Exhibit 10.87
Loan No.: 77287
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated April 16,
2007 is made by and between BLUEGREEN/BIG CEDAR VACATIONS, LLC, a Delaware
limited liability company ("Borrower"), whose address is c/o Bluegreen
Corporation, 0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000, and
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender"), whose
address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
A. RECITALS
1. All capitalized terms used herein shall have the meanings
ascribed thereto in Section B, below.
2. Borrower desires Lender to extend a revolving secured credit
facility to Borrower in an aggregate amount not to exceed Forty-Five Million
Dollars ($45,000,000.00) in accordance with the terms of this Agreement.
3. Borrower's obligations under the Loan Documents will be secured
by, among other things: (1) a security interest in certain Notes Receivable; and
(2) the other Collateral. In addition, pursuant to Section 5.1 of this Agreement
and subject to the RFC Loan Documents, Borrower agrees to a negative pledge with
respect to the Operating Contracts.
B. CERTAIN DEFINITIONS
Defined Terms
The following terms used in this Agreement shall have the following
meanings:
Advance. Proceeds of the Loan advanced from time to time by Lender
to Borrower in accordance with this Agreement.
Affiliate. Any Person: (a) which directly or indirectly controls, or
is controlled by, or is under common control with such Person; (b) which
directly or indirectly beneficially owns or holds five percent (5%) or more of
the voting stock of such Person; or (c) for which five percent (5%) or more of
the voting stock of which is directly or indirectly beneficially owned or held
by such Person; provided, however, that under no circumstances shall Guarantor
be deemed an Affiliate of any 5% or greater shareholder of Guarantor or any
Affiliate of such shareholder who is not a Direct Affiliate (as defined herein)
of Guarantor, nor shall any such shareholder be deemed to be an Affiliate of
Guarantor. The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, (i) any entity included in the same
GAAP consolidated financial statements and the notes therein as Guarantor shall
be an Affiliate of Guarantor (a "Direct Affiliate") and (ii) Guarantor shall be
deemed to be an Affiliate of Borrower.
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Agreement. As defined in the introductory paragraph.
Amenities. Any and all facilities, whether on-site or off-site, that
are described in the sales prospectus and the Public Report for the Timeshare
Project whether available at the Timeshare Project or elsewhere at the
Facilities and that are or committed to be made available for the use and
enjoyment of the owners of Timeshare Interests under the terms of the Timeshare
Documents.
Anti-Money Laundering Laws. Those laws, regulations and sanctions,
state and federal, criminal and civil, that (a) limit the use of and/or seek the
forfeiture of proceeds from illegal transactions; (b) limit commercial
transactions with designated countries or individuals believed to be terrorists,
narcotics dealers or otherwise engaged in activities contrary to the interests
of the United States; (c) require identification and documentation of the
parties with whom a Financial Institution conducts business; or (d) are designed
to disrupt the flow of funds to terrorist organizations. Such laws, regulations
and sanctions shall be deemed to include the Patriot Act, the Bank Secrecy Act,
the Trading with the Enemy Act, 50 U.S.C. App. Section 1 et seq., the
International Emergency Economic Powers Act, 50 U.S.C. Section 1701 et seq., and
the sanction regulations promulgated pursuant thereto by the OFAC, as well as
laws relating to prevention and detection of money laundering in 18 U.S.C.
Sections 1956 and 1957.
Approved Transactions. As defined in Section 4.13, and any other
bona fide, good faith transaction with an Affiliate of Borrower, provided such
transaction is on "market" terms and would not reasonably be expected to have a
Material Adverse Effect.
Association. The not-for-profit Missouri corporation which is
responsible for operating and maintaining the Timeshare Plan and the Timeshare
Project pursuant to the terms of the Timeshare Documents.
Availability. At all times during the Revolving Period, the lesser
of (x) the Maximum Amount minus the current outstanding principal balance of the
Loan or (y) an amount equal to the Availability Percentage times the principal
balance of Eligible Notes Receivable to be assigned to Lender in connection with
the then current Advance. After expiration of the Revolving Period, Availability
shall be Zero Dollars ($0).
Availability Percentage. The percentage adjusted in accordance with
Exhibit D attached hereto.
Availability Report. A monthly report certified by Borrower in the
form attached hereto as Exhibit B evidencing Availability.
Bank Secrecy Act. The Bank Secrecy Act, 31 U.S.C. Sections 5311 et
seq.
Base Rate. The U.S. Dollar rate (rounded upward to the nearest one
thousandth) listed on page 3750 (i.e., the Libor page) of the Telerate News
Services titled "British Banker Association Interest Settlement Rates" for a
designated maturity of one (1) month determined as of 11:00 a.m. London Time on
the second (2nd) full Eurodollar Business Day next preceding the first day of
each month with respect to which interest is payable under the Loan (unless such
date is not a Business Day in which event the next succeeding Eurodollar
Business Day which is also
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a Business Day will be used). If the Telerate News Services (a) publishes more
than one (1) such Libor Rate, the average of such rates shall apply, or (b)
ceases to publish the Libor Rate, then the Base Rate shall be determined from
such comparable substitute financial reporting service as Lender in its
reasonable discretion shall determine. The term "Eurodollar Business Day", shall
mean any day on which banks in the City of London are generally open for
interbank or foreign exchange transactions.
Big Cedar. Big Cedar, L.L.C., a Missouri limited liability company,
one of the members of Borrower.
Borrower. As defined in the introductory paragraph.
Borrower Party. Borrower, Guarantor and each member of Borrower.
Borrower's Equity. The amount of Borrower's equity in the Timeshare
Project as referenced in Schedule 1.1.
Business Day. Any day which is not a Saturday or Sunday or a legal
holiday under the laws of the State of Illinois, State of New York, State of
Missouri, State of Florida or the United States.
Charges. All federal, state, county, city, municipal, local, foreign
or other governmental taxes, levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Indebtedness, (c)
the employees, payroll, income or gross receipts of any Borrower Party (other
than Big Cedar), (d) any Borrower Party's (other than Big Cedar) ownership or
use of any properties or other assets, or (e) any other aspect of any Borrower
Party's (other than Big Cedar) business.
Closing Date. The date that Borrower satisfies all of the conditions
set forth in Schedule 1.1, Part A, hereof.
Club Trust Agreement. Collectively, that certain Bluegreen Vacation
Club Amended and Restated Trust Agreement, dated as of the 18th day of May,
1994, among Bluegreen Vacations Unlimited, Inc., the Club Trustee, Bluegreen
Resorts Management, Inc. and Bluegreen Vacation Club, Inc., as amended, restated
or otherwise modified from time to time.
Club Trustee. Vacation Trust, Inc., a Florida corporation, in its
capacity as trustee under the Club Trust Agreement and its permitted successors
and assigns.
Code. The Uniform Commercial Code as adopted and in force in the
State of New York as the same may be amended from time to time; provided that in
the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Lender's
Lien on any Collateral is governed by the Uniform Commercial Code as enacted and
in effect in a jurisdiction other than the State of New York, the term "Code"
shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions hereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions.
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Collateral. Has the meaning assigned in Section 2.1.
Collection Account. The account of Lender, account no. 00-000-000 at
Deutsche Bank, New York, New York, ABA No. 0210-01033, or such other account as
Lender may specify in writing to Borrower.
Commitment Fee. A loan commitment fee with respect to the Loan equal
to Two Hundred Twenty-Five Thousand Dollars ($225,000.00), which is payable in
accordance with Section 1.6.
Common Furnishings. The furnishings, fixtures and equipment located
within the Resort Accommodations or other portions of the Timeshare Project or
Facilities owned by, conveyed to, or to be conveyed to, the Association.
Compliance Documents. With respect to sales of Timeshare Interests
in any state or jurisdiction: (a) an opinion letter in substance satisfactory to
Lender from an attorney licensed in such state or jurisdiction addressing (i)
the compliance of Borrower's offering materials, sales and financing documents
and sales practices with the applicable law of such state or jurisdiction,
including the Timeshare Act, all applicable Consumer Laws and usury law, (ii)
the enforceability of the Notes Receivables and Security Instruments, (iii)
zoning, and (iv) the due organization and good standing of the Association; (b)
if applicable, evidence satisfactory to Lender that the Governmental Authority
of such state or jurisdiction having jurisdiction over sales of Timeshare
Interests has issued all required approvals of Borrower's offering materials,
sales and financing documents and sales practices, and (c) copies of Borrower's
offering materials, sales and financing documents as, if applicable, approved by
the applicable Governmental Authority of such state or jurisdiction.
Confidentiality Agreement. The Confidentiality Agreement dated as of
July 27, 2006, among Borrower, Guarantor and Lender.
Consumer Laws. The applicable portions of any federal, state, and
local laws and regulations relating to interest, usury, consumer credit, equal
credit opportunity, fair credit reporting, privacy, consumer protection, false
or deceptive trade practices and disclosure, and the sales and marketing of
timeshare units, including but not limited to the Truth In Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Housing
Act, the Real Estate Settlement Procedures Act, the Federal Trade Commission
Act, the Fair Debt Collection Practices Act, the Xxxxx-Xxxxx-Xxxxxx Act, the
Patriot Act, any applicable privacy laws and the Soldier's and Sailor's Civil
Relief Act.
Costs. All reasonable expenditures and expenses which may be paid or
incurred by or on behalf of Lender in connection with the documentation,
modification, workout, collection or enforcement of the Loan or any of the Loan
Documents. Notwithstanding the foregoing, Costs payable on the date of the
initial Advance shall be limited to (a) the reasonable fees, costs and expenses
of Lender's attorneys in connection with the documentation of the Loan, the due
diligence review of Borrower's deliveries and the consumer credit audit; and (b)
all applicable title, filing and recording fees and other closing costs. During
the term of the Loan, Costs payable by Borrower shall include: payments to
remove or protect against liens;
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reasonable attorneys' fees, costs and expenses; receivers' fees; engineers'
fees; accountants' fees; independent consultants' fees (including environmental
consultants); fees of the Custodian and the servicing agent; all costs and
expenses incurred in connection with any of the foregoing; outlays for
documentary and expert evidence; stenographers' charges; stamp taxes;
publication costs; and costs (which may be estimates as to items to be expended
after entry of an order or judgment) for procuring all such abstracts of title,
title and UCC searches, and examination, title insurance policies, and similar
data and assurances with respect to title as Lender may deem reasonably
necessary either to prosecute any action or to evidence to bidders at any
foreclosure sale a true condition of the title to, or the value of, the
Collateral. Notwithstanding the foregoing, Lender shall pay the costs incurred
by Borrower in connection with obtaining FICO scores of Purchasers in connection
with Financed Notes Receivable, any insertion fee charged by Custodian for
inserting copies of blanket title insurance policies in each applicable Eligible
Note Receivable file as required under subparagraph (j) of the definition of
Eligible Note Receivable, and $40,000.00 that Lender will pay in Lender's
attorneys' fees relating to the initial Loan closing.
Custodial Agreement. An agency and custodial agreement, on Lender's
form, among Borrower, Lender and Custodian providing for the maintenance of the
Pledged Documents.
Custodian. Such Person designated by Lender and approved by Borrower
to maintain physical possession of the Pledged Documents. The initial Custodian
shall be U.S. Bank National Association.
Custodian Certificate. As defined in the Custodial Agreement.
Debt. For any Person, without duplication: (a) all indebtedness of
such Person for borrowed money, for amounts drawn under a letter of credit, or
for the deferred purchase price of property for which such Person or any of its
assets is liable, (b) all amounts required to be paid by such Person as a
guaranteed payment to partners or a preferred or special dividend, including any
mandatory redemption of shares or interests, but excluding minority interests,
(c) all indebtedness guaranteed by such Person, directly or indirectly (if
required to be recorded as a liability under GAAP), (d) all obligations under
leases that constitute capital leases for which such Person or any of its assets
is liable or subject, and (e) all obligations of such Person under interest rate
swaps, caps, floors, collars and other interest hedge agreements, in each case
whether such Person or any of its assets is liable or subject, contingently or
otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations such Person otherwise assures a creditor against loss.
Default Rate. The lesser of (a) the maximum per annum rate of
interest allowed by applicable law, and (b) five percent (5%) per annum in
excess of the applicable Interest Rate.
Defaulted Notes. Notes Receivable that have been either (a) deemed
uncollectible by Borrower or (b) are more than ninety (90) days past due on a
contractual basis.
Dollars. United States Dollars.
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EBITDA. For any period, Net Income for such period plus without
duplication and to the extent reflected as a charge in the statement of such Net
Income for such period, the sum of (i) income tax expense, (ii) Interest
Expense, (iii) depreciation and amortization expense, and (iv) amortization of
intangibles (including, but not limited to, goodwill).
Eligible Note Receivable. Each Note Receivable satisfying all of the
following criteria:
(a) Except with respect to Program Receivables, payments due under
the Note Receivable shall be self-amortizing and payable in monthly
installments;
(b) Except with respect to Program Receivables, the term shall be no
greater than one hundred eighty (180) months; provided, however, that the lesser
of (i) Eligible Notes Receivable having an aggregate principal balance of
$4,500,000.00, or (ii) ten percent (10%) of all Eligible Notes Receivable (based
on aggregate principal balances at the time of the applicable Advance), may have
an original term of between one hundred twenty one (121) months and one hundred
eighty (180) months so long as the primary Purchaser (exclusive of Purchasers
who are not residents of the United States) thereunder has a weighted average
FICO score of at least 700 at the time of testing for the applicable Advance,
and that such Note Receivable provides, as applicable, for joint and several
liability of the Purchasers thereunder;
(c) At the time of the applicable Advance, the interest rate shall
be no less than eight and one quarter percent (8.25%) per annum and the weighted
average interest rate of the Financed Notes Receivable which are the subject of
the Advance shall not be less than fourteen percent (14%) per annum;
(d) Purchaser has made at least one (1) payment under the Note
Receivable (except where such Note Receivable is a Program Receivable or
pertains to an Upgraded Note Receivable) and the Purchaser thereunder has made a
cash down payment of at least ten percent (10%) of the actual purchase price
(including closing costs) of the Timeshare Interest (which cash down payment
may, in the case of an Upgraded Note Receivable or conversions under a Sampler
Program Agreement, be represented in part or in whole by the principal payments
on, as applicable, such original Note Receivable or the related Sampler Loan
since its date of origination) and no part of such payment has been made or
loaned to Purchaser by Borrower or an Affiliate;
(e) No installment is more than thirty (30) days past due on a
contractual basis at the time of assignment to Lender, nor becomes more than
ninety (90) days past due on a contractual basis thereafter;
(f) The Resort Accommodations with respect to which the applicable
Timeshare Interest has been purchased have been completed (as are evidenced by
delivery to Lender of the Certificate of Occupancy or Certificate of Conformance
or other local equivalent attached to the Timeshare Declaration), developed and
furnished in accordance with the Purchase Documents;
(g) The Amenities described in the applicable Public Report for the
Timeshare Project have been completed (in accordance with any applicable
building inspection required
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under Governmental Requirements) and are available for use by all Purchasers as
described in the applicable Public Report and applicable Timeshare Document;
(h) Subject to the Permitted Exceptions, the Note Receivable is free
and clear of adverse claims, liens and encumbrances and is not currently, nor
shall it be potentially in the future, subject to claims of rescission,
invalidity, unenforceability, illegality, defense, offset or counterclaim;
(i) The Note Receivable is secured by a first priority security
interest on the purchased Timeshare Interest pursuant to a Mortgage;
(j) The Mortgage is insured under a mortgagee title insurance policy
(or will be insured, as evidenced by a pro forma mortgagee title insurance
policy) acceptable to Lender subject only to those exceptions to title as Lender
approves (and Borrower and Lender agree that a blanket pro forma mortgagee title
insurance policy with a schedule attached listing borrower(s), Unit(s) and
week(s) is deemed acceptable provided that, at Lender's expense, a copy of any
blanket policy shall be placed by Custodian in each applicable Eligible Note
Receivable file);
(k) At the time of the applicable Advance, the primary Purchaser has
a FICO score in an amount sufficient to yield a weighted average FICO score of
at least 675 exclusive of Purchasers who are not residents of the United States
and such Note Receivable provides, as applicable, for joint and several
liability thereunder;
(l) Purchaser is not an obligor under more than $100,000.00 in
Financed Notes Receivable;
(m) The Note Receivable is payable in Dollars;
(n) The Note Receivable and the Purchase Documents are valid,
genuine and enforceable against the obligor thereunder, and such obligor has not
assigned his or her interest thereunder;
(o) Payments have not been made by Borrower or any Affiliate of
Borrower on the obligor's behalf;
(p) The Purchaser under such Note Receivable is not on any of the
Lists;
(q) Except as may be required pursuant to the Servicemembers Civil
Relief Act or for a reduction or increase in the interest rate not in excess of
1.0% in respect of a Purchaser's election to begin or cease making payments via
pre-authorized checking or to correct typographical errors in the Mortgage or
Purchase Documents related to the Note Receivable, if any, or as otherwise
approved by Lender in writing, the original terms of the Note Receivable have
not been modified in any way;
(r) At the time of the applicable Advance, the Purchaser is a
resident of the United States or Canada; provided, however, that Purchasers
under up to ten percent (10%) (based on aggregate principal balances) of the
Financed Notes Receivable which are the subject of the Advance may reside in
countries other than the United States or Canada; and further
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provided that not more than two and a half percent (2.5%) of Financed Notes
Receivable which are the subject of the Advance (based on aggregate principal
balances) are made by foreign residents (i.e., residents of countries other than
the United States or Canada) from the same country;
(s) At the time of the applicable Advance, if such Note Receivable
is a Program Receivable, such Note Receivable plus any other Financed Notes
Receivable which are the subject of the Advance and which are Program
Receivables shall not exceed eight percent (8%) (based on aggregate principal
balances) of all Financed Notes Receivable which are the subject of the Advance;
and
(t) The Lender has received a Custodian Certificate evidencing that
the originals or copies, as required under this Agreement and the Custodial
Agreement, of the Pledged Documents relating to such Note Receivable, are in
Custodian's possession.
Environmental Laws. Any federal, state or local law (whether imposed
by statute, ordinance, rule, regulation, administrative or judicial order, or
common law), now or hereafter enacted, governing health, safety, industrial
hygiene, the environment or natural resources, or Hazardous Materials,
including, without limitation, such laws governing or regulating (a) the use,
generation, storage, removal, recovery, treatment, handling, transport,
disposal, control, release, discharge of, or exposure to, Hazardous Materials,
(b) the transfer of property upon a negative declaration or other approval of a
governmental authority of the environmental condition of such property, or (c)
requiring notification or disclosure of releases of Hazardous Materials or other
environmental conditions whether or not in connection with a transfer of title
to or interest in property.
Event of Default. Has the meaning set forth in Article 7 of this
Agreement.
Facilities. Collectively, the buildings, Improvements and furniture,
fixtures and equipment comprising the Timeshare Project, the Timeshare Property,
the Resort Accommodations and the Amenities and known as Big Cedar Wilderness
Club Condominium, Ridgedale, Missouri.
Fees. Any and all fees payable to Lender pursuant to Sections 1.5(a)
and 1.6 of this Agreement.
FICO. A Purchaser's credit score shall be the one generated by
Experian and, to the extent not available, it shall be the one generated by one
of the following credit reporting agencies: (i) Equifax, (ii) Transunion, or by
a credit reporting agency of similar experience and recognition in the industry.
Financed Note(s) Receivable. Any Note Receivable as to which an
Advance has been made and which has been pledged and collaterally assigned to
Lender pursuant to the assignment as set forth in Exhibit F attached hereto as
security for the Loan.
Financial Institution. A United States Financial Institution as
defined in 31 U.S.C. 5312, as periodically amended.
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Force Majeure Delay. Any cause or event that is beyond the control
and not due to the negligence of Borrower or Guarantor (including when Guarantor
acts in its capacity as Servicer under the Servicing Agreement), which delays,
prevents or prohibits the performance of any duty or obligation of Borrower or
Guarantor (including when Guarantor acts in its capacity as Servicer under the
Servicing Agreement) under the Loan Documents, including, without limitation,
computer, electrical and mechanical failures, acts of God or the elements and
fire; provided, that no such cause or event shall be deemed to be a Force
Majeure Delay unless Borrower or Guarantor (including when Guarantor acts in its
capacity as Servicer under the Servicing Agreement) shall have given Lender
written notice thereof as soon as possible after the beginning of such delay.
GAAP. Generally accepted accounting principles, applied on a
consistent basis, set forth in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board which are applicable in the
circumstances as of the date in question; and the requisite that such principles
be applied on a consistent basis means that the accounting principles in a
current period are comparable in all material respects to those applied in a
preceding period, with any exceptions thereto noted.
Governmental Authority. The United States of America, the state and
county in which any of the Facilities is located, and/or any other governmental
authorities, including, if applicable the governmental authorities of a foreign
country or political subdivision of such foreign country, having jurisdiction
over Borrower, the Association, the Timeshare Project, the Timeshare Plan, the
Facilities or the offer and sale of Timeshare Interests.
Governmental Requirements. All rules, regulations, ordinances, laws
and statutes of any Governmental Authority which affect the Timeshare Project,
the Timeshare Plan, the Association, the Facilities, any Amenities or Borrower's
offer, sale and financing of Timeshare Interests.
Guarantor. Bluegreen Corporation, a Massachusetts corporation.
Guaranty. A guaranty agreement, on Lender's form, executed by
Guarantor guarantying all of the obligations of Borrower to Lender under the
Loan Documents.
Hazardous Materials. (a) Petroleum or chemical products, whether in
liquid, solid, or gaseous form, or any fraction or by product thereof, (b)
asbestos or asbestos containing materials, (c) polychlorinated biphenyls (pcbs),
(d) radon gas, (e) underground storage tanks, (f) any explosive or radioactive
substances, (g) lead or lead based paint, or (h) any other substance, material,
waste or mixture which is or shall be listed, defined, or otherwise determined
by any governmental authority to be hazardous, toxic, dangerous or otherwise
regulated, controlled or giving rise to liability under any Environmental Laws.
Improvements. The timeshare complex as existing from time to time on
the Land, including all related common elements, limited common elements,
parking areas and other Amenities, as established by the Timeshare Documents.
"Include" or similar words. Include, without limitation.
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Indebtedness. All payment obligations of Borrower to Lender under
the Loan Documents.
Intangible Asset. A nonphysical, noncurrent right that gives
Guarantor or any of its subsidiaries an exclusive or preferred position in the
marketplace including but not limited to a copyright, patent, trademark,
goodwill, organization costs, capitalized advertising cost, computer programs,
licenses for any of the preceding, governmental licenses (e.g., broadcasting or
the right to sell liquor), leases, franchises, mailing lists, exploration
permits, import and export permits, construction permits, and marketing quotas.
Intercreditor Agreement. The letter agreement between Lender and RFC
executed substantially concurrently herewith, acknowledging the respective
rights of Lender and RFC with respect to the Timeshare Project.
Interest Expense. For any period, Borrower's or Guarantor's, as
applicable, total interest expense (net of interest income) for such period,
including the current interest portion of long-term debt, and the current
interest portion of capital lease payments, determined on a GAAP basis.
Interest Holder. As defined in Section 5.1.
Interest Rate. The Loan Interest Rate.
Land. The real property located in Ridgedale, Missouri, and more
particularly described in Exhibit A hereto, as amended from time to time
pursuant to changes in the Timeshare Declaration.
Lender. As defined in the introductory paragraph and including any
successors or assigns.
Liabilities. The aggregate value of all short and long term notes
payable on Borrower's or Guarantor's balance sheet, as applicable, which is
included among the financial statements and the notes therein delivered to
Lender pursuant to this Agreement less the total dollar amount of monies loaned
by an Affiliate to Borrower, the payment of which (including payment of interest
or principal) has been fully subordinated to the Loan and to the liens and
rights to payment in favor of Lender, as determined to Lender's reasonable
satisfaction, all as determined in accordance with GAAP.
Lien. Any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).
Lists. The Specially Designated Nationals and Blocked Persons List
maintained by the OFAC, and any other list of terrorists or terrorist
organizations maintained pursuant to
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Executive Order No. 133224 (Sept. 23, 2001), any rule or regulation of OFAC with
respect to such Executive Order, any enabling legislation with respect to such
Executive Order, any other applicable Executive Order or any other applicable
law, statute, rule or regulation.
Litigation. Any action, demand, lawsuit, investigation, proceeding,
order or injunction.
Loan. The Forty-Five Million Dollar ($45,000,000.00) revolving
credit facility described in this Agreement.
Loan Documents. Collectively, this Agreement, the Note, any
Guaranty, the Security Agreement, the Custodial Agreement, the Lockbox
Agreement, the Servicing Agreement, the Confidentiality Agreement, and any and
all other agreements, documents, instruments and certificates delivered or
contemplated to be delivered in connection with this Agreement, as such may be
amended, renewed, extended, restated or supplemented from time to time.
Loan Interest Rate. A floating rate per annum, adjusted monthly,
equal to the Base Rate plus one and three-quarters percent (1.75%).
Loan Maturity Date. April 16, 2016.
Loan Year. Each successive twelve (12) month period commencing with
the expiration of the Revolving Period.
Lockbox Account. The account designated pursuant to the Lockbox
Agreement.
Lockbox Agent. Bank of America, N.A., or any other banking
institution selected by Borrower and approved by Lender to act as the depositary
of payments on the Financed Notes Receivable under the Lockbox Agreement.
Lockbox Agreement. An agreement among Borrower, Lender and Lockbox
Agent providing for the receipt by Lockbox Agent of payments on the Financed
Notes Receivable and disbursement of such payments to Lender.
Management Agreement. An agreement among Bluegreen Resorts
Management, Inc. and the Association for management of the Timeshare Project.
Mandatory Prepayment. Any prepayment required by Section 1.5 of this
Agreement.
Material Adverse Effect. A material adverse effect on (i) the
financial condition or operations of Borrower, Guarantor or the Timeshare
Project, (ii) the ability of Borrower or Guarantor to perform its obligations
under the Loan Documents to which it is a party, (iii) the legality, validity or
enforceability of any Loan Document, (iv) Borrower's interest in the Collateral,
or (v) the collectibility of the Notes Receivable generally or of any material
portion of the Notes Receivable.
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Maximum Amount. $45,000,000.00.
Minimum Interest Coverage Ratio. For any period described in Section
6.1(c) of this Agreement, the ratio of EBITDA to Interest Expense for any
period; excluding, however, interest paid or payable under indebtedness to
Affiliates of Borrower that is fully subordinated to the Loan and to the liens
and rights to payment in favor of Lender.
Monthly Reports. The monthly reports required pursuant to Section
6.2(a) of this Agreement.
Mortgage. A mortgage or deed of trust made by the Club Trustee, on
behalf of a Purchaser, to secure a Purchaser's Note Receivable.
Net Income. The net income of Borrower or the consolidated net
income of Guarantor, as applicable, as determined in accordance with GAAP.
Net Income Adjustment. The sum of (a) fifty percent (50%) of the Net
Income for Guarantor (on a consolidated basis) for the quarter then ending as
determined from the quarterly financial statements and the notes therein
required pursuant to Section 6.2 hereof plus (b) fifty percent (50%) of the
amount of any increase in Guarantor's total equity (on a consolidated basis)
arising from the sale of stock, membership interests partnership interests or
other ownership interests in Guarantor; provided, that at the end of each fiscal
year, the Net Income Adjustment shall be re-calculated based on the Net Income
for the year then ending as determined from the audited annual financial
statements and the notes therein required pursuant to Article 6 hereof.
Note. One or more revolving promissory notes evidencing the Loan
executed and delivered by Borrower to Lender concurrently herewith.
Note Receivable. A promissory note executed by a Purchaser in favor
of Borrower in connection with such Purchaser's acquisition of a Timeshare
Interest.
OFAC. The Office of Foreign Assets Control, Department of the
Treasury.
Operating Contracts. The Management Agreement, the reservations
systems agreement and any marketing, maintenance, service, franchise, sales and
other contracts entered into by Borrower with respect to the Facilities
identified in Exhibit I.
Owner Beneficiary Rights. As defined in the Club Trust Agreement.
Patriot Act. The USA PATRIOT Act of 2001, Pub. L. No. 107 56.
Permitted Exceptions. The exceptions to title listed on Exhibit J.
Person. Natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
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Pledged Documents. The Financed Notes Receivable, the other
Receivables Transaction Documents, and the Purchase Documents, inclusive of any
modifications or amendments thereto.
Potential Default. An event which, with the giving of notice or
passage of time, or both, would constitute an Event of Default.
Pre-Tax Income. Net Income before the imposition of Taxes.
Program Receivable. A Note Receivable whereby the Purchaser has made
a down payment of at least fifty percent (50%) of the purchase price of the
subject Timeshare Interest or Timeshare Interest(s), having an annual interest
rate of at least 8.25%, and with the remaining balance (together with interest)
due and payable within one (1) year of its execution, such balance to be paid
either in 12 monthly amortizing installments of principal and interest or all
principal and interest due in a lump sum payment on the one year anniversary of
the execution of such Note Receivable.
Property Manager. Bluegreen Resorts Management, Inc., the property
manager of the Timeshare Project approved by Lender, and any successor property
manager approved by Lender.
Public Reports. The original sales certificate for the Timeshare
Project, the Bluegreen Vacation Club Multi-Site Public Offering Statement, and
any other public reports now or hereafter filed with and approved or issued by
any Governmental Authority with respect to the Timeshare Project.
Purchase Documents. Any purchase agreement and related sale and
escrow documents, executed and delivered by a Purchaser to Borrower, and all
deeds, certificates or other instruments of ownership delivered to such
Purchaser by the Borrower, with respect to the purchase of a Timeshare Interest
which is the subject of a Financed Note Receivable.
Purchaser. Any purchaser of one or more Timeshare Interests who is
also an obligor under a Note Receivable.
Qualified Assignee. (A) any Affiliate of Lender, or (B) any
commercial bank, savings and loan association or savings bank or any other
entity which is an "accredited investor" (as defined in Regulation D under the
Securities Act of 1933) which extends credit or buys loans as one of its
businesses, including insurance companies, mutual funds, lease financing
companies, commercial paper conduits and commercial finance companies, in each
case, which has a rating of BBB/A-1 (as applicable) or higher from S&P and a
rating of Baa2/P-1 (as applicable) or higher from Xxxxx'x at the date that it
becomes a "lender" hereunder.
Reassignment. A Reassignment of Note Receivable, in form and
substance attached hereto as Schedule 2.3, to be executed and delivered by
Lender when and as provided herein.
Receivables Transaction Documents. The Note Receivable and any
Security Instrument delivered as security for a Purchaser's obligations
thereunder, any title insurance
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policy obtained by Purchaser in connection with any Mortgage, any guaranty or
Purchaser's obligation in connection with such Note Receivable and/or any
Mortgage, and all other documents or instruments executed in connection
therewith or evidencing a Purchaser's or any guarantor's obligation relating
thereto.
Resort Accommodation. One individual condominium unit within the
Timeshare Project together with any and all interest in common elements
appurtenant thereto, as provided in the Timeshare Declaration.
Revolving Period. The period commencing on the date hereof and
ending on April 16, 2009.
RFC. Residential Funding Corporation, a Delaware corporation.
RFC Loan Documents. That certain Loan and Security Agreement dated
February 10, 2003, between Residential Funding Corporation, a Delaware
corporation, as lender, and Bluegreen/Big Cedar Vacations, LLC, a Delaware
limited liability company, as borrower, and the other parties thereto, as it may
be renewed, amended, restated or replaced ("RFC Loan Agreement"), and the other
related Loan Documents (as "Loan Documents" is defined in the RFC Loan
Agreement), that certain Loan Agreement dated February 10, 2003 between
Residential Funding Corporation, a Delaware corporation, as lender, and
Bluegreen Vacations Unlimited, Inc., a Florida corporation, as borrower, as it
may be amended or modified ("RFC AD&C Loan Agreement") and the other related
Loan Documents (as "Loan Documents" is defined in the RFC AD&C Loan Agreement),
and all other loan and security documents executed in connection therewith, all
as may be renewed, amended, restated or replaced.
