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EXHIBIT 10.134
MASTER BLUEGREEN RESORT LOAN FACILITY PRIVATE
THIS MASTER BLUEGREEN RESORT LOAN FACILITY (this "AGREEMENT") dated as
of October 20, 1998, is made by and between XXXXXX FINANCIAL, INC., a Delaware
corporation ("LENDER"), and BLUEGREEN CORPORATION, a Massachusetts corporation
("BLUEGREEN").
R E C I T A L S:
A. All capitalized terms used herein shall have the meanings ascribed
thereto in the Appendix attached hereto and made a part hereof by this
reference.
B. Bluegreen, directly or through one or more of its subsidiaries, is
in the business of acquiring, constructing and/or developing certain Resorts
for the purpose of selling Intervals therein and/or treating such Resorts as
Component Sites in connection with its Club.
C. Upon satisfaction of the terms and conditions set forth herein,
Lender may extend financing from time to time to Bluegreen or certain Eligible
Bluegreen Subsidiaries, the proceeds of which will be used to acquire,
construct and develop certain Eligible Resorts.
D. Bluegreen has agreed to guarantee all of the obligations of such
Eligible Bluegreen Subsidiaries under this Agreement and the other Resort Loan
Documents except in any case in which Bluegreen is the borrower, including,
without limitation, all of the obligations of the Eligible Bluegreen
Subsidiaries with respect to any financing provided from time to time by
Lender.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements, provisions and covenants herein contained, Bluegreen and Lender
agree as follows:
1. EXTENSION OF FINANCING
1.1 FINANCING GENERALLY.
(A) EXTENSION OF RESORT LOANS. During the Eligibility Period
but subject to the requirements of this Section 1.1 and the requirements of
Sections 1.2, 1.3 and 2 hereof, Lender shall extend Resort Loans to either
Bluegreen or one or more Eligible Bluegreen Subsidiaries identified from time
to time by Bluegreen to Lender as being the owners and developers of particular
Eligible Resorts. Each such Resort Loan shall
(i) be made either to Bluegreen or to an Eligible Bluegreen
Subsidiary that is the owner and developer of an Eligible Resort whose
Resort Development Costs are to be financed, in part, by such Resort
Loan,
(ii) be disbursed in a series of Resort Advances during the
then remaining unexpired portion of the Eligibility Period (including,
where applicable, the Extension Period) to pay for not more than 85%
of Resort Development Costs incurred or to be
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incurred by Bluegreen or such Eligible Bluegreen Subsidiary in
acquiring, constructing and/or developing such Eligible Resort (each
such Resort Advance shall relate to particular line item or items
identified in the Approved Development Budget for such Resort; no more
than one Resort Advance per Resort Loan shall be made in any calendar
month),
(iii) be in a stated maximum principal amount of $2,500,000
or more,
(iv) shall have a final maturity date of not more than seven
(7) years from the Facility Closing Date,
(v) bear interest at the Interest Rate in effect from time to
time (which interest shall be computed on the unpaid principal balance
which exists from time to time with respect to each Resort Advance
under such Resort Loan only from the date on which such Resort Advance
is made and shall be paid by Bluegreen or such Eligible Bluegreen
Subsidiary, as the case may be, to Lender on a monthly basis as
provided in the applicable promissory note for such Resort Loan),
(vi) be guaranteed in full by Bluegreen, if such Resort Loan
shall have been extended to an Eligible Bluegreen Subsidiary, and, in
each case, be secured by all right, title and interest of Bluegreen or
such Eligible Bluegreen Subsidiary in and to the Eligible Resort
related to such Resort Loan, and in and to all leases, rents, products
and proceeds in respect thereof (including, without limitation, any
other collateral provided for in the applicable Resort Loan
Documents), PROVIDED that such Resort Loan shall not be secured by any
security interest or lien in respect of any receivable (including,
without limitation, any promissory note and mortgage or deed of trust
in respect thereof) arising from the sale of an Interval if the
applicable release price in respect of such sale, as provided in the
Resort Loan Documents for such Resort Loan, shall have been paid, and
(vii) be otherwise governed by the Resort Loan Documents for
such Resort Loan;
PROVIDED, that, in no event shall the maximum principal amount available under
such Resort Loan as of the Resort Loan Closing Date therefor exceed the Resort
Loan Limit determined at such time. It is the intention of Lender and Bluegreen
that the Resort Loan facility described herein not be a "revolving facility"
but rather a "multiple advance" facility that is permanently utilized as each
Resort Loan is made and that the sum of the original principal amount of all
Resort Advances made under all Resort Loans and the unutilized borrowing
availability under all Resort Loans not exceed, in the aggregate, $25,000,000.
It is further intended that each Resort Loan not be a "revolving facility" but
rather a "multiple advance" facility that is permanently utilized as each
Resort Advance is made thereunder.
(B) RESORT LOAN DOCUMENTS. On or prior to the Resort Loan
Closing Date for each Resort Loan, Lender and either Bluegreen or the Eligible
Bluegreen Subsidiary for such Resort Loan shall enter into the Resort Loan
Documents for such Resort Loan. Each
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Resort Loan Document shall be in Lender's then standard form with such changes
thereto as Lender may require in its sole discretion, including, without
limitation, such changes as may have been required as a condition to Lender's
granting approval of such Resort Loan.
1.2 REQUESTS FOR FINANCING. During the Eligibility Period (but not the
Extension Period), Bluegreen shall have the right to request Lender to make a
Resort Loan with respect to an Eligible Resort. Each such request shall be made
not less than sixty (60) days and not more than one hundred twenty (120) days
prior to the Resort Loan Closing Date requested by Bluegreen for such Resort
Loan, shall identify the Eligible Bluegreen Subsidiary and the Eligible Resort
in respect of such requested Resort Loan and shall be substantially in the form
of SCHEDULE 1.2 attached hereto and made a part hereof. Anything contained
herein to the contrary notwithstanding but subject to the last paragraph of
this Section 1.2, (a) Bluegreen acknowledges that Lender has reserved its right
to approve each request on a case-by-case basis in its sole discretion and that
Lender must apply its credit approval standards and processes to each such
request and each such Resort Loan and Eligible Resort that is the subject
thereof and (b) no Resort Loan Closing Date shall occur during the Extension
Period.
