediately after giving effect to such dissolution, no Potential Default or Event of Default shall have occurred and be continuing;

(oo) any winding up, liquidation or dissolution of the affairs of any Loan Party (other than the Borrower) or the merger or consolidation of any Loan Party (provided that, if the Borrower is party to such merger or consolidation, the Borrower shall be the surviving entity of such merger or consolidation), so long as (i) the Borrower has provided the Administrative Agent with at least 10 Business Days’ prior written notice thereof, and (ii) both immediately before and immediately after giving effect to such event, no Potential Default or Event of Default shall have occurred and be continuing; and

(pp) any sale, transfer, lease, or other disposition of Property of any Loan Party or any Subsidiary of any Loan Party (including any disposition of Property as part of a sale and leaseback transaction), so long as both immediately before and immediately after giving effect to such disposition, no Potential Default or Event of Default shall have occurred and be continuing.

Advances, Investments, and Loans.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, make any Investment other than:

(qq) Investments in the ordinary course of business consistent with past practice;  

(rr) Investments in Permitted Joint Ventures; and

(ss) other Investments (not covered by clause (a) or (b))  in an aggregate amount invested from the date hereof not to exceed $25,000,000 then outstanding.

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Restricted Payments.

No Loan Party shall, nor shall it permit any of its Subsidiaries to, directly or indirectly, declare or make any Restricted Payments; provided that the foregoing shall not operate to prevent:

(tt) the making of dividends or distributions by any Subsidiary to any Loan Party that is its direct or indirect parent;

(uu) the making of dividends or distributions by any Excluded Subsidiary; and

(vv) other Restricted Payments by a Loan Party or any other Subsidiary if and so long as (a) no Potential Default exists or will arise after giving effect to such other Restricted Payment, and (b) after giving effect to such other Restricted Payment, the Borrower reasonably believes after due consideration that, after giving effect to such payment (and all prior Restricted Payments made during the applicable period), it will be in compliance with the financial covenants set forth in Section 6.20 as of the next applicable measurement date.

Limitation on Restrictions.

No Loan Party shall directly or indirectly, create or otherwise cause or suffer to exist or become effective any restriction on the ability of any such Loan Party or Subsidiary to (a) pay dividends or make any other distributions on any Ownership Interests owned by a Loan Party or any Subsidiary, (b) pay or repay any Indebtedness owed to any Loan Party or any Subsidiary, (c) make loans or advances to any Loan Party or any Subsidiary, (d) transfer any of its Property to any Loan Party or any Subsidiary, (e) encumber or pledge any of the Collateral to or for the benefit of the Administrative Agent, or (f) guaranty the Secured Obligations; provided that, the foregoing shall not prevent restrictions contained in any Loan Document.

Restrictive Covenants.

 Without the prior written consent of the Administrative Agent (which shall not be unreasonably withheld, delayed or denied), the Loan Parties will not consent to, or otherwise acquiesce in, any change in any private restrictive covenant, planning or zoning law or other public or private restriction, which would limit or alter the use of the Mortgaged Premises.

Limitation on the Creation of Subsidiaries; Sales and Marketing Agreements, etc.

 

 Limitation on Creation and Acquisition of Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, no Loan Party will, nor will it permit any of its Subsidiaries to, establish, create or acquire after the Closing Date any Subsidiary; provided that the Loan Parties shall be permitted to establish,  create or acquire (i) Excluded Subsidiaries, so long as notice thereof is given to the Administrative Agent on an annual basis as required by this Agreement, and (ii) other Wholly-owned Subsidiaries, so long as (A) the Administrative Agent is notified thereof within a commercially reasonable period of time after such establishment, creation or acquisition and (B) the Loan Parties timely comply with the requirements of Section 4 (at which time Schedule 5.10 shall be deemed to include a reference to such Subsidiary).

(ww) Sales and Marketing Agreements; Management Agreements. No Loan Party (other than BVU or BRM) or any Subsidiary of a Loan Party (other than (x) Resort Title, in its capacity as escrow agent, (y) any Subsidiary of BVU or BRM that is a party to any such

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agreement (in lieu of BVU or BRM and solely as a result of specific local, foreign jurisdictional requirements or customs that prevent BVU or BRM from being a party thereto, as reasonably determined by the Borrower), or (z) any other Subsidiary, solely with respect to a Limited Joinder) shall become party to any Sales and Marketing Agreement or any Management Agreement or otherwise acquire any right to receive payments in respect of any of the Pledged Receivables (as defined in the Security Agreement), unless (i) at least 15 days prior written notice thereof is given to the Administrative Agent and (ii) such Loan Party or Subsidiary, as applicable, timely comply with the requirements of Section 4.