Sampler Loan. A loan made to a purchaser by Borrower pursuant to the
terms of a Sampler Program Agreement.
Sampler Program Agreement. A Bluegreen Vacation Club Sampler Program
Agreement, pursuant to which a purchaser thereunder obtains those certain
benefits set forth therein which comprise the "Sampler Membership" and, subject
to the terms and conditions thereof, has the opportunity to convert such Sampler
Membership into full ownership in the multi-site timeshare plan described under
the Club Trust Agreement.
Schedule. Each Schedule attached to this Agreement.
Security Agreement. The security agreement set forth in this
Agreement and any other pledge or security agreement executed by Borrower to
secure the Loan.
Security Instrument. The security agreement, mortgage or deed of
trust executed in connection with a Note Receivable and encumbering a Timeshare
Interest.
Service Charge. As defined in Section 1.2(a).
Servicer. Guarantor or any other servicer under the Servicing
Agreement as reasonably approved by Lender.
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Servicing Agreement. A servicing agreement reasonably approved in
form and substance by Lender among Lender, Borrower and Servicer providing for
the servicing of the Financed Notes Receivable.
Site Assessment. An environmental engineering report for the
Timeshare Project prepared by an engineer engaged by Lender at Borrower's
expense, and in a manner satisfactory to Lender, based upon an investigation
relating to and making appropriate inquiries concerning the existence of
Hazardous Materials on or about the Timeshare Project, and the past or present
discharge, disposal, release or escape of any such substances, all consistent
with ASTM Standard E 1527 93 (or any successor thereto published by ASTM) and
other good customary and commercial practice.
Solvent. With respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person;
(b) the present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature; and (d) such
Person is not engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such Person's property would constitute
unreasonably small capital.
Specially Designated National and Blocked Persons. Those Persons
that have been designated by executive order or by the sanction regulations of
OFAC as Persons with whom U.S. Persons may not transact business or must limit
their interactions to types approved by OFAC.
Stock. All shares, options, warrants, general or limited partnership
interests, membership 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 General Rules and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934).
Subordinated Indebtedness. Debt represented by Guarantor's junior
subordinated debentures or such other Debt incurred by Guarantor which is
treated as subordinated indebtedness in accordance with GAAP.
Tangible Net Worth. On a consolidated basis for Guarantor and its
subsidiaries, at any date, (i) the sum of (a) capital stock taken at par or
stated value plus (b) capital of Guarantor in excess of par or stated value
relating to capital stock plus (c) retained earnings (or minus any retained
earning deficit) of Guarantor plus (d) other comprehensive income plus (e)
Subordinated Indebtedness plus (f) an amount not in excess of $600,000,000 of
non-recourse receivables-backed notes payable as reported on the consolidated
balance sheet of Guarantor, minus (ii) the sum of Intangible Assets, treasury
stock, capital stock subscribed for and unissued and other contra-equity
accounts, all determined in accordance with GAAP.
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Taxes. Taxes, levies, imposts, deductions, Charges or withholdings,
and all liabilities with respect thereto, excluding taxes imposed on or measured
by the net income of Lender by the jurisdictions under the laws of which Lender
is organized or conducts business or any political subdivision thereof.
Timeshare Act. The applicable provisions of M.R.S. chapter 407,
sections 407.600 to 407.630.
Timeshare Declaration. The declaration of condominium pursuant to
which the Timeshare Project is encumbered and the property regime thereat is
created as it may be lawfully amended and/or supplemented from time to time in
accordance with its terms.
Timeshare Documents. Any and all documents evidencing or relating to
the Timeshare Plan, the sale of Timeshare Interests by Borrower or the Purchaser
Documents, the Timeshare Declaration, the Articles of Incorporation and Bylaws
of the Association, any management agreement between the Association and a
manager of the Timeshare Project, the rules and regulations of the Association
in the Timeshare Declaration, and any documents referenced in the Timeshare
Declaration, or the Articles of Incorporation or Bylaws of the Association.
Timeshare Interest. With respect to the Timeshare Project, (x) an
undivided fee simple ownership interest as a tenant in common 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 (including Owner Beneficiary Rights), in either case with
respect to any Resort Accommodation, with a right to use such Resort
Accommodation, or a Resort Accommodation of such type, generally for one (1)
week or a portion of one (1) week annually or biennially, together with all
appurtenant rights and interests as more particularly described in the Timeshare
Documents.
Timeshare Plan. The common scheme and plan for the use, occupancy,
enjoyment, repair, maintenance, restoration and improvement of the Timeshare
Project established by and as provided in the Timeshare Documents.
Timeshare Project. That certain project known as the "Big Cedar
Wilderness Club Condominium," located in Ridgedale, Missouri, comprising the
Resort Accommodations and Timeshare Property and operated, managed and
maintained by the Association and in which the Timeshare Interests are sold to
Purchasers under the terms of the Purchase Documents.
Timeshare Property. All real and personal property owned by the
Association including, but not limited to, any Amenities and furniture, fixtures
and equipment located in the Resort Accommodations or elsewhere owned by the
Association.
Title Company. Resort Title Agency, Inc.
Total Revenues. For any period, the total revenues of Borrower or
Guarantor, as applicable, as determined in accordance with GAAP.
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Upgraded Note Receivable. A new Eligible Note Receivable made by the
Purchaser of an existing Financed Note Receivable (i) who has elected to
terminate such Purchaser's interest in an existing Timeshare Interest and
related Owner Beneficiary Rights and Vacation Points (if any) in exchange for
purchasing an upgraded Timeshare Interest of higher value than the existing
Timeshare Interest and related Owner Beneficiary Rights and Vacation Points (if
any) and (ii) whereby the Borrower releases the Purchaser from Purchaser's
obligations in respect of the existing Timeshare Interest and all related Owner
Beneficiary Rights and Vacation Points (if any) in exchange for receiving (in
substantially all cases) the new Eligible Note Receivable from the Purchaser
secured by the upgraded Timeshare Interest and related Owner Beneficiary Rights
and Vacation Points (if any). All Upgraded Notes Receivable shall also be
considered to be Financed Notes Receivable, and shall be subject to the security
interest granted to Lender pursuant to Section 2.1 of this Agreement, unless
Lender shall have released such Financed Notes Receivable pursuant to the terms
of this Agreement.
U.S. Person. Any United States citizen, any entity organized under
the laws of the United States or its constituent states or territories, or any
entity, regardless of where organized, having its principal place of business
within the United States or any of its territories.
Vacation Points. As defined in the Club Trust Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
agreements, provisions and covenants herein contained, and for other good and
valuable consideration, Borrower and Lender agree as follows:
ARTICLE 1
THE LOAN
1.1 The Loan.
During the Revolving Period, provided that Borrower satisfies all
conditions set forth in Section 1.2 and Schedule 1.1, Parts A, B and C, hereof,
Lender shall make Advances of the Loan to Borrower not in excess of
Availability.
1.2 Advances of Loan Proceeds. Lender shall advance the Loan as follows:
(i) Availability. Advances of the Loan shall be (A) in minimum
amounts of One Hundred Thousand Dollars ($100,000) each, (B) no more frequently
than one (1) time each week; provided, however, that, any request for an Advance
of the Loan of less than One Hundred Thousand and no/100 Dollars ($100,000) or
for any Advance of the Loan in excess of the number of Advances permitted in any
week shall be honored by Lender only at Lender's sole discretion and, if Lender
agrees to make such Advances, shall, in Lender's discretion, be subject to
payment to Lender of a fee (the "Service Charge") equal to the greater of one
percent (1%) of the requested Advance or One Thousand Dollars ($1,000) for each
such Advance, and (C) subject to Borrower's compliance with the conditions to
such Advance set forth herein. Each Advance of the Loan shall be made by Lender
on the earlier to occur of
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(x) two (2) Business Days after the later of Lender's receipt of Borrower's
application for a Loan Advance or (y) the date on which Borrower complies with
the conditions to such Advance set forth herein. Except in connection with a
prepayment mandated under Section 1.5(c) below, any amounts repaid during the
Revolving Period may be reborrowed during the Revolving Period.
(ii) In addition to, and not in limitation of Advances made
pursuant to Section 1.2(i) above, and provided Borrower is in compliance with
the conditions to such Advance set forth in this Section 1.2 and in Schedule 1.1
hereof, Lender shall make Advances of the Loan up to the amount of Availability
to Borrower not more often than once per month and within ten (10) days of
Borrower's delivery to Lender of written request therefor accompanied by Monthly
Reports evidencing such Availability to Lender's satisfaction. During the
Revolving Period, on the first day of each calendar quarter, the Availability
Percentage will be adjusted as set forth in Exhibit D to this Agreement to
preserve Lender's credit enhancement if there are increases in the Interest Rate
without corresponding increases in the weighted average consumer coupon rate for
the Financed Notes Receivable.
(iii) The initial Advance of the Loan shall be in an amount at
least equal to Twenty-Five Million Dollars ($25,000,000.00) and such Advance
must be made within thirty (30) days of the date of this Agreement or Lender in
its sole discretion shall have the right to terminate its obligations to lend
hereunder unless such Advance was not made due to a Force Majeure Delay.
(iv) Maximum Amount. Notwithstanding anything to the contrary
contained herein, in no event shall Borrower be entitled to any Advance if as a
result thereof the outstanding principal balance of the Loan shall exceed the
Maximum Amount.
1.3 Interest Rate. The outstanding principal balance of the Loan together with
all other Indebtedness shall bear interest as set forth below; provided,
however, that after the occurrence of an Event of Default the Loan will bear
interest at the Default Rate:
(a) Loan. The Loan shall bear interest at the Loan Interest Rate.
(b) Computation. Interest owing for each month shall be computed on
the basis of a fraction, the denominator of which is three hundred sixty (360)
and the numerator of which is the actual number of days elapsed from the first
day of such month (or, for the initial Advance, from the date of such Advance).
(c) Late Charge; Default Interest. Principal and other amortization
payments shall be applied to the Loan balance as and when actually received. If
Borrower fails to pay any installment of interest or principal within five (5)
Business Days after the date on which the same is due, Borrower shall pay to
Lender a late charge on such past-due amount, as liquidated damages and not as a
penalty, equal to five percent (5%) of such amount, but not in excess of the
maximum amount of interest allowed by applicable law. The foregoing late charge
is intended to compensate Lender for the expenses incident to handling any such
delinquent payment and for the losses incurred by Lender as a result of such
delinquent payment. Borrower agrees that, considering all of the circumstances
existing on the date this Agreement is executed, the late charge represents a
reasonable estimate of the costs and losses Lender will incur by
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reason of late payment. Borrower and Lender further agree that proof of actual
losses would be costly, inconvenient, impracticable and extremely difficult to
fix. Acceptance of the late charge shall not constitute a waiver of the default
arising from the overdue installment, and shall not prevent Lender from
exercising any other rights or remedies available to Lender. While any Event of
Default exists, the Loan shall bear interest at the Default Rate.
Notwithstanding the foregoing, Borrower shall not be obligated to pay to Lender
a late charge on any past-due amounts due to a Force Majeure Delay or due to the
fault of the Lockbox Agent.
1.4 Payments; Term.
(a) From Lockbox Proceeds. All funds collected by the Lockbox Agent
with respect to the Financed Notes Receivable shall be paid to Lender daily
pursuant to the Lockbox Agreement, and, provided no Event of Default or
Potential Default then exists, applied in the following order: first to the
payment of Costs incurred by Lender in collecting any amounts due in connection
with the Loan; second, to the payment of accrued but unpaid interest on the
Loan; and thereafter to the reduction of the principal balance of the Loan. If
an Event of Default or Potential Default then exists, the proceeds of the
Lockbox Account shall be applied as determined by Lender in its sole discretion.
If the funds received by Lender from the Lockbox Agent with respect to any month
are insufficient to pay Costs and interest on the Loan in full, Borrower shall
pay the difference to Lender within five (5) Business Days after receipt of
written notice from Lender.
(b) Upon Maturity of the Loan. On the Loan Maturity Date, if not
accelerated prior thereto pursuant to the terms of the Loan Documents, the
entire outstanding balance of the Loan, inclusive of all outstanding principal,
accrued but unpaid interest, and outstanding Fees and Costs attributable
thereto, shall be due and payable.
1.5 Prepayments.
(a) Voluntary Prepayments.
(i) Loan. Other than mandatory prepayments as set forth in
Section 1.5(b), below, and in connection with Upgraded Notes Receivable and as
provided in (y) below, prepayments of the Loan shall not be permitted during the
Revolving Period nor during the first or second Loan Years, except through
application of funds pursuant to Section 1.4(a). Any actual or attempted
voluntary prepayment by Borrower in violation of such voluntary prepayment
prohibition shall constitute an immediate Event of Default and Borrower shall
pay interest at the Default Rate calculated and payable based on the aggregate
committed Loan amount from and after the date of any such actual or attempted
voluntary prepayment until the date that this prepayment prohibition is not
longer applicable. Notwithstanding the foregoing, (x) if an inadvertent or
erroneous actual or attempted voluntary prepayment occurs in violation of this
Section 1.5(a) by reason of a direction of funds to Lender in error, Borrower
shall be entitled to withdraw such prepayment within five (5) Business Days
after Borrower is notified in writing of such prepayment in which case, no Event
of Default shall occur under this Section 1.5(a), and (y) Borrower shall be
permitted to prepay the Loan during or after the Revolving Period by reason of a
dissolution of Borrower pursuant to the terms of Section 8.1(A)(2) of its
limited liability company agreement provided that if such prepayment is made
during the Revolving
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Period or during the first Loan Year, Borrower shall pay to Lender a prepayment
premium equal to three percent (3%) of the amount of such prepayment together
with such prepayment. For avoidance of doubt, prepayment of the Loan during or
after the Revolving Period by reason of a dissolution of Borrower permitted by
the foregoing sentence shall not constitute an Event of Default or trigger
interest at the Default Rate. Thereafter, voluntary prepayments of the Loan may
be made in whole, but not in part, on any scheduled interest payment date upon
not less than five (5) Business Days prior written notice to Lender. The
above-referenced Default Rate interest and prepayment premium which may be
applicable to certain Loan prepayments as set forth herein shall represent
liquidated damages and reasonable calculation of Lender's lost profits in view
of the difficulties and impracticality of determining actual damages from early
termination of the Loan.
(b) Mandatory Prepayments.
(i) Of Loan. If at any time the outstanding principal balance
of the Loan exceeds the Maximum Amount, Borrower shall, within five (5) Business
Days after receipt of written notice from Lender prepay the Loan in an amount
necessary to reduce the principal balance of the Loan, to be applied as
determined by Lender in its sole discretion, such that the remaining outstanding
principal balance of the Loan does not exceed the Maximum Amount.
(ii) Excess Outstandings. If at any time the outstanding
principal balance of the Loan exceeds the Availability, Borrower shall, within
five (5) Business Days after receipt of written notice from Lender, either, at
Lender's sole option, (A) prepay the Loan in an amount necessary to reduce the
principal balance of the Loan, or (B) deliver to Lender such additional or
replacement Eligible Notes Receivable, and in either event the remaining
outstanding principal balance of the Loan must be equal to or less than the
Availability.
(iii) Ineligible Financed Note Receivable. If at any time
after the expiration of the Revolving Period a Financed Note Receivable ceases
to be an Eligible Note Receivable, Borrower shall, within five (5) Business Days
after receipt of written notice from Lender, at Lender's election in its sole
and absolute discretion, either (A) prepay the Loan in an amount equal to the
balance due under such Financed Note Receivable multiplied by the applicable
Availability Percentage, or (B) deliver to Lender one (1) or more Eligible Notes
Receivable having an outstanding aggregate principal balance equal to the
outstanding principal balance of the Financed Note Receivable that has ceased to
be an Eligible Note Receivable. To the extent the outstanding aggregate
principal balance of such new Eligible Note Receivable(s) is less than the
outstanding principal balance of the ineligible Note Receivable being replaced
hereunder, Borrower shall deposit cash into the Collection Account in an amount
equal to the deficiency. To the extent the outstanding aggregate principal
balance(s) of such new Eligible Note Receivable on such date exceeds the
outstanding principal balance of the ineligible Note Receivable on such date,
the aggregate outstanding principal balance(s) of the new Eligible Note(s)
Receivable shall be deemed to be equal to the aggregate outstanding principal
balance of the ineligible Note Receivable and shall be included in total
Eligible Notes Receivable. Upon any such repayment of the Loan pursuant to
clause (A), or replacement pursuant to (B), Lender shall execute an appropriate
Reassignment and take all reasonable steps necessary to release related
Collateral, and the ineligible Note Receivable, and released Collateral shall be
returned to
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Borrower; provided, however, Borrower shall pay all Costs in connection with
execution of such Reassignment and delivery of such Note Receivable.
(iv) Incomplete Custodial Files. With respect to each Advance,
the Custodian shall have received originals of all Pledged Documents and the
Collateral Assignments of Purchase Money Mortgages, in the form attached hereto
as Exhibit F (with only such modifications to such form as are necessary to
properly identify the collateral and to cause the document to be properly
recorded), covering all of the Pledged Documents to be pledged in relation with
such Advance; provided that copies of the recordable Mortgages and recordable
Collateral Assignment of Purchase Money Mortgages shall be complete provided
that recorded originals are delivered to the Custodian within sixty (60) days
after the Advance date, all in forms approved by Lender and the Custodian has
delivered to Lender its monthly audit report covering the files related to such
Pledged Documents. In the event such file is not deemed complete within sixty
(60) days, Borrower shall have an additional thirty (30) days to deliver the
recorded Security Instrument to such file or such additional time period as may
be reasonably necessary to cure such deficiency with respect to the recorded
Security Instrument, but in no event longer than a total time period of ninety
(90) days. In the event the recorded original of a recordable Security
Instrument relating to a Financed Note Receivable and original title insurance
policy relating thereto have not been delivered to Custodian within such ninety
(90) day period after the Advance made with respect to such Financed Note
Receivable (as evidenced by an audit report prepared by Custodian), such
Financed Note Receivable shall cease being an Eligible Note Receivable and
Borrower shall make any mandatory prepayment of the Receivables Loan required
under Section 1.5(b)(i) or (ii), above, if any.
1.6 Commitment Fee. Borrower hereby agrees that by entering into this Agreement,
and regardless of whether Borrower satisfies the conditions set forth in
Schedule 1.1, the Commitment Fee has been fully earned by Lender. Borrower shall
pay to Lender the Commitment Fee (to the extent not paid by Borrower through
Lender's application of Borrower's good faith deposit delivered to Lender) on
the earlier to occur of (i) thirty (30) days after the date of this Agreement,
or (ii) the date of the Initial Advance.
1.7 Receipt of Payments. Borrower shall use reasonable efforts to cause each
payment under this Agreement to be paid not later than 2:00 p.m. (New York time)
pursuant to Section 3 of the Lockbox Agreement on the day when due in
immediately available funds into the Collection Account. For purposes of
computing interest and Fees and determining Availability as of any date, all
payments shall be deemed received on the Business Day on which immediately
available funds therefor are received in the Collection Account prior to 2:00
p.m. New York time. Payments received after 2:00 p.m. New York time on any
Business Day or on a day that is not a Business Day shall be deemed to have been
received on the following Business Day.
1.8 Taxes.
(a) Any and all payments by Borrower hereunder or under the Note
shall be made, in accordance with this Section 1.8, free and clear of and
without deduction for any and all present or future Taxes. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under the Note, (i) the sum payable shall be increased
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as much as shall be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
1.8) Lender receives an amount equal to the sum it would have received had no
such deductions been made, (ii) Borrower shall make such deductions, and (iii)
Borrower shall pay the full amount deducted to the relevant taxing or other
authority in accordance with applicable law. Within 30 days after the date of
any payment of Taxes, Borrower shall furnish to Lender (upon Lender's written
request) the original or a certified copy of a receipt evidencing payment
thereof. Lender shall not be obligated to return or refund any amounts received
pursuant to this Section.
(b) Borrower hereby indemnifies and, within 10 Business Days of
demand therefor, shall pay Lender for the full amount of Taxes (including any
Taxes imposed by any jurisdiction on amounts payable under this Section 1.8)
properly paid by Lender, and any liability (including penalties, interest and
expenses due to Borrower's failure to pay such Taxes when due) arising therefrom
or with respect thereto. If the Lender receives a refund of amounts paid by the
Lender and as to which it has been indemnified hereunder, the Lender agrees to
repay such refund to Borrower.
1.9 Single Loan. The Loan and all of the other obligations of Borrower arising
under this Agreement and the other Loan Documents shall constitute one general
obligation of Borrower secured by all of the Collateral.
1.10 Application of Advances. In the event that any Costs, including custodial
fees, are unpaid at the time of any Advance, Lender may apply the proceeds of
the Advance to such Costs without notice to, or demand on, Borrower.
ARTICLE 2
COLLATERAL
2.1 Grant of Security Interest. To secure the payment and performance of the
Indebtedness, Borrower does hereby unconditionally and irrevocably assign,
convey, grant, hypothecate, mortgage, pledge and transfer to Lender a first
priority continuing security interest and lien in and to the right, title and
interest of Borrower in the following property of Borrower, whether now owned by
or owing to Borrower, or leased to or from Borrower, or hereafter acquired by or
arising in favor of Borrower and regardless of where located (collectively, with
the other collateral being secured by operation of the liens and security
interests granted in the other Loan Documents, the "Collateral"):
(a) The Financed Notes Receivable and all other Receivables
Transaction Documents related thereto;
(b) The Purchase Documents;
(c) Upgraded Notes Receivable which are also Financed Notes
Receivable;
(d) All deposits, deposit accounts, including, without limitation,
the Lockbox Account and accounts receivable, escrow accounts, payment
intangibles, general intangibles and other receivables arising under or in
connection with the Pledged Documents, together with all
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payments, privileges and benefits arising out of the enforcement thereof, and
all funds held in any deposit accounts related to any of the Financed Notes
Receivable after the date of the Advance relating to such Financed Notes
Receivable;
(e) All documents, instruments, pledged assets and chattel paper
relating to the Pledged Documents and the other properties and rights described
as Collateral herein;
(f) All books, records, ledger cards, files, correspondence,
computer tapes, disks and software relating to the Pledged Documents or any
other Collateral described herein;
(g) Except to the extent of any deposits which do not relate to the
Financed Notes Receivable, all cash and other monies and property of Borrower in
the possession of Lender;
(h) All proceeds, extensions, amendments, additions, improvements,
betterments, renewals, substitutions and replacements of the foregoing; and
(i) Any and all after acquired right, title and interest of Borrower
in and to any property of the types described in the preceding clauses.
2.2 Security Agreement. This Agreement shall be deemed a security agreement as
defined in the Code, and the remedies for any violation of the covenants, terms
and conditions of the agreements herein contained shall be cumulative and be as
prescribed (a) herein, (b) by general law, (c) as to such part of the Collateral
which is also reflected in any filed financing statement, by the specific
provisions of the Code now or hereafter enacted, all at Lender's sole election
and (d) by any other Loan Document.
ARTICLE 3
INSURANCE, CONDEMNATION AND IMPOUNDS
3.1 Insurance. Borrower shall maintain insurance as follows:
(a) Casualty; Business Interruption. Borrower shall use its best
efforts to cause the Association, at the Association's sole cost and expense, to
keep the Timeshare Project insured against damage by fire and the other hazards
covered by a standard extended coverage and all-risk insurance policy for the
full insurable value thereof on a replacement cost claim recovery basis (without
reduction for depreciation or co-insurance and without any exclusions or
reduction of policy limits for acts of terrorism or other specified
action/inaction), and shall maintain boiler and machinery insurance, acts of
terrorism endorsement coverage and such other casualty insurance as reasonably
required by Lender and agreed upon by Borrower. Lender reserves the right to
require from time to time the following additional insurance in its reasonable
discretion: flood, earthquake/sinkhole, windstorm and/or building law or
ordinance. Borrower shall cause the Timeshare Project to be insured against loss
by flood if the Timeshare Project is located currently or at any time in the
future in an area identified by the Federal Emergency Management Agency as an
area having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Reform Act of 1994 (as
such acts may
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from time to time be amended) in an amount at least equal to the lesser of (a)
the maximum amount of the Loan or (b) the maximum limit of coverage available
under said acts. Any such flood insurance policy shall be issued in accordance
with the requirements and current guidelines of the Federal Insurance
Administration. Borrower shall not maintain any separate or additional
insurance, other than insurance required under the RFC Loan Documents, which is
contributing in the event of loss unless it is properly endorsed and (except
with respect to insurance required under the RFC Loan Documents) otherwise
satisfactory to Lender in all respects. The proceeds of insurance paid on
account of any damage or destruction to the Timeshare Project relating to any
Collateral and received by Borrower pursuant to the terms of the Timeshare
Declaration shall be applied as provided in Section 3.2.
(b) Liability. Borrower shall use its best efforts to cause the
Association to maintain, at the Association's sole cost and expense (a)
commercial general liability insurance with respect to the Timeshare Project
providing for limits of liability of not less than $1,000,000 for both injury to
or death of a person and for property damage per occurrence; (b) worker's
compensation insurance to statutory limits, and employer's liability insurance
covering employees at the Timeshare Project employed by Borrower or Property
Manager (to the extent required, and in the amounts required by applicable laws
but in no event less than for Employer's Liability, Bodily Injury by
Accident--$1,000,000 each accident, for Bodily Injury by Disease--$1,000,000
policy limit and for Bodily Injury by Disease--$1,000,000 each employee); (c)
business interruption insurance, including use and occupancy, rental income loss
and extra expense, against all periods covered by Borrower's property insurance
for a limit equal to twelve (12) calendar months' exposure; (d) employee
dishonesty, and money and securities insurance (inside and out), depositors
forgery, and liability for guests' property on a blanket basis covering all
employees of Borrower or Property Manager who have access to or are responsible
for the handling of guest property or tenant security deposits, in such amounts
as Lender shall require from time to time, but in no event less than $1,000,000;
(e) umbrella liability on a following-form basis with limits of $5,000,000 per
occurrence and annual aggregate, and (f) builder's risk insurance, as
applicable, in amounts and with coverages required by Lender. Borrower shall be
required to maintain the following types of insurance, which must be
satisfactory to Lender and Borrower in all respects (including the deductible
and the amount of coverage):
(i) Liquor Liability Insurance;
(ii) Commercial General Liability Insurance;
(iii) Deleted;
(iv) Worker's Compensation Insurance;
(v) Employee Dishonesty; and
(vi) Automobile Insurance
(c) Form and Quality. The Borrower shall use its best efforts to
cause the Association, at the Association's sole cost and expense, to maintain
the policies of insurance described on this Article 3 as in effect on the date
hereof or otherwise in form and amounts and
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with insurers reasonably acceptable to Lender and Borrower; provided that in the
event the Association fails to maintain any insurance required under this
Article 3 then Borrower, so long as Borrower controls the Association, shall be
required to obtain and maintain such insurance. All insurance policies shall be
endorsed in form and substance acceptable to Lender to name Lender as an
additional insured, loss payee or mortgagee thereunder. All such insurance
policies and endorsements shall be fully paid for, shall be issued by
appropriately licensed insurance companies with a rating of "A-:VIII" or better
as established by A.M. Best's Rating Guide, and shall be in such form, and shall
contain such provisions, deductibles (with no increased deductible for acts of
terrorism or other specified action/inaction) and expiration dates, as are
acceptable to Lender and Borrower. Notwithstanding the foregoing, if market
conditions in the insurance industry limit the Borrower's ability to obtain the
insurance required under this Section 3.1 on commercially reasonable terms,
Lender and Borrower shall in good faith cooperate to select insurers and
coverages reasonably acceptable to Lender and Borrower. Each policy shall
provide that such policy may not be canceled or materially changed except upon
(i) providing ten (10) days' prior written notice, with respect to casualty
insurance coverage, and (ii) endeavoring to provide ten (10) days' prior written
notice, with respect to liability insurance coverage, of intention of
non-renewal, cancellation or material change to Lender and that no act or thing
done by Borrower shall invalidate any policy as against Lender; provided,
however, that Borrower agrees to use commercially reasonable efforts to require
the insurer to provide thirty (30) days prior written notice of cancellation.
Blanket policies shall be permitted provided that coverage will not be affected
by any loss on other properties covered by the policies. If Borrower fails to
maintain insurance in compliance with this Section 3.1, Lender may obtain such
insurance and pay the premium therefor and Borrower shall, on demand, reimburse
Lender for all expenses incurred in connection therewith.
(d) Adjustments. Borrower shall give immediate written notice to the
insurance carrier and to Lender of any loss in respect to which a claim is being
made in excess of $50,000.00 or if the claim has a Material Adverse Effect.
3.2 Use and Application of Insurance Proceeds. In the event that any portion of
the Facilities subject to the Timeshare Declaration should suffer any casualty
loss covered by hazard insurance or other insurance, upon receipt of any
insurance proceeds, the Association is required, during the time such properties
are covered by such insurance, under the Timeshare Declaration to rebuild or
repair the damaged portions of all of the buildings and other improvements
within the condominium property described in the applicable Timeshare Documents
unless provided otherwise pursuant to Article 14 of the Timeshare Declaration.
In the event that any proceeds of insurance are to be delivered to holders of
first mortgage liens pursuant to Article 14 of the Timeshare Declaration,
Borrower agrees to deliver such proceeds relating to the Financed Notes
Receivable to Lender to the extent received by Borrower.
3.3 Condemnation. Borrower shall immediately notify Lender of the institution of
any proceeding for the condemnation or other taking of the Timeshare Project or
any portion thereof. Notwithstanding anything to the contrary contained herein,
for so long as any condemned portion of the Timeshare Project are to be replaced
by the Association in accordance with the applicable Timeshare Declaration, any
and all awards and payments arising from any condemnation or conveyances in lieu
thereof relating to such portion of the Timeshare Project shall be distributed
and used in accordance with the provisions of the Timeshare Declaration.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
To induce Lender to make the Loan, the Borrower makes the following
representations and warranties to Lender, each and all of which shall survive
the execution and delivery of this Agreement and, subject to such supplements as
are permitted pursuant to Section 6.2(k), Borrower covenants that the
representations and warranties shall remain true and correct during all times
while the Loan is outstanding (except with respect to organizational changes
made in accordance with the terms of this Agreement), as follows:
4.1 Organization and Power. Borrower and Guarantor are duly organized, validly
existing and in good standing under the laws of the state of its formation or
existence, and are in compliance with all legal requirements applicable to doing
business in the state in which the Timeshare Project is located. Borrower is not
a "foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code. The organizational chart for Borrower in Schedule 4.1 accurately
reflects the ownership structure of Borrower and its constituent entities.
Borrower and Guarantor have only one state of incorporation or organization as
set forth in Schedule 4.1. All other information regarding Borrower and
Guarantor contained in Schedule 4.1 is true and correct as of the Closing Date.
4.2 Validity of Loan Documents. The execution, delivery and performance by
Borrower and Guarantor of the Loan Documents: (1) are duly authorized and do not
require the consent or approval of any other party or governmental authority
which has not been obtained; and (2) will not violate any law or result in the
imposition of any lien, charge or encumbrance upon the assets of any such party,
except as contemplated by the Loan Documents. The Loan Documents constitute the
legal, valid and binding obligations of Borrower and Guarantor, as applicable,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, or similar laws generally affecting the enforcement of
creditors' rights.