Upon the receipt of any such request and all information required to
be submitted in connection with such request (as set forth in SCHEDULE 1.2
attached hereto), Lender agrees to inform Bluegreen of its decision to approve
or reject such request within 45 days after its receipt of such request and all
of such information; if such request is approved, such approval shall be
subject to, on a post-approval basis, (a) the Lender's satisfactory verifying
of any or all information supplied in connection with such request, (b) a
satisfactory report in respect of any customary or otherwise necessary legal
due diligence in connection with such request and/or such information and (c)
the satisfying of the other terms and conditions of this Agreement.
Lender agrees to use its best efforts (but, in any case, without any
obligation on its part) to, within 15 days after the receipt of any such
request, determine whether it is likely that it will not approve such request.
If Lender shall make any such determination, Lender agrees to use its best
efforts to communicate the same to Bluegreen as soon as practicable. In
connection with any request in respect of which Lender has stated to Bluegreen
that it is likely that the same will not be approved, Lender will not continue
its approval process unless it receives a second request from Bluegreen to do
so.
1.3 CLOSING OF RESORT LOANS. Resort Advances under each Resort Loan
shall be advanced upon the satisfaction of the conditions precedent set forth
in the Resort Loan Documents in respect thereof. The first Resort Advance under
each Resort Loan shall be subject to the conditions set forth in Section 2
hereof and the conditions set forth in the Resort Loan Documents in respect of
such Resort Loan. All Resort Advances under each Resort Loan shall be disbursed
by Lender pursuant to customary construction loan disbursement procedures set
forth in the Resort Loan Documents in respect thereof which shall include,
among other things, general contractor certifications, mechanic's lien partial
or final (as the case may be) waivers, inspections and certifications by
Lender's Architect, mortgagee title insurance policy bringdown endorsements,
reconciliations of past contractor and subcontractor payments with work
completed and an "as built" certified survey (in the case of the last Resort
Advance under any Resort Loan).
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1.4 PAYMENT OF RESORT LOANS. Each Resort Loan shall be due and payable
in accordance with the Resort Loan Documents for such Resort Loan. Such Resort
Loan Documents shall provide that any security interest or lien granted
pursuant thereto upon any Interval in the Eligible Resort shall be released
from time to time by Lender from such security interest or lien only after
payment to Lender of a release price. Such release price shall be equal to the
amount, which shall be determined at the time of the first Resort Advance in
respect of such Resort Loan, necessary to fully repay such Resort Loan solely
through release payments in respect of eighty percent (80%) of the unsold
Intervals planned for such Eligible Resort and for which a deed shall not have
been conveyed at the time of such first Resort Advance (and if such Eligible
Resort is being developed in phases, the foregoing release price determination
shall be calculated in respect of each tranche of such Resort Loan and the
particular phase of the Eligible Resort to which it relates). Such Resort Loan
Documents shall also provide that either Bluegreen or the Eligible Bluegreen
Subsidiary under such Resort Loan shall make such principal payments of such
Resort Loan as shall be necessary so as to cause the outstanding principal
balance of such Resort Loan not to exceed certain maximum principal loan
amounts as of certain dates, which maximum principal loan amounts and dates
shall be in accordance with Lender's then existing guidelines for acquisition,
construction and development loans in the nature of such Resort Loan and shall
otherwise be agreed between Bluegreen and Lender (and if such Eligible Resort
is being developed in phases, the foregoing required principal payments shall
be calculated in respect of each tranche of such Resort Loan and the particular
phase of the Eligible Resort to which it relates).
1.5 COMMITMENT FEE. Bluegreen acknowledges and agrees that the
Commitment Fee of Two Hundred Fifty Thousand Dollars ($250,000) has been fully
earned by Lender. $100,000 of such Commitment Fee is due and payable on the
Facility Closing Date. The unpaid portion of the Commitment Fee shall be paid
by Bluegreen in installments equal to one percent (1%) of the amount of each
Resort Advance made with respect to each Resort Loan and, in any case, the
unpaid amount thereof shall be due and payable on the last day of the
Eligibility Period (which shall, for this purpose, exclude the Extension Period
and include, for the avoidance of doubt, the date on which this Facility shall
have been terminated under Section 7.1 as a result of the existence of a
Termination Event). Bluegreen hereby agrees that one percent (1%) of the amount
of each Resort Advance shall be retained by Lender and applied to the aforesaid
unpaid portion of the Commitment Fee (and Bluegreen shall instruct each
Eligible Bluegreen Subsidiary to consent to the same). Anything contained in
this Section 1.5 to the contrary notwithstanding, in no event shall the amount
payable in respect of the unpaid Commitment Fee after the Facility Closing Date
exceed One Hundred Fifty Thousand Dollars ($150,000).
2. FINANCING CLOSING CONDITIONS
The obligation of Lender to extend any Resort Loan hereunder to
Bluegreen or an Eligible Bluegreen Subsidiary in respect of an Eligible Resort
is subject to the satisfaction, in Lender's sole discretion, of all of the
conditions set forth below.
2.1 RESORT LOAN DOCUMENTS. Lender shall have received, in form and
substance satisfactory to Lender, counterparts of the Resort Loan Documents for
such Resort Loan
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executed by the Eligible Bluegreen Subsidiary and Bluegreen, as the case may
be, and each of such Resort Loan Documents shall be in form and substance
acceptable to Lender in Lender's sole discretion.