Operating Accounts.

Each of the primary operating accounts of the Loan Parties shall be at all times maintained with the Administrative Agent, except for accounts to serve Loan Party locations that cannot be reasonably served by the existing offices and branches of the Administrative Agent.

Financial Covenants.

  Maximum Leverage Ratio. The Borrower shall not, as of the Closing Date and as of the last day of each fiscal quarter of the Borrower, permit the Leverage Ratio to be greater than 2.25 to 1.00.

(xx) Minimum Fixed Charge Coverage Ratio. The Borrower shall not, as of the last day of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2017), permit the Fixed Charge Coverage Ratio to be less than 1.25 to 1.00.

(yy) Minimum Liquidity.   As of the Closing Date and as of the last day of each fiscal quarter of the Borrower, the Borrower shall maintain consolidated unrestricted cash or cash equivalents of not less than Forty Million and No/Dollars ($40,000,000.00) on the Company’s consolidated balance sheet.

Section 6.6 Compliance with OFAC Sanctions Programs.

 Each Loan Party shall at all times comply with the requirements of all OFAC Sanctions Programs applicable to such Loan Party and shall cause each of its Subsidiaries to comply with the requirements of all OFAC Sanctions Programs applicable to such Subsidiary.

(a) Each Loan Party shall provide the Administrative Agent, the L/C Issuer, and the Lenders any information regarding such Loan Party, its Affiliates, and its Subsidiaries necessary for the Administrative Agent, the L/C Issuer, and the Lenders to comply with all applicable OFAC Sanctions Programs; subject however, in the case of Affiliates, to such Loan Party’s ability to provide information applicable to them.

(b) If any Loan Party obtains actual knowledge or receives any written notice that such Loan Party, any Affiliate, or any Subsidiary is named on the then current OFAC SDN List (such occurrence, an “OFAC Event”), such Loan Party shall promptly (i) give written notice to the Administrative Agent, the L/C Issuer, and the Lenders of such OFAC Event, and (ii) comply with all applicable laws with respect to such OFAC Event (regardless of whether the party included on the OFAC SDN List is located within the jurisdiction of the United States of America), including the OFAC Sanctions Programs, and each Loan Party hereby authorizes and consents to the Administrative Agent, the L/C Issuer, and the Lenders taking any and all steps the Administrative Agent, the L/C Issuer, or the Lenders deem necessary, in their sole but 

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reasonable discretion, to avoid violation of all applicable laws with respect to any such OFAC Event, including the requirements of the OFAC Sanctions Programs (including the freezing and/or blocking of assets and reporting such action to OFAC)

Section 6.7 Post-Closing Delivery of Access Agreement.  The Borrower shall, on or prior to the date that is ten (10) Business Days after the Closing Date (or such reasonably longer period as the Administrative Agent may approve in its reasonable discretion), deliver to the Administrative Agent a fully-executed copy of the Access Agreement, duly executed and delivered by all parties thereto, including the landlord of the applicable premises that is the subject of the Access Agreement.

SECTION 7.

EVENTS OF DEFAULT AND REMEDIES.

Events of Default.

 Any one or more of the following shall constitute an “Event of Default” hereunder:

(a) the Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) within 3 Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, any fee due hereunder or any other amount payable hereunder or under any other Loan Document;

(b) default in the observance or performance of any covenant set forth in Sections 6.4, 6.7, 6.9 through 6.13, 6.15, 6.20 or 6.21, or of any provision in any Loan Document dealing with the use, disposition or remittance of the proceeds of Collateral or requiring the maintenance of insurance thereon;

(c) (i) default in the observance or performance of any covenant set forth in Sections 6.1(a), 6.1(b), 6.1(c) or 6.1(d) which is not remedied within 5 Business Days after the earlier of (A) the date on which such default shall first become known to any Designated Officer of any Loan Party or (B) written notice of such default is given to the Borrower by the Administrative Agent, or (ii) default in the observance or performance of any other provision hereof or of any other Loan Document which is not remedied within 30 days (or, to the extent such default is curable, and the Borrower has demonstrated to the satisfaction of the Administrative Agent that it is diligently pursuing a cure within such thirty (30) day period, such extended period, not to exceed sixty (60) days, as consented to in writing by the Administrative Agent in its sole discretion) after the earlier of (A) the date on which such default shall first become known to any Designated Officer of any Loan Party or (B) written notice of such default is given to the Borrower by the Administrative Agent;