4.3 Liabilities; Litigation; Other Secured Transactions.
(i) The financial statements and the notes therein delivered
by Borrower and Guarantor are true and correct with no material adverse change
since the date of preparation. Except as disclosed in such financial statements
and the notes therein, there are no fixed liabilities (or contingent liabilities
as required to be disclosed by GAAP) affecting the Timeshare Project, Borrower
or Guarantor unless otherwise disclosed to Lender in compliance with Section
12.1 of this Agreement. Except as disclosed in such financial statements and the
notes therein, or on Schedule 5.11 attached hereto, there is no litigation,
administrative proceeding, investigation or other legal action (including any
proceeding under any state or federal bankruptcy or insolvency law) pending or,
to the knowledge of Borrower, threatened, against the Timeshare Project,
Borrower or Guarantor which would reasonably be expected to have a Material
Adverse Effect.
(ii) Neither Borrower nor Guarantor nor Bluegreen Vacations
Unlimited, Inc. is contemplating either the filing of a petition by it under
state or federal bankruptcy or insolvency laws or the liquidation of all or a
major portion of its assets or
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property, and neither Borrower nor Guarantor has actual knowledge of Big Cedar
LLC contemplating the filing of such a petition or any Person contemplating the
filing of any such petition against Borrower or Guarantor. For purposes of this
Section 4.3(ii) and the last sentence of Section 4.11, below, "actual knowledge"
of the Borrower or Guarantor shall mean the actual knowledge of the members of
the Borrower's Management Committee appointed by Bluegreen Vacations Unlimited,
Inc.
(iii) Borrower has not within the last five (5) years become
bound (whether as a result of a merger or otherwise) as a debtor under a pledge
or security agreement entered into by another Person, which has not heretofore
been terminated except with respect to the RFC Loan Documents. For purposes of
this Section 4.3(iii), a pledge or security agreement in respect of an equipment
lease shall be excluded.
4.4 Taxes and Assessments. There are no pending or, to Borrower's best knowledge
after diligent inquiry, proposed, special or other assessments for public
improvements or otherwise affecting the Timeshare Project, nor are there any
contemplated improvements to the Timeshare Project that may result in such
special or other assessments.
4.5 Other Agreements; Defaults. Neither Borrower nor Guarantor is a party to any
agreement or instrument or subject to any court order, injunction, permit, or
restriction which would reasonably be expected to have a Material Adverse
Effect. Neither Borrower nor Guarantor is in violation of any agreement which
violation would reasonably be expected to have a Material Adverse Effect.
4.6 Compliance with Law.
(i) Borrower has all requisite licenses, permits, franchises,
qualifications, certificates of occupancy or other governmental authorizations
to own, lease and operate the Timeshare Project and carry on its business.
Guarantor has all requisite licenses, permits, franchises, qualifications, or
other governmental authorizations to carry on its business. The Timeshare
Project is in compliance with all applicable zoning, subdivision, building and
other legal requirements. All of the Timeshare Project's building systems are in
good working order, subject to ordinary wear and tear. The Timeshare Project
does not constitute, in whole or in part, a legally non-conforming use under
applicable legal requirements; and
(ii) No condemnation has been commenced or, to Borrower's
knowledge, is contemplated with respect to all or any portion of the Timeshare
Project or for the relocation of roadways providing access to the Timeshare
Project.
4.7 Location of Borrower. Borrower's principal place of business and chief
executive offices are located at the address stated in Section 12.1 and, except
as otherwise set forth in Schedule 4.1, Borrower at all times has maintained its
principal place of business and chief executive office at such location or at
other locations within the same state.
4.8 ERISA.
(i) As of the Closing Date and throughout the term of the
Loan, (a) Borrower is not and will not be an "employee benefit plan" as defined
in Section 3(3) of the
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Employee Retirement Income Security Act of 1974, as amended ("ERISA"), which is
subject to Title I of ERISA, and (b) the assets of Borrower do not and will not
constitute "plan assets" of one or more such plans for purposes of Title I of
ERISA; and
(ii) As of the Closing Date and throughout the term of the
Loan (a) Borrower is not and will not be a "governmental plan" within the
meaning of Section 3(3) of ERISA and (b) transactions by or with Borrower are
not and will not be subject to state statutes applicable to Borrower regulating
investments of and fiduciary obligations with respect to governmental plans.
4.9 Margin Stock. No part of proceeds of the Loan will be used for purchasing or
acquiring any "margin stock" within the meaning of Regulations T, U or X of the
Board of Governors of the Federal Reserve System.
4.10 Tax Filings. Borrower and Guarantor have filed (or have obtained effective
extensions for filing) all federal, state and local tax returns required to be
filed and have paid or made adequate provision in accordance with GAAP for the
payment of all federal, state and local taxes, charges and assessments payable
by Borrower and Guarantor, respectively.
4.11 Solvency. Giving effect to the Loan, the fair saleable value of Borrower's
assets exceeds and will, immediately following the making of the Loan, exceed
Borrower's total liabilities, including, without limitation, subordinated,
unliquidated, disputed and contingent liabilities. The fair saleable value of
Borrower's assets is and will, immediately following the making of the Loan, be
greater than Borrower's probable liabilities, including the maximum amount of
its contingent liabilities on its Debts as such Debts become absolute and
matured. Borrower's assets do not and, immediately following the making of the
Loan will not, constitute unreasonably small capital to carry out its business
as conducted or as proposed to be conducted. Borrower does not intend to, and
does not believe that it will, incur Debts and liabilities (including contingent
liabilities and other commitments) beyond its ability to pay such Debts as they
mature (taking into account the timing and amounts of cash to be received by
Borrower and the amounts to be payable on or in respect of obligations of
Borrower). Except as expressly disclosed to Lender in writing, (a) no petition
in bankruptcy has been filed by or against Borrower, Guarantor or Bluegreen
Vacations Unlimited, Inc. or, to the actual knowledge of Borrower or Guarantor,
against Big Cedar, L.L.C., in the last seven (7) years, and (b) neither
Borrower, nor Guarantor nor Bluegreen Vacations Unlimited, Inc., nor, to the
actual knowledge of Borrower or Guarantor, Big Cedar, L.L.C., has made in the
last seven (7) years an assignment for the benefit of creditors or taken
advantage of any insolvency act for the benefit of debtors.
4.12 Full and Accurate Disclosure. No statement of fact made by or on behalf of
Borrower or Guarantor in this Agreement or in any of the other Loan Documents
contains any untrue statement of a material fact or omits to state any material
fact necessary to make statements contained herein or therein not misleading.
There is no fact presently known to Borrower which has not been disclosed to
Lender which could reasonably be expected to have a Material Adverse Effect. All
information supplied by Borrower regarding any other Collateral is accurate and
complete in all material respects.
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4.13 Contracts with Affiliates; Subordinated Indebtedness.
(a) Subject to future changes to Borrower's organization structure
made in compliance with Section 5.3 of this Agreement, Schedule 4.1 is a true
and complete organizational chart disclosing the ownership and relationship of
Borrower and the other Borrower Parties, including any subsidiaries of Borrower
and any Affiliates of Borrower that have any involvement or interest in the
Association, the Timeshare Project, the Amenities and the other Facilities.
Disclosure Schedule 4.13 discloses all agreements between Borrower and any of
its Affiliates with respect to the Timeshare Association, the Timeshare Project,
the Amenities and the other Facilities (as in effect on the Closing Date or as
supplemented with the consent of Lender, the "Approved Transactions"). All
Approved Transactions were negotiated in good faith, are arms-length
transactions and all terms, covenants and conditions which govern the Approved
Transactions are at market rate.
(b) The intercompany indebtedness for those of Borrower's Affiliates
described as "Due to Related Parties" on Borrower's balance sheet constitutes
all Borrower's debts, liabilities and obligations to any Affiliates of Borrower
except for the Approved Transactions and for salaries and other compensation due
officers and directors as of the date of this Agreement. Other than the Tour
Agreement and item 19 set forth in Disclosure Schedule 4.13, Borrower has
provided copies of all instruments, agreements and other writings evidencing
and/or securing any of the foregoing intercompany debt to Lender for Lender's
approval. Borrower agrees that all of such indebtedness shall be expressly
subordinated to the Loan and shall be shown on Borrower's financial statements
and notes thereto as subordinated obligations. If an Event of Default shall have
occurred and is continuing or a Potential Default exists, Borrower will not,
directly or indirectly, (i) permit any payment to be made in respect of any
intercompany indebtedness, liabilities or obligations, direct or contingent, to
any Affiliate other than Guarantor or to members of Borrower as required
pursuant to its operating agreement, which payments (i.e., other than payments
to Guarantor or members of Borrower as required pursuant to its operating
agreement) shall be and are hereby made subordinate to the payment of principal
of, and interest on, the Note and the other Indebtedness, (ii) permit the
amendment, rescission or other modification of any of Borrower's obligations
with respect to intercompany indebtedness other than in respect of Guarantor or
members of Borrower, or (iii) incur additional intercompany indebtedness other
than in respect of Guarantor or members of Borrower.
4.14 Intellectual Property. As of the Closing Date, each of Borrower and
Guarantor owns or has rights to use all intellectual property necessary to
continue to conduct its business as now or heretofore conducted by it or
proposed to be conducted by it. Each of Borrower and Guarantor conducts its
business and affairs without infringement of or interference with any
intellectual property of any other Person in any material respect. Neither
Borrower nor Guarantor has actual knowledge of any infringement claim by any
other Person with respect to any intellectual property. For purposes of this
Section 4.14, intellectual property shall mean copyrights, licenses, trademarks
or tradenames used in the ordinary course of Borrower's business.
4.15 Title; Prior Liens. Borrower has good and marketable title to the Resort
Accommodations and the Resort Accommodations are free and clear of Liens except
for Timeshare Interests previously sold in such Resort Accommodations and the
Lien of taxes not yet due and the obligations and restrictions arising under the
Timeshare Documents and
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Permitted Exceptions. Borrower is not in default under any of the Timeshare
Documents or under any other document evidencing or securing any indebtedness
which is secured, wholly or in part, by the Resort Accommodations, and no event
has occurred which with the giving of notice, the passage of time or both, would
constitute a default under any of the Timeshare Documents or under any of the
documents evidencing or securing any such indebtedness.
4.16 Intentionally Deleted.
4.17 Eligible Notes. Each Financed Note Receivable and Upgraded Note Receivable
constitutes an Eligible Note Receivable, and Borrower is not aware of any facts
or information which would cause such Financed Note Receivable not to be an
Eligible Note Receivable hereunder.
4.18 Intentionally Deleted.
4.19 Representations as to the Association.
(a) Other Required Licenses and Permits. The Association possesses
all material requisite franchises, certificates of convenience and necessity,
operating rights, licenses, permits, consents, authorizations, exemptions,
orders and approvals as are necessary to carry on its business as now being
conducted including without limitation to manage, maintain and operate the
Timeshare Project, the Association and in accordance with all applicable
Governmental Regulations.
(b) Access. All roadways, if any, inside the Timeshare Project are
either common areas under the Timeshare Declaration or areas over which the
Purchasers of Timeshare Interests have access by easements held by such
Purchasers or by the Association.
(c) Utilities. Electric, gas, sewer, water facilities and other
necessary utilities are lawfully available in sufficient capacity to service the
Timeshare Project and any easements necessary to the furnishing of such utility
service have been obtained and duly recorded. Water and utility charges relating
to the Timeshare Project have been timely paid when due.
(d) Amenities. All Amenities described as then being currently
available to Purchasers in any applicable Public Reports are completed or, if
necessary, a bond or other financial assurance acceptable to the regulatory
authority having jurisdiction over the offering of the Timeshare Interests
insuring the completion of the Amenities has been posted or provided for. The
Amenities include those listed in the applicable Public Reports. Each Purchaser
of a Timeshare Interest has access to and the use of all of the completed
Amenities of the Timeshare Project as and to the extent provided in the
Timeshare Documents.
(e) Intentionally Deleted.
(f) Compliance with Timeshare Documents. To the best of Borrower's
knowledge after due inquiry, the Association is not in default under the
Timeshare Documents and no event has occurred which, with the passage of time or
the giving of notice would become a material default by the Association under
the Timeshare Documents.
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(g) Construction. All costs arising from the construction of any
improvements and the purchase of any equipment, inventory, or Common Furnishings
located in or on the Timeshare Project have been paid or are being paid in
accordance with the purchase or loan documents in connection therewith.
4.20 Operating Contracts. Except for the Tour Agreement, Borrower has delivered
to Lender true, correct and complete copies of the Operating Contracts (with
confidential financial terms redacted in certain instances as approved in
advance by Lender), including all exhibits, schedules and attachments. Each of
the Operating Contracts is in full force and effect. To the best of Borrower's
knowledge after due inquiry, Borrower is not in default under any of the
Operating Contracts to which it is a party, and Borrower knows of no default on
the part of any other party to any of the Operating Contracts.
4.21 Consumer Law Matters. The Notes Receivable were originated and have been
serviced in compliance with, and do not contravene any Consumer Laws.
ARTICLE 5
COVENANTS
To induce Lender to make the Loan, the Borrower makes the following
covenants for Lender, each and all of which shall survive the execution and
delivery of this Agreement and Borrower covenants while the Loan is outstanding,
as follows:
5.1 Due on Sale and Encumbrance; Transfers of Interests. Without the prior
written consent of Lender, which consent shall not be unreasonably withheld, and
subject to the provisions of Section 1.5(a)(i):
(i) no Transfer shall occur or be permitted, nor shall
Borrower enter into any easement, declaration of covenant, condition or
restriction, public or private dedication or other agreement granting rights in
or restricting the use or development of the Timeshare Project, which has a
Material Adverse Effect; and
(ii) no Transfer shall occur or be permitted which would (a)
cause Guarantor or an Affiliate thereof to own less than (i) fifty-one percent
(51%) of the beneficial interest in Borrower or (ii) one hundred percent (100%)
of the ownership interests in Bluegreen Vacations Unlimited, Inc., or (b) result
in a new member having the ability to control the affairs of Borrower being
admitted to or created in Borrower (or result in any existing controlling member
withdrawing from Borrower).
As used in this Agreement, "Transfer" shall mean any direct or
indirect sale, transfer, conveyance, installment sale, master lease, mortgage,
pledge, encumbrance, grant of Lien or other interest, license, lease, alienation
or assignment, whether voluntary or involuntary, of all or any portion of the
direct or indirect legal or beneficial ownership of, or any interest in (a) the
Timeshare Project or any part thereof, including any Intangible Assets of
Borrower in connection with the Timeshare Project, Operating Contracts, and
rights under the Timeshare Declaration, or (b) Borrower, including any agreement
to transfer or cede to another Person any voting, management or approval rights,
or any other rights, appurtenant to any such legal or
-31-
beneficial ownership or other interest. "Transfer" is specifically intended to
include any pledge or assignment, directly or indirectly, of a controlling
interest in Borrower or its controlling limited partner or controlling member
for purposes of securing so-called "mezzanine" indebtedness. "Transfer" shall
not include (i) the sale of Timeshare Interests in the ordinary course of
Borrower's business so long as Borrower complies with the provisions of the Loan
Documents relating to such sales; or (ii) the transfer of non-managing member
interests in Borrower so long as the transfer does not violate the provisions of
Section 5.1(ii), and does not violate the provisions of Article 10.
Without limiting the foregoing, Borrower further agrees that it will
require each Person that proposes to become a partner, member or shareholder
(each such Person, an "Interest Holder") in Borrower after the Closing Date to
sign and deliver to Borrower, within thirty (30) days after such transfer (and
Borrower shall deliver to Lender promptly after receipt), a certificate executed
by a duly authorized officer of the new Interest Holder containing
representations, warranties and covenants substantially the same as the
representations, warranties and covenants provided by Borrower in Article 10
hereof.
5.2 Taxes; Charges. At any time that Borrower is in control of the Association,
Borrower shall pay or use reasonable efforts to cause to be paid, to the extent
funds are generally available to the Association or pursuant to a special
assessment required by the Association, before any fine, penalty, interest or
cost may be added thereto, and shall not enter into any agreement to defer, any
real estate taxes and assessments, franchise taxes and charges, and other
governmental charges that may become a Lien upon the Timeshare Project or become
payable during the term of the Loan and will promptly furnish Lender with
evidence of such payment upon the written request of Lender. Borrower or the
Association, to the extent that Borrower is in control of the Association, shall
not consent to the joint assessment of the Timeshare Project with any other real
property constituting a separate tax lot or with any other real or personal
property and if the foregoing occurs, shall use reasonable efforts to contest
such joint assessment. Borrower shall pay when due all claims and demands of
mechanics, materialmen, laborers and others which, if unpaid, might result in a
Lien on any Financed Note Receivable or security therefor; however, Borrower may
contest the validity of such claims and demands so long as Borrower is
diligently contesting the same by appropriate legal proceedings in good faith
and at its own expense and concludes such contest prior to the tenth (10th) day
preceding the earlier to occur of the Revolving Loan Maturity Date or the date
on which the Timeshare Project is scheduled to be sold for non-payment.
5.3 Control; Management. Without the prior written consent of Lender, there
shall be no change in the day-to-day control and management of Borrower, and no
change in their respective organizational documents relating to control over
Borrower and/or the Timeshare Project which changes may reasonably be expected
to have a Material Adverse Effect. Whether or not Lender's approval is required
hereunder, Borrower shall promptly notify Lender in writing of any changes to
the organizational documents of Borrower, or any change to the Borrower's
management committee. At any time while Borrower is in control of the
Association, Borrower shall not terminate, replace or appoint any Property
Manager or terminate the Management Agreement for the Timeshare Project or
consent to any of the foregoing by another party, including RFC, without
Lender's prior written approval which consent shall not be unreasonably
withheld, or amend the Management Agreement in a manner which may reasonably be
expected to have a
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Material Adverse Effect. Any change in ownership or control of the Property
Manager shall be cause for Lender to re-approve such Property Manager and the
Management Agreement, unless, provided that no Event of Default exists, such
change in ownership or control results in ownership or control by an Affiliate
of Borrower or Bluegreen Vacations Unlimited, Inc. Each Property Manager shall
hold and maintain all material necessary licenses, certifications and permits
required by law. Borrower shall fully perform all of its material covenants,
agreements and obligations under the Management Agreement.
5.4 Operation; Maintenance; Inspection. Borrower shall observe and comply with
all legal requirements applicable to its existence and to the ownership, use and
operation of the Timeshare Project. Borrower shall maintain, or, so long as
Borrower is in control of the Association, shall cause the Association to
maintain, the Timeshare Project in good condition (ordinary wear and tear
excepted) and promptly repair any damage or casualty in accordance with the
Timeshare Declaration. Borrower shall not, without the prior written consent of
Lender which shall not be unreasonably withheld, undertake any alteration of the
Timeshare Project which may result in a Material Adverse Effect or permit any of
the fixtures or personalty owned by Borrower and utilized in connection with the
operation of the Timeshare Project to be removed at any time from the Timeshare
Project, unless the removed item is removed temporarily for maintenance and
repair or, if removed permanently, is obsolete and is replaced by an article of
equal or better suitability and value. Subject to the Timeshare Documents, any
Governmental Requirements and the provisions of the RFC Loan Documents, Borrower
shall permit or cause to be permitted Lender and its agents, representatives and
employees, upon reasonable prior notice to Borrower, to inspect the Timeshare
Project and conduct such environmental and engineering studies as Lender may
require (at Lender's sole cost and expense unless an Event of Default has
occurred), provided such inspections and studies do not materially interfere
with the use and operation of the Timeshare Project.
5.5 Taxes on Security. Borrower shall pay all taxes, charges, filing,
registration and recording fees, excises and levies payable with respect to the
Note or the Liens created or secured by the Loan Documents, other than income,
franchise and doing business taxes imposed on Lender. If there shall be enacted
any law applicable to the Pledged Documents (1) deducting the Loan from the
value of the Timeshare Project for the purpose of taxation, (2) affecting any
Lien on the Timeshare Project, or (3) changing existing laws of taxation of
mortgages, deeds of trust, security deeds, or debts secured by real property, or
changing the manner of collecting any such taxes, Borrower shall promptly pay to
Lender, on demand, all taxes, costs and charges for which Lender is or may be
liable as a result thereof. If Borrower pays any such tax and Lender
subsequently receives a refund or reimbursement of such tax, Lender shall
promptly deliver such refund or reimbursement to Borrower provided no Event of
Default exists.
5.6 Legal Existence; Name, Etc. Borrower and Guarantor shall preserve and keep
in full force and effect its respective entity status, and its material
franchises, rights and privileges under the laws of the state of its respective
formation, and all material qualifications, licenses and permits applicable to
the ownership, use and operation of the Timeshare Project. Except in accordance
with Section 5.1 of this Agreement, Borrower shall not wind up, liquidate,
dissolve, reorganize, merge, or consolidate with or into, or convey, sell,
assign, transfer, lease, or otherwise dispose of all or substantially all of its
assets, or acquire all or substantially all of the assets of the business of any
Person, or permit any subsidiary or Affiliate of Borrower to do so.
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Without limiting the foregoing, Borrower shall not reincorporate or reorganize
itself under the laws of any jurisdiction other than the jurisdiction in which
it is incorporated or organized as of the Closing Date. Borrower shall conduct
business only in its own name and shall not change its name, identity,
organizational structure, state of formation or the location of its chief
executive office or principal place of business unless Borrower (1) shall have
obtained the prior written consent of Lender to such change, not to be
unreasonably withheld, and (2) shall have taken all actions necessary or
requested by Lender to file or amend any financing statement or continuation
statement to assure perfection and continuation of perfection of security
interests under the Loan Documents. Borrower shall maintain its separateness as
an entity, including maintaining separate books, records, and accounts and
observing corporate and partnership formalities independent of any other entity,
shall pay its obligations with its own funds and shall not commingle funds or
assets with those of any other entity; provided however that the foregoing shall
not preclude Borrower and Guarantor from consolidating its financial statements
in accordance with GAAP.
5.7 Affiliate Transactions. Without the prior written consent of Lender, not to
be unreasonably withheld, and except for the Approved Transactions, Borrower
shall not engage in any transaction affecting the Timeshare Project with an
Affiliate of Borrower or of any Borrower Party (other than Guarantor); provided
however that the foregoing shall not prohibit Affiliates entering into Purchase
Documents in good faith and pursuant to a bona fide transaction in an aggregate
amount not to exceed $100,000.00.
5.8 Further Assurances. Borrower shall promptly (1) cure any defects in the
execution and delivery of the Loan Documents, and (2) execute and deliver, or
cause to be executed and delivered, all such other documents, agreements and
instruments, including without limitation new Notes, as Lender may reasonably
request to further evidence and more fully describe the Collateral for the Loan,
to (i) correct any omissions in the Loan Documents, (ii) perfect, protect or
preserve any Liens created under any of the Loan Documents, (iii) to make any
recordings, file any notices, or obtain any consents, as may be necessary or
appropriate in connection therewith or (iv) to effectuate Loan Outplacement or
Loan rearrangement as set forth in Section 12.10 of this Agreement.
5.9 Estoppel Certificates. Borrower, within ten (10) Business Days after
request, shall furnish to Lender a written statement in the form attached hereto
as Exhibit C, duly acknowledged, setting forth the amount due on the Loan, the
terms of payment of the Loan, the date to which interest has been paid, whether
any offsets or defenses exist against the Loan and, if any are alleged to exist,
the nature thereof in detail, and such other matters as Lender reasonably may
request, provided, however, that such request shall not be made more than once
per calendar quarter.
5.10 Notice of Certain Events. Borrower shall promptly notify Lender of (1) any
Potential Default or Event of Default, together with a detailed statement of the
steps being taken to cure such Potential Default or Event of Default; (2) any
notice of material default received by Borrower under other obligations relating
to the Association or the Timeshare Project or otherwise material to Borrower's
business; and (3) any claim, action or threatened or pending legal, judicial or
regulatory proceedings, including any dispute between Borrower and any
Governmental Authority, which are deemed reasonably possible (as defined by
GAAP)
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of having a Material Adverse Effect other than personal injury claims arising
from the Timeshare Project not in excess of $1,000,000.00.
5.11 Indemnification. Borrower shall indemnify, defend and hold Lender harmless
from and against any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs and disbursements
(including the reasonable fees and actual expenses of Lender's counsel) of any
kind or nature whatsoever, including those arising from the joint, concurrent,
or comparative negligence of Lender (except to the extent such joint, concurrent
or comparative negligence constitutes gross negligence or willful misconduct on
the part of Lender), in connection with (1) any inspection, review or testing of
or with respect to the Timeshare Project required to be taken by reason of
circumstances arising under this Section 5.11 for which Lender is entitled to
indemnification hereunder, (2) any investigative, administrative, mediation,
arbitration, or judicial proceeding, whether or not Lender is designated a party
thereto, commenced or threatened at any time (including after the repayment of
the Loan) in any way related to the execution, delivery or performance of any
Loan Document or to the Timeshare Project, (3) any proceeding instituted by any
Person claiming a Lien, (4) any brokerage commissions or finder's fees claimed
by any broker or other party in connection with the Loan, the Timeshare Project,
or any of the transactions contemplated in the Loan Documents, (5) the violation
by Borrower or the Servicer of Governmental Requirements including without
limitation, the Environmental Laws, Consumer Laws, Interstate Land Sales Act,
Patriot Act or the Timeshare Act) (whether such law or violation is material or
not and whether or not Lender is aware of such violation or makes Advances while
such violation exists), (6) any claim by any Person other than Lender with
respect to the Collateral, (7) any action taken by or on behalf of Borrower or
Guarantor relating to any Financed Note Receivable which is not permitted by or
pursuant to the terms of this Agreement or which is taken by Lender pursuant to
Section 8.3 of this Agreement, and/or (8) any act or omission constituting
negligence or willful misconduct, or breach of fiduciary duty by any officer,
director, agent or employee of Guarantor in connection with Borrower's
performance under the Servicing Agreement except to the extent that any of such
losses in connection with any of the individual circumstances set forth in the
foregoing clauses (1)-(8) are caused by Lender's gross negligence or willful
misconduct. Borrower shall promptly notify Lender of (A) any claim, action or
proceeding affecting the Association, the Timeshare Project, the Timeshare
Property, the Amenities or the Collateral, or any part thereof, or any of the
security interests granted hereunder which is reasonably expected to have a
Material Adverse Effect (it being agreed that such disclosure shall not be
deemed to be an amendment of Disclosure Schedule 5.11 unless agreed to in
writing by Lender), and (B) any action, suit, proceeding, order or injunction of
which Borrower becomes aware after the date hereof pending or threatened against
or affecting Guarantor or any Affiliate thereof which is reasonably expected to
have a Material Adverse Effect.
5.12 Application of Loan Proceeds/Operating Revenues. Borrower shall not
misappropriate funds derived from the Loan or the Collateral and shall at all
times apply any proceeds of the Loan and the Collateral as required under this
Agreement and the other Loan Documents.
5.13 Compliance with Laws. Borrower shall timely comply with, and, for so long
as Borrower shall control the Association shall cause the Association to comply
with all material laws and any notice or claim by any Governmental Authority, or
by any other party to such
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indenture, order, instrument, agreement or Timeshare Document, pertaining to the
Borrower, the Resort Accommodations, the Association, the Timeshare Project, the
Timeshare Plan and the Facilities. Sales of Timeshare Interests are, and during
the Term shall be, made by only persons who hold all required licenses, or who
are exempt from licensure and are made in compliance with all applicable
material Governmental Requirements. The Borrower, the Resort Accommodations with
respect to which Timeshare Interests are being sold, the Timeshare Project, the
Timeshare Plan, and the Facilities comply with, conform to and obey, and during
the term of the Loan shall continue to comply with, conform to and obey, all
material Governmental Requirements applicable to the Borrower, such Resort
Accommodations, the Timeshare Project, the Timeshare Plan and Facilities, and
each indenture, order, instrument, agreement or document to which Borrower is a
party or by which it is bound.
5.14 Litigation and Proceeding. Borrower shall (i) at the request of Lender,
appear in and defend, at Borrower's expense, any claim naming Lender and any
other material claim, action or proceeding pertaining to the Borrower, the
Resort Accommodations, the Timeshare Project, the Timeshare Plan and the
Facilities; and (ii) comply in all respects, and shall cause all Affiliates to
comply in all respects, with the terms of any orders imposed on such Person by
any Governmental Authority.
5.15 Collateral.
(a) Title. Borrower has, and during the term of the Loan, will
continue to have, good and marketable title to the Collateral, free and clear of
any Lien except for (i) the security interest created by this Agreement or
otherwise created in favor of Lender, and (ii) the Permitted Exceptions. There
are no facts, circumstances or conditions known to any Borrower Party that may
result in any Liens (including Liens arising under Environmental Laws) other
than Permitted Exceptions. No financing statement or other instrument similar in
effect covering all or any part of the Collateral is on file in any recording
office, except such as may have been filed in favor of, Borrower and are being
assigned to Lender.
(b) No Modification. Borrower shall not take any action (nor permit
or consent to the taking of any action) which might reasonably be anticipated to
impair the value of the Collateral or any of the rights of Lender in the
Collateral. Borrower shall not (i) modify or amend any of the Pledged Documents
without Lender's prior written consent (except that Borrower may modify Pledged
Documents to comply with the Servicemembers Civil Relief Act and up to one
percent (1%) of other Pledged Documents in the aggregate during the term of the
Loan without Lender's consent), or (ii) solicit prepayment of, grant extensions
of time for the payment of (except as permitted in (i) above) or compromise for
less than the full face value, release in whole or in part any Purchaser liable
for the payment of, or allow any credit whatsoever except for the amount of cash
to be paid upon, any Collateral or any instrument or document representing the
Collateral except as provided in Section 5.15(c) hereof.
(c) Upgraded Notes Receivable. The provisions of Section 5.15(b)
hereof notwithstanding, Borrower may engage in upgrade sales and shall either
replace the affected Financed Notes Receivable with Upgraded Notes Receivable or
repay the Loan by the applicable portion of the Loan which is outstanding in
respect of the affected Financed Notes Receivable, provided, however, that after
the expiration of the Revolving Period, the Borrower's replacement
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or repayment shall be at Lender's option but no such repayment shall constitute
a voluntary prepayment for purposes of Section 1.5(a) of this Agreement. Upon
the closing of the upgraded sale, the prior Note Receivable shall be deemed
"ineligible." Borrower shall remove the prior Financed Note Receivable from all
financial reports delivered by Borrower to Lender pursuant to this Agreement.
Upon the replacement of the Financed Note Receivable with an Upgraded Note
Receivable, all subsequent requests for Advances shall be calculated to reflect
the Upgraded Note Receivable and Lender shall execute an appropriate
Reassignment and take all reasonable steps to release the related Collateral and
the ineligible Note Receivable and related Collateral shall be returned to
Borrower; provided, however, Borrower shall pay all of Lender's Fees and Costs
in connection with execution of such Reassignment and delivery of such Note
Receivable and related Collateral. For the avoidance of doubt, there shall be no
updated FICO requirement to the extent that affected Financed Notes Receivable
are replaced with the applicable Upgraded Notes Receivable.
5.16 Sale of Collateral; Proceeds. Immediately upon Borrower's receipt of
proceeds from the sale of any of the Collateral (excluding sale proceeds from
any Collateral which has been released by Lender in accordance with this
Agreement), Borrower shall deliver proceeds in an amount equal to the applicable
portion of the Loan which is outstanding with respect to such Collateral to
Lender in their original form and, pending delivery to Lender, Borrower will
hold such proceeds as agent for Lender and in trust for Lender. Payments
received by Borrower directly from any Purchaser shall be delivered to the
Lockbox Agent within one (1) Business Day.