2.2 DELIVERIES PRIOR TO EACH RESORT LOAN. Prior to the extension of
such Resort Loan, Lender shall have received copies (certified to be true and
correct) of the Resort Purchase and Sale Agreement for such Eligible Resort,
the Resort Construction Contract for such Eligible Resort, the Resort
Architectural Contract for such Eligible Resort and all plans, specifications
and drawings for such Eligible Resort, the Approved Development Budget for such
eligible Resort, the Approved Sales and Marketing Budget for such Eligible
Resort, a Sources and Uses of Cash Projection for such Eligible Resort, all
other deliveries required to be delivered in order for Bluegreen to demonstrate
to Lender that such Eligible Resort satisfies Lender's requirements with
respect thereto and such other instruments and information applicable to such
Resort Loan as are identified on the form of closing checklist set forth on
SCHEDULE 2.2 attached hereto and made a part hereof. For the avoidance of
doubt, Bluegreen and Lender may mutually agree to waive any item currently
listed on Schedule 2.2 with respect to the closing of any Resort Loan or to
defer the satisfaction of any such item to after such closing or to otherwise
add items to said Schedule to be satisfied on either a pre- or post-closing
basis.
2.3 RESORT LOAN MORTGAGE. Lender shall have received satisfactory
evidence that the lien of the Resort Loan Mortgage constitutes a first priority
lien in the maximum amount of such Resort Loan in and to such Eligible Resort,
which satisfactory evidence shall include receipt by Lender of a mortgagee's
title insurance policy in form and content acceptable to Lender in Lender's
sole discretion in respect of such Resort Loan and such Eligible Resort
(together with such endorsements thereto as Lender may request in its sole
determination).
2.4 OTHER SECURITY DOCUMENTS. In addition to, but without duplication
of, the Resort Loan Documents in respect of such Resort Loan, Bluegreen and/or
such Eligible Bluegreen Subsidiary shall have executed and delivered to Lender
such other instruments as may be necessary or required by Lender in order to
create, maintain, perfect or protect a lien or security interest in any
collateral relating to such Eligible Resort, including, without limitation, an
assignment of rents from such Eligible Resort, an assignment of all
construction contracts, marketing contracts, construction management contracts,
master marketing and sales contracts, property management contracts, resort
affiliation contracts and Unit reservation contracts and other contracts
relating to, in each case, such Eligible Resort and UCC-1 financing statements
required in connection with such Resort Loan. For the avoidance of doubt, any
contract to be collaterally assigned under this Section 2.4 shall relate to a
specific Eligible Resort and shall act as collateral for the Resort Loan in
respect of such Eligible Resort and shall not be assigned prior to its actually
coming into existence, PROVIDED that no collateral assignment of the
reservation system of the Club shall be provided to the Lender. For the
avoidance of doubt, Bluegreen agrees not to allow the reservation system to be
encumbered at any time by any lien, security interest or other encumbrance.
2.5 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein and in the Resort Loan Documents for such Resort Loan shall be
true,
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correct and complete in all material respects on and as of the Resort Loan
Closing Date for such Resort Loan.
2.6 NO TERMINATION EVENTS. No Termination Event shall be in existence
as of the Resort Loan Closing Date for such Resort Loan.
2.7 PERFORMANCE OF AGREEMENTS. Bluegreen and the Eligible Bluegreen
Subsidiary shall have performed all agreements, paid all fees, costs and
expenses and satisfied all conditions which this Agreement or any Resort Loan
Document for such Resort Loan provides shall be paid, performed or satisfied as
of the Resort Loan Closing Date for such Resort Loan.
2.8 OPINIONS OF COUNSEL. Lender shall have received from independent
counsel for Bluegreen and such Eligible Bluegreen Subsidiary, one or more
closing opinions, each dated as of the Resort Loan Closing Date for such Resort
Loan as to such matters in respect of Bluegreen, such Eligible Bluegreen
Subsidiary, such Resort Loan, the Resort Loan Documents for such Resort Loan,
and such Eligible Resort as Lender may request in its sole discretion.
2.9 ELIGIBLE BLUEGREEN SUBSIDIARY. To the extent that an Eligible
Bluegreen Subsidiary shall be the borrower under such Resort Loan, such
Eligible Bluegreen Subsidiary shall be acceptable to Lender in Lender's sole
discretion, and Lender shall have received such financial statements, credit
reports, UCC searches and other similar background information relating to such
Eligible Bluegreen Subsidiary as Lender shall require in Lender's sole
discretion; such Eligible Bluegreen Subsidiary shall have also provided Lender
with copies of its organizational documents, and the same shall be acceptable
to Lender in Lender's sole discretion.
2.10 BLUEGREEN GUARANTEE AND EQUITY CONTRIBUTION. To the extent that
an Eligible Bluegreen Subsidiary shall be the borrower under such Resort Loan,
Bluegreen shall have executed and delivered to Lender a guarantee of such
Resort Loan and all obligations of such Eligible Bluegreen Subsidiary under the
Resort Loan Documents for such Resort Loan, and the guaranty agreement related
thereto shall be in form and substance acceptable to Lender in its sole
discretion. In addition thereto, Bluegreen shall have executed and delivered to
Lender a guarantee of the completion of the construction of such Eligible
Resort, and the guaranty agreement related thereto shall be in form and
substance acceptable to Lender in its sole discretion. To the extent that an
Eligible Bluegreen Subsidiary shall be the borrower under such Resort Loan,
Bluegreen shall have delivered to Lender proof of its contribution in cash to
such Eligible Bluegreen Subsidiary of the minimum capital and equity
contribution required by Lender and shall have delivered to Lender a copy of
its further agreement to contribute the remaining amount of capital or equity,
in cash, as shall have been agreed by Lender and Bluegreen (which agreement
shall be in form and substance satisfactory to Lender).
2.11 CROSS COLLATERALIZATION AND CROSS DEFAULTS. The Resort Loan
Documents for such Resort Loan shall provide that the collateral securing such
Resort Loan and the guarantee of Bluegreen in respect thereof, if any, shall
also secure all other past and future
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Resort Loans, all other past and future guarantees of Bluegreen in respect
thereof and the Warehouse Facility. The Resort Loan Documents for all
previously extended Resort Loans shall provide that the collateral securing
such previously extended Resort Loans and the guarantees of Bluegreen in
respect thereof, if any, shall also secure such Resort Loan and the guarantee
of Bluegreen in respect thereof and the Warehouse Facility. The Resort Loan
Documents for such Resort Loan shall provide that an event of default will
exist thereunder if any other default exists under any other past, current or
future Resort Loan Documents or exists under the Warehouse Facility.