(d) any representation or warranty made herein or in any other Loan Document or in any certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed making thereof;

(e) (i) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be or shall cease to be in

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full force and effect or is declared to be null and void, or (iii) any of the Collateral Documents shall for any reason fail to create a valid and perfected first priority Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms thereof or the terms of this Agreement, or (iv) any Loan Party takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder, or (v) any Loan Party or any Subsidiary of a Loan Party makes any payment on account of any Subordinated Debt which is prohibited under the terms of any instrument subordinating such Subordinated Debt to any Secured Obligations, or any subordination provision in any document or instrument (including, without limitation, any intercreditor or subordination agreement) relating to any Subordinated Debt shall cease to be in full force and effect, or any Person (including the holder of any Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision;

(f) default shall occur under any (i) Indebtedness of any Loan Party aggregating in excess of $25,000,000, or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated), or any such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise) after giving effect to applicable grace or cure periods, if any, or (ii) any Hedge Agreement of any Loan Party with any Lender or any Affiliate of a Lender; provided that, to the extent any such default under the foregoing clauses (i) and (ii) is waived under the applicable agreements, the Event of Default hereunder caused solely by such cross-default shall be deemed to have been waived as well;

(g) (i) any final judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Loan Party, or against any of its Property, in an aggregate amount in excess of $10,000,000 (except to the extent fully and unconditionally covered by insurance, subject to reasonable deductibles consistent with industry practice, pursuant to which the insurer has accepted liability therefor in writing and except to the extent fully and unconditionally covered by an appeal bond, for which such Loan Party has established in accordance with GAAP a cash or Cash Equivalent reserve in the amount of such judgment, writ or warrant), and which remains undischarged, unvacated, unbonded or unstayed for a period of 30 days, or any action shall be legally taken by a judgment creditor to attach or levy upon any Property of any Loan Party to enforce any such judgment, or (ii) any Loan Party shall fail within 30 days to discharge one or more nonmonetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;

(h) provided that any of the following, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect: (i) any Loan Party, or any member of its Controlled Group, shall fail to pay when due an amount or amounts which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or (ii) notice of intent to terminate a Plan or Plans under Section 4041(c) of ERISA shall be filed under Title IV of ERISA by any Loan Party, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or (iii) the PBGC shall institute proceedings under Section 4042 of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or a proceeding

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shall be instituted by a fiduciary of any Plan against any Loan Party, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Plan must be terminated; or (v) any Loan Party, or any member of its Controlled Group, shall incur liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vi) any Loan Party, or any member of its Controlled Group, shall receive any notice, or any Multiemployer Plan shall receive from any Loan Party, or any member of its Controlled Group, any notice, concerning the imposition of withdrawal liability or a determination that a Multiemployer Plan is in endangered or critical status, within in the meaning of Section 305 of ERISA;

(i) any Loan Party shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any Debtor Relief Law, (vi) fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vii) take any action in furtherance of any matter described in parts (i) through (v) above, or (viii) fail to contest in good faith any appointment or proceeding described in Section 7.1(j); or

(j) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for any Loan Party, or any substantial part of any of its Property, or a proceeding described in Section 7.1(j)(v) shall be instituted against any Loan Party, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 days.

Non-Bankruptcy Defaults.

 When any Event of Default exists other than those described in subsection (i) or (j) of Section 7.1, the Administrative Agent shall, by written notice to the Borrower: (a) if so directed by the Required Lenders, terminate the remaining Commitments and all other obligations of the Lenders hereunder on the date stated in such notice (which may be the date thereof); (b) if so directed by the Required Lenders, declare the principal of and the accrued interest on all outstanding Loans to be forthwith due and payable and thereupon all outstanding Loans, including both principal and interest thereon, shall be and become immediately due and payable together with all other amounts payable under the Loan Documents without further demand, presentment, protest or notice of any kind; and (c) if so directed by the Required Lenders, demand that the Borrower immediately Cash Collateralize 105% of the then outstanding amount of all L/C Obligations, and the Borrower agrees to immediately provide such Cash Collateral and acknowledges and agrees that the Lenders would not have an adequate remedy at law for failure by the Borrower to honor any such demand and that the Administrative Agent, for the benefit of the Lenders, shall have the right to require the Borrower to specifically perform such undertaking whether or not any drawings or other demands for payment have been made under any Letter of Credit. The Administrative Agent, after giving notice to the Borrower pursuant to Section 7.1(c) or this Section 7.2, shall also 

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promptly send a copy of such notice to the other Lenders, but the failure to do so shall not impair or annul the effect of such notice.