5.17 Intentionally Deleted.
5.18 Performance of Operating Contracts. Borrower agrees to perform and
discharge its obligations, covenants and agreements contained in the Operating
Contracts except where such failure to perform or discharge would not have a
Material Adverse Effect; to give prompt notice to the Lender of any notice of
default (whether oral or written) either given or received by Borrower with
respect thereto, together with a complete copy of any such notice, if written,
if such default could reasonably be expected to have a Material Adverse Effect
or result in termination of such Operating Contract. Borrower will not (i) amend
or modify any of the Operating Contracts or surrender or cancel any such
Operating Contract to the extent such amendment or modification could reasonably
be expected to have a Material Adverse Effect, or (ii) further encumber any of
them without the prior written consent of Lender, which consent shall not be
unreasonably withheld; or (iii) consent to any assignment thereof by the other
contract parties; provided, however, that in no event shall Borrower amend or
modify an Operating Contract in a manner which would violate the Timeshare
Documents.
5.19 Servicing of Financed Notes Receivable. Borrower shall cause the Financed
Notes Receivable to be serviced pursuant to a Servicing Agreement and a Servicer
satisfactory to Lender in its sole discretion. In the event Borrower or
Guarantor is the Servicer, Lender shall have the right to replace Borrower or
Guarantor with a new Servicer in its sole discretion, upon the occurrence of an
Event of Default. All reasonable servicing fees, and the reasonable costs and
expenses of the Servicer, shall be paid by Borrower. Borrower shall not amend,
modify or make any other alteration to, or consent to any termination of or
terminate the Servicing Agreement without the prior written consent of Lender,
which consent may be withheld by
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Lender in Lender's sole discretion. Borrower shall not interfere with the
Servicer's performance of its duties under the Servicing Agreement or take any
action that would be inconsistent in any way with the terms of the Servicing
Agreement.
5.20 Custodian. Lender shall have the right at any time to utilize a third-party
Custodian to maintain custody of the Collateral, pursuant to a Custodial
Agreement satisfactory to Lender in its sole discretion. All reasonable
custodial fees, and the reasonable costs and expenses of the Custodian, shall be
paid by Borrower. Borrower shall not amend, modify or make any other alteration
to, or consent to any termination of or terminate the Custodial Agreement
without the prior written consent of Lender, which consent may be withheld by
Lender in Lender's sole discretion. Borrower shall not interfere with the
Custodian's performance of its duties under the Custodial Agreement or take any
action that would be inconsistent in any way with the terms of the Custodial
Agreement.
5.21 Maintenance. To the extent that the Association controls all or any portion
of the Facilities and, further, that Borrower controls the Association, Borrower
shall cause the Association to maintain each portion of the Facilities under its
responsibility in good repair, working order and condition (ordinary wear and
tear excepted) and shall make or cause to be made all necessary replacements to
such Facilities. To the extent that any Amenities are provided by a third party
pursuant to an agreement between the Association and such third party, the
Borrower shall, to the extent it controls the Association, cause the Association
to maintain such agreement in full force and effect.
5.22 Records. Borrower shall keep its books and records in accordance with GAAP.
So long as Borrower is in control of the Association, Borrower shall cause the
Association to keep books and records reflecting all financial transactions of
the Association, including billing and collection of dues and assessments from
its members and any payments in lieu thereof by Borrower under the terms of any
subsidy agreement between Borrower and the Association, in which complete
entries will be made in accordance with GAAP.
5.23 Other Documents. Borrower or Servicer will maintain accurate and complete
files in electronic form relating to the Financed Notes Receivable and other
Collateral to the satisfaction of Lender, and such files will contain copies of
each Financed Note Receivable together with the purchase agreements, any
disclosure or notice required by law including Consumer Laws and the consumer's
credit application and all other relevant credit memoranda, if any, and all
applicable collection information and correspondence relating to such Financed
Notes Receivable and the notice required pursuant to Section 5.25, below.
5.24 Inspections and Audits. Borrower shall cause, or if Borrower is no longer
in control of the Association, shall use its best efforts to cause the
Association to, at reasonable times during normal business hours and as often as
may be requested, permit any agents or representatives of Lender to inspect the
Timeshare Project and the other Facilities and any of Borrower's assets
(including financial and accounting books and records), to examine and make
copies of and abstracts from the books and records of Borrower, the Association,
and any servicer under any Servicing Agreement, and to discuss any such party's
affairs, finances and accounts with any of its officers, employees or
independent public accountants. If an Event of Default has occurred and is
continuing or if access is necessary to preserve or protect the Collateral as
determined by
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Lender, Borrower shall, or if Borrower is no longer in control of the
Association shall use its best efforts to, provide such access at all times and
without advance notice. Borrower acknowledges that Lender intends to conduct or
cause to be conducted such audits and inspections on at least an annual basis.
Lender acknowledges that the foregoing covenants in this Section 5.24 are
subject to the Timeshare Documents and Governmental Requirements. Subject to the
Confidentiality Agreement, Borrower shall make available to Lender all credit
information in Borrower's possession or under Borrower's control with respect to
Purchasers as Lender may request. All inspections and audits (other than
environmental and engineering inspections referenced in Section 5.4), shall be
at Borrower's expense; provided, however, that Borrower shall not be required to
pay for such inspection and audits more than one (1) time per calendar year,
unless an Event of Default has occurred and is continuing.
5.25 Notices Regarding Lender's Interests. Within three (3) Business Days after
acceptance of a Financed Note Receivable by Lender, Borrower or Servicer shall
notify the obligor under each Financed Note Receivable that such Note Receivable
has been assigned to Lender and, as applicable, that all future Financed Note
Receivable coupon payments should be made to the Lockbox Account.
5.26 Payment of Charges. To the extent Borrower has control over the
Association, Borrower shall promptly pay or cause to be paid when due all costs
and expenses incurred in connection with Borrower's ownership interest in the
Timeshare Project and other portions of the Facilities and the construction of
the Improvements, and Borrower shall keep Borrower's ownership interests in the
Timeshare Project and other portions of the Facilities free and clear of any
Charge other than the Permitted Exceptions, and other Liens approved in writing
by Lender if any such lien would attach to any Financed Notes Receivable or
Security therefor. Notwithstanding anything to the contrary contained in this
Loan Agreement, Borrower may (a) discharge in accordance with applicable law any
such Charge or contest the validity or amount of any claim of any contractor,
consultant, architect, or other Person providing labor, materials, or services
with respect to the Timeshare Project and other portions of the Facilities or
(b) contest any tax or special assessments levied by any Governmental Authority;
provided that (i) during the pendency of any such contest Borrower shall, if
requested by Lender, furnish to Lender and Title Company, cash, an indemnity
bond from a corporate surety satisfactory to Lender and Title Company or other
adequate security in an amount at least equal to the amount being contested or
other security reasonably acceptable to them to induce Title Company to issue
its title insurance policy or an interim endorsement thereto insuring against
all such claims or liens; (ii) no Lien shall be imposed to secure payment of
such Charges (other than payments to warehousemen and bailees) that is superior
to any of the Liens securing the Indebtedness and such contest is maintained and
prosecuted continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; and (iv) Borrower shall promptly
pay or discharge such contested Charges, Taxes or claims and all additional
charges, interest, penalties and expenses, if any, and shall deliver to Lender
evidence reasonably acceptable to Lender of such compliance, payment or
discharge, if such contest is terminated or discontinued adversely to Borrower
or the conditions set forth in this Section 5.26 are no longer met.
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5.27 Amendment of Timeshare Documents. Without Lender's prior written consent,
which shall not be unreasonably withheld, Borrower shall not amend, modify or
terminate the Timeshare Documents in a manner that would have a Material Adverse
Effect.
ARTICLE 6
FINANCIAL COVENANTS; REPORTING REQUIREMENTS
So long as any portion of the Indebtedness remains unpaid or Lender
is committed to lend hereunder, unless Lender otherwise consents in writing,
Borrower hereby covenants and agrees with Lender as follows:
6.1 Financial Covenants.
(a) Tangible Net Worth. It shall be an Event of Default if Guarantor
fails to maintain as of the last day of each fiscal quarter a minimum Tangible
Net Worth in the amount of at least equal to the sum of Two Hundred Forty
Million Dollars ($240,000,000.00) plus the Net Income Adjustment, commencing
with the Guarantor's fiscal quarter ending March 31, 2007 statements and
continuing throughout the Term.
(b) Maximum Leverage Ratio. It shall be an Event of Default if
Guarantor's ratio of Liabilities (exclusive of all Subordinated Indebtedness and
up to $600,000,000.00 of non-recourse receivables-backed notes payable) to
Tangible Net Worth exceeds 2.5 to 1, as determined at the end of each fiscal
quarter.
(c) Minimum Interest Coverage Ratio. It shall be an Event of Default
if Guarantor has an aggregate Minimum Interest Coverage Ratio less than 2.0:1,
as determined at the end of each fiscal quarter, calculated on a trailing twelve
(12) month basis. For the avoidance of doubt, a negative Minimum Interest
Coverage Ratio shall be deemed to be zero and not in violation of this ratio.
6.2 Reporting Requirements. Borrower shall furnish, or Borrower shall cause
Servicer to furnish (on a best efforts basis, if Servicer is not an Affiliate of
Borrower), the following to Lender during the Term:
(a) Monthly Reports. The Availability Report and, to the extent not
provided to Lender pursuant to the requirements of the Servicing Agreement,
within ten (10) days after the end of each calendar month, reports showing
through the end of the preceding month, (i) the following information with
respect to each Financed Note Receivable and in the aggregate with respect to
all Financed Notes Receivable: (A) the closing balances of Financed Notes
Receivable, (B) all payments received allocated to interest, principal, late
charges, taxes or the like, (C) the rate of interest, and (D) an itemization of
delinquencies, extensions, refinances, prepayments, upgrades, payoffs,
cancellations and other adjustments, (ii) the weighted average interest rate and
the weighted average remaining term of all Financed Notes Receivable; (iii) a
list of all Upgraded Notes Receivable; (iv) calculation of the ratio of the
outstanding principal of Financed Notes Receivable for each of thirty-one (31),
sixty (60) and ninety (90) days or greater, past due on a contractual basis to
the outstanding principal of all Financed Notes Receivable; and (v) a list of
Financed Notes Receivable that became Defaulted Notes during the preceding
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month. Each monthly report shall include a certification from an authorized
party of the Servicer that the information contained in such monthly report is
true, correct and complete.
(b) Sales Reports. Upon written request of the Lender, within
fifteen (15) days after Lender's request but not more than fifteen (15) Business
Days after the end of the most recent quarter, a quarterly report showing all
sales and cancellations of sales of Timeshare Interests at the Timeshare
Project, in the form attached hereto as Exhibit K, certified by the treasurer of
Borrower to be true, correct and complete and otherwise in the form approved by
Lender. Such report will not contain any confidential personal information
relating to the Purchaser of such Timeshare Interest of the Timeshare Project.
(c) Inventory Reports. Upon written request of the Lender, within
fifteen (15) days after Lender's request but not more than fifteen (15) Business
Days after the end of the most recent quarter, an inventory report for the
Timeshare Project detailing the available inventory of Resort Accommodations,
certified by the treasurer of Borrower to be true, correct and complete and
otherwise in the form approved by Lender.
(d) Quarterly Financial Reports (Borrower and Guarantor). Within
forty-five (45) days after the end of each fiscal quarter, other than the fourth
(4th) quarter of the year, unaudited financial statements and the notes therein
for the trailing three (3) month period of Borrower and Guarantor, together with
a certification from the treasurer of Borrower and chief financial officer of
Guarantor, as applicable, stating that such financial statements and the notes
therein are true, correct and complete and a statement prepared in reasonable
detail showing the calculations used in determining compliance with each of the
financial covenants of the Guarantor in Section 6.1 hereof. Concurrently with
the delivery of such financial reports, a certificate signed by the treasurer of
the Borrower indicating that the Borrower is in compliance with all
representations, warranties and covenants of the Agreement and the other Loan
Documents or, if a Potential Default or Event of Default then exists, an
identification of any such Potential Default or Event of Default and the steps,
if any, that Borrower is undertaking to cure such Potential Default or Event of
Default.
(e) Annual Financial Reports (Association). Within ninety (90) days
after the end of each fiscal year, unaudited financial statements for such
fiscal year of the Association, certified by an officer of the entity preparing
such financial statements.
(f) Year-End Financial Reports (Borrower and Guarantor). As soon as
available and in any event within one hundred and twenty (120) days after the
end of each fiscal year of Borrower: (i) the balance sheet of Borrower as of the
end of such year and the related statements of income and cash flow for such
fiscal year; (ii) a listing of outstanding notes payable at the end of such
fiscal year; and (iii) with respect to the financial statements and the notes
therein of Borrower and Guarantor, copies of reports from a firm of independent
certified public accountants selected by Borrower or Guarantor, as applicable,
which report shall be unqualified as to going concern and scope of audit and
shall state that such financial statements and the notes therein present fairly
the financial position of Borrower and Guarantor, as applicable, as of the dates
indicated and the results of its operations and cash flow for the periods
indicated in conformity with GAAP. Such financial statements and the notes
therein shall be accompanied by the certification of the treasurer of Borrower
and chief financial officer of
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Guarantor, as applicable, that all such financial statements and the notes
therein present fairly in accordance with GAAP the financial position, results
of operations and statements of cash flows of Borrower and Guarantor, as
applicable, as at the end of such fiscal year and for the period then ended and
indicating that the Borrower is in compliance with all representations,
warranties and covenants of the Agreement and the other Loan Documents or, if
the Borrower is in default, an identification of any such default and the steps,
if any, that Borrower is undertaking to cure such default.
(g) Management Letters. Within five (5) Business Days after receipt
thereof by the Borrower or Guarantor, copies of all management letters,
exception reports or similar letters or reports received by Borrower or
Guarantor from its independent certified public accountants.
(h) Annual Report. If the Borrower is in control of the Association,
then within one hundred and twenty (120) days or such shorter period as is
required by law or the applicable Timeshare Documents, or otherwise as soon as
available and in any event within the time period prescribed therefor in the
Timeshare Documents, such annual report as is prepared by the Association for
delivery to its members.
(i) Audit Reports. Promptly upon receipt thereof, one (1) copy of
each other report submitted to Borrower or to the Association by independent
public accountants in connection with any annual, interim or special audit made
by them of the books of the Borrower or the Association, respectively.
(j) Supplemental Disclosure. From time to time as may be reasonably
requested in writing by Lender (which request will not be made more frequently
than once each year absent the occurrence and continuance of a Potential Default
or an Event of Default), Borrower and Guarantor shall supplement each of the
Schedules attached hereto, or any representation herein or in any other Loan
Document, with respect to any matter hereafter arising that, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such Schedule or as an exception to such representation or
that is necessary to correct any information in such Schedule or representation
which has been rendered inaccurate thereby (and, in the case of any supplements
to any Schedule, such Schedule shall be appropriately marked to show the changes
made therein); provided that (i) no such supplement to any such Schedule or
representation shall amend, supplement or otherwise modify any Schedule or
representation, or be deemed a waiver of any Potential Default or Event of
Default resulting from the matters disclosed therein, except as consented to by
Lender in writing; and (ii) no supplement shall be required as to
representations and warranties that relate solely to the Closing Date.
(k) Other Reports. Such other reports, statements, notices or
written communications relating to the Borrower, the Association, the Timeshare
Project or the Facilities as Lender may require, in its reasonable discretion.
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ARTICLE 7
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default under the
Loan:
7.1 Payments. Borrower's failure to pay any regularly scheduled installment of
principal, interest or other amount due under the Loan Documents within five (5)
Business Days after the date when due or Borrower's failure to pay the Loan at
the applicable maturity date, whether by acceleration or otherwise. In the event
of a Force Majeure Delay, the grace period shall be extended up to ten (10)
additional Business Days as appropriate and provided further that no grace
period shall apply to the payment due on the Loan Maturity Date other than in
the event of a Force Majeure Delay.
7.2 Insurance. Borrower's failure to maintain insurance as required under
Section 3.1 of this Agreement.
7.3 Transfer. Any Transfer occurs in violation of Section 5.1 of this Agreement.
7.4 Covenants. Borrower's failure to perform, observe or comply with any of the
agreements, covenants or provisions contained in this Agreement or in any of the
other Loan Documents (other than those agreements, covenants and provisions
referred to elsewhere in this Article 7), and the continuance of such failure
for ten (10) Business Days after notice by Lender to Borrower; however, subject
to any shorter period for curing any failure by Borrower as specified in any of
the other Loan Documents, Borrower shall have an additional thirty (30) days to
cure such failure if (1) such failure does not involve the failure to make
payments on a monetary obligation; (2) such failure cannot reasonably be cured
within ten (10) Business Days but, using reasonable diligence, is curable within
such 30-day period; (3) Borrower is diligently undertaking to cure such default,
and (4) Borrower has provided Lender with security reasonably satisfactory to
Lender against any interruption of payment or impairment of collateral as a
result of such continuing failure. The notice and cure provisions of this
Section 7.4 do not apply to the other Events of Default described in this
Article 7 or Borrower's failure to comply with the provisions of Article 10.
7.5 Representations and Warranties. Any representation or warranty made in any
Loan Document proves to be untrue in any material and adverse respect when made
or deemed made.
7.6 Other Encumbrances. Any default under the RFC Loan Documents relating to the
Timeshare Project evidencing or creating a Lien on the Timeshare Project or any
part thereof.
7.7 Involuntary Bankruptcy or Other Proceeding. Commencement of an involuntary
case or other proceeding against Borrower, Guarantor or the Club Trustee (each,
a "Bankruptcy Party") which seeks liquidation, reorganization or other relief
with respect to it or its debts or other liabilities under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeks the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any of its property, and such involuntary case or other
proceeding shall remain undismissed or unstayed for a period of sixty (60) days;
or an order for relief against a Bankruptcy Party shall be entered in any such
case under the Federal Bankruptcy Code.
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7.8 Voluntary Petitions, Etc. Commencement by a Bankruptcy Party of a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its Debts or other liabilities under any bankruptcy,
insolvency or other similar law or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official for it or any of its
property, or consent by a Bankruptcy Party to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or the making by a Bankruptcy Party of
a general assignment for the benefit of creditors, or the failure by a
Bankruptcy Party, or the admission by a Bankruptcy Party in writing of its
inability, to pay its debts generally as they become due, or any action by a
Bankruptcy Party to authorize or effect any of the foregoing.
7.9 Suspension of Sales. The issuance of any stay order, cease and desist order
or similar judicial or non-judicial sanction that materially limits or otherwise
affects any Timeshare Interest sales activities relating to the Timeshare
Project, and, with respect to any such sanction only, such sanction is not
dismissed, terminated or rescinded within thirty (30) days after issuance.
7.10 Default by Borrower in Other Agreements. Any default by Borrower in the
payment of indebtedness for borrowed money under the RFC Loan Documents and
relating to the Timeshare Project, after the expiration of any applicable grace
or cure period; any other default under such indebtedness which accelerates or
permits the acceleration (after the giving of notice or passage of time, or
both) of the maturity of such indebtedness; or any default under the RFC Loan
Documents relating to the Timeshare Project which permits RFC to control the
management of Borrower.
7.11 Other Agreements. Any material default or breach of the Borrower occurs and
is continuing under the Management Agreement.
ARTICLE 8
REMEDIES
8.1 Remedies - Insolvency Events. Upon the occurrence of any Event of Default
described in Section 7.7 or 7.8, the obligations of Lender to Advance amounts
hereunder shall immediately terminate, and all amounts due under the Loan
Documents immediately shall become due and payable, all without written notice
and without presentment, demand, protest, notice of protest or dishonor, notice
of intent to accelerate the maturity thereof, notice of acceleration of the
maturity thereof, or any other notice of default of any kind, all of which are
hereby expressly waived by Borrower; however, if the Bankruptcy Party under
Section 7.7 or 7.8 is other than Borrower, then all amounts due under the Loan
Documents shall become immediately due and payable at Lender's election, in
Lender's sole discretion.
8.2 Remedies - Other Events. Except as set forth in Section 8.1 above, while any
Event of Default exists beyond applicable cure rights, Lender may (1) by written
notice to Borrower, declare the entire Loan to be immediately due and payable
without presentment, demand, protest, notice of protest or dishonor, notice of
intent to accelerate the maturity thereof, notice of acceleration of the
maturity thereof, or other notice of default of any kind, all of which are
hereby expressly waived by Borrower, (2) terminate the obligation, if any, of
Lender to advance
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amounts hereunder, and (3) exercise all rights and remedies therefor under the
Loan Documents and at law or in equity.
8.3 Lender's Right to Perform the Obligations. If Borrower shall fail, refuse or
neglect to make any payment or perform any act required by the Loan Documents,
then while any Event of Default exists, and without notice to or demand upon
Borrower and without waiving or releasing any other right, remedy or recourse
Lender may have because of such Event of Default, Lender may (but shall not be
obligated to) make such payment or perform such act for the account of and at
the expense of Borrower, and shall, subject to the provisions of the Timeshare
Declaration and Governmental Requirements and subject to any other Person's
prior right to cure provided Lender has received notice that such Person has
elected to cure, have the right to enter upon the Timeshare Project for such
purpose and to take all such action thereon and with respect to the Timeshare
Project as it may reasonably deem necessary or appropriate. Subject to the
foregoing, if Lender shall elect to pay any sum due with reference to the
Timeshare Project, Lender may do so in reliance on any xxxx, statement or
assessment procured from the appropriate Governmental Authority or other issuer
thereof without inquiring into the accuracy or validity thereof. Similarly, in
making any payments to protect the security intended to be created by the Loan
Documents, Lender shall not be bound to inquire into the validity of any
apparent or threatened adverse title, lien, encumbrance, claim or charge before
making an Advance for the purpose of preventing or removing the same. All sums
paid by Lender pursuant to this Section 8.3 and all other sums expended by
Lender to which it shall be entitled to be indemnified under this Agreement,
together with interest thereon at the Default Rate from the date of such payment
or expenditure until paid, shall constitute additions to the Loan, shall be
secured by the Loan Documents and shall be paid by Borrower to Lender upon
demand.
8.4 Remedies Upon Default. Upon the occurrence of an Event of Default, Lender
may take any one or more of the following actions, all without notice to
Borrower:
(a) Judgment. Reduce Lender's claim to judgment, foreclose or
otherwise enforce Lender's security interest in all or any part of the
Collateral by any available judicial or non-judicial procedure.
(b) Sale of Collateral. Exercise all the rights and remedies of a
secured party on default under the Code (whether or not the Code applies to the
affected Collateral) including (i) require Borrower to, and Borrower hereby
agrees that it will, at its expense and upon request of Lender forthwith,
assemble all or part of the Collateral as directed by Lender and make it
available to Lender at a place to be designated by Lender which is reasonably
convenient to both parties; (ii) enter upon any premises of Borrower and take
possession of the Collateral; and (iii) sell the Collateral or any part thereof
in one or more parcels at public or private sale, at any of the Lender's offices
or elsewhere, at such time or times, for cash, on credit or for future delivery,
and at such price or prices and upon such other terms as Lender may deem
commercially reasonable. Borrower agrees that, to the extent notice of sale
shall be required by law, ten (10) Business Days notice of the time and place of
any sale shall constitute reasonable notification. At any sale of the
Collateral, if permitted by law, Lender may bid (which bid may be, in whole or
in part, in the form of cancellation of indebtedness) for the purchase of the
Collateral or any portion thereof for the account of Lender. Borrower shall
remain liable for any deficiency. Lender shall not be required to proceed
against any Collateral but may proceed
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against Borrower directly. To the extent permitted by law, Borrower hereby
specifically waives all rights of redemption, stay or appraisal which it has or
may have under any law now existing or hereafter enacted.
(c) Receiver. Apply by appropriate judicial proceedings for
appointment of a receiver for the Collateral, or any part thereof, and Borrower
hereby consents to any such appointment.
(d) Reserved.
(e) Exercise of Other Rights. Exercise any and all other rights or
remedies afforded by any applicable laws or by the Loan Documents as Lender
shall deem appropriate, at law, in equity or otherwise, including the right to
charge interest at the Default Rate and to bring suit or other proceeding,
either for specific performance of any covenant or condition contained in the
Loan Documents or in aid of the exercise of any right or remedy granted to
Lender in the Loan Documents.
8.5 Funds of Lender. Any funds of Lender used for any purpose referred to in
this Section 8 shall constitute protective advances secured by the Loan
Documents and shall bear interest at the Default Rate.
8.6 Application of Collateral; Termination of Agreements. Upon the occurrence of
an Event of Default, Lender may apply against the Indebtedness any and all
Collateral in its possession, other than misdirected deposits, if any, any and
all balances, credits, deposits, accounts, reserves, indebtedness or other
moneys due or owing to Borrower held by Lender hereunder or under any other
financing agreement or otherwise, whether accrued or not.
8.7 Direct Disbursement and Application by Lender. Upon an Event of Default,
Lender shall have the right, but not the obligation, to disburse and directly
apply the proceeds of any Advance or the unadvanced balance of the Loan to the
satisfaction of any of Borrower's obligations hereunder or under any of the
other Loan Documents. Any Advance by Lender for such purpose shall be part of
the Loan and shall be secured by the Loan Documents, even though in excess of
the amount of the Loan, shall be secured by the Loan Documents and payable to
Lender.
8.8 Waivers. No waiver by Lender of any Event of Default shall be deemed to be a
waiver of any other or subsequent Event of Default, nor shall any waiver by
Lender of any of its rights or remedies hereunder, in the other Loan Documents,
or otherwise, shall be considered a waiver of any other or subsequent right or
remedy of Lender. No delay or omission by Lender in exercising any right or
remedy under the Loan Documents shall impair such right or remedy or be
construed as a waiver thereof or an acquiescence therein, nor shall any single
or partial exercise of any such right or remedy preclude other or further
exercise thereof, or the exercise of any other right or remedy under the Loan
Documents or otherwise. Further, Borrower waives notice of the occurrence of any
Event of Default, presentment and demand for payment, protest, and notice of
protest, notice of intention to accelerate, acceleration and nonpayment, and any
and all rights to require the marshalling of assets in connection with the
exercise of its remedies hereunder, and agrees that its liability shall not be
affected by any renewal or extension in the
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time of payment of the Indebtedness, or by any release or change in any security
for the payment or performance of the Indebtedness, regardless of the number of
such renewals, extensions, releases or changes. Borrower also hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the
lien created by any of the Loan Documents or to any action brought to enforce
the Note or any other obligation secured by the Loan Documents.
8.9 Commercial Reasonableness. To the extent that applicable law imposes duties
on Lender to exercise remedies in a commercially reasonable manner, Borrower
acknowledges and agrees that it is not commercially unreasonable for Lender (a)
to fail to incur expenses reasonably deemed significant by the Lender to prepare
Collateral for disposition, (b) to fail to obtain third party consents for
access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the
collection or disposition of Collateral to be collected or disposed of, (c) to
fail to exercise collection remedies against Purchasers or other Persons
obligated on Collateral or to remove Liens on or any adverse claims against
Collateral, (d) to exercise collection remedies against Purchasers and other
Persons obligated on Collateral directly or through the use of collection
agencies and other collection specialists, (e) to advertise dispositions of
Collateral through publications or media of general circulation, whether or not
the Collateral is of a specialized nature, (f) to contact other Persons, whether
or not in the same business as Borrower, for expressions of interest in
acquiring all or any portion of such Collateral, (g) to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or
not the Collateral is of a specialized nature, (h) to dispose of Collateral by
utilizing internet sites that provide for the auction of assets of the types
included in the Collateral or that have the reasonable capacity of doing so, or
that match buyers and sellers of assets, (i) to dispose of assets in wholesale
rather than retail markets, (j) to disclaim disposition warranties, such as
title, possession or quiet enjoyment, (k) to purchase insurance or credit
enhancements to insure the Lender against risks of loss, collection or
disposition of Collateral or to provide to Lender a guaranteed return from the
collection or disposition of Collateral, or (l) to the extent deemed appropriate
by Lender to obtain the services of other brokers, investment bankers,
consultants and other professionals to assist the Agent in the collection or
disposition of any of the Collateral. Borrower acknowledges that the purpose of
this Section 8.9 is to provide non-exhaustive indications of what actions or
omissions by Lender would not be commercially unreasonable in the Lender's
exercise of remedies against the Collateral and that other actions or omissions
by Lender shall not be deemed commercially unreasonable solely on account of not
being indicated in this Section 8.9. Without limitation upon the foregoing,
nothing contained in this Section 8.9 shall be construed to grant any rights to
Borrower or to impose any duties on Lender that would not have been granted or
imposed by this Agreement or by applicable law in the absence of this Section
8.9.
8.10 Cumulative Rights. Lender shall have all of the rights and remedies granted
in the Loan Documents and available at law or in equity, and these same rights
and remedies shall be cumulative and may be pursued separately, successively, or
concurrently against Borrower or any Collateral, at the sole discretion of
Lender. The exercise or failure to exercise any of the same shall not constitute
a waiver or release thereof or of any other right or remedy, and the same shall
be nonexclusive.
8.11 Intercreditor Agreement. Borrower and Lender acknowledge and agree that
pursuant to the Intercreditor Agreement, RFC has consented to Borrower's
entering into the Loan
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Documents which grant to Lender certain rights to exercise remedies under the
Loan Documents including rights of Lender under Article 3, Sections 5.1, 5.8,
5.24, 9.1, 9.2, 9.6 and 9.7.
ARTICLE 9
CERTAIN RIGHTS OF LENDER
9.1 Protection of Collateral. Lender may at any time and from time to time take
such actions as Lender deems necessary or appropriate to protect Lender's Liens
and security interests in and to preserve the Collateral.
9.2 Performance by Lender. If Borrower fails to perform any agreement contained
herein, Lender may, but shall not be obligated to, cause the performance of,
such agreement, and the expenses of Lender incurred in connection therewith
shall be payable by Borrower pursuant to Section 9.3 below.
9.3 Costs. Borrower agrees promptly to pay all Costs and all such Costs shall be
included as additional Indebtedness bearing interest at the then applicable Loan
Interest Rate until paid. This provision is separate and several, and shall
survive merger into judgment.
9.4 Assignment of Lender's Interest. Lender shall have the right to assign all
or any portion of its rights in this Agreement to any subsequent holder or
holders of the Indebtedness; provided that so long as no Event of Default has
occurred and is continuing, such assignment shall be to a Qualified Assignee and
shall require the consent of the Borrower, which consent shall not be
unreasonably withheld and shall not be required in connection with (i) an
assignment to an Affiliate of the Lender, (ii) an assignment of Lender's whole
portfolio of timeshare related loans, or (iii) after the end of the Revolving
Period. Upon such assignment, such assignee shall be a party hereto (or execute
a separate agreement in form and substance acceptable to each of the other
parties hereto) and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such assignment, shall have the rights and
obligations of the Lender under this Agreement (or the same rights and
obligations under a separate agreement in form and substance acceptable to each
of the other parties hereto) and the Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such assignment,
relinquish its rights and be released from its obligations hereunder.
9.5 Notice to Purchasers. Borrower authorizes each of Lender and, at Lender's
direction, the Custodian (but the Lender shall not be obligated) to communicate
at any time and from time to time after Lender's financing of a Timeshare
Interest if the Lender reasonably believes an Event of Default has occurred,
with any Purchaser or any other Person primarily or secondarily liable under a
Financed Note Receivable with regard to the lien or other interest of Lender
thereon and any other matter relating thereto. Lender may perform, at its
expense, any and all credit investigations as Lender may deem necessary to
determine whether any such Purchaser meets the credit standards as outlined in
the definition of an Eligible Note Receivable.