Notwithstanding any right of Lender under the Warehouse Facility, Lender shall
not claim collateral under the Warehouse Facility as security for any Resort
Loan and/or the guarantee of Bluegreen in respect thereof unless there shall be
an actual principal amount outstanding under such Resort Loan and a "Material
Project Loan Default," as such term is defined in the Warehouse Facility, shall
exist in respect of such Resort Loan.
2.12 OTHER ELIGIBLE RESORT DUE DILIGENCE INFORMATION. Bluegreen and/or
the Eligible Bluegreen Subsidiary shall have submitted to Lender all other
documents, instruments and information as Lender typically requires in its sole
discretion for acquisition, construction and development loans in the nature of
such Resort Loan.
2.13 PERFORMANCE OF ELIGIBLE RESORTS. If any one or more of the
following events occur, then the Lender may suspend its consideration of
extending such Resort Loan or any other future Resort Loans until such events
and their effects on Bluegreen, such Eligible Bluegreen Subsidiary (with
respect to the particular Resort Loan at issue) or such Eligible Resort are
adequately addressed in the Lender's sole determination:
(i) the construction and development of any Eligible Resort
which is a subject of an outstanding Resort Loan, and/or the sales of
Intervals therein shall have failed to meet or exceed the performance
targets or timeline for such construction and development or sales set
forth in the Resort Loan Documents for such Resort Loan and/or
(ii) Bluegreen or any Eligible Bluegreen Subsidiary to which
an outstanding Resort Loan shall have been extended in respect of an
Eligible Resort shall have failed to achieve, for the most recent
applicable reporting period of such Eligible Bluegreen Subsidiary, the
Minimum Net Earnings for Bluegreen or such Eligible Bluegreen
Subsidiary (as the case may be) in respect of such Eligible Resort as
established in the Resort Loan Documents of such Resort Loan. "Minimum
Net Earnings" shall mean, with respect to any period, any Eligible
Bluegreen Subsidiary and any Eligible Resort owned by such Eligible
Bluegreen Subsidiary, such Eligible Bluegreen Subsidiary's pre-tax
income derived from such Eligible Resort, determined in accordance
with GAAP for such period, being not less than a mutually agreed upon
percentage of the total revenues of such Eligible Bluegreen Subsidiary
from such Eligible Resort for such period.
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For the avoidance of doubt, if any one or more of the events described
in clauses (i) and/or clause (ii) above shall exist with respect to
any outstanding Resort Loan, (A) no "Event of Default," as defined in
the Resort Loan Documents of such outstanding Resort Loan, will be
deemed to have occurred under such Resort Loan Documents solely by
virtue of the existence of any such events and such Resort Loan will
not be accelerated pursuant to such Resort Loan Documents solely by
virtue of the existence of any such events if, but only if, all
payments due under such outstanding Resort Loan are being paid when
due and no other "Event of Default" shall exist thereunder, (B) Lender
shall not be obligated under the Resort Loan Documents of such
outstanding Resort Loan to continue to make Resort Advances thereunder
for so long as any of such events shall exist and (C) no other Resort
Loan shall be affected by the occurrence of any such event.
2.14 EXPENSES. Bluegreen and such Eligible Bluegreen Subsidiary for
such Resort Loan shall have paid all costs and expenses incurred by or on
behalf of Lender in connection with such Resort Loan, including, without
limitation, all costs and expenses of Lender's counsel and Lender's Architect.
2.15 PROCEEDINGS SATISFACTORY. Such Resort Loan and such Eligible
Resort, all Resort Loan Documents in respect thereof, and all due diligence
information in respect thereof shall be satisfactory to Lender in Lender's sole
discretion. Lender and its counsel shall have received copies of such
documents, instruments and information as Lender or its counsel may request in
connection therewith, and all such documents, instruments and information shall
be in form and substance satisfactory to Lender and its counsel.
3. FINANCIAL COVENANTS
Bluegreen covenants that on and after the Facility Closing Date and so
long as any Resort Loan shall be outstanding or there are any outstanding
obligations of Bluegreen under any guarantee of any such Resort Loan, Bluegreen
will comply with the covenants set forth in Sections 5.7, 5.8 and 5.9 of the
Warehouse Facility, and such covenants and the definitions used therein are
hereby incorporated herein in their entirety as if set forth at length herein.
The Resort Loan Documents for each Resort Loan shall incorporate by reference
the aforesaid Sections 5.7, 5.8 and 5.9, as they pertain to Bluegreen, and
shall have such other covenants and undertakings of Bluegreen or the applicable
Eligible Bluegreen Subsidiary as may be agreed upon by Bluegreen and Lender,
including, without limitation, certain cash flow coverage and related liquidity
financial covenants and other customary financial and collateral related
covenants that prudent construction lenders customarily include in construction
and development loans. All covenants shall be tested no less frequently than
quarterly.
4. REPRESENTATIONS AND WARRANTIES
Bluegreen hereby represents and warrants to Lender as of the date
hereof and as of the date on which any Resort Loan is extended to an Eligible
Bluegreen Subsidiary hereunder:
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4.1 EXISTENCE. Bluegreen is a Massachusetts corporation duly formed,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts with its principal place of business at 0000 Xxxx Xxxx Xxxxx,
Xxxx Xxxxx, Xxxxxxx 00000. Bluegreen is in good standing under the laws of the
State of Florida and is authorized to transact business in the States of
Florida and in each other state where the failure to so comply would have a
Material Adverse Effect.
4.2 AUTHORIZATION AND ENFORCEABILITY.
(A) EXECUTION. This Agreement has been duly authorized,
executed and delivered and constitutes the duly authorized, valid and
legally binding obligations of Bluegreen, enforceable against
Bluegreen in accordance with its terms.