Bankruptcy Defaults.

When any Event of Default described in subsections (i) or (j) of Section 7.1 exists, then all outstanding Obligations shall immediately and automatically become due and payable together with all other amounts payable under the Loan Documents without presentment, demand, protest or notice of any kind (each of which is hereby waived by the Borrower), the Commitments and all other obligations of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and automatically terminate and the Borrower shall immediately Cash Collateralize 105% of the then outstanding amount of all L/C Obligations, the Borrower acknowledging and agreeing that the Lenders would not have an adequate remedy at law for failure by the Borrower to honor any such demand and that the Lenders, and the Administrative Agent on their behalf, shall have the right to require the Borrower to specifically perform such undertaking whether or not any draws or other demands for payment have been made under any of the Letters of Credit.

Collateral for Undrawn Letters of Credit.

If Cash Collateral for drawings under any or all outstanding Letters of Credit is required under Section 2.3(b) or under Section 7.2 or under Section 7.3, the Borrower shall forthwith Cash Collateralize the amount required as provided in Section 4.5.

Notice of Default.

The Administrative Agent shall give notice to the Borrower under Section 7.1(c) promptly upon being requested to do so by any Lender and shall thereupon notify all the Lenders thereof.

SECTION 8.

CHANGE IN CIRCUMSTANCES AND CONTINGENCIES.

Funding Indemnity

If any Lender shall incur any loss, cost or expense (including any loss of profit, and any loss, cost or expense incurred by reason of the liquidation or re-employment of deposits or other funds acquired by such Lender to fund or maintain any Eurodollar Loan or Swing Loan or the relending or reinvesting of such deposits or amounts paid or prepaid to such Lender or by reason of breakage of interest rate swap agreements or the liquidation of other Hedge Agreements or incurred by reason of an assignment required by Section 10.2(b)) as a result of:

(a) any payment, prepayment or conversion of a Eurodollar Loan or Swing Loan on a date other than the last day of its Interest Period,

(b) any failure (because of a failure to meet the conditions of Section 3 or otherwise) by the Borrower to borrow or continue a Eurodollar Loan or Swing Loan, or to convert a Base Rate Loan into a Eurodollar Loan or Swing Loan, on the date specified in a notice given pursuant to Section 2.5(a), other than as a result of the application of Sections 8.2 or 8.3,

(c) any failure by the Borrower to make any payment of principal on any Eurodollar Loan or Swing Loan when due (whether by acceleration or otherwise), or

(d) any acceleration of the maturity of a Eurodollar Loan or Swing Loan as a result of the occurrence of any Event of Default hereunder,

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then, upon the written demand of such Lender, the Borrower shall pay to such Lender such amount as will reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a certificate setting forth the amount of such loss, cost or expense in reasonable detail and the amounts shown on such certificate shall be conclusive absent manifest error.

Illegality

. Notwithstanding any other provisions of this Agreement or any other Loan Document, if at any time any Change in Law makes it unlawful for any Lender to make or continue to maintain any Eurodollar Loans or to perform its obligations as contemplated hereby, such Lender shall promptly give notice thereof to the Borrower and the Administrative Agent and such Lender's obligations to make or maintain Eurodollar Loans under this Agreement shall be suspended until it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. The Borrower shall prepay on demand the outstanding principal amount of any such affected Eurodollar Loans, together with all interest accrued thereon and all other amounts then due and payable to such Lender under this Agreement; provided subject to all of the terms and conditions of this Agreement, the Borrower may then elect to borrow the principal amount of the affected Eurodollar Loans from such Lender by means of Base Rate Loans from such Lender, which Base Rate Loans shall not be made ratably by the Lenders but only from such affected Lender.

Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR

If on or prior to the first day of any Interest Period for any Borrowing of Eurodollar Loans:

(e) the Administrative Agent determines that deposits in Dollars (in the applicable amounts) are not being offered to it in the interbank eurodollar market for such Interest Period, or that by reason of circumstances affecting the interbank eurodollar market adequate and reasonable means do not exist for ascertaining the applicable LIBOR, or

(f) the Required Lenders advise the Administrative Agent that (i) LIBOR as determined by the Administrative Agent will not adequately and fairly reflect the cost to such Lenders of funding their Eurodollar Loans for such Interest Period or (ii) that the making or funding of Eurodollar Loans become impracticable,

then the Administrative Agent shall forthwith give written notice thereof to the Borrower and the Lenders, whereupon until the Administrative Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligations of the Lenders to make Eurodollar Loans shall be suspended.