9.6 Collection of Notes. Borrower shall, or shall cause Servicer to, direct and
authorize each applicable party liable for the payment of the Financed Notes
Receivable to pay each installment thereon to the Lockbox Agent pursuant to the
Lockbox Agreement, until otherwise directed by
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Lender. Following the occurrence of an Event of Default, Lender shall have the
right to (a) require that all payments due under the Financed Notes Receivable
be paid directly to Lender, and to receive, collect, hold and apply the same in
accordance with the provisions of this Agreement, whereupon Lender shall notify
Borrower and Servicer of its receipt and application of any such funds with
sufficient detail and information for the Servicer to credit the accounts in
respect of a Financed Note Receivable in such timeframe as required by Servicer
and (b) take such remedial action available to it for the enforcement of any
defaulted Financed Note Receivable including the foreclosure of any Mortgage
securing the payment thereof. After the occurrence of an Event of Default,
Borrower hereby further irrevocably authorizes, directs and empowers Lender to
collect and receive all checks and drafts evidencing payments on the Financed
Notes Receivable and to endorse such checks or drafts in the name of Borrower
and upon such endorsements, to collect and receive the money therefor. Upon
payment and satisfaction in full of all Indebtedness, Lender will, at Borrower's
request and sole expense, give written notice as necessary to redirect payment
of the Financed Notes Receivable as requested by Borrower.
9.7 Power of Attorney. Borrower does hereby irrevocably constitute and appoint
Lender as Borrower's true and lawful agent and attorney in fact, with full power
of substitution, for Borrower and in Borrower's name, place and stead, or
otherwise, to (a) endorse any checks or drafts payable to Borrower in the name
of Borrower and in favor of Lender as provided in Section 9.6 above; (b) demand
and receive from time to time any and all property, rights, titles, interests
and liens hereby sold, assigned and transferred, or intended so to be, and to
give receipts for same; and (c) cause such reports to be prepared or audits to
be performed if Borrower fails to deliver such reports and/or audits; (d) upon
the occurrence and during the continuance of any Event of Default hereunder, (i)
institute and prosecute in the name of Borrower or otherwise, but for the
benefit of Lender, any and all proceedings at law, in equity, or otherwise, that
Lender may deem proper in order to collect, assert or enforce any claim, right
or title, of any kind, in and to the property, rights, titles, interests and
liens hereby sold, assigned or transferred, or intended so to be, and to defend
and compromise any and all actions, suits or proceedings in respect of any of
the said property, rights, titles, interests and liens, and (ii) generally to do
all and any such acts and things in relation to the Collateral as Lender shall
in good xxxxx xxxx advisable. Borrower hereby declares that the appointment made
and the powers granted pursuant to this Section are coupled with an interest and
are and shall be irrevocable by Borrower in any manner, or for any reason,
unless and until all obligations of Borrower to Lender have been satisfied.
ARTICLE 10
ANTI-MONEY LAUNDERING AND
INTERNATIONAL TRADE CONTROLS
10.1 Compliance with International Trade Control Laws and OFAC Regulations.
Borrower represents, warrants and covenants to Lender that:
(i) It is not now nor shall it be at any time until after the Loan
is fully repaid a Person with whom a U.S. Person, including a Financial
Institution, is prohibited from transacting business of the type contemplated by
this Agreement, whether such prohibition arises under U.S. law, regulation,
executive orders and lists published by the OFAC (including those executive
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orders and lists published by OFAC with respect to Specially Designated
Nationals and Blocked Persons) or otherwise.
(ii) No Borrower Party and no Person who owns a direct interest in
Borrower is now nor shall be at any time until after the Loan is fully repaid a
Person with whom a U.S. Person, including a Financial Institution, is prohibited
from transacting business of the type contemplated by this Agreement, whether
such prohibition arises under U.S. law, regulation, executive orders and lists
published by the OFAC (including those executive orders and lists published by
OFAC with respect to Specially Designated Nationals and Blocked Persons) or
otherwise.
10.2 Borrower's Funds. Borrower represents, warrants and covenants to Lender
that:
(i) It has taken, and shall continue to take until after the Loan is
fully repaid, such measures as are required by law to verify that the funds
invested in the Borrower are derived (a) from transactions that do not violate
U.S. law nor, to the extent such funds originate outside the United States, do
not violate the laws of the jurisdiction in which they originated; and (b) from
permissible sources under U.S. law and to the extent such funds originate
outside the United States, under the laws of the jurisdiction in which they
originated.
(ii) To the best of its knowledge, neither Borrower, nor any
Borrower Party, nor any holder of a direct interest in Borrower, nor any Person
providing funds to Borrower (a) is under investigation by any governmental
authority for, or has been charged with, or convicted of, money laundering, drug
trafficking, terrorist-related activities, any crimes which in the United States
would be predicate crimes to money laundering, or any violation of any
Anti-Money Laundering Laws; (b) has been assessed civil or criminal penalties
under any Anti-Money Laundering Laws; and (c) has had any of its/his/her funds
seized or forfeited in any action under any Anti-Money Laundering Laws.
(iii) Borrower shall make payments on the Loan using funds invested
in Borrower, Total Revenues of Borrower, collections on Notes Receivable,
proceeds of Debt or insurance proceeds unless otherwise agreed to by Lender.
(iv) To the best of Borrower's knowledge, as of the Closing Date and
at all times during the term of the Loan, all Total Revenues of Borrower,
collections on Notes Receivable and proceeds of Debt are and will be derived
from Borrower's business activities or other permissible sources under U.S. law.
(v) On the Loan Maturity Date, Borrower will take reasonable steps
to verify that funds used to repay the Loan in full (whether in connection with
a refinancing, asset sale or otherwise) are from sources permissible under U.S.
law and to the extent such funds originate outside the United States,
permissible under the laws of the jurisdiction in which they originated.
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ARTICLE 11
ENVIRONMENTAL MATTERS
11.1 Representations and Warranties on Environmental Matters. To Borrower's
knowledge, except as set forth in the Site Assessment, (1) no Hazardous Material
is now or was formerly used, stored, generated, manufactured, installed,
disposed of or otherwise present at or about the Timeshare Project or any
property adjacent to the Timeshare Project (except for cleaning and other
products currently used in connection with the routine maintenance or repair of
the Timeshare Project in full compliance with Environmental Laws), (2) all
material permits, licenses, approvals and filings required by Environmental Laws
have been obtained, and the use, operation and condition of the Timeshare
Project do not, and did not previously, violate any Environmental Laws, and (3)
no civil, criminal or administrative action, suit, claim, hearing, investigation
or proceeding has been brought or been threatened, nor have any settlements been
reached by or with any parties or any liens imposed in connection with the
Timeshare Project concerning Hazardous Materials or Environmental Laws.
11.2 Covenants on Environmental Matters.
(a) Borrower shall (A) comply in all respects with applicable
Environmental Laws; (B) notify Lender immediately upon Borrower's discovery of
any spill, discharge, release or presence of any Hazardous Material in violation
of applicable Environmental Laws at, upon, under, within, contiguous to or
otherwise affecting the Timeshare Project which would have a Material Adverse
Effect; (C) promptly remove all Hazardous Materials which violate Environmental
Laws and remediate the Timeshare Project which is managed by Borrower or its
Affiliate (and if the Timeshare Project is not managed by Borrower or its
Affiliate, use its best efforts to cause the Timeshare Project to be so
remediated) in full compliance with applicable Environmental Laws and in
accordance with the recommendations and specifications of an independent
environmental consultant reasonably acceptable to Lender and (D) promptly
forward to Lender copies of all claims made against or in respect of Borrower or
any of its Affiliates and relating to the Timeshare Project, and copies of all
orders, notices, permits, applications or other communications and reports in
connection with any spill, discharge, release or the presence of any Hazardous
Material or any other matters relating to the Environmental Laws or any similar
laws or regulations, as they may affect the Timeshare Project which would be
material in respect of the Timeshare Project. Borrower shall not cause, and
shall use prudent, commercially reasonable efforts to prohibit any other Person
within the control of Borrower from causing any spill, discharge or release, or
the use, storage, generation, manufacture, installation, or disposal, of any
Hazardous Materials at, upon, under, within or about the Timeshare Project or
the transportation of any Hazardous Materials to or from the Timeshare Project
(except in material compliance with Environmental Laws).
(b) After the Closing Date, Borrower shall provide to Lender,
promptly upon the written request of Lender, a Site Assessment or, if required
by Lender, an update to any existing Site Assessment, to assess the presence or
absence of any Hazardous Materials and the potential costs in connection with
abatement, cleanup or removal of any Hazardous Materials found on, under, at or
within the Timeshare Project and the cost of any such Site Assessment or update
shall be paid as set forth in Section 5.4 of this Agreement.
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(c) As between Borrower, on the one hand, and Lender, on the other
hand, all risk of loss associated with non-compliance with Environmental Laws,
or with the presence of any Hazardous Material at, upon, within, contiguous to
or otherwise affecting the Timeshare Project, shall lie solely with Borrower.
Accordingly, Borrower shall bear all risks and costs associated with any such
loss (including any loss in value attributable to Hazardous Materials), damage
or liability therefrom, including all costs of removal of Hazardous Materials or
other remediation required by applicable Governmental Requirements.
(d) Borrower shall indemnify the Lender and agrees to hold Lender
harmless from and against any and all losses, liabilities, damages, injuries,
costs, expenses and claims of any and every kind whatsoever (including court
costs and reasonable attorneys' fees and legal expenses) arising out of or
associated, in any way, with the non-compliance with applicable Environmental
Laws with respect to the Timeshare Project, or the existence of Hazardous
Materials in, on, or about the Facilities, or a breach of any representation,
warranty or covenant contained in this Article 11, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
or common law, including those arising from the joint, concurrent, or
comparative negligence of the Lender (except to the extent such joint,
concurrent or comparative negligence constitutes gross negligence or willful
misconduct on the part of Lender); provided, further, that this Article 11 shall
not apply with respect to any liability, release, violation or other matter that
arises solely from the Lender's gross negligence or willful misconduct or after
Borrower loses possession of any property due to foreclosure or other exercises
of remedies by Lender. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in this Article 11 may be unenforceable because it is
violative of any law or public policy, Borrower shall contribute the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all indemnifications set forth in this Article 11.
Borrower's obligations under this Article 11 shall arise upon the discovery of
the presence of any Hazardous Material which violates applicable Environmental
Law, whether or not any Governmental Authority has taken or threatened any
action in connection with the presence of any such Hazardous Material, and
whether or not the existence of any such Hazardous Material or potential
liability on account thereof is disclosed in any Site Assessment and shall
continue notwithstanding the termination of this Agreement or any transfer or
sale of any right, title and interest in the assets of Borrower (by foreclosure,
deed in lieu of foreclosure or otherwise).
(e) Notwithstanding any provision in this Article 11 or elsewhere in
any Loan Document, or any rights or remedies granted by any Loan Document,
Lender does not waive all rights and benefits now or hereafter accruing to
Lender under the "security interest" or "secured creditor" exception under
applicable Environmental Laws, as the same may be amended. No action taken by
Lender pursuant to the Loan Documents shall be deemed or construed to be a
waiver or relinquishment of any such rights or benefits under the "security
interest exception."
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ARTICLE 12
MISCELLANEOUS
12.1 Notices. Any notice required or permitted to be given under this Agreement
shall be in writing and either shall be mailed by certified mail, postage
prepaid, return receipt requested, or sent by overnight air courier service, or
personally delivered to a representative of the receiving party, or sent by
telecopy or electronic mail (provided that for both telecopy and electronic mail
delivery, an identical notice is also sent simultaneously by mail, overnight
courier or personal delivery as otherwise provided in this Section 12.1). All
such notices shall be mailed, sent or delivered, addressed to the party for whom
it is intended at its address set forth below.
If to Borrower: Bluegreen/Big Cedar Vacations, LLC
c/o Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
E Mail: xxxx.xxxxx@xxxxxxxxxxxxx.xxx
with a copy to: Bluegreen/Big Cedar Vacations, LLC
c/o Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
E Mail: xxx.xxxxxx@xxxxxxxxxxxxx.xxx
If to Lender: General Electric Capital Corporation
c/o GE Real Estate
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Manager/Bluegreen-Big Cedar
Telecopy: (000) 000-0000
E Mail: xxxx.xxxxx@xxxxxxxxx.xxx
with a copy to: General Electric Capital Corporation
c/o GE Real Estate
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Counsel
Telecopy: (000) 000-0000
E Mail: xxxxx.xxxxxxxxx@XXXxxxxxx.xxx
Any notice so addressed and sent by United States mail or overnight
courier shall be deemed to be given on the earliest of (1) when actually
delivered, (2) on the first Business Day after deposit with an overnight air
courier service, or (3) on the third Business Day after
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deposit in the United States mail, postage prepaid, in each case to the address
of the intended addressee. Any notice so delivered in person shall be deemed to
be given when receipted for by, or actually received by Lender or Borrower, as
the case may be. If given by telecopy, a notice shall be deemed given and
received when the telecopy is transmitted to the party's telecopy number
specified above and confirmation of complete receipt is received by the
transmitting party during normal business hours or on the next Business Day if
not confirmed during normal business hours, and an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise
provided in this Section 12.1. If given by electronic mail, a notice shall be
deemed given and received when the electronic mail is transmitted to the
recipient's electronic mail address specified above and electronic confirmation
of receipt (either by reply from the recipient or by automated response to a
request for delivery receipt) is received by the sending party during normal
business hours or on the next Business Day if not confirmed during normal
business hours, and an identical notice is also sent simultaneously by mail,
overnight courier or personal delivery as otherwise provided in this Section
12.1. Except for telecopy and electronic mail notices sent as expressly
described above, no notice hereunder shall be effective if sent or delivered by
electronic means. Either party may designate a change of address by written
notice to the other by giving at least ten (10) days prior written notice of
such change of address.
12.2 Amendments and Waivers; References. No amendment or waiver of any provision
of the Loan Documents shall be effective unless in writing and signed by the
party against whom enforcement is sought. This Agreement and the other Loan
Documents shall not be executed, entered into, altered, amended, or modified by
electronic means. Without limiting the generality of the foregoing, the Borrower
and Lender hereby agree that the transactions contemplated by this Agreement
shall not be conducted by electronic means, except as specifically set forth in
Section 12.1 regarding notices. Any reference to a Loan Document, whether in
this Agreement or in any other Loan Document, shall be deemed to be a reference
to such Loan Document as it may hereafter from time to time be amended,
modified, supplemented and restated in accordance with the terms hereof.
12.3 Limitation on Interest. It is the intention of the parties hereto to
conform strictly to applicable usury laws. Accordingly, all agreements between
Borrower and Lender with respect to the Loan are hereby expressly limited so
that in no event, whether by reason of acceleration of maturity or otherwise,
shall the amount paid or agreed to be paid to Lender or charged by Lender for
the use, forbearance or detention of the money to be lent hereunder or
otherwise, exceed the maximum amount allowed by law. If the Loan would be
usurious under applicable law, then, notwithstanding anything to the contrary in
the Loan Documents: (1) the aggregate of all consideration which constitutes
interest under applicable law that is contracted for, taken, reserved, charged
or received under the Loan Documents shall under no circumstances exceed the
maximum amount of interest allowed by applicable law, and any excess shall be
credited on the Note by the holder thereof (or, if the Note has been paid in
full, refunded to Borrower); and (2) if maturity is accelerated by reason of an
election by Lender, or in the event of any prepayment, then any consideration
which constitutes interest may never include more than the maximum amount
allowed by applicable law. In such case, excess interest, if any, provided for
in the Loan Documents or otherwise, to the extent permitted by applicable law,
shall be amortized, prorated, allocated and spread from the date of Advance
until payment in full so that the actual rate of interest is uniform through the
term hereof. If such amortization, proration,
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allocation and spreading is not permitted under applicable law, then such excess
interest shall be canceled automatically as of the date of such acceleration or
prepayment and, if theretofore paid, shall be credited on the Note (or, if the
Note has been paid in full, refunded to Borrower). The terms and provisions of
this Section 12.3 shall control and supersede every other provision of the Loan
Documents. If at any time the laws of the United States of America permit Lender
to contract for, take, reserve, charge or receive a higher rate of interest than
is allowed by applicable state law (whether such federal laws directly so
provide or refer to the law of any state), then such federal laws shall to such
extent govern as to the rate of interest which Lender may contract for, take,
reserve, charge or receive under the Loan Documents.
12.4 Invalid Provisions. If any provision of any Loan Document is held to be
illegal, invalid or unenforceable, such provision shall be fully severable; the
Loan Documents shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part thereof; the remaining
provisions thereof shall remain in full effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom; and
in lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of such Loan Document a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible to be legal,
valid and enforceable.
12.5 Reimbursement of Expenses. Borrower shall pay all Costs. Borrower shall,
upon request, promptly reimburse Lender for all amounts expended, advanced or
incurred by Lender to collect the Note, or to enforce the rights of Lender under
this Agreement or any other Loan Document, or to defend or assert the rights and
claims of Lender under the Loan Documents or with respect to the Timeshare
Project (by litigation or other proceedings), which amounts will include all
Costs, court costs, reasonable attorneys' fees and expenses, fees of auditors
and accountants, and investigation expenses as may be incurred by Lender in
connection with any such matters (whether or not litigation is instituted),
together with interest at the Default Rate on each such amount from the date of
disbursement until the date of reimbursement to Lender, all of which shall
constitute part of the Loan and shall be secured by the Loan Documents.
12.6 Approvals; Third Parties; Conditions. All rights retained or exercised by
Lender to review or approve leases, contracts, plans, studies and other matters,
including Borrower's and any other Person's compliance with the provisions of
Article 10 and compliance with laws applicable to Borrower, the Timeshare
Project or any other Person, are solely to facilitate Lender's credit
underwriting, and shall not be deemed or construed as a determination that
Lender has passed on the adequacy thereof for any other purpose and may not be
relied upon by Borrower or any other Person. This Agreement is for the sole and
exclusive use of Lender and Borrower and may not be enforced, nor relied upon,
by any Person other than Lender and Borrower. All conditions of the obligations
of Lender hereunder, including the obligation to make Advances, are imposed
solely and exclusively for the benefit of Lender, its successors and assigns,
and no other Person shall have standing to require satisfaction of such
conditions or be entitled to assume that Lender will refuse to make Advances in
the absence of strict compliance with any or all of such conditions, and no
other Person shall, under any circumstances, be deemed to be a beneficiary of
such conditions, any and all of which may be freely waived in whole or in part
by Lender at any time in Lender's sole discretion.
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12.7 Lender Not in Control; No liability or Partnership. None of the covenants
or other provisions contained in this Agreement shall, or shall be deemed to,
give Lender the right or power to exercise control over the affairs or
management of Borrower, the power of Lender being limited to the rights to
exercise the remedies referred to in the Loan Documents. The relationship
between Borrower and Lender is, and at all times shall remain, solely that of
debtor and creditor. No covenant or provision of the Loan Documents is intended,
nor shall it be deemed or construed, to create a partnership, joint venture,
agency or common interest in profits or income between Lender and Borrower or to
create an equity in the Timeshare Project in Lender. Lender neither undertakes
nor assumes any responsibility or duty to Borrower or to any other Person with
respect to the Lockbox Agent, the Servicer, the Custodian, the Timeshare Project
or the Loan, except as expressly provided in the Loan Documents; and
notwithstanding any other provision of the Loan Documents: (1) Lender is not,
and shall not be construed as, a partner, joint venturer, alter ego, manager,
controlling person or other business associate or participant of any kind of
Borrower or its stockholders, members, or partners and Lender does not intend to
ever assume such status; (2) Lender shall in no event be liable for (a) any acts
or omissions of any of the Lockbox Agent, the Servicer or the Custodian and
Borrower hereby releases Lender from any claims, losses, damages or liability
incurred by Borrower by reason of any such acts or omissions, or (b) any Debts,
expenses or losses incurred or sustained by Borrower; and (3) Lender shall not
be deemed responsible for or a participant in any acts, omissions or decisions
of Borrower or its stockholders, members, or partners. Lender and Borrower
disclaim any intention to create any partnership, joint venture, agency or
common interest in profits or income between Lender and Borrower, or to create
any equity in the Timeshare Project in Lender, or any sharing of liabilities,
losses, costs or expenses.
12.8 Time of the Essence. Time is of the essence with respect to this Agreement.
12.9 Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of Lender and Borrower and the respective permitted successors and
assigns of Lender and Borrower, provided that neither Borrower nor Guarantor
shall, without the prior written consent of Lender, assign any rights, duties or
obligations hereunder and that Lender shall not assign any rights, duties or
obligations hereunder other than in accordance with Section 9.4 above.
12.10 Renewal, Extension, Rearrangement, Loan Outplacement. All provisions of
the Loan Documents shall apply with equal effect to each and all promissory
notes and amendments thereof hereinafter executed which in whole or in part
represent a renewal, extension, increase or rearrangement of the Loan. For
portfolio management purposes, at Lender's expense, at any time during the term
of the Loan Lender may elect to divide the Loan into two or more separate loans
evidenced by separate promissory notes so long as the payment and other
obligations of Borrower are not effectively increased or otherwise modified.
Borrower agrees to cooperate with Lender and to execute such documents as Lender
reasonably may request to effect such division of the Loan, provided that the
foregoing do not result in any increased obligations to Borrower under the Loan
Documents or decrease of Borrower's rights thereunder.
In addition, Borrower acknowledges that Lender and its permitted successors and
assigns may without notice to or consent from Borrower participate the Loan to
one or more investors or otherwise sell the Loan or interests therein to
investors, subject to the provisions of Section 9.4 hereof ("Loan
Outplacement"). Borrower shall cooperate with Lender in effecting any such
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Loan Outplacement and shall cooperate and use all reasonable efforts to satisfy
the market standards to which the Lender customarily adheres or which may be
reasonably required by any potential participant or purchaser involved in any
Loan Outplacement, at no cost to Borrower or Borrower Parties. Notwithstanding
anything to the contrary herein or otherwise, Borrower shall be reimbursed by
Lender for its reasonable costs incurred in connection with Loan Outplacement,
including without limitation, its legal and other professional fees and
expenses. Borrower shall provide such information and documents relating to the
Borrower and the Timeshare Project as Lender may reasonably request in
connection with such Loan Outplacement. In addition, Borrower shall make
available to Lender, at Lender's cost and expense if the information is not
otherwise required to be provided to Lender under the Loan Documents, all
information concerning the property, its business and its operations that Lender
may reasonably request. Lender shall be, subject to the Confidentiality
Agreement in connection with the consumer information, permitted to share all
such information with the potential participants, investors, purchasers,
accounting firms, law firms and other third-party advisory firms involved with
the Loan and the Loan Documents or the applicable Loan Outplacement. It is
understood that the information provided by Borrower to Lender may ultimately be
incorporated into the offering or sale documents for the Loan Outplacement and
thus various investors, participants or purchasers may also see some or all of
the information. Lender and all of the aforesaid potential participants,
purchasers, advisors and professional firms shall be entitled to rely on the
information supplied by or on behalf of Borrower. Borrower also agrees to
execute any amendment of or supplement to this Agreement and the other Loan
Documents as Lender may reasonably request in connection with any Loan
Outplacement, provided that such amendment or supplement does not change the
economic terms of the Loan or result in any increased obligations to Borrower
under the Loan Documents or decrease of Borrower's rights thereunder.
12.11 Waivers. No course of dealing on the part of Lender, its officers,
employees, consultants or agents, nor any failure or delay by Lender with
respect to exercising any right, power or privilege of Lender under any of the
Loan Documents, shall operate as a waiver thereof.
12.12 Cumulative Rights. Rights and remedies of Lender under the Loan Documents
shall be cumulative, and the exercise or partial exercise of any such right or
remedy shall not preclude the exercise of any other right or remedy.
12.13 Singular and Plural. Words used in this Agreement and the other Loan
Documents in the singular, where the context so permits, shall be deemed to
include the plural and vice versa. The definitions of words in the singular in
this Agreement and the other Loan Documents shall apply to such words when used
in the plural where the context so permits and vice versa.
12.14 Phrases. When used in this Agreement and the other Loan Documents, the
phrase "including" shall mean "including, but not limited to," the phrase
"satisfactory to Lender" shall mean "in form and substance satisfactory to
Lender in all respects," the phrase "with Lender's consent" or "with Lender's
approval" shall mean such consent or approval at Lender's sole discretion, and
except where expressly provided otherwise herein, the phrase "acceptable to
Lender" shall mean "acceptable to Lender at Lender's sole discretion."
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12.15 Exhibits and Schedules. The exhibits and schedules attached to this
Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein.
12.16 Titles of Articles, Sections and Subsections. All titles or headings to
articles, sections, subsections or other divisions of this Agreement and the
other Loan Documents or the exhibits hereto and thereto are only for the
convenience of the parties and shall not be construed to have any effect or
meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
12.17 Promotional Material. Subject to Borrower's reasonable prior written
approval in advance of issuance, Lender may issue press releases, advertisements
and other promotional materials in connection with Lender's own promotional and
marketing activities, and describing the Loan in general terms and Lender's
participation in the Loan. All references to Lender contained in any press
release, advertisement or promotional material issued by Borrower shall be
approved in writing by Lender in advance of issuance.
12.18 Survival. All of the representations, warranties, covenants, and
indemnities hereunder, and under the indemnification provisions of the other
Loan Documents, shall survive the repayment in full of the Loan and the release
of the liens evidencing or securing the Loan, and shall survive the transfer (by
sale, foreclosure, conveyance in lieu of foreclosure or otherwise) of any or all
right, title and interest in and to the Timeshare Project to any party, whether
or not an Affiliate of Borrower.
12.19 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION
OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER
THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOAN OR THE TIMESHARE PROJECT
(INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT,
AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED
OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR
LENDER TO ENTER THIS AGREEMENT.
12.20 Punitive or Consequential Damages; Waiver. Neither Lender nor Borrower
shall be responsible or liable to the other or to any other Person for any
punitive, exemplary or consequential damages which may be alleged as a result of
the Loan or the transaction contemplated hereby, including any breach or other
default by any party hereto. Borrower represents and warrants to Lender that as
of the Closing Date neither Borrower nor Guarantor has any claims against Lender
in connection with the Loan.
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12.21 Governing Law. The Loan was negotiated by Lender in the State of Illinois,
accepted by Lender in the State of Illinois, which state Borrower agrees has a
substantial relationship to Lender and Borrower and to the transaction embodied
hereby, in all respects, including, without limiting the generality of the
foregoing, matters of construction, validity, enforceability and performance.
The Loan and the obligations arising hereunder shall be governed by, and
construed in accordance with, the laws of the State of Illinois applicable to
contracts made and performed in such State (without regard to the conflicts of
law rules thereof) and any applicable law of the United States of America,
except that at all times the provisions for the creation, perfection, and
enforcement of the liens and security interests created pursuant to this
Agreement and the other Loan Documents shall be governed by and construed
according to the law of the state, country or other jurisdiction in which the
Collateral is located, it being understood that, to the fullest extent permitted
by law of such state, country or other jurisdiction, the law of the State of
Illinois shall govern the validity and the enforceability of all Loan Documents
and obligations arising hereunder or thereunder. To the fullest extent permitted
by law, Borrower hereby unconditionally and irrevocably waives any claim to
assert that the law of any other jurisdiction governs the Loan and the Loan
Documents, and the Loan Documents shall be governed by and construed in
accordance with the laws of the State of Illinois.
12.22 Entire Agreement. This Agreement and the other Loan Documents embody the
entire agreement and understanding between Lender and Borrower and supersede all
prior agreements and understandings between such parties relating to the subject
matter hereof and thereof, including any commitment letter (if any) issued by
Lender with respect to the Loan. Accordingly, the Loan Documents may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. If any conflict or inconsistency exists between this Agreement and any
of the other Loan Documents, the terms of this Agreement shall control.
12.23 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, but all of which shall constitute
one document.
12.24 Limitation on Liability of Borrower's, Guarantor's and Lender's Officers,
Employees, Etc. Any obligation or liability whatsoever of Lender, Borrower or
Guarantor which may arise at any time under this Agreement or any other Loan
Document shall be satisfied, if at all, out of the assets of Lender, Borrower or
Guarantor, as applicable, only. No such obligation or liability shall be
personally binding upon, nor shall resort for the enforcement thereof be had to,
the property of any of Lender's, Borrower's or Guarantor's shareholders,
directors, officers, employees or agents, regardless of whether such obligation
or liability is in the nature of contract, tort or otherwise.
12.25 Venue. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF XXXX, STATE OF ILLINOIS, AND
IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. BORROWER EXPRESSLY SUBMITS AND
CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS. BORROWER HEREBY WAIVES PERSONAL SERVICE OF
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ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
BORROWER BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO
BORROWER, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL
BE COMPLETE TEN (10) BUSINESS DAYS AFTER THE SAME HAS BEEN POSTED.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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The parties hereto have executed this Agreement or have caused the
same to be executed by their duly authorized representatives as of the date
first above written.
BORROWER:
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
By:
-----------------------------------
Xxxxxxx X. Xxxxx
Vice President and Treasurer
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation
By
-----------------------------------
Name
-----------------------------------
Its
-----------------------------------
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Schedule 1.1
ADVANCE CONDITIONS
Part A Conditions To Initial Advance
Part B General Conditions
Part C Loan Advances
PART A. CONDITIONS TO INITIAL ADVANCE
The initial Advance of the Loan shall be subject to Lender's
receipt, review, approval and/or confirmation of the following, at Borrower's
cost and expense (other than the cost of obtaining FICO scores), each in form
and content satisfactory to Lender in its sole discretion:
1. The Loan Documents, executed by Borrower and, as applicable,
Guarantor and each other party thereto.
2. The Commitment Fee of $225,000.00 in cash or immediately
available funds.
3. A copy of Borrower's Owner's title policy for the Timeshare
Project and a mortgagee title insurance policy or a pro forma mortgagee title
policy for a Timeshare Interest in accordance with clause (j) of the definition
of Eligible Note Receivable.
4. All documents evidencing the formation, organization, valid
existence, good standing, and due authorization of and for Borrower and
Guarantor and the authorization for the execution, delivery, and performance of
the Loan Documents by Borrower and Guarantor.
5. Legal opinions issued by counsel for Borrower and Guarantor,
opining as to the due organization, valid existence and good standing of
Borrower and Guarantor, and the due authorization, execution, delivery,
enforceability and validity of the Loan Documents with respect to, Borrower and
Guarantor; that the Loan, as reflected in the Loan Documents, is not usurious;
to the extent that Lender is not otherwise satisfied, that the Timeshare Project
and its use is in full compliance with all legal requirements and that the Notes
Receivable are in compliance with all Consumer Laws; and as to such other
matters as Lender and Lender's counsel reasonably may specify.
6. Current UCC searches for Borrower and Guarantor.
7. Evidence of insurance as required by this Agreement, and
conforming in all respects to the requirements of Lender.
8. A current "as built" survey of the Timeshare Project, dated or
updated to a date not earlier than thirty (30) days prior to the date hereof,
certified to Lender, prepared by a licensed surveyor acceptable to Lender and
such title insurer, and conforming to Lender's current standard survey
requirements.
1.1/1
9. A current engineering report or architect's certificate with
respect to the Timeshare Project and the Plans, covering, among other matters,
inspection of heating and cooling systems, roof and structural details and
showing no failure of compliance with building plans and specifications,
applicable legal requirements (including requirements of the Americans with
Disabilities Act) and fire, safety and health standards. As requested by Lender,
such report shall also include an assessment of the Timeshare Project's
tolerance for earthquake and seismic activity.
10. A current Site Assessment.
11. A copy of the Management Agreement for the Timeshare Project,
certified by Borrower as being true, correct and complete.