(B) OTHER AGREEMENTS.The execution, delivery and compliance
with the terms and provisions of this Agreement, the Warehouse Facility or the
Purchase Facility will not (i) to the best of Bluegreen's knowledge, violate
any applicable law or regulation, order or other decree of any court or
governmental entity, or (ii) conflict or be inconsistent with, or result in any
default under, any contract, agreement or commitment to which Bluegreen is
bound.
4.3 FINANCIAL STATEMENTS AND BUSINESS CONDITION. The most recent
consolidated financial statements of Bluegreen and its consolidated
subsidiaries have been delivered to Lender and fairly present the financial
condition and (if applicable) results of operations of such Persons as of the
date or dates thereof and for the periods covered thereby. All such financial
statements were prepared in accordance with GAAP. Except for any such changes
heretofore expressly disclosed in writing to Lender, there has been no material
adverse change in the financial condition of Bluegreen or its consolidated
subsidiaries from the financial condition shown in such consolidated financial
statements. Bluegreen is able to pay all of its debts as they become due, and
Bluegreen shall maintain such solvent financial condition, giving effect to all
obligations, absolute and contingent, of Bluegreen. Bluegreen's obligations
under this Agreement will not render it unable to pay its debts as they become
due. The present fair market value of Bluegreen's assets is greater than the
amount required to pay its total liabilities.
4.4 LITIGATION AND PROCEEDINGS. Except as disclosed on Schedule 1
attached hereto, there are no actions, suits, proceedings, orders or
injunctions pending or, to the best of Bluegreen's knowledge, threatened
against or affecting Bluegreen or any Affiliate, at law or in equity, or before
or by any Governmental Authority which, if adversely determined, could have,
either individually or in the aggregate, a Material Adverse Effect. Neither
Bluegreen nor any Affiliate has received any notice from any court or
Governmental Authority alleging that such Person or any Affiliate has violated
any applicable Governmental Regulation, any of the rules or regulations
thereunder, or any other applicable laws, the result of which, if adversely
determined, would have, individually or in the aggregate, a Material Adverse
Effect.
4.5 NO BREACH OR DEFAULT. The consummation of the transactions
contemplated hereby, and the performance of any of the terms and conditions
hereof, will not result in a breach of, or constitute a default in, Bluegreen's
organizational documents or in any material
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mortgage, deed of trust, lease, promissory note, loan agreement, credit
agreement, partnership agreement or other agreement to which Bluegreen is a
party or by which Bluegreen may be bound or affected. Bluegreen is not in
default of any order of any court or any requirement of any Governmental
Authority.
4.6 LICENSES AND PERMITS. Bluegreen possesses all requisite
franchises, certificates of convenience and necessity, operating rights,
licenses, permits, consents, authorizations, exemptions and orders as are
necessary to carry on its business as now being conducted, except where the
failure to possess the same would not, individually or in the aggregate, have a
Material Adverse Effect.
4.7 DISCLOSURE. There is no fact of which Bluegreen is aware that
Bluegreen has not disclosed to Lender in writing that could materially
adversely affect the property, business or financial condition of Bluegreen.
4.8 EMPLOYEE BENEFIT PLANS. Bluegreen is in compliance in all material
respects with all applicable provisions of the Employee Retirement Income
Security Act, the Internal Revenue Code and all other applicable laws and the
regulations and interpretations thereof with respect to all employee benefit
plans adopted by Bluegreen for the benefit of its employees. No material
liability has been incurred by Bluegreen which remains unsatisfied for any
funding obligation, taxes or penalties with respect to any such employee
benefit plan.
4.9 YEAR 2000 COMPLIANCE. Bluegreen has made an assessment of the
microchip and computer-based systems and the software used in its business and
based upon such assessment believes that it will be "Year 2000 Compliant" by
January 1, 2000. For purposes of this paragraph, "Year 2000 Compliant" means
all software, embedded microchips and other processing capabilities utilized by
and material to the business operations or financial conditions of Bluegreen
are able to interpret, store, transmit, receive and manipulate data on and
involving all calendar dates correctly and without causing any abnormal ending
scenarios in relation to dates in and after the Year 2000. From time to time,
at the request of Lender, Bluegreen shall provide to Lender such updated
information as is requested regarding the status of its efforts to become Year
2000 Compliant.
5. REPORTING REQUIREMENTS
So long as any Resort Loan is outstanding or there are any outstanding
obligations of Bluegreen under any guarantee in respect of a Resort Loan,
Bluegreen shall deliver to Lender the following:
(a) MONTHLY CONSTRUCTION ACTIVITY REPORTS. Within fifteen
(15) days after the end of each month, a summary of construction
activity at each Eligible Resort which is the subject of a Resort Loan
for such month, in form, content and detail acceptable to Lender in
Lender's sole discretion.
(b) MONTHLY SALES ACTIVITY REPORTS. Within fifteen (15) days
after the end of each month, a summary of sales activity at each
Eligible Resort which is the subject of
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a Resort Loan for such month, in form, content and detail acceptable
to Lender in Lender's sole discretion.
(c) QUARTERLY FINANCIAL REPORTS. Within forty-five (45) days
after the end of each fiscal quarterly period, unaudited financial
statements of Bluegreen and each Eligible Bluegreen Subsidiary that is
an obligor under a Resort Loan, certified by the chief financial
officer of Bluegreen to be true and correct.