12. Evidence that the Timeshare Project Association, Facilities and
the operation thereof comply with all legal requirements, including (if
applicable) that all material requisite certificates of occupancy, building
permits, and other licenses, certificates, approvals or consents required of any
Governmental Authority have been issued without variance or condition and that
there is no litigation, action, citation, injunctive proceedings, or like matter
pending or threatened with respect to the validity of such matters. Borrower
shall furnish Lender with a zoning letter from the applicable municipal agency
and utility letters from applicable service providers or other evidence of
availability of utilities.
13. No condemnation or adverse zoning or usage change proceeding
shall have occurred or, to the best of Borrower's knowledge, shall have been
threatened against the Timeshare Project; the Timeshare Project shall not have
suffered any significant damage by fire or other casualty which has not been
repaired; no law, regulation, ordinance, moratorium, injunctive proceeding,
restriction, litigation, action, citation or similar proceeding or matter shall
have been enacted, adopted, or, to the best of Borrower's knowledge, threatened
by any governmental authority, which would have, in Lender's judgment, a
material adverse effect on Borrower.
14. All fees and commissions payable to real estate brokers,
mortgage brokers, or any other brokers or agents in connection with the Loan or
the acquisition of the Timeshare Project have been paid, if any, such evidence
to be accompanied by any waivers or indemnifications deemed reasonably necessary
by Lender.
15. Payment of Lender's Costs in underwriting (other than the costs
of obtaining FICO scores with respect to Purchasers).
16. Estoppel certificates and subordination, non disturbance and
attornment agreements, as reasonably requested by Lender.
17. Such credit checks, background investigations and other
information required by Lender regarding Borrower, each Borrower Party and any
other Person holding a direct or indirect interest in Borrower in order to
confirm compliance with Article 10 of this Agreement.
1.1/2
18. Such other documents or items as Lender or its counsel may
reasonably require.
19. The representations and warranties contained in this Loan
Agreement and in all other Loan Documents are true and correct.
20. No Potential Default or Event of Default shall have occurred or
exist.
21. Lender shall have received satisfactory evidence that all
security interests and liens granted to Lender pursuant to this Agreement or the
other Loan Documents have been duly perfected and constitute first priority
liens on the Collateral.
22. Lender shall have received (i) satisfactory evidence that the
Borrower has obtained all required consents and approvals of all Persons
including all requisite Governmental Authorities, to the execution, delivery and
performance of this Agreement and the other Loan Documents and the consummation
of the related transactions or (ii) an officer's certificate in form and
substance reasonably satisfactory to Lender affirming that no such consents or
approvals are required.
23. Lender shall have completed its business and legal due diligence
with results satisfactory to Lender, including Lender's receipt, review and
approval of all items shown on the Closing Checklist delivered by Lender to
Borrower including the consumer law audit and Fair Housing Act searches as
approved by Lender and its counsel.
24. Lender shall have verified that the Association's reserves for
replacement are at least equal to $650,000.00.
PART B. GENERAL CONDITIONS TO LOAN ADVANCES
Each Advance of the Loan following the initial Advance shall be
subject to Lender's receipt, review, approval and/or confirmation of the
following, each in form and content satisfactory to Lender in its sole
discretion:
1. There shall exist no Potential Default or Event of Default
(currently and after giving effect to the requested Advance).
2. The representations and warranties contained in this Loan
Agreement and in all other Loan Documents are true and correct as of the date of
the requested Advance.
3. Such Advance shall be secured by the Loan Documents, subject only
to the Permitted Exceptions, as evidenced by title insurance endorsements
satisfactory to Lender.
4. Borrower shall have paid Lender's Fees and Costs in connection
with such Advance, but excluding the cost of obtaining FICO scores for
Purchasers and the insertion fee, if applicable, for the blanket title insurance
policies.
5. No materially adverse change shall have occurred in the financial
condition of Borrower or Guarantor, or the Timeshare Project.
1.1/3
6. Borrower shall have delivered to Lender all information requested
by Lender pursuant to Article 10 and all Interest Holder certifications then
required under Section 4.1.
7. No condemnation or Material Adverse Effect, as reasonably
determined by Lender, zoning or usage change proceeding shall have occurred; the
Timeshare Project shall not have suffered any damage by fire or other casualty
which has not been repaired or is not being restored in accordance with this
Agreement; no law, regulation, ordinance, moratorium, injunctive proceeding,
restriction, litigation, action, citation or similar proceeding or matter shall
have been enacted, or adopted, or, to the best of Borrower's knowledge,
threatened by any Governmental Authority, which would have, in Lender's
reasonable judgment, a Material Adverse Effect.
Each request for and acceptance of a Loan Advance shall be deemed to
constitute, as of the date of such request or acceptance, a representation and
warranty by Borrower that the statements contained in paragraphs 1 and 2 above
are true and correct.
8. Advances of the Loan shall be subject to Lender's receipt of the
following:
(a) Request for Advance (in the form of Exhibit E to the
Agreement) listing all Timeshare Interests to be financed;
(b) A current aging report for the Eligible Notes Receivable
to be pledged in connection with the requested Advance; and
(c) Such additional information as Lender may reasonably
require.
(d) Lender shall have received a Custodian Certificate in
substance satisfactory to Lender.
9. Custodian shall have received at least five (5) Business Days
prior to the requested funding date all documents, instruments and information
as provided for in the Collateral Package Items in the Custodial Agreement.
10. Custodian shall have delivered to Lender its monthly audit
report within the time period set forth in the Custodial Agreement (except in
the event of a Force Majeure Delay).
11. All documents to be delivered to Lender should be sent to:
U.S. Bank National Association
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxx, XX 00000
Attention: Account Management, Bluegreen/Big Cedar
Telecopy: (000) 000-0000
1.1/4
Schedule 2.3
FORM OF REASSIGNMENT OF PURCHASE MONEY MORTGAGES
("Reassignment")
REASSIGNMENT OF PURCHASE MONEY MORTGAGES ("Reassignment")
Dated: _________________________
Grantor: (Assignor) General Electric Capital Corporation, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
Grantee: (Assignee) Bluegreen/Big Cedar Vacations, LLC, 0000 Xxxxxxxxxx Xxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
WHEREAS, the Loan and Security Agreement by and between Assignor and
Assignee dated April 16, 2007 (the "Loan Agreement") provides that upon
repayment of any of the Financed Notes Receivable held as collateral under the
Assignment, Assignor will reassign its collateral assignments of such Financed
Notes Receivable and the Purchase Documents and Mortgages related thereto to the
Borrower. Capitalized terms used herein and not defined shall have the meaning
set forth for them in the Loan Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, General Electric Capital Corporation, a Delaware
Corporation ("Assignor"), as collateral assignee of the mortgages dated,
recorded and more particularly described in Schedule A, attached hereto
("Mortgages") affecting property located at the resort in the County of Taney,
State of Missouri having the following legal description:
Timeshare Interest(s) consisting of an undivided 1/52nd (if Annual) OR
1/104th (if Biennial) Interest(s) one fifty-second (1/52) tenant in
common, undivided interest, as a fee simple estate, in each of the
below-described Condominium Unit(s), in the Big Cedar Wilderness Club
Condominium, according to the Declaration of Condominium and Bylaws for
The Big Cedar Wilderness Club Condominium, as recorded in Book 396, Page
3727-3828 of the Office of the Recorder of Deeds, Taney County, Missouri,
as such Declaration may now or hereafter be amended (the "Declaration");
together with the right to occupy in the respective season in every
calendar year (if Annual) OR every other calendar year (if Biennial),
pursuant to the Declaration, the foregoing Condominium Unit(s), and each
comparable Unit which is subject to the Flexible Use Plan, during any
Flexible Unit Week(s) within that same season, and subject to the
provisions of the Flexible Use Plan, the then-current Rules and
Regulations for the Resort and the Declaration; the foregoing being
conveyed together with a one fifty-second (1/52) tenant in common interest
in the Allocated Interests of such Unit(s) (the same being the undivided
interest in the Common Elements, the Common
2.3/1
Expense Liability, and votes in the Association as allocated to the
Unit(s) pursuant to the terms of the Declaration).
An Annual Unit Week allows occupancy and use of a Unit each and
every year. An Annual Unit Week is designated with an "F,"
indicating a Full Timeshare Interest. A Biennial Unit Week,
indicating one-half of a Full Timeshare Interest, allows occupancy
only during Odd Numbered Years (and such Unit Week is designated
with an "O") or only during Even Numbered Years (and such Unit Week
is designated with an "E").
hereby reconveys, reassigns, transfers and sets over to Bluegreen/Big Cedar
Vacations, LLC, a Delaware limited liability company ("Assignee'), all right,
title and interest of Assignor in the Mortgages, and all right, title and
interest in and to the promissory note or notes referred to in said Mortgages
referred to in Schedule A (the "Notes"), without recourse and without warranty
of any kind, and all documents and instruments securing said Notes, whether or
not referenced in Schedule A, and all monies, proceeds and awards, including
without limitation, interest, due or to become due thereon or with respect
thereto, as set forth in the Loan Agreement.
Taney County, MO
IN WITNESS WHEREOF, Assignor has caused this Reassignment of Purchase
Money Mortgages to be duly executed on the date first above written.
General Electric Capital Corporation,
a Delaware corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
2.3/2
STATE OF )
):SS
COUNTY OF )
The foregoing instrument was acknowledged before me on _______________, 2007 by
_________________________, as _________________________ of General Electric
Capital Corporation, a Delaware corporation, who is personally known to me or
has produced _________________________ as identification.
----------------------------
Notary Public
Print Name: _______________________
(AFFIX NOTARIAL SEAL)
Prepared by and After Recording Return to:
Xxxxx Xxxxxxxx
Bluegreen Corporation - Mortgage Funding
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Boca Raton, FL 33431
Taney County, MO
2.3/3
[Exhibit "1"]
[Schedule A]
REASSIGNMENT OF CONTRACTS, NOTES RECEIVABLE AND MORTGAGES
Mortgage
Unit Mortgage Mortgage Recording Recording Recording
Name Number Week Subdivision Amount Document No. Date Book Page
---- ------ ---- ----------- ------ ------------ ----- ---- ----
2.3/4
Schedule 4.1
ORGANIZATIONAL MATTERS
A. Borrower's Organizational Structure.
See Attached Organizational Chart.
B. Organizational Information: (Borrower and each Borrower Party).
-----------------------------------------------------------------------------------------------------------------
State of
Incorporation or Type of State Organizational Federal
Legal Name* Organization Entity ID No.** Tax ID No.
-----------------------------------------------------------------------------------------------------------------
1. Bluegreen/Big Cedar Delaware limited liability 3220565 00-0000000
Vacations, LLC company
-----------------------------------------------------------------------------------------------------------------
2. Bluegreen Massachusetts corporation N/A 00-0000000
Corporation
-----------------------------------------------------------------------------------------------------------------
3. Big Cedar, L.L.C. Missouri limited liability LC0034424 00-0000000
company
-----------------------------------------------------------------------------------------------------------------
4. Bluegreen Vacations Florida corporation P93000051653 00-0000000
Unlimited, Inc.
-----------------------------------------------------------------------------------------------------------------
* As it appears in official filings in the state of its incorporation or
organization.
** If none issued by applicable state of organization/incorporation, insert
"none issued."
C. Location Information.
1. Borrower:
a. Chief Executive Office: 0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
E Mail: xxxx.xxxxx@xxxxxxxxxxxxx.xxx
b. Location of any prior Chief ______________________________________________
Executive Office (during last ______________________________________________
5 years): ______________________________________________
c. Other Office Location: ______________________________________________
______________________________________________
______________________________________________
d. Location of Collateral: At the Timeshare Project and at the offices of
U.S. Bank National Association, as Custodian
4.1/1
2. Borrower Parties (Chief Executive
Office):
a. Bluegreen Corporation 0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
E Mail: xxxx.xxxxx@xxxxxxxxxxxxx.xxx
b. Big Cedar, L.L.C.: 0000 X. Xxxxxxx
Xxxxxxxxxxx, XX 00000
c. Bluegreen Vacations 0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Unlimited, Inc. Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
E Mail: xxxx.xxxxx@xxxxxxxxxxxxx.xxx
4.1/2
ORGANIZATIONAL CHART OF BORROWER
|-------------------------------| |-------------------------------|
| Bluegreen Corporation, | | Three Xxxxx Company, |
| a Massachusetts corporation | | a Missouri corporation |
|------------------------------ | |-------------------------------|
\ /
\ /
\ 100% 100% /
\ /
\ /
|-----------------------------| |------------------------------|
| Bluegreen Vacations | | Big Cedar, L.L.C., |
| Unlimited, Inc., | | a Missouri limited liability |
| a Florida corporation | | company |
|-----------------------------| |------------------------------|
\ /
\ /
\ 51% 49% /
\ /
\ /
|-------------------------------|
| |
| Borrower |
| |
|-------------------------------|
|
|
|100%
|
|
|-------------------------------|
| Big Cedar JV Interiors, |
| LLC, |
| A Delaware limited liability |
| company |
|-------------------------------|
4.1/3
Schedule 4.13
Contracts with Affiliates/Approved Transactions
1. Marketing and Promotions Agreement, dated as of June 16, 2000, by and
between Big Cedar, L.L.C., Bass Pro, Inc., Bluegreen Vacations Unlimited,
Inc. and Bluegreen/Big Cedar Vacations, LLC.
2. Advertising Space Receipt and Confirmation Agreement, dated as of June 16,
2000, by and between Bass Pro, Inc., BPS Catalog, L.P., Bluegreen
Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations, LLC.
3. License and Concession Agreement, dated June 16, 2000, by and between Bass
Pro, Inc., Bass Pro Outdoor World, L.L.C., World Wide Sportsman, Inc.,
Bluegreen Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations,
LLC.
4. Mailing List Agreement, dated as of June 16, 2000, by and between Bass
Pro, Inc., Bass Pro Trademarks, L.L.C., Bluegreen Corporation, Bluegreen
Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations, LLC.
5. Security Agreement, dated as of June 16, 2000, by and between Bass Pro,
Inc., Bass Pro Trademarks, L.L.C., Bluegreen Vacations Unlimited, Inc. and
Bluegreen/Big Cedar Vacations, LLC.
6. Mailing List Agreement, dated as of June 16, 2000, by and between Big
Cedar, L.L.C., Bluegreen Corporation, Bluegreen Vacations Unlimited, Inc.
and Bluegreen/Big Cedar Vacations, LLC.
7. Trademark License Agreement, dated as of June 16, 2000, by and between
Bass Pro, Inc., Bass Pro Trademarks, L.L.C., Bluegreen Corporation,
Bluegreen Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations,
LLC.
8. Trademark License Agreement, dated as of June 16, 2000, by and between Big
Cedar, L.L.C., Bluegreen Corporation, Bluegreen Vacations Unlimited, Inc.
and Bluegreen/Big Cedar Vacations, LLC.
9. Commercial Lease, dated June 16, 2000, by and between Big Cedar, L.L.C.
and Bluegreen/Big Cedar Vacations, LLC. (Sales Center).
10. Commercial Lease, dated June 16, 2000, by and between Big Cedar, L.L.C.
and Bluegreen/Big Cedar Vacations, LLC. (Cabin Fever).
11. Administrative Services Agreement, dated as of June 16, 2000, by and
between Bluegreen/Big Cedar Vacations, LLC and Bluegreen Vacations
Unlimited, Inc.
12. Easement Agreement, dated as of June 15, 2000, by and between Big Cedar,
L.L.C., Three Xxxxx Company, Bluegreen/Big Cedar Vacations, LLC. and Big
Cedar Resort Club Owners Association, Inc.
4.13/1
13. Intercreditor Agreement, dated as of June 16, 2000, by and among Bass Pro,
Inc., Bass Pro Trademarks, L.L.C., Bluegreen Vacations Unlimited, Inc.,
Bluegreen/Big Cedar Vacations, LLC and Fleet Retail Finance Inc., as
Agent.
14. Non-Disturbance Agreement, dated June 16, 2000, by and among Finova
Capital Corporation, Bluegreen/Big Cedar Vacations, LLC., Big Cedar Resort
Club Owners Association, Inc., Big Cedar, L.L.C. and Bluegreen Vacations
Unlimited, Inc.
15. Subordination and Non-Disturbance Agreement, dated June 16, 2000, by and
between Finova Capital Corporation, Bluegreen/Big Cedar Vacations, LLC.,
Big Cedar Resort Club Owners Association, Inc. and Big Cedar, L.L.C.
16. Operational Services and Integration Agreement, dated as of June 16, 2000,
Bluegreen/Big Cedar Vacations, LLC., Big Cedar Resort Club Owners
Association, Inc. and Big Cedar, L.L.C.
17. Servicing Agreement, dated as of June 16, 2000, by and between Bluegreen
Corporation, Bluegreen/Big Cedar Vacations, LLC and Big Cedar, L.L.C.
18. Tour Agreement, dated 2005, by and between Big Cedar, L.L.C., Bluegreen
Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations, LLC.
19. Contribution or other transfer of certain adjacent property owned by Big
Cedar, L.L.C. or an affiliate of Big Cedar, L.L.C. to Bluegreen/Big Cedar
Vacations, LLC. (Anticipated Spring 2007).
4.13/2
Schedule 5.11
Litigation
Any legal proceedings as disclosed in Guarantor's most recently filed 10K
Statement and the following other matters:
Bluegreen Southwest One, L.P. ("Southwest"), a subsidiary of Bluegreen
Corporation ("Bluegreen"), is the developer of the Mountain Lakes subdivision in
Texas. In Xxxxxx, et al v. Bluegreen Southwest One, L.P. acting through its
General Partner Bluegreen Southwest Land, Inc., et al, Cause No. 00000 Xxxxxxxx
Xxxxx of the 266th Judicial District, Erath County, Texas, plaintiffs filed a
declaratory action against Southwest in which they seek to develop mineral
interests in the Mountain Lakes subdivision. Plaintiffs' claims against
Southwest total in the aggregate $25 million. Plaintiffs' claims are based on
property law, contract and tort theories. The property owners association has
filed a cross complaint against Bluegreen, Southwest and individual directors of
the property owners association related to the mineral rights and related to
certain amenities in the subdivision as described in the following paragraph.
The court has confirmed the seniority of the mineral interests of the plaintiffs
and has held that restrictions against drilling within the subdivision are not
enforceable. Bluegreen is evaluating whether to appeal the court's ruling and is
unable to predict the ultimate resolution of the litigation. Bluegreen estimates
that it is reasonably possible that the company will incur costs of
approximately $500,000 in this declaratory action case.
One of the lakes that is an amenity in the Mountain Lakes development has
not filled to the expected level. Owners of homesites within the subdivision
have asserted claims against Bluegreen regarding such failure as part of the
litigation referenced above. Southwest has investigated the causes of the
failure of the lake to fill and currently estimates that the cost of correcting
the condition will be approximately $3,000,000.
Bluegreen has initiated litigation against Welbro Construction with regard
to construction defects discovered at Bluegreen's Shorecrest Resort in Myrtle
Beach, SC. Bluegreen cannot currently predict the outcome of the litigation
including the estimated cost of correcting the condition, the amounts that may
ultimately be recovered from the defendant or the amounts that Bluegreen may
need to contribute to correct the condition if the matter is resolved by
negotiated settlement.
Bluegreen is involved in litigation relating to the employment of sales
associates at its Williamsburg sales and project site, as well as its Shenandoah
project, who were allegedly subject to non-compete agreements with a prior
employer. Bluegreen cannot predict the outcome of the litigation.
Litigation has been initiated against Bluegreen and LeisurePath, Inc.
("LeisurePath"), a subsidiary of Bluegreen whose principal business is a travel
club, involving claims asserted by consumers with regard to sales of LeisurePath
memberships through Vacation Station, Inc., an independent retail outlet. Claims
asserted against Bluegreen and its affiliates relate to transactions that
allegedly occurred in May, 2005. LeisurePath had terminated its relationship
with Vacation Station, Inc. prior to that time. Bluegreen believes that the
likelihood of an
5.11/1
unfavorable outcome resulting in a material loss to be remote; however Bluegreen
cannot predict the outcome of the litigation.
5.11/2
Exhibit A
LAND
Legal Description of Big Cedar Wilderness Club Condominium
Phase 1 (Units 2020, 2021, 2022, 2023, 2024, 2025, 2026, 2027, 2028, and 2029)
A part of Lots 11, 12, 13, 14, all of Xxxx 00 xxx 00 xx Xxxxx 10, a part of Xxxx
00, 00 xxx 00 xx Xxxxx 16, a part of Xxxx 0, 0, 0 xxx 0 xx Xxxxx 17 of Lakeside
South, a subdivision in Taney County, Missouri, recorded in Plat Book 9, at Page
27 of the records of Taney County, Missouri, and a portion of Xxx 0, Xxxxx 00 of
the First Addition to Lakeside South, subdivision in Taney County, Missouri,
recorded in Plat Book 12, at Page 15 of the records of Taney County, Missouri,
said tract of land being situated N 1/2 of the NE 1/4 of Section 11, Township 21
North, Range 22 West, Taney County, Missouri, Being more particularly described
as follows:
Beginning at the Southwest xxxxx of Xxx 0, Xxxxx 00 of The First Addition to
Lakeside South, at the Corps of Engineers monument N-1400-14; Thence N
01(degree)31'35" E, along the west line of Lots 5 through 1, Block 22, First
Addition to Lakeside South, a distance of 311.58 feet to the New Point of
Beginning; Thence continuing N 0(degree)'31'35" E, a distance of 12.52 feet to
Corps of Engineers monument 338-3-1; Thence N 25(degree)18'06" W, along the
Government Fee Taking Line and the southwesterly line of Lot I of said Block 22,
and Lots 16 through 00, Xxxxx 00, Xxxxxxxx Xxxxx, a distance of 239.85 feet;
Thence N 27(degree)13'46" E, a distance of 323.50 feet; Thence N
73(degree)32'38" E, a distance of 36.45 feet; Thence S 69(degree)32'48" E, a
distance of 19.82 feet; Thence N 20(degree)27'12" E, a distance of 248.16 feet
to a point on new southerly right-of-way line of Estate Drive, said point being
on a non-tangent curve; Along the Southerly right-of-way line of the New Estate
Drive as follows: Thence Easterly along a non-tangent 21.0128 degree segment of
a curve to the right, 4.28 feet (said segment having a chord bearing and
distance of S 81(degree)34'58" E, 4.28 feet and having a radius of 272.67 feet);
Thence S 81(degree)07'59" E, a distance of 52.34 feet; Thence S 29(degree)38'39"
W, leaving the Southerly right-of-way line of New Estate Drive, a distance of
112.02 feet; Thence S 20(degree)27'12" W, a distance of 353.35 feet; Thence
Southerly along a 67.8057 degree curve to the left, 52.67 feet (said curve
having a radius of 84.50 feet); Thence S 15(degree)15'36" E, a distance of 53.70
feet; Thence S 81(degree)34'16" E, a distance of 18.34 feet; Thence S
20(degree)50'42" E, a distance of 92.70 feet; Thence S 60(degree)21'15" E, a
distance of 54.61 feet; Thence S 42(degree)04'50" E, a distance of 46.04 feet;
Thence S 47(degree)55'10" W, a distance of 56.30 feet; Thence S 73(degree)44'33"
W, a distance of 85.70 feet; Thence West, a distance of 80.33 feet; to the New
Point of Beginning; Containing 1.99 acres of land, more or less, Subject to all
easements and restrictions of record.
TOGETHER WITH:
A-1
Phase 3 (Units 2012, 2030, 2031 and 2032)
Parcel One:
A tract of land being a part of Xxxx 0, 0 xxxxxxx 0, xxx 00 xx Xxxxx 17 of
Lakeside South, a subdivision plat recorded in Plat Book 9, at Page 27 of the
records of Taney County, Missouri, and a portion of vacated Juniper Drive, said
land being situated in the E 1/2 of the NE 1/4 of Section 11, Township 21 North,
Range 22 West, Taney County, Missouri, Being more particularly described as
follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00, of The First Addition to
Lakeside South, being marked by Corps. Of Engineers monument N-1400-14; Thence
North 01(degree)31'35" East, along the west line of lots 5 through I of Block
22, The First Addition to Lakeside South, a distance of 311.58 feet; Thence
East, a distance of 80.33 feet; Thence North 73(degree)44'33" East, a distance
of 85.70 feet; Thence North 47(degree)55'10" East, a distance of 56.30 feet, to
the Point of Beginning; Thence North 42(degree)04'50" West, a distance of 24.90
feet; Thence North 59(degree)46'49" East, a distance of 58.12 feet; Thence North
86(degree)03'20" East, a distance of 62.66 feet; Thence North 22(degree)24'03"
East, a distance of 97.26 feet; Thence North 25(degree)12'17" West, a distance
of 158.23 feet; Thence Northwesterly along a 67.4068 degree curve to the left,
26.47 feet (said curve having a radius of 85.00 feet); Thence North
43(degree)02'42" West, a distance of 16.06 feet; Thence Northwesterly along a
49.8224 degree curve to the right, 33.89 feet (said curve having a radius of
115.00 feet); Thence North 26(degree)09'34" West, a distance of 21.52 feet;
Thence Northwesterly along a 38.1972 degree curve to the left, 84.42 feet (said
curve having a radius of 150.00 feet), to a point of compound curvature; Thence
Northwesterly along a 229.1831 degree curve to the left, 44.13 feet (said curve
having a radius of 25.00 feet); Thence North 20(degree)27'12" East, a distance
of 80.93 feet; Thence Southerly along a 229.1837 degree curve to the left, 36.32
feet (said curve having a radius of 25.00 feet), to a point of reverse
curvature; Thence Southeasterly along a 31.8310 degree curve to the right,
115.05 feet (said curve having a radius of 180.00 feet); Thence South
26(degree)09'34" East, a distance of 21.52 feet; Thence Southeasterly along a
67.4068 degree curve to the left, 25.05 feet (said curve having a radius of
85.00 feet); Thence South 43(degree)02'42" East, a distance of 16.06 feet;
Thence Southeasterly along a 49.8224 degree curve to the right, 35.81 feet (said
curve having a radius of 115.00 feet); Thence South 25(degree)12'17" East, a
distance of 164.69 feet; Thence South 22(degree)24'03" West, a distance of
138.95 feet; Thence South 59(degree)47'07" West, a distance of 105.39 feet;
Thence North 30(degree)12'53" West, a distance of 37.73 feet, to the Point of
Beginning; Containing 0.48 acres of land, more or less, Subject to all easements
and restrictions of record.
TOGETHER WITH:
Parcel Two:
A tract of land being a part of Xxxx 00, 00 xx Xxxxx 10 and Xxxx 00, 00 xx Xxxxx
00 xx Xxxxxxxx South, a subdivision plat recorded in Plat Book 9, at Page 27 of
the records of Taney County, Missouri, and a portion of vacated Juniper Drive
and Xxxxxxxx Drive, said land being situated in the E 1/2 of the NE 1/4 of
Section 11, Township 21 North, Range 22 West, Taney County, Missouri, Being more
particularly described as follows:
A-2
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of The First Addition to
Lakeside South, being marked by Corps of Engineers monument N-1400-14; Thence
North 01(degree)31'35" East, along the west line of lots 5 through I of Block
22, of the First Addition to Lakeside South, a distance of 324.10 feet to Corps
of Engineers Monument 338-3-1; Thence North 25(degree)18'06" West, along the
westerly line of xxx 0, Xxxxx 00 of The First Addition to Lakeside South, and
the lots 16 through 14 of Block 10 of Lakeside South, a distance of 239.85 feet;
Thence North 27(degree)13'46" East, a distance of 301.96 feet, to the Point of
Beginning; Thence North 09(degree)20'48" West, a distance of 78.62 feet; Thence
North 80(degree)47'47" East, a distance of 34.71 feet; Thence North
19(degree)53'11" East, a distance of 184.09 feet to a point on new Southerly
right-of-way line of Estate Drive, said point being on a non-tangent curve;
Thence Easterly along a non-tangent 21.0128 degree segment of a curve to the
right, 66.16 feet (said segment having a chord bearing and distance of South
88(degree)58'58" East, 65.99 feet and having a radius of 272.67 feet); Thence
South 20(degree)27'12" West, a distance of 248.16 feet; Thence North
69(degree)32'48" West, a distance of 19.82 feet; Thence South 73(degree)32'38"
West, a distance of 36.45 feet; Thence South 27(degree)13'46" West, a distance
of 21.54 feet, to the Point of Beginning; Containing 0.38 acres of land, more or
less, Subject to all easements and restrictions of record.
TOGETHER WITH:
Phase 4 (Building 2300) (Units 2301/2302, 2304/2305, 2307/2308, 2309/2310,
2312/2313, 2314/2315, 2317/2318, 2320/2321, 2323/2324, 2326/2327, 2329/2330,
2331/2332, 2334/2335, 2336/2337, 2339/2340, 2342/2343, 2345/2346, 2348/2349,
2351/2352, 2353/2354, 2356/2357, 2358/2359, 2361/2362 and 2364/2365)
A tract of land being a part of Lots 11 through 17 of Block 16; part of lots I
through 3 of Block 18 all of Lakeside South, a subdivision plat recorded in Plat
Book 9, at Page 27 of the records of Taney County, Missouri, and part of lots 13
through 16 of Block 23 of The First Addition to Lakeside South, a subdivision
plat recorded in Plat Book 12, at Page 15 of the records of Taney County,
Missouri, and a portion of vacated Juniper Drive and XxXxxx Drive, said land
being situated in the E 1/2 of the NE 1/4 of Section 11, Township 21 North,
Range 22 West, Taney County, Missouri, Being more particularly described as
follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of The First Addition to
Lakeside South, being marked by Corps of Engineers monument N-1400-14; Along the
Government Fee Taking Line as follows: Thence South 87(degree)'41'11" East, a
distance of 495.69 feet to Corps of Engineers monument N-1400-13; Thence South
73(degree)57'11" East, a distance of 469.22 feet to the Southeast corner of Xxx
00, Xxxxx 00 of The First Addition to Lakeside South; Thence North
05(degree)37'57" West, leaving the Government Fee Taking Line, a distance of
126.75 feet to the Northeast corner of Xxx 00, Xxxxx 00, xxxx xxxxx being on a
non-tangent curve on the Southerly right-of-way line of Esquire Drive; Thence
Easterly along a non-tangent 52.0871 degree segment of a curve to the left,
along the Southerly right-of-way line of Esquire Drive, 159.14 feet (said
segment having a chord bearing and distance of North 42(degree)54'37" East,
145.62 feet and having a radius of 110.00 feet); Thence North 01(degree)27'49"
East, along the east right-of-way line of XxXxxx Drive, a distance of 25.00 feet
to the Xxxxxxxxx xxxxxx xx xxx 00, Xxxxx 00 of The First Addition to Lakeside
South; Thence North 88(degree)32'11" West, a distance of 24.99 feet to the
center line of vacated XxXxxx Drive; Thence North 01(degree)27'49" East along
the center line of Vacated XxXxxx Drive, a distance of 87.57 feet; Thence North
60(degree)29'21" East, a distance of 44.75 feet; Thence
X-0
Xxxxx 00(xxxxxx)00'00" Xxxx, a distance of 4.65 feet, to the Point of Beginning;
Thence North 89(degree)16'41" West, a distance of 349.91 feet; Thence North
00(degree)43'19" East, a distance of 88.83 feet; Thence North 37(degree)57'39"
East, a distance of 191.89 feet; Thence North 01(degree)33'02" East, a distance
of 94.62 feet to a point on the South right-of-way line of the new Estate Drive;
Along the South right-of-way line of Estate Drive as follows: Thence South
88(degree)26'58" East, a distance of 150.71 feet; Thence Easterly along a
15.2789 degree curve to the right, 86.82 feet (said curve having a radius of
375.00 feet); Thence South 01(degree)27'47" West, leaving the south right-of-way
line of Estates Drive on a non-tangent line, a distance of 322.81 feet, to the
Point of Beginning; Containing 2.24 acres of land, more or less, Subject to all
easements and restrictions of record.
TOGETHER WITH:
Phase 5 (Building 2500) (Units 2501/2502, 2504/2505, 2507/2508, 2509/2510,
2512/2513, 2514/2515, 2517/2518, 2520/2521, 2523/2524, 2526/2527, 2529/2530,
2531/2532, 2534/2535, 2536/2537, 2539/2540, 2542/2543, 2545/2546, 2548/2549,
2551/2552, 2553/2554, 2556/2557, 2558/2559, 2561/2562, 2564/2565, 2567/2568,
2570/2571, 2573/2574, 2575/2576, 2578/2579, 2580/2581, 2583/2584 and 2586/2587)
and the Clubhouse Property
A tract of land situated in the NE 1/4 of the NE 1/4 of Section 11, Township 21
North, Range 2 West, Taney County, Missouri, Being a part of Lots 4 through 12
of Block 14 and part of Lots 20 through 25 of Block 15, and part of vacated
Rockbridge Lane, all in Lakeside South, a subdivision plat recorded in Mat Book
9, at Page 27 of the records of Taney County, Missouri, Being more particularly
described as follows:
Commencing at the Xxxxxxxxx xxxxxx xx Xxx 0 xx Xxxxx 22, The First Addition to
Lakeside South, a subdivision plat recorded in Plat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps. of Engineers monument
N-1400-14; Along the Government Fee Taking Line of Table Rock Lake as follows:
Thence South 87(degree)41'11" East, a distance of 495.69 feet to Corps. monument
N-1400-13; Thence South 73(degree)57'11" East, a distance of 469.22 feet to the
Southeast corner of Xxx 00, Xxxxx 00 of The First Addition to Lakeside South;
Thence North 05(degree)37'57" West, leaving the Government Fee Taking Line, a
distance of 126.75 feet to the Northeast corner of Xxx 00, Xxxxx 00, xxxx xxxxx
on a non-tangent curve on the Southerly right-of-way line of Esquire Drive;
Thence Easterly along a non-tangent 52.0871 degree segment of a curve to the
left, along the Southerly right-of-way line of Esquire Drive, 159.14 feet (said
segment having a chord bearing and distance of North 42(degree)54'37" East,
145.62 feet and having a radius of 110.00 feet); Thence North 01(degree)27'49"
East, along the East right-of-way line of XxXxxx Drive, a distance of 25.00 feet
to the Northwest corner of Xxx 00, Xxxxx 00 of The First Addition to Lakeside
South; Thence North 88(degree)32'11" West, a distance of 24.99 feet to the
center line of vacated XxXxxx Drive; Thence North 01(degree)27'49" East, along
the center line of vacated XxXxxx Drive, a distance of 87.57 feet; Thence North
60(degree)29'21" East, a distance of 44.75 feet; Thence North 01(degree)27'49"
East, a distance of 327.46 feet, to a point on the South right-of-way line of
the New South right-of-way line of Estates Drive, said point being on a
non-tangent curve; Thence Westerly along a non tangent 15.2789 degree segment of
a curve to the left, along the South right-of-way line of the new South
right-of-way line of Estate Drive, 13.69 feet (said segment having a chord
bearing and distance of North 76(degree)13'45" West, 13.68 feet and having a
radius of 375.00 feet) to a point on the west line of Xxx 0, Xxxxx 00 xx xxxx
Xxxxxxxx Xxxxx; Thence North 01(degree)27'49" East, along the west line of Xxx
0, Xxxxx 00, a distance of 81.28 feet to
A-4
the Northwest corner of Xxx 0, Xxxxx 00; Xxxxxx Xxxxx 00(xxxxxx)00'00" Xxxx, a
distance of 50.00 feet to a point on the East line of Xxx 00, Xxxxx 00 xx
Xxxxxxxx Xxxxx; Thence North 01(degree)27'49" East, along the East line of Xxxx
00 xxx 00, Xxxxx 00 xxx Xxx 00 xx Xxxxx 14, a distance of 280.40 feet, to the
Point of Beginning; Thence North 88(degree)32'38" West, a distance of 56.56
feet; Thence South 81(degree)16'21" West, a distance of 92.95 feet; Thence North
55(degree)59'06" West, a distance of 76.46 feet; Thence North 41(degree)35'02"
West, a distance of 40.85 feet; Thence North 25(degree)15'40" West, a distance
of 82.45 feet; Thence South 49(degree)42'26" West, a distance of 134.50 feet;
Thence North 29(degree)37'43" West, a distance of 358.51 feet; Thence North
60(degree)22'17" East, a distance of 93.44 feet; Thence North 29(degree)37'43"
West, a distance of 43.61 feet; Thence North 59(degree)51'09" East, a distance
of 56.31 feet; Thence South 43(degree)07'46" East, a distance of 61.57 feet;
Thence South 30(degree)29'42" East, a distance of 192.47 feet; Thence South
40(degree)17'34" East, a distance of 116.81 feet; Thence South 49(degree)42'26"
West, a distance of 31.57 feet; Thence South 22(degree)04'26" East, a distance
of 48.80 feet; Thence South 43(degree)01'37" East, a distance of 89.11 feet;
Thence South 55(degree)59'06" East, a distance of 40.66 feet; Thence South
84(degree)15'30" East, a distance of 20.46 feet; Thence North 81(degree)16'18"
East, a distance of 123.48 feet; Thence South 01(degree)27'49" West, a distance
of 35.56 feet, to the Point of Beginning; Containing 1.62 acres of land, more or
less, Subject to all easements and restrictions of record.
TOGETHER WITH:
Phase 6 (Units 2013, 2014, 2015, 2016, 2017, 2018 and 2019)
A tract of land being a part of Lots 1 through 10 inclusive of Block 17 Lakeside
South, a subdivision plat recorded in Plat Book 9, at Page 27 of the records of
Taney County, Missouri and a portion of vacated Juniper Drive and Woodhill
Drive, said land being situated in the E1/2 of the NE1/4, of Section 11,
Township 21 North, Range 22 West, Taney County, Missouri, Being more
particularly described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of The First Addition to
Lakeside South, being marked by Corps of Engineers monument N-1400-14; Thence
North 01(degree)31'35" East, along the west line of Lots 5 through 1 of Block 22
of The First Addition to Lakeside South, a distance of 311.58 feet; Thence East,
a distance of 80.33 feet; Thence North 73(degree)44'33" East, a distance of
85.70 feet; Thence North 47(degree)55'10" East, a distance of 56.30 feet; Thence
North 42(degree)04'50" West, a distance of 24.90 feet, to the Point of
Beginning; Thence continuing North 42(degree)04'50" West, a distance of 21.14
feet; Thence North 60(degree)21'15" West, a distance of 54.61 feet; Thence North
20(degree)50'42" West, a distance of 92.70 feet; Thence North 81(degree)34'16"
West, a distance of 18.34 feet; Thence North 15(degree)15'36" West, a distance
of 53.70 feet; Thence Northerly along a 67.8057 degree curve to the right, 52.67
feet (said curve having a radius of 84.50 feet); Thence North 20(degree)27'12"
East, a distance of 171.63 feet; Thence Northerly along a 229.1831 degree curve
to the right, 44.13 feet (said curve having a radius of 25.00 feet), to a point
of compound curvature; Thence Southeasterly along a 38.1972 degree curve to the
right, 84.42 feet (said curve having a radius of 150.00 feet); Thence South
26(degree)09'34" East, a distance of 21.52 feet; Thence Southeasterly along a
49.8224 degree curve to the left, 33.89 feet (said curve having a radius of
115.00 feet); Thence South 43(degree)02'42" East, a distance of 16.06 feet;
Thence Southeasterly along a 67.4068 degree curve to the right, 26.47 feet (said
curve having a radius of 85.00 feet); Thence South 25(degree)12'17" East, a
distance of 158.23 feet; Thence South 22(degree)24'03" West, a distance of 97.26
feet; Thence South 86(degree)03'20" West, a distance of 62.66 feet;
X-0
Xxxxxx Xxxxx 00(xxxxxx)00'00" Xxxx, a distance of 58.12 feet, to the Point of
Beginning; Containing 1.63 acres of land, more or less, Subject to all easements
and restrictions of record.
TOGETHER WITH:
Phase 7 - Parcel 1 (Units 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010 and
2011)
A tract of land being a part of Lots 1 through 7 and 21 through 25 of Block 16
Lakeside South, a subdivision plat recorded in Plat Book 9, at Page 27 of the
records of Taney County, Missouri, and a portion of vacated Juniper Drive and
Woodhill Drive, said land being situated in the E1/2 of the NE1/4 of Section 11,
Township 21 North Range 22 West, Taney County, Missouri; Being more particularly
described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of the First Addition to
Lakeside South, a subdivision plat recorded in Plat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps of Engineers monument
N-1400-14; thence North 01(degree) 31' 35" East, along the west line of Lots 5
through 1 of Block 22 of the First Addition to Lakeside South, a distance of
311.58 feet; thence East, a distance of 80.33 feet; thence North 73(degree) 44'
33" East, a distance of 85.70 feet; thence North 47(degree) 55' 10" East, a
distance of 56.30 feet; thence South 30(degree) 12' 53" East, a distance of
37.73 feet; thence North 59(degree) 47' 07" East, a distance of 105.39 feet;
thence North 22(degree) 24' 03" East, a distance of 138.95 feet to the POINT OF
BEGINNING; thence North 25(degree) 12' 17" West, a distance of 164.69 feet;
thence northwesterly along a 49.8224 degree curve to the left 35.81 feet (said
curve having a radius of 115.00 feet); thence North 43(degree) 02' 42" West, a
distance of 16.06 feet; thence northerly along a 67.4068 degree curve to the
right 25.05 feet (said curve having a radius of 85.00 feet); thence North
26(degree) 09' 34" West, a distance of 21.52 feet; thence northwesterly along
31.8310 a degree curve to the left 115.05 feet (said curve having a radius of
180.00 feet); thence along a 229.1831 degree reverse curve to the right 36.32
feet (said curve having a radius of 25.00 feet); thence North 20(degree) 27' 12"
East, a distance of 100.79 feet; thence North 29(degree) 18' 39" East, a
distance of 112.02 feet, to a point on the new south right-of-way line Estate
Drive; Along the southerly right-of-way line of Estate Drive as follows; thence
South 81(degree) 07' 59" East, a distance of 4.57 feet; thence southeasterly
along a 21.3942 degree curve to the right, 261.52 feet (said curve having a
radius of 267.81 feet); thence South 25(degree) 10' 57" East, a distance of
164.45 feet; thence southeasterly along a 17.0027 degree curve to the Left,
69.67 feet (said curve having a radius of 336.98 feet); thence South 52(degree)
58' 17" West, leaving the southerly right-of-way line of Estate Drive, a
distance of 208.07 feet; thence South 22(degree) 24' 03" West, a distance of
52.55 feet, to the Point of Beginning, containing 2.50 acres of land more or
less, Subject to all easements and restrictions of record.
TOGETHER WITH:
Phase 7 - Parcel 2 (Building 2400) (Units 2411, 2412, 2413, 2414, 2415, 2416,
2417, 2418, 2419, 2420, 2421, 2422, 2423, 2424, 2425, 2426, 2427, 2428, 2431,
2432, 2433, 2434, 2435, 2436, 2437, 2438, 2441, 2442, 2443, 2444, 2445, 2446,
2447 and 2448)
A tract of land being a part of Xxxx 0, 0, 00 xxxxxxx 00 xx Xxxxx 15, and part
of Lots 10 through 12 of Block 14 of Lakeside South, a subdivision plat recorded
in Plat Book 9, at Page 27 of the records of Taney County, Missouri, and a
portion of vacated Rockbridge Lane, said land being
A-6
situated in the E1/2 of the NE1/4 of Section 11, Township 21 North, Range 22
West, Taney County, Missouri; Being more particularly described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of the First Addition to
Lakeside South, a subdivision plat recorded in Plat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps. of Engineers monument
N-1400-14; Along the Government Fee Taking Line of Table Rock Lake as follows:
Thence South 87(degree) 41' 11" East, a distance of 495.69 feet to Corps.
monument N-1400-13; thence South 73(degree) 57' 11" East, a distance of 469.22
feet to the Southeast corner of Xxx 00, Xxxxx 00 of the First Addition to
Lakeside South; thence North 05(degree) 37' 57" West, leaving the Government Fee
Taking Line, a distance of 126.75 feet to the Northeast corner of Xxx 00, Xxxxx
00, xxxx xxxxx being on a non-tangent curve on the southerly right-of-way line
of Esquire Drive; thence easterly along a non-tangent 52.0871 degree segment of
a curve to the left, along the southerly right-of-way line of Esquire Drive,
159.14 feet (said segment having a chord bearing and distance of North
42(degree) 54' 37" East, 145.62 feet and having a radius of 110.00 feet); thence
North 01(degree) 27' 49" East, along the east right-of-way line of XxXxxx Drive,
a distance of 25.00 feet to the Northwest corner of Xxx 00, Xxxxx 00 of the
First Addition to Lakeside South; thence North 88(degree) 32' 11" West, a
distance of 24.99 feet to the center line of vacated XxXxxx Drive; thence North
01(degree) 27' 49" East, along the center line of vacated XxXxxx Drive, a
distance of 87.57 feet; thence North 60(degree) 29' 21" East, a distance of
44.75 feet; thence North 01(degree) 27' 49" East, a distance of 327.46 feet to a
point on the New south right-of-way line of Estate Drive, said point being on a
non-tangent curve; thence westerly along a non-tangent 15.2789 degree curve to
the left, along the South right-of-way line of the new south right-of-way line
of Estate Drive, 13.69 feet (Said segment having a chord bearing and distance
North 76(degree) 13' 45" West, 13.68 feet and having a radius of 375.00 feet) to
a point on the west line of Xxx 0, Xxxxx 00 xx xxxx Xxxxxxxx Xxxxx; thence North
01(degree) 27' 49" East, along the west line of Lots 4 and 5, Block 18, a
distance of 166.28 feet to the northwest corner of Xxx 0, Xxxxx 00, xx Xxxxxxxx
Xxxxx; thence North 88(degree) 32' 11" West, a distance of 50.00 feet to a point
on the east line of Xxx 00 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; thence North
01(degree) 27' 49" East, along the east line of Lots 14 and 15, Block 15, a
distance of 72.10 feet to the POINT OF BEGINNING; thence North 88(degree) 32'
38" West, a distance of 62.80 feet; thence South 01(degree) 27' 22" West, a
distance of 84.34 feet; thence South 44(degree) 07' 40" West a distance of 53.93
feet; thence South 79(degree) 44' 42" West, a distance of 31.94 feet; thence
North 45(degree) 52' 20" West, a distance of 343.25 feet; thence North
44(degree) 07' 40" East,, a distance of 36.82 feet; thence North 29(degree) 37'
43" West, a distance of 38.20 feet; thence North 49(degree) 42' 26" East, a
distance of 134.50 feet; thence South 25(degree) 15' 40" East, a distance of
82.45 feet; thence South 41(degree) 35' 02" East, a distance of 40.85 feet;
thence South 55(degree) 59' 06" East, a distance of 76.46 feet; thence North
81(degree) 16' 21" East, a distance of 92.95 feet; thence South 88(degree) 32'
38" East, a distance of 56.56 feet, to a point on the east line of said Xxx 00,
Xxxxx 00; thence South 01(degree) 27' 49" West, along the east line of said Xxx
00, Xxxxx 00, xxx Xxx 00 xx Xxxxx 15 of Lakeside South, a distance of 123.30
feet, to the Point of Beginning, Containing 1.61 acres of land, more or less.
Subject to all easement and restrictions of record.
A-7
TOGETHER WITH:
Phase 8 (Building 2600) (Units 2611A/2611B, 2612A/2612B, 2613A/2613B,
2614A/2614B, 2615A/2615B, 2616A/2616B, 2617A/2617B, 2618A/2618B, 2621A/2621B,
2622A/2622B, 2623A/2623B, 2624A/2624B, 2625A/2625B, 2626A/2626B, 2627A/2627B,
2628A/2628B, 2631A/2631B, 2632A/2632B, 2633A/2633B, 2634A/2634B, 2635A/2635B,
2636A/2636B, 2637A/2637B, 2638A/2638B, 2641A/2641B, 2642A/2642B, 2643A/2643B,
2644A/2644B, 2645A/2645B, 2646A/2646B, 2647A/2647B and 2648A/2648B)
A tract of land being a part of xxx 0, Xxxxx 00, part of lots 25 and 26 of Block
15, and part of Lots 1 through 4 and 22 through 25 of Block 14, and part of Lots
1 and 2 of Block 13 of the Lakeside South, a subdivision plat recorded in Plat
Book 9, at Page 27 of the records of Taney County, Missouri and a portion of
vacated Rockbridge Lane, Blueridge Lane, and Woodhill Drive said land being
situated in the E1/2 of the NE1/4 of Section 11, Township 21 North, Range 22
West, Taney County, Missouri, Being more particularly described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of the First Addition to
Lakeside South, a subdivision plat recorded in Nat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps of Engineers monument
N-1400-14; Along the Government Fee Taking Line of Table Rock Lake as follows:
thence South 87(degree) 41' 11" East, a distance of 495.69 feet to Corps
monument N-1400-13; thence South 73(degree) 57' 11" East, a distance of 469.22
feet to the Southeast corner of Xxx 00, Xxxxx 00 of the First Addition to
Lakeside South; thence North 05(degree) 37' 57" West, leaving the Government Fee
Taking Line, a distance of 126.75 feet to the Northeast corner of Xxx 00, Xxxxx
00, xxxx xxxxx being on a non-tangent curve on the southerly right-of-way line
of Esquire Drive; thence easterly along a non-tangent 52.0871 degree segment of
a curve to the left, along the southerly right-of-way line of Esquire Drive,
159.14 feet (said segment having a chord bearing and distance of North
42(degree) 54' 37" East, 145.62 feet and having a radius of 110.00 feet); thence
North 01(degree) 27' 49" East, along the east right-of-way line of XxXxxx Drive,
a distance of 25.00 feet to the Northwest corner of Xxx 00, Xxxxx 00 of the
First Addition to Lakeside South; thence North 88(degree) 32' 11" West, a
distance of 24.99 feet to the center line of vacated XxXxxx Drive; thence North
01(degree) 27' 49" East, along the center line of vacated XxXxxx Drive, a
distance of 87.57 feet; thence North 60(degree) 29' 21" East, a distance of
44.75 feet; thence North 01(degree) 27' 49" East, a distance of 327.46 feet to a
point on the new south right-of-way line of Estate Drive, said point being on a
non-tangent curve; thence westerly along a non-tangent 15.2789 degree curve to
the left, along the South right-of-way line of the new south right-of-way line
of Estate Drive, 13.69 feet (said segment having a chord bearing and distance
North 76(degree) 13' 45" West, 13.68 feet and having a radius of 375.00 feet) to
a point on the West line of Xxx 0, Xxxxx 00 xx xxxx Xxxxxxxx Xxxxx; thence North
01(degree) 27' 49" East, along the west line of Lots 4 and 5, Block 18, a
distance of 166.28 feet to the northwest corner of Xxx 0, Xxxxx 00 xx Xxxxxxxx
Xxxxx; thence North 88(degree) 32' 11" West, a distance of 50.00 feet to a point
on the east line of Xxx 00 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; thence North
01(degree) 27' 49" East, along the east line of Lots 14 and 15, Block 15, a
distance of 72.10 feet; thence North 88(degree) 32' 38" West, a distance of
62.80 feet; thence South 01(degree) 27' 22" West, a distance of 84.34 feet;
thence South 44(degree) 07' 40" West, a distance of 53.93 feet; thence South
79(degree) 44' 42" West, a distance of 31.94 feet; thence North 45(degree) 52'
20" West, a distance of 343.25 feet; thence North 44(degree) 07' 40" East, a
distance of 36.82 feet; thence North 29(degree) 37' 43" West, a distance of
396.70 feet to the POINT of BEGINNING; thence Continuing North 29(degree) 37'
43" West a distance of 49.27 feet; thence North
A-8
40(degree) 54' 48" West a distance of 322.91 feet; thence South 49(degree) 05'
12" West a distance of 32.00 feet; thence North 40(degree) 54' 48" West a
distance of 36.00 feet; thence North 49(degree) 05' 12" East a distance of
180.14 feet; thence South 44(degree) 10' 47" East a distance of 69.36 feet;
thence South 50(degree) 38' 24" East a distance of 134.58 feet; thence South
49(degree) 26' 43" East a distance of 50.44 feet; thence South 38(degree) 20'
10" East a distance of 70.03 feet; thence South 27(degree) 06' 14" East a
distance of 46.65 feet; thence South 00(degree) 00' 00" West a distance of 34.59
feet; thence South 59(degree) 51' 09" West a distance of 56.31 feet; thence
South 29(degree) 37' 43" East a distance 43.61 feet; thence South 60(degree) 22'
17" West a distance of 92.95 feet to the said POINT of BEGINNING, Containing
1.58 acres of land, more or less, Subject to all easements and restrictions of
record.
Phase 9 (Units 2033, 2034, 2035, 2036, 2037, 2038, 2039, 2040, 2041, 2042 and
2043)
A tract of land situated in the SE1/4 of the SE1/4 of Section 2 and the NE1/4 of
Section 11, Township 21 North, Range 22 West, Taney County, Missouri, Being all
of Lots 1 through 16 of Block 10, Lots 1 through 17 of Block 11, lots 7 through
17 of Block 12, Lots 1 through 14 of Block 13, Lots 1 through 25 of Block 14,
Lots 1 through 26 of Block 15, Lots 1 through 25 of Block 16, Lots 1 through 10
of Block 17, and a portion of Lots 1 through 3 of Block 18, together with the
vacated portions of roads within, All in Lakeside South, a subdivision in Taney
County, Missouri recorded in Plat Book 9, at page 27 of the records of Taney
County, Missouri, Also, together with all of Lots 1 through 5 of Block 22, Lots
1 through 20 of Block 23, Lots 1 through 10 of Block 24, a portion of Xxxx 00
xxx 00 xx Xxxxx 24, together with the vacated roads therein, All in the First
Addition to Lakeside South, a subdivision in Taney County, Missouri, as recorded
in Plat Book 12, at Page 15 of the records of Taney County, Missouri, Being more
particularly described as follows:
Beginning at the southwest corner of Xxx 0 xx Xxxxx 00, Xxx Xxxxx Addition to
Lakeside South, being marked by Corps. Of Engineers monument N-1400-14; Thence
North 01(degree)31'35" East, a distance of 324.10 feet to Corps. of Engineers
monument 338-3-1; Thence North 25(degree)18'06" West, a distance of 366.06 feet
to Corps. monument 338-3-2; Thence South 47(degree)25'03" West, along the
Government Fee Taking Line, a distance of 449.40 feet, to the southern most
corner of said Xxx 0 xx Xxxx 00; Xxxxxx Xxxxx 00(xxxxxx)00'00" West, leaving the
Government Fee Taking Line, a distance of 118.17 feet, to the western most
corner of Xxx 0 xx Xxxxx 00, xxxx xxxxx being on a non-tangent curve; Along the
easterly right-of-way line of Xxxxxxx Drive and the westerly line of Block 10 of
Lakeside South as follows: Thence Northeasterly along a non-tangent 9.1973
degree segment of a curve to the left, 92.57 feet (said segment having a chord
bearing and distance of North 51(degree)44'14" East, 92.48 feet and having a
radius of 622.96 feet); Thence North 47(degree)28'49" East, a distance of 332.16
feet; Thence Northeasterly along a 9.1973 degree curve to the left, 268.10 feet
(said curve having a radius of 622.96 feet); Thence North 22(degree)49'19" East,
a distance of 112.11 feet to the southwesterly corner of Xxx 0 xx Xxxxx 00;
Xxxxxx Xxxxx 00(xxxxxx)00'00" West, leaving the easterly right-of-way line of
Xxxxxxx Drive, a distance of 50.00 feet to the southeast corner of Xxx 00 xx
Xxxxx 0 xx Xxxxxxxx Xxxxx; Along the westerly right-of-way line of Xxxxxxx Drive
as follows: Thence North 22(degree)49'19" East, a distance of 1.73 feet, Thence
Northeasterly along a 13.3333 degree curve to the left, 187.54 feet (said curve
having a radius of 429.72 feet); Thence North 02(degree)10'59" West, a distance
of 122.64 feet; Thence Northerly along a 29.9994 degree curve to the left 135.72
feet (said curve having a radius of 190.99 feet); Thence North 42(degree)53'58"
West, a distance of 3.34 feet to the northern most corner of Xxx 00 xx Xxxxx 0
xx Xxxxxxxx Xxxxx; Thence North 47(degree)06'02" East leaving the westerly
right-of-way line of Xxxxxxx
A-9
Drive and along the southerly right-of-way line of Oakwood Drive, a distance of
71.43 feet; Thence North 42(degree)53'58" West, a distance of 50.00 feet to the
southern common corner of Lots 20 and 21 of Block 9; Along the northerly
right-of-way line of Oakwood Drive, and the southerly lot line of Lots 12
Through 23 of Block 9 and Lots 1 through 3 of Block 19 and a portion of Lot 4 of
Block 19 as follows: Thence North 47(degree)06'02" East, a distance of 336.25
feet; Thence Northeasterly along a 2.0000 degree curve to the right, 140.00 feet
(said curve having a radius of 2864.79 feet); Thence North 49(degree)54'02"
East, a distance of 131.27 feet to a point on the southerly line of Xxx 0 xx
Xxxxx 00 xx Xxxxxxxx Xxxxx; Thence South 40(degree)05'58" East, to a point on
the south right-of-way line of Oakwood Drive, a distance of 50.00 feet, to the
southwest corner of Xxx 0 xx Xxxxx 00, xxxx xxxxx being on a non-tangent curve,
Along the northerly right-of-way line of Xxxxxxxx Xxxx and the southerly line of
Xxxx 0 xxxxxxx 0 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; Thence Southeasterly along a
non-tangent 45.3325 degree segment of a curve to the left, 101.09 feet (Said
segment having a chord bearing and distance of South 63(degree)01'90" East,
98.42 feet and having a radius of 126.39 feet); Thence South 85(degree)56'01"
East, a distance of 210.40 feet; Thence Easterly along a 17.2463 degree curve to
the right, 160.49 feet (said curve having a radius of 132.22 feet) to the
northwest corner Xxx 0 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; Thence North
73(degree)45'50" East, along a non-tangent line, a distance of 113.74 feet to
the Xxxxxxxxxxxxx xxxxxx xx xxxx xxx 0 xx Xxxxx 00; Thence North
01(degree)27'49" East, along the west line of Lot 17 of block 12, a distance of
7.21 feet to the Northwest corner of said Xxx 00 xx Xxxxx 00; Xxxxxx Xxxxx
00(xxxxxx)00'00" Xxxx, a distance of 102.00 feet to the Northeast corner of said
Xxx 00 xx Xxxxx 00, xxxx xxxxx being on the west right-of-way line of XxXxxx
Drive; Along the west right-of-way line of XxXxxx and the east line of Blocks
12, 14 and 15; Thence South 01(degree)27'49" West, a distance of 1122.69 feet to
a point on the east line of Xxx 00 xx Xxxxx 00 Xxxxxxxx Xxxxx; Thence South
88(degree)32'11" East, a distance of 50.00 feet to the northwest corner of Xxx 0
xx Xxxxx 00 Xxxxxxxx Xxxxx; Thence South 01(degree)27'49" West, along the west
line of Lots 4 and 5 of Block 18, a distance of 166.28 feet, to a point on the
south right-of-way line of the New Estate Drive, said point being on a
non-tangent curve; Thence Easterly along a non-tangent 15.2789 degree segment of
a curve to the right and along the south right-of-way line of the New Estate
Drive, 13.69 feet (said segment having a chord bearing and distance of South
76(degree)13'45" East, 13.68 feet and having a radius of 375.00 feet) to a point
in Xxx 0 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; Thence South 01(degree)27'49" West, over
and across a portion of Lots 1 through 3 of said Block 18 Lakeside South and
Lots 14 and 15 of The First Addition to Lakeside South, a distance of 327.46
feet; Thence South 60(degree)29'21" West, a distance of 44.75 feet to a point on
the center line of vacated XxXxxx Drive; Thence South 01(degree)27'49" West,
along the center line of vacated XxXxxx, a distance of 87.57 feet; Thence South
88(degree)32'11" East, a distance of 24.99 feet to the northwest corner of Xxx
00 xx Xxxxx 00 xx Xxx Xxxxx Addition to Lakeside South; Along the easterly and
southerly right-of-way line of Esquire Drive as follows: thence South
01(degree)27'49" West a distance of 25.00 feet; Thence Southerly along a 52.0871
degree curve to the right, 159.14 feet (said curve having a radius of 110.00
feet) to the northeast corner of Xxx 00, Xxxxx 00 of The First Addition to
Lakeside South; Thence South 05(degree)37'57" East, leaving the southern
right-of-way line of Esquire Drive, a distance of 126.75 feet to the Southeast
corner of Xxx 00 xx Xxxxx 00 Xxx Xxxxx Addition to Lakeside South, said point
being on the Government Fee Taking Line; Along the south line of Block 24 and
the Government Fee Taking Line as follows: Thence North 73(degree)57'11" West, a
distance of 469.22 feet to Corps of Engineers No. 1400-13; Thence North
87(degree)41'11" West, a distance of 495.69 feet, to the Point of Beginning;
Containing 48.24 acres of land, more or less, Subject to all easements and
restrictions of record.