(d) YEAR-END FINANCIAL REPORTS. As soon as available and in
any event within one hundred and twenty (120) days after the end of
each fiscal year of Bluegreen and each Eligible Bluegreen Subsidiary
that is an obligor under a Resort Loan: (i) the consolidated and
consolidating balance sheets of Bluegreen and its consolidated
subsidiaries and the balance sheets of each such Eligible Bluegreen
Subsidiary as of the end of such year and the related consolidated and
consolidating statements of income and cash flow for such fiscal year
for Bluegreen and its consolidated subsidiaries and the related
statements of income and cash flow for such fiscal year for each such
Eligible Bluegreen Subsidiary; (ii) a schedule of all outstanding
indebtedness of Bluegreen and such Eligible Bluegreen Subsidiary
describing in reasonable detail each such debt or loan outstanding and
the principal amount and amount of accrued and unpaid interest with
respect to each such debt or loan; (iii) in the case of Bluegreen,
copies of reports and any management letters from a firm of
independent certified public accountants, selected by Bluegreen, which
reports shall be unqualified as to going concern and scope of audit
and shall state that such financial statements present fairly the
financial position of Bluegreen and its consolidated subsidiaries, as
of the dates indicated and the results of Bluegreen's operations and
cash flow for the periods indicated in conformity with GAAP; and (iv)
in the case of each such Eligible Subsidiary, a certificate from the
chief financial officer of Bluegreen certifying that such financial
statements present fairly the financial position of such Eligible
Bluegreen Subsidiary, as of the dates indicated and the results of
such Eligible Bluegreen Subsidiary's operations and cash flow for the
periods indicated in conformity with GAAP;
(e) AUDIT REPORTS. Promptly upon receipt thereof, one (1)
copy of each other report or management letter submitted to Bluegreen
or such Eligible Bluegreen Subsidiary by independent public
accountants in connection with any annual, interim or special audit
made by them of the books of Bluegreen or such Eligible Bluegreen
Subsidiary.
(f) OTHER REPORTS. Such other reports, statements, notices or
written communications relating to Bluegreen or such Eligible
Bluegreen Subsidiary, as Lender may require, in its reasonable
discretion.
(g) SEC REPORTS. Promptly upon their becoming available one
(1) copy of each financial statement, report, notice or proxy
statement sent by Bluegreen to security holders generally, and of each
regular or periodic report and any registration statement, prospectus
or written communication (other than transmittal letters) in
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respect thereof filed by Bluegreen with, or received by Bluegreen in
connection therewith from, any securities exchange or the Securities
and Exchange Commission or any successor agency.
(h) TAX RECEIPTS. To the extent reasonably requested by the
Lender, Bluegreen or each Eligible Bluegreen Subsidiary, for so long
as such Person shall be in Control of an Eligible Resort, shall
furnish Lender with copies of receipts or tax statements marked "Paid"
to evidence the payment of all taxes levied on or in respect of each
such Eligible Resort prior to the date such taxes become delinquent.
With respect to any Eligible Resort in respect of which neither
Bluegreen nor any Eligible Bluegreen Subsidiary shall be in Control,
Bluegreen or such Eligible Bluegreen Subsidiary, as the case may be,
shall use their best efforts to obtain such evidence of payment of
taxes from the relevant Resort Association and forward the same to
Lender (if so requested by Lender).
(i) NOTICE OF LITIGATION, CLAIMS, AND FINANCIAL CHANGE.
Notice of (i) any litigation against Bluegreen or any Eligible
Bluegreen Subsidiary or affecting any Eligible Resort, which, if
determined adversely, might have a material adverse effect upon the
financial condition of Bluegreen or such Eligible Bluegreen Subsidiary
or upon such Eligible Resort, (ii) any claim or controversy which
might become the subject of such litigation, and (iii) any material
adverse change in the financial condition of Bluegreen or any Eligible
Bluegreen Subsidiary.
(j) SEMI-ANNUAL RESORT ASSOCIATION REPORTS. As soon as
available and in any event within ninety (90) days after the end of
each semiannual fiscal period of the Resort Association of each
Eligible Resort in respect of which there is an outstanding Resort
Loan (PROVIDED, THAT, to the extent any such Eligible Resort is not
Controlled by Bluegreen or an Eligible Bluegreen Subsidiary,
Bluegreen's obligation under this clause (j) shall be to use its best
efforts to obtain the following statements): (I) the balance sheet of
such Resort Association as of the end of such semiannual period and
the related statement of income and cash flow for such semiannual
period, prepared in accordance with GAAP and subject to normal
year-end adjustments; and (II) a schedule of all outstanding
indebtedness of such Resort Association describing in reasonable
detail each such debt or loan outstanding and the principal amount and
amount of accrued and unpaid interest with respect to each such debt
or loan.
(k) YEAR-END RESORT ASSOCIATION REPORTS. As soon as available
and in any event within one hundred and twenty (120) days after the
end of each fiscal year of the Resort Association of each Eligible
Resort for which there is an outstanding Resort Loan (PROVIDED, THAT,
to the extent any such Eligible Resort is not Controlled by Bluegreen
or an Eligible Bluegreen Subsidiary, Bluegreen's obligation under this
clause (k) shall be to use its best efforts to obtain the following
statements): (I) the balance sheet of such Resort Association as of
the end of such year and the related statement of income and cash flow
for such fiscal year; (II) a schedule of all outstanding indebtedness
of such Resort Association describing in reasonable detail each such
debt or loan outstanding and the principal amount and amount of
accrued and unpaid
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interest with respect to each such debt or loan; and (III) copies of
reports from a firm of independent certified public accountants, which
report shall be unqualified as to going concern and scope of audit and
shall state that such financial statements present fairly the
financial position of such Resort Association as of the dates
indicated and the results of its operations and cash flow for the
periods indicated in conformity with GAAP.
6. TERMINATION EVENTS
A "TERMINATION EVENT" shall exist hereunder upon the occurrence and
during the continuance of any one or more of the following:
(a) Any indebtedness evidenced, governed or secured by any of
the Resort Loan Documents is not paid within five (5) business days of
the date when due, whether by acceleration or otherwise.
(b) Any statement, representation or warranty in this
Agreement, any of the Resort Loan Documents, any financial statement
or any other writing delivered by Bluegreen or any Eligible Bluegreen
Subsidiary to Lender in connection with this Agreement is false,
misleading or incorrect in any material respect as of the date made,
PROVIDED that a Termination Event shall not exist in respect of this
clause (b) unless the effect or result of the truthful or accurate
facts that were so misrepresented would, individually or in the
aggregate, have a Material Adverse Effect.
(c) Bluegreen or any Eligible Bluegreen Subsidiary:
(1) does not pay its debts as they become due or
admits in writing its inability to pay its debts or makes a
general assignment for the benefit of creditors; or
(2) commences any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any
Debtor Relief Laws; or
(3) in any involuntary case, proceeding or other
action commenced against it which seeks to have an order for
relief entered against it, as debtor, or seeks
reorganization, arrangement, liquidation, dissolution or
composition of it or its debts under any Debtor Relief Laws,
(i) fails to obtain a dismissal of such case, proceeding or
other action within sixty (60) days of its commencement, or
(ii) converts the case from one chapter of the Federal
Bankruptcy Code to another chapter, or (iii) is the subject
of an order for relief; or
(4) conceals, removes, or permits to be concealed or
removed any part of its property, with intent to hinder,
delay or defraud its creditors or any of them, or makes or
suffers a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or
similar law; or
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makes any transfer of its property to or for the benefit of a
creditor at a time when other creditors similarly situated
have not been paid; or suffers or permits, while insolvent,
any creditor to obtain a lien upon any of its property
through legal proceedings which is not vacated within sixty
(60) days from the date thereof; or
(5) has a trustee, receiver, custodian or other
similar official appointed for, or take possession of, all or
any part of its property or has any court take jurisdiction
of any other of its property which continues for a period of
sixty (60) days (except where a shorter period is specified
in the immediately following subparagraph (6)); or
(6) fails to have discharged within a period of
thirty (30) days any attachment, sequestration, or similar
writ levied upon any property of such owner.
(d) The issuance, filing or levy against Bluegreen or any
Eligible Bluegreen Subsidiary of one or more attachments, injunctions,
executions, tax liens or judgments for the payment of money
cumulatively in excess of $1,000,000, which is not discharged in full
or stayed within thirty (30) days after issuance or filing.
(e) Any default by Bluegreen or any Affiliate in the payment
of indebtedness for borrowed money in an aggregate principal amount in
excess of $1,000,000 (including, without limitation, any default by
Bluegreen or any Affiliate in the payment of indebtedness for borrowed
money owing to Lender under the Warehouse Facility or any other
agreement) 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 such indebtedness which permits the holders of such indebtedness
to elect a majority of the Board of Directors of Bluegreen; or the
occurrence of any default (after the expiration of any applicable
grace or cure period) or any event of default under any of the Resort
Loan Documents. For the avoidance of doubt, a default or the
occurrence of an Event of Termination under the Purchase Facility
shall not constitute an Event of Termination under this Section 6(e).
(f) Purchases of receivables under the Purchase Facility
shall have been suspended, deferred or terminated or the Purchase
Facility shall have been terminated, PROVIDED that this clause (f)
shall not be deemed to have been activated if, but only if,
receivables cannot be purchased under the Purchase Facility by virtue
of the maximum limitation on the amount of purchases set forth in the
Purchase Facility having been reached, or because any Eligible Resort
hereunder shall not have been approved by Lender as an "Additional
Resort" under the Purchase Facility, or because Lender shall have
reviewed and rejected receivables associated with the Club.
(g) Any failure to comply with the reporting covenants set
forth in Section 5 hereof and such failure is not remedied within 30
days after the Lender shall have
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delivered a written notice to an officer of Bluegreen pursuant to
Section 8.1 hereof informing the same of such failure, PROVIDED that,
if such failure is incapable of being remedied within such 30-day
period and Bluegreen shall have commenced and is diligently pursing
the process of remedying the same within said 30-day period, Bluegreen
shall have an additional 60 days after the end of said 30-day period
in which to remedy such failure and no Termination Event shall be
deemed to have occurred during such additional 60 days for so long as
Bluegreen is diligently pursuing the remedying of such failure.
(h) Any failure to comply with the financial covenants set
forth in Section 3 hereof.
7. RIGHTS AND REMEDIES OF LENDER
7.1 RIGHTS OF LENDER. Upon the occurrence of a Termination Event of
the type described in clause (c) of Section 6 hereof, (i) all of the Resort
Loans at the time outstanding shall automatically become immediately due and
payable, together with interest accrued thereon and, to the extent permitted by
law, any premium payable with respect thereto, without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived, (ii)
Lender's obligation to extend future Resort Loans, Lender's obligations to make
Resort Advances under existing Resort Loans and all other obligations of Lender
hereunder and under the Resort Loan Documents shall be terminated, and (iii)
Lender shall have the right to exercise such remedies under or in respect of
the Resort Loan Documents as may be permitted thereunder or under applicable
law, all as more particularly set forth in the Resort Loan Documents. Upon the
occurrence of a Termination Event of any type other than the Termination Events
described in clause (c) of Section 6 hereof, Lender shall have the right, as
more particularly set forth in and in addition to any other right or remedy of
Lender set forth in the Resort Loan Documents, but not the obligation, to (a)
declare all of the then outstanding Resort Loans, including all interest
accrued thereon and, to the extent permitted by law, any premium payable with
respect thereto, immediately due and payable, (b) terminate Lender's obligation
to extend future Resort Loans and to make Resort Advances in respect of
existing Resort Loans and to terminate all other obligations of Lender
hereunder and under the Resort Loan Documents, and (c) exercise such remedies
under or in respect of the Resort Loan Documents as may be permitted thereunder
or under applicable law.
7.2 NO WAIVER OR EXHAUSTION. No waiver by Lender of any of its rights
or remedies hereunder, in the Resort Loan Documents, in the Warehouse Facility,
or otherwise, shall be considered a waiver of any other or subsequent right or
remedy of Lender; no delay or omission in the exercise or enforcement by Lender
of any rights or remedies shall ever be construed as a waiver of any right or
remedy of Lender; and no exercise or enforcement, of any such rights or
remedies shall ever be held to exhaust any right or remedy of Lender.
7.3 MARSHALLING WAIVER. Bluegreen waives any and all rights to require
the marshalling of assets in connection with the exercise of any of the
remedies hereunder.
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8. MISCELLANEOUS
8.1 NOTICES. Any notice or other communication required or permitted
to be given shall be in writing addressed to the respective party as set forth
below and may be personally served, telecopied, or sent by overnight courier,
or sent by registered or certified U.S. Mail return receipt requested, and
shall be deemed given: (a) if served in person, when served; (b) if telecopied,
on the date of transmission if before 3:00 p.m. (Chicago time) on a business
day otherwise, on the next business day; PROVIDED that a confirmation of the
receipt of any such telecopy is obtained and retained by the sending party and
that a hard copy of such notice is also sent pursuant to (c) or (d) below; (c)
if by overnight courier, on the first business day after delivery to the
courier; or (d) if by certified or registered U.S. Mail, return receipt
requested, on the fourth (4th) day after deposit in the mail postage prepaid.
Notices to Bluegreen: Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
Notices to Lender: Xxxxxx Financial, Inc.
Xxxxxx Sales Finance
Attn: Portfolio Manager, Vacation Ownership
HSF Loan No. 98-087
500 West Monroe St., 31st Fl.
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Xxxxxx Financial, Inc.
Xxxxxx Sales Finance
Attn: Vacation Ownership Legal Representative
HSF Loan No. 98-087
500 West Monroe St. 31st Fl.
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
8.2 ENTIRE AGREEMENT AND MODIFICATIONS. This Agreement and the Resort
Loan Documents constitute the entire understanding and agreement between the
undersigned with respect to the transactions arising in connection with the
Resort Loans and supersede all prior written or oral understandings and
agreements between the undersigned in connection therewith. No provision of
this Agreement or the Resort Loan Documents may be modified, waived,
terminated, supplemented, changed or amended except by a written instrument
executed by all parties hereto or thereto. Notwithstanding the foregoing, in
the event there is a conflict between this Agreement and the Resort Loan
Documents with respect to a certain Resort Loan, the terms of the Resort Loan
Documents for such Resort Loan shall govern.
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8.3 SEVERABILITY. In case any of the provisions of this Agreement
shall for any reason be held to be invalid, illegal, or unenforceable, such
invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
8.4 ELECTION OF REMEDIES. Lender shall have all of the rights and
remedies granted herein and in the Resort 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 Bluegreen, any
Eligible Bluegreen Subsidiary, or any property encumbered by the Resort Loan
Documents, 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.
8.5 FORM AND SUBSTANCE. All documents, certificates, insurance
policies, evidence, and other items required under this Agreement to be
executed and/or delivered to Lender shall be in form and substance satisfactory
to Lender in Lender's sole discretion.
8.6 NO THIRD PARTY BENEFICIARY. This Agreement is for the sole benefit
of Lender and Bluegreen and is not for the benefit of any third party.
8.7 BLUEGREEN IN CONTROL. In no event shall Lender's rights and
interests under the Resort Loan Documents be construed to give Lender the right
to, or be deemed to indicate that Lender is in control of the business,
management or properties of Bluegreen or any Eligible Bluegreen Subsidiary or
has power over the daily management functions and operating decisions made by
Bluegreen.
8.8 NUMBER AND GENDER. Whenever used herein, the singular number shall
include the plural and the plural the singular, and the use of any gender shall
be applicable to all genders.
8.9 CAPTIONS. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit,
amplify, or modify the terms and provisions hereof.
8.10 APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois (without regard to
conflicts of law principles) and the laws of the United States applicable to
transactions within such state.
8.11 VENUE. BLUEGREEN 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 SHALL BE LITIGATED IN
SUCH COURTS. BLUEGREEN EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. BLUEGREEN
HEREBY WAIVES PERSONAL
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SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY
BE MADE UPON BLUEGREEN BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, ADDRESSED TO BLUEGREEN, AT THE ADDRESS SET FORTH IN THIS AGREEMENT
AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN
POSTED.
8.12 JURY TRIAL WAIVER. BLUEGREEN AND LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. BLUEGREEN AND LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BLUEGREEN
AND LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING
THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS.
8.13 ATTORNEYS' FEES. In any action hereunder between the parties
hereto, the prevailing party shall be entitled to reasonable attorneys' fees
and costs including those for pretrial, trial and appellate proceedings.
8.14 COUNTERPARTS. This Agreement may be signed in multiple
counterparts which taken together shall constitute the entire agreement between
the parties.
8.15 PARTICIPATING LENDERS. Lender may sell participations in any one
or more of the Resort Advances, PROVIDED that the Person acquiring such
participation is not a competitor of Bluegreen, as determined by Bluegreen in
its reasonable discretion, and Lender continues to function as the effective
administrative and collateral agent in respect of all such Resort Advances; all
amounts payable by Bluegreen or any Eligible Bluegreen Subsidiary in respect of
any Resort Advance shall be determined as if the Lender had not sold such
participations. The Lender shall have the right to assign all or any portion of
its rights in and to any Resort Loan to an Eligible Assignee (as such term is
defined in the Warehouse Facility), PROVIDED that Lender and its affiliates
agree to retain at all times not less than 30% of the Resort Advances under any
such Resort Loan for its own account or an account of an affiliate of Lender
and to otherwise function as the administrative and collateral agent in respect
of all of such Resort Loans and PROVIDED that there shall be no more than 5
such Eligible Assignees at any one time. Any Eligible Assignee may assign its
rights and delegate its obligations under any Resort Loan to any other Eligible
Assignee, PROVIDED that such assigning Eligible Assignee shall first obtain the
written consent of Lender. Except as provided in this Section 8.15, the Lender
shall not, as between Bluegreen and the Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of any Resort
Loan. The Lender agrees to take and cause its affiliates to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information identified as "confidential" or "secret" by Bluegreen or any
Eligible Bluegreen Subsidiary and neither Lender nor any of its affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement or any of the Resort Loan Documents
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or in connection with other business now or hereafter existing or contemplated
with Bluegreen or any Eligible Bluegreen Subsidiary, except to the extent such
information
(a) was or becomes generally available to the public other
than as a result of disclosure by the Lender or any of its affiliates or
(b) was or becomes available on a non-confidential basis from
a source other than Bluegreen or an Eligible Bluegreen Subsidiary, PROVIDED
that such source is not bound by a confidentiality agreement with Bluegreen or
any Eligible Bluegreen Subsidiary known to the Lender;