X-00
Xxxxx 00 (Building 2700)
A tract of land being a part of Lots 6 through 12, 18, 19, all of Lots 13
through 17 of Block 14 and part of Xxx 00 xx Xxxxx 00 Xxxxxxxx Xxxxx, a
subdivision plat recorded in Plat Book 9, at Page 27 of the records of Taney
County, Missouri, and a portion of vacated Blueridge Lane, said land being
situated in the E 1/2 of the NE 1/4 of Section 11, Township 21 North, Range 22
West, Taney County, Missouri, Being more particularly described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of the First Addition to
Lakeside South, a subdivision plat recorded in Plat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps. of Engineers monument
N-1400-14; Along the Government Fee Taking Line of Table Rock Lake as follows:
thence South 87(degree) 41' 11" East, a distance of 495.69 feet to Corps.
monument N-1400-13; thence South 73(degree) 57' 11" East, a distance of 469.22
feet to the Southeast corner of Xxx 00, Xxxxx 00 of the First Addition to
Lakeside South; thence North 05(degree) 37' 57" West, leaving the Government Fee
Taking Line, a distance of 126.75 feet to the Northeast corner of Xxx 00, Xxxxx
00, xxxx xxxxx being on a non-tangent curve on the southerly right-of-way line
of Esquire Drive; thence easterly along the southerly light-of-way line of
Esquire Drive through a non-tangent segment of a curve to the left having an arc
length of 159.14 feet (said segment having a chord bearing and distance of North
42(degree) 54' 37" East, 145.62 feet and a radius of 110.00 feet); thence North
01(degree) 27' 49" East, along the east right-of-way line of XxXxxx Drive, a
distance of 25.00 feet to the Northwest corner of Xxx 00, Xxxxx 00 of the First
Addition to Lakeside South; thence North 88(degree) 32' 11" West, a distance of
24.99 feet to the center line of vacated XxXxxx Drive; thence North 01(degree)
27' 49" East, along the center line of vacated XxXxxx Drive, a distance of 87.57
feet; thence North 60(degree) 29' 21" East, a distance d 44.75 feet; thence
North 01(degree) 27' 49" East, a distance of 327.46 feet to a point on the New
south right-of-way line of Estate Drive, said point being on a non-tangent
curve; thence westerly along a non-tangent segment of a curve to the left, along
the South right-of-way line of the new south right-of-way line of Estate Drive,
having an arc length of 13.69 feet (said segment having a chord bearing and
distance North 76(degree) 13' 46" West, 13.68 feet and a radius of 375.00 feet)
to a point on the west line of Xxx 0, Xxxxx 00 xx xxxx Xxxxxxxx Xxxxx; thence
North 01(degree) 27' 49" East, along the west line of Lots 4 and 5, Block 18, a
distance of 166.28 feet to the northwest xxxxx of Xxx 0, Xxxxx 00 xx Xxxxxxxx
Xxxxx; thence North 88(degree) 32' 11" West, a distance of 50.00 feet to a point
on the east line of Xxx 00 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; thence North
01(degree) 27' 49" East, along the east line of Xxxx 00 xxx 00, Xxxxx 00 xxx Xxx
00 xx Xxxxx 14, a distance of 230.96 feet to the POINT of BEGINNING; Thence
South 81(degree) 16' 21" West a distance of 123.49 feet; Thence North 84(degree)
15' 18" West a distance of 20.45 feet; Thence North 55(degree) 59' 06" West a
distance of 40.66 feet; Thence North 41(degree) 35' 02" West a distance of 87.09
feet; Thence North 25(degree) 15' 40" West a distance of 50.00 feet; Thence
North 49(degree) 42' 26" East a distance of 31.57 feet; Thence North 40(degree)
17' 34" West a distance of 116.81 feet; Thence North 30(degree) 08' 51" West a
distance of 89.47 feet; Thence North 50(degree) 21' 22" East a distance of
165.10 feet; Thence North 39(degree)12'14" West a distance of 33.53 feet; Thence
North 50(degree)47'46" East a distance of 54.56 feet; Thence South
36(degree)05'00" East a distance of 11.84 feet; Thence North 50(degree)18'32"
East a distance of 20.87 feet; Thence South 42(degree)33'46" East a distance of
259.22 feet; Thence South 88(degree)32'11" East a distance of 12.26 feet; Thence
South 01(degree)27'49" West a distance of 281.71 feet to the said Point of
Beginning, Containing 2.52 acres of land, more or less, Subject to all easements
and restrictions of record,
X-00
Xxxxx 00 (Building 2900)
A tract of land being all of Lots 3 and 4 and part of Xxxx 0, 0, 0, 0, 00, 00,
00, 00 and 14 of Block 13, part of lots 22, 23 and 24 of Block 14, Lakeside
South, a subdivision plat recorded in Plat Book 9, at Page 27 of the records of
Taney County, Missouri and a portion of vacated Blueridge Lane and Xxxx Xxxx
Xxxx, said land being situated in the N1/2 of the of the NE1/4 of Section 11,
Township 21 North, Range 22 West, Taney County, Missouri, Being more
particularly described as follows:
Commencing at the Southwest corner of Xxx 0, Xxxxx 00 of the First Addition to
Lakeside South, a subdivision plat recorded in Plat Book 12, at Page 15 of the
records of Taney County, Missouri, being marked by Corps. of Engineers monument
N-1400-14; Along the Government Fee Taking Line of Table Rock Lake as follows:
Thence South 87(degree) 41' 11" East, a distance of 495.69 feet to Corps.
monument N-1400-13; Thence South 73(degree)57'11" East, a distance of 469.22
feet to the Southeast corner of Xxx 00, Xxxxx 00 of the First Addition to
Lakeside South; Thence North 05(degree)37'57" West, leaving the Government Fee
Taking Line, a distance of 126.75 feet to the Northeast corner of Xxx 00, Xxxxx
00, xxxx xxxxx being on a non-tangent curve on the southerly right-of-Way line
of Esquire Drive; Thence easterly along the southerly right-of-way line of
Esquire Drive on a non-tangent curve to the left having an arc length of 159.14
feet, (said segment having a chord bearing and distance of North
42(degree)54'37" East, 145.62 feet and a radius of 110.00 feet); Thence North
01(degree)27'49" East, along the east right-of-way line of XxXxxx Drive, a
distance of 25.00 feet to the Northwest corner of Xxx 00, Xxxxx 00 of the First
Addition to Lakeside South; thence North 88(degree)32'11" West, a distance of
24.99 feet to the center line of vacated XxXxxx Drive; Thence North
01(degree)27'49" East, along the center line of vacated XxXxxx Drive, a distance
of 87.57 feet; Thence North 60(degree)29'21" East, a distance of 44.75 feet;
thence North 01(degree)27'49" East, a distance of 327.46 feet to a point on the
new south right-of-way line of Estate Drive, said point being on a non-tangent
curve; Thence westerly along the South right-of-way line of the new south
right-of-way line of Estate Drive on non-tangent segment of a curve to the left
having an arc length of 13.69 feet, (said segment having a chord bearing and
distance of North 76(degree)13'45" West, 13.68 feet and a radius of 375.00 feet)
to a point on the west line of Xxx 0, Xxxxx 00 xx xxxx Xxxxxxxx Xxxxx; Thence
North 01(degree)27'49" East, along the west line of Lots 4 and 5, Block 18, a
distance of 166.28 feet to the northwest corner of Xxx 0, Xxxxx 00 xx Xxxxxxxx
Xxxxx; Thence North 88(degree)32'11" West, a distance of 50.00 feet to a point
on the east line of Xxx 00 xx Xxxxx 00 xx Xxxxxxxx Xxxxx; Thence North
01(degree)27'49" East, along the east line of Lots 14 and 15, Block 15, a
distance of 72.10 feet; thence North 88(degree)32'38" West, a distance of 62.80
feet; thence South 01(degree)27'22" West, a distance of 84.34 feet; thence South
44(degree)07'40" West a distance of 53.93 feet; Thence South 79(degree)44'42"
West a distance of 31.94 feet; Thence North 45(degree)52'20" West a distance of
343.25 feet; Thence North 44(degree)07'40" East a distance of 36.82 feet; Thence
North 29(degree)37'43" West a distance of 396.70 feet; Thence North
60(degree)22'17" East a distance of 92.95 feet; Thence North 29(degree)37'43"
West a distance of 43.61 feet; Thence North 59(degree)51'09" East a distance or
56.31 feet; Thence North 00(degree)00'00" East a distance of 34.59 feet; Thence
North 27(degree)06'14" West a distance of 46.65 feet; Thence North
38(degree)20'10" West a distance of 70.03 feet; Thence North 49(degree)26'43"
West a distance of 33.53 feet to the Point of Beginning; Thence continuing North
49(degree)26'43" West a distance of 16.91 feet; Thence North 50(degree)38'24"
West a distance of 134.58 feet; Thence North 44(degree)10'47' West a distance of
69.36 feet; Thence North 33(degree)53'56" West a distance of 144.68 feet to a
point on the southeasterly right-of-way line of Oakwood Drive; Thence
northeasterly along the southeasterly right-of-way line of Oakwood
A-12
Drive on a non-tangent segment of a curve to the right having an arc length of
104.89 feet, (said segment having a chord bearing and distance of North
48(degree)49'43" East, 104.88 feet and a radius of 2814.97 feet); Thence North
49(degree)54'02" East, along the southeasterly right-of-way line of Oakwood
Drive, a distance of 79.81 feet; Thence South 67(degree)11'47" East a distance
of 58.78 feet; Thence South 47(degree)46'44" East a distance of 217.26 feet;
Thence South 46(degree)44'20" East a distance of 77.96 feet; Thence South
44(degree)33'57" East a distance of 43.15 feet; Thence South 50(degree)36'41"
West a distance of 63.49 feet; Thence North 49(degree)16'39" West a distance of
50.33 feet; Thence South 40(degree)48'31" West a distance of 166.76 feet to the
said Point of Beginning, Containing 1.92 acres of land, more or less, Subject to
all easements and restrictions of record.
A-13
Exhibit B
Big Cedar Availability Report
Month End Date
--------------
Beginning Financed Note Receivable Balance
Add: New Eligible Collateral
Add: Substitutions
Less: Principal Collections
Less: Paid in Full
Less: Upgrades
Less: Defaults/Cancellations
Add/Less: Other Adjustments
Subtotal Receivables Balance
Less: 90+ Day Delinquencies
Total Eligible Note Receivable Balance
Beginning GE Loan Balance
Add: New Fundings
Less: Principal Reductions
Add/Less: Other Adjustments
GE Ending Outstanding Principal Loan Balance
FINANCED NOTES RECEIVABLE WTD AVG COUPON
LENDER'S INTEREST RATE
SPREAD
Effective Availability Percentage
Availability Percentage
Required Loan Balance
Excess/(Deficit) Availability
Funding Availability
B-1
Exhibit C
Form of Borrower Estoppel
ESTOPPEL CERTIFICATE
The undersigned hereby certifies to General Electric Capital Corporation
(together with its successors and assigns, "Lender") that:
1. The principal amount outstanding to Lender pursuant to that certain
Loan and Security Agreement dated April 16, 2007, between Borrower and Lender
(the "Loan Agreement") and the promissory note executed by Borrower in
connection therewith is $______________. Capitalized terms used herein and not
defined shall have the meanings set forth for them in the Loan Agreement.
2. Interest on the Loan has been paid to _____________________.
3. Pursuant to the Loan Agreement, the Loan Interest Rate is a variable
rate equal to the Base Rate plus 1.75% per annum (adjusted monthly). Currently
the Base Rate is _______%.
4. The Loan Documents constitute the entire agreement between the parties
and there are no other agreements or understandings between Borrower or Lender
concerning the Loan.
5. The Loan Documents are valid and in full force and effect, and neither
Borrower nor, to the best of Borrower's knowledge, Lender is in default
thereunder. Borrower has no defense, setoff or counterclaim against Lender
arising out of the Loan Documents or against the payments due under the Loan
Documents or in any way relating thereto, or arising out of any other
transaction between Lender and Borrower, and no event has occurred and no
condition exists, which with the giving of notice or the passage of time, or
both, will constitute a default by Borrower under the Loan Documents. Borrower
is current in the payment of amounts owing under the Loan Documents.
6. There are no actions, whether voluntary or involuntary, pending against
Borrower, Guarantor, or Bluegreen Vacations Unlimited, Inc. under any
insolvency, bankruptcy or other debtor relief laws of the United States of
America or any of its constituent States.
7. Lender is holding no funds for Borrower's account other than
_____________.
C-1
Date: ______________, 200__ BORROWER:
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
By
------------------------------------
------------------------------------
[Printed name and title]
C-2
ACKNOWLEDGEMENT
STATE OF )
------------------------
):SS
COUNTY OF )
-----------------------
The foregoing instrument was acknowledged before me on _______________, 2007 by
_________________________, the _________________ of Bluegreen/Big Cedar
Vacations, LLC, who is personally known to me or has produced
_________________________ as identification.
-----------------------------
Notary Public
Print Name: _________________________
(AFFIX NOTARIAL SEAL)
C-3
GUARANTOR'S ACKNOWLEDGMENT
The undersigned (a) has guaranteed the obligations of the Borrower under
the Loan Documents referred to above, (b) consents to the matters set forth
above and agrees to be bound thereby, and (c) acknowledges that the guaranty
executed by the undersigned is in full force and effect and will not be
supplemented, modified, amended or terminated without the prior written consent
of the Lender.
Guarantor:
BLUEGREEN CORPORATION,
a Massachusetts corporation
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
C-4
Exhibit D
AVAILABILITY PERCENTAGES
----------------------------------------------------------------------------------------------
Spread between Borrower's weighted average Availability
note receivable coupon and Lender's Interest Rate Adjustment Percentage
----------------------------------------------------------------------------------------------
>/= 6.00% 0.0% 97.0%
----------------------------------------------------------------------------------------------
< 6.00% but >/= 5.60% 1.0% 96.0%
----------------------------------------------------------------------------------------------
< 5.60% but >/= 5.20% 2.0% 95.0%
----------------------------------------------------------------------------------------------
< 5.20% but >/= 4.80% 3.0% 94.0%
----------------------------------------------------------------------------------------------
< 4.80% but >/= 4.40% 4.0% 93.0%
----------------------------------------------------------------------------------------------
< 4.40% but >/= 4.00% 5.0% 92.0%
----------------------------------------------------------------------------------------------
< 4.00% but >/= 3.60% 6.0% 91.0%
----------------------------------------------------------------------------------------------
< 3.60% but >/= 3.20% 7.0% 90.0%
----------------------------------------------------------------------------------------------
< 3.20% N/A No Availability
----------------------------------------------------------------------------------------------
Note:
Lender utilized the average coupon of 14.0%, as the Borrower's weighted average
note receivable coupon.
D-1
Exhibit E
REQUEST FOR ADVANCE
DATE: ___________________________
GENERAL ELECTRIC CAPITAL CORPORATION
Attn: Asset Manager
000 Xxxx Xxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
RE: Loan No. 77287
$45,000,000 credit facility described in that certain Loan and
Security Agreement (the "Loan Agreement") between GENERAL
ELECTRIC CAPITAL CORPORATION ("Lender") and BLUEGREEN/BIG
CEDAR VACATIONS, LLC ("Borrower")
Dear Sir or Madam:
In accordance with the terms of the Loan Agreement, Borrower wishes
to obtain an Advance of $_______________________ under the Loan on
___________________, 20____. All terms used herein, unless otherwise specified,
shall have the meanings assigned in the Loan Agreement. In order to induce
Lender to make such Advance, Borrower hereby represents and warrants to Lender:
1. No Event of Default or Potential Default has occurred or will
occur as a result of the Advance requested herein.
2. The representations and warranties contained in the Loan
Agreement are true, correct and complete in all material respects to the same
extent as though made on the date of the Loan Agreement except for any
representation or warranty limited by its terms to a specific date and taking
into account any amendments to the schedules or exhibits as a result of any
subsequent disclosures made by Borrower in writing to, and approved in writing
by, Lender.
3. Borrower is in compliance with each and every one of its
covenants, agreements and obligations under the Loan Agreement.
4. (a) As of the date hereof, the weighted average interest rate of
the Eligible Notes Receivable which are the subject of this Request for Advance,
is no less than fourteen percent (14%) per annum; and
(b) any Financed Notes Receivable that have been modified or
altered have been modified or altered in compliance with Section 5.15 of the
Loan Agreement.
5. Borrower has no defenses or offsets with respect to the payment
of any amounts due Lender.
E-1
6. Lender has performed all of its obligations to Borrower.
7. All of the documents described in Schedule A attached hereto meet
all of the requirements of Eligible Notes Receivable.
8. Borrower shall grant Lender a security interest in and lien upon
those certain Eligible Notes Receivable and other documents executed in
connection with the sale of Timeshare Interests as set forth in Schedule A
attached hereto.
9. No Purchaser has any asserted or, to the best of Borrower's
knowledge, threatened defense, offset, counterclaim, discount or allowance in
respect of each Eligible Note Receivable to be pledged in connection with this
Advance. Borrower has no knowledge of any facts which would lead a reasonable
person to conclude that any particular Eligible Note Receivable to be pledged in
connection with this Advance shall not be paid in accordance with its terms.
10. Borrower's wiring instructions are attached hereto as Schedule
B.
BORROWER:
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
Schedule A: Description of New Eligible Notes Receivable and other Purchase
Documents
Schedule B: Wiring Instructions
E-2
Exhibit F
COLLATERAL ASSIGNMENT OF PURCHASE MONEY MORTGAGES
("Assignment")
Dated: _________________________
Grantor: (Assignor) Bluegreen/Big Cedar Vacations, LLC, 0000 Xxxxxxxxxx Xxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
Grantee: (Assignee) General Electric Capital Corporation, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
WHEREAS, Assignor and Assignee have entered into a Loan and Security
Agreement, dated as of April 16, 2007 (as amended from time to time, the "Loan
Agreement"), pursuant to which Assignee has agreed to lend, upon the terms and
conditions set forth in the Loan Agreement, up to Forty-Five Million Dollars
($45,000,000.00) (the "Loan") to Assignor to be evidenced by a Revolving
Promissory Note, dated April 16, 2007 (together with any renewals, extensions,
substitutions or modifications thereof, the "Note") and secured by a security
interest granted by Assignor to Assignee on certain Financed Notes Receivable
and the Purchase Documents and Mortgages related thereto as well as other
Collateral of Assignor (as such terms are defined in the Loan Agreement).
Capitalized terms used herein and not defined shall have the meaning set forth
for them in the Loan Agreement.
NOW THEREFORE, to secure the payment and performance of the Indebtedness
and other obligations of Assignor to Assignee under the Loan Agreement, the Note
and the other Loan Documents (as such term is defined in the Loan Agreement) and
in consideration of the extension of the Loan to Assignor, Assignor as record
holder to certain mortgages dated, recorded and more particularly described in
Schedule 1, attached hereto ("Mortgages") affecting property located at the
resort in the County of Taney, State of Missouri having the following legal
description:
Timeshare Interest(s) consisting of an undivided 1/52nd (if Annual) OR
1/104th (if Biennial) Interest(s) one fifty-second (1/52) tenant in
common, undivided interest, as a fee simple estate, in each of the
below-described Condominium Unit(s), in the Big Cedar Wilderness Club
Condominium, according to the Declaration of Condominium and Bylaws for
The Big Cedar Wilderness Club Condominium, as recorded in Book 396, Page
3727-3828 of the Office of the Recorder of Deeds, Taney County, Missouri,
as such Declaration may now or hereafter be amended (the "Declaration");
together with the right to occupy in the respective season in every
calendar year (if Annual) OR every other calendar year (if Biennial),
pursuant to the Declaration, the foregoing Condominium Unit(s), and each
comparable Unit which is subject to the Flexible Use Plan, during any
Flexible Unit Week(s) within that same season, and subject to the
provisions of the Flexible Use Plan, the then-current Rules and
Regulations for the Resort and the Declaration; the foregoing being
conveyed together with a one fifty-second (1/52) tenant in common interest
in the Allocated Interests of such Unit(s) (the same being the undivided
interest in the Common
F-1
Elements, the Common Expense Liability, and votes in the Association as
allocated to the Unit(s) pursuant to the terms of the Declaration).
An Annual Unit Week allows occupancy and use of a Unit each and
every year. An Annual Unit Week is designated with an "F,"
indicating a Full Timeshare Interest. A Biennial Unit Week,
indicating one-half of a Full Timeshare Interest, allows occupancy
only during Odd Numbered Years (and such Unit Week is designated
with an "O") or only during Even Numbered Years (and such Unit Week
is designated with an "E").
does hereby collaterally convey, assign, transfer and set over to General
Electric Capital Corporation, a Delaware corporation ("Assignee'), all right,
title and interest of Assignor in the Mortgages, and all right, title and
interest in and to the promissory note or notes referred to in said Mortgages
referred to in Schedule 1 (the "Notes"), with recourse and warranty, and all
documents and instruments securing said Notes, whether or not referenced in
Schedule 1, and all monies, proceeds and awards, including without limitation,
interest, due or to become due thereon or with respect thereto, as set forth in
the Loan Agreement.
Taney County, MO
IN WITNESS WHEREOF, Assignor has caused this Assignment of Purchase Money
Mortgages to be duly executed on the date first above written.
Bluegreen/Big Cedar Vacations, LLC,
a Delaware limited liability company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
F-2
STATE OF )
):SS
COUNTY OF )
The foregoing instrument was acknowledged before me on _______________, 2007 by
_________________________, as _________________________ of Bluegreen/Big Cedar
Vacations, LLC, a Delaware limited liability company, who is personally known to
me or has produced _________________________ as identification.
-------------------------
Notary Public
Print Name: ________________________
(AFFIX NOTARIAL SEAL)
Prepared by and After Recording Return to:
Xxxxx Xxxxxxxx
Bluegreen Corporation - Mortgage Funding
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Boca Raton, FL 33431
Taney County, MO
F-3
Schedule 1
ASSIGNMENT OF CONTRACTS, NOTES RECEIVABLE AND MORTGAGES
Mortgage
Unit Mortgage Mortgage Recording Recording Recording
Name Number Week Subdivision Amount Document No. Date Book Page
---- ------ ---- ----------- ------ ------------ ---- ---- ----
F-4
Exhibit H
FORM OF ENDORSEMENT
Pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION, with full
recourse and warranty.
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
H-1
Exhibit I
SPECIFIC OPERATING CONTRACTS
Operating Contracts
1. Refer to Items 1-18 on Schedule 4.13.
2. Management Agreement, dated January 1, 2002, by and between Big Cedar
Wilderness Club Condominium Association, Inc. and Bluegreen Resorts
Management, Inc.
3. Agreement for the Purchase of Electric Power and Energy, dated November
13, 2001, between White River Valley Electric Cooperative, Inc. and
Bluegreen/Big Cedar Vacations, LLC.
4. Lease, dated 2005, by and between Bluegreen/Big Cedar Vacations, LLC and
Jerry's Boat & Mini Storage.
I-1
Exhibit J
PERMITTED EXCEPTIONS
1. Covenants and Restrictions recorded July 14, 1967 in Book 181, Page 27,
Taney County, Missouri Recorder's Office.
2. Covenants and Restrictions recorded June 24, 1971 in Book 202, Page 61,
Taney County, Missouri Recorder's Office.
3. Covenants and Restrictions recorded June 24, 1971 in Book 202, Page 62,
Taney County, Missouri Recorder's Office.
4. Covenants and Restrictions recorded June 24, 1971 in Book 202, Page 63,
Taney County, Missouri Recorder's Office.
5. Covenants and Restrictions recorded July 15, 1971 in Book 202, Page 127,
Taney County, Missouri Recorder's Office.
6. Covenants and Restrictions recorded August 31, 1971 in Book 202, Page 241,
Taney County, Missouri Recorder's Office.
7. Covenants and Restrictions recorded August 31, 1971 in Book 202, Page 330,
Taney County, Missouri Recorder's Office.
8. Covenants and Restrictions recorded July 1, 1980 in Book 251, Page 1520,
Taney County, Missouri Recorder's Office.
9. Covenants and Restrictions recorded June 23, 2000 in Book 371, Page 2829,
Taney County, Missouri Recorder's Office.
10. Terms and provisions of the Subordination and Non-Disturbance Agreement
recorded August 17, 2000 in Book 373, Page 3340, Taney County, Missouri
Recorder's Office.
11. Easement agreement recorded August 3, 2000 in Book 371, Page 2834, Taney
County, Missouri Recorder's Office.
12. Easement agreement recorded August 3, 2000 in Book 000, Xxxx 0000, Xxxxx
Xxxxxx, Xxxxxxxx Recorder's Office.
13. UCC Financing Statement filed August 3, 2000, in Book 372, Page 6833,
executed by Big Cedar L.L.C. to Bluegreen Vacations Unlimited, Inc.
affecting the items therein described, which have become affixed to the
premises in question.
14. Terms, provisions, restrictive covenants, conditions, reservations,
rights, duties and easements contained in the Amended and Restated
Declaration of Condominium and Bylaws for the BIG CEDAR WILDERNESS CLUB
CONDOMINIUM, and any Exhibits annexed thereto, including but not limited
to, provisions for a private charge or assessments and a right of first
refusal or the prior approval of a future purchaser or occupant, as
recorded in
J-1
Book 478, Pages 7189-7322, of the Taney County Recorder's Office, and any
amendments thereto, together with the corresponding percentage interest in
the common elements and limited common elements appurtenant thereto.
In addition, Permitted Exceptions shall mean and include:
(i) Liens for state, municipal and other local taxes if such taxes shall
not at the time be due and payable;
(ii) Liens in favor of Lender pursuant to the Loan Agreement;
(iii) Materialmen's, warehousemen's, mechanics' and other Liens arising by
operation of law in the ordinary course of business for sums not
due;
(iv) The Purchaser's interest in the Timeshare Interest relating to the
Financed Note Receivable whether pursuant to the Club Trust
Agreement or otherwise;
(v) Any Owner Beneficiary Rights.
J-2
Exhibit K
SALES REPORT
K-1
LOAN AND SECURITY AGREEMENT
between
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
a Delaware limited liability company
BORROWER
and
GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation
LENDER
TABLE OF CONTENTS
Page
ARTICLE 1 THE LOAN............................................................17
1.1 The Loan.......................................................17
1.2 Advances of Loan Proceeds......................................17
1.3 Interest Rate..................................................18
1.4 Payments; Term.................................................19
1.5 Prepayments....................................................19
1.6 Commitment Fee.................................................21
1.7 Receipt of Payments............................................21
1.8 Taxes..........................................................21
1.9 Single Loan....................................................22
1.10 Application of Advances........................................22
ARTICLE 2 COLLATERAL..........................................................22
2.1 Grant of Security Interest.....................................22
2.2 Security Agreement.............................................23
ARTICLE 3 INSURANCE, CONDEMNATION AND IMPOUNDS................................23
3.1 Insurance......................................................23
3.2 Use and Application of Insurance Proceeds......................25
3.3 Condemnation...................................................25
ARTICLE 4 REPRESENTATIONS AND WARRANTIES......................................26
4.1 Organization and Power.........................................26
4.2 Validity of Loan Documents.....................................26
4.3 Liabilities; Litigation; Other Secured Transactions............26
4.4 Taxes and Assessments..........................................27
4.5 Other Agreements; Defaults.....................................27
4.6 Compliance with Law............................................27
4.7 Location of Borrower...........................................27
4.8 ERISA..........................................................27
4.9 Margin Stock...................................................28
4.10 Tax Filings....................................................28
4.11 Solvency.......................................................28
4.12 Full and Accurate Disclosure...................................28
4.13 Contracts with Affiliates; Subordinated Indebtedness...........29
4.14 Intellectual Property..........................................29
4.15 Title; Prior Liens.............................................29
4.16 Intentionally Deleted..........................................30
4.17 Eligible Notes.................................................30
4.18 Intentionally Deleted..........................................30
4.19 Representations as to the Association..........................30
4.20 Operating Contracts............................................31
4.21 Consumer Law Matters...........................................31
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ARTICLE 5 COVENANTS...........................................................31
5.1 Due on Sale and Encumbrance; Transfers of Interests............31
5.2 Taxes; Charges.................................................32
5.3 Control; Management............................................32
5.4 Operation; Maintenance; Inspection.............................33
5.5 Taxes on Security..............................................33
5.6 Legal Existence; Name, Etc.....................................33
5.7 Affiliate Transactions.........................................34
5.8 Further Assurances.............................................34
5.9 Estoppel Certificates..........................................34
5.10 Notice of Certain Events.......................................34
5.11 Indemnification................................................35
5.12 Application of Loan Proceeds/Operating Revenues................35
5.13 Compliance with Laws...........................................35
5.14 Litigation and Proceeding......................................36
5.15 Collateral.....................................................36
5.16 Sale of Collateral; Proceeds...................................37
5.17 Intentionally Deleted..........................................37
5.18 Performance of Operating Contracts.............................37
5.19 Servicing of Financed Notes Receivable.........................37
5.20 Custodian......................................................38
5.21 Maintenance....................................................38
5.22 Records........................................................38
5.23 Other Documents................................................38
5.24 Inspections and Audits.........................................38
5.25 Notices Regarding Lender's Interests...........................39
5.26 Payment of Charges.............................................39
5.27 Amendment of Timeshare Documents...............................40
ARTICLE 6 FINANCIAL COVENANTS; REPORTING REQUIREMENTS.........................40
6.1 Financial Covenants............................................40
6.2 Reporting Requirements.........................................40
ARTICLE 7 EVENTS OF DEFAULT...................................................43
7.1 Payments.......................................................43
7.2 Insurance......................................................43
7.3 Transfer.......................................................43
7.4 Covenants......................................................43
7.5 Representations and Warranties.................................43
7.6 Other Encumbrances.............................................43
7.7 Involuntary Bankruptcy or Other Proceeding.....................43
7.8 Voluntary Petitions, Etc.......................................44
7.9 Suspension of Sales............................................44
7.10 Default by Borrower in Other Agreements........................44
7.11 Other Agreements...............................................44
ARTICLE 8 REMEDIES............................................................44
8.1 Remedies - Insolvency Events...................................44
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8.2 Remedies - Other Events........................................44
8.3 Lender's Right to Perform the Obligations......................45
8.4 Remedies Upon Default..........................................45
8.5 Funds of Lender................................................46
8.6 Application of Collateral; Termination of Agreements...........46
8.7 Direct Disbursement and Application by Lender..................46
8.8 Waivers........................................................46
8.9 Commercial Reasonableness......................................47
8.10 Cumulative Rights..............................................47
8.11 Intercreditor Agreement........................................47
ARTICLE 9 CERTAIN RIGHTS OF LENDER............................................48
9.1 Protection of Collateral.......................................48
9.2 Performance by Lender..........................................48
9.3 Costs..........................................................48
9.4 Assignment of Lender's Interest................................48
9.5 Notice to Purchasers...........................................48
9.6 Collection of Notes............................................48
9.7 Power of Attorney..............................................49
ARTICLE 10 ANTI-MONEY LAUNDERING AND INTERNATIONAL TRADE CONTROLS.............49
10.1 Compliance with International Trade Control Laws and OFAC
Regulations....................................................49
10.2 Borrower's Funds...............................................50
ARTICLE 11 ENVIRONMENTAL MATTERS..............................................51
11.1 Representations and Warranties on Environmental Matters........51
11.2 Covenants on Environmental Matters.............................51
ARTICLE 12 MISCELLANEOUS......................................................53
12.1 Notices........................................................53
12.2 Amendments and Waivers; References.............................54
12.3 Limitation on Interest.........................................54
12.4 Invalid Provisions.............................................55
12.5 Reimbursement of Expenses......................................55
12.6 Approvals; Third Parties; Conditions...........................55
12.7 Lender Not in Control; No liability or Partnership.............56
12.8 Time of the Essence............................................56
12.9 Successors and Assigns.........................................56
12.10 Renewal, Extension, Rearrangement, Loan Outplacement...........56
12.11 Waivers........................................................57
12.12 Cumulative Rights..............................................57
12.13 Singular and Plural............................................57
12.14 Phrases........................................................57
12.15 Exhibits and Schedules.........................................58
12.16 Titles of Articles, Sections and Subsections...................58
12.17 Promotional Material...........................................58
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12.18 Survival.......................................................58
12.19 WAIVER OF JURY TRIAL...........................................58
12.20 Punitive or Consequential Damages; Waiver......................58
12.21 Governing Law..................................................59
12.22 Entire Agreement...............................................59
12.23 Counterparts...................................................59
12.24 Limitation on Liability of Borrower's, Guarantor's and
Lender's Officers, Employees, Etc..............................59
12.25 Venue..........................................................59
INDEX OF EXHIBITS AND SCHEDULES
Schedule 1.1: Advance Conditions
Schedule 2.3: Form of Reassignment of Security Instrument
Exhibit 1: Reassignment of Contracts, Notes Receivable and
Mortgages
Schedule 4.1: Organizational Matters
Schedule 4.13 Contracts with Affiliates
Schedule 4.17 Description of Amenities]
Schedule 5.11 Litigation
Schedule 5.13 Jurisdictions of Sales
Exhibit A: Land
Exhibit B: Form of Availability Report
Exhibit C: Form of Borrower Estoppel
Exhibit D: Availability Percentages
Exhibit E: Request for Advance
Exhibit F: Form of Collateral Assignment of Contracts,
Notes Receivable and Mortgages
Schedule 1: List of Notes Receivable and Purchase Documents
and Mortgages, together with all necessary land record
information.
Exhibit H: Form of Endorsement
Exhibit I: Specific Operating Contracts
Exhibit J: Permitted Exceptions
Exhibit K: Sales Report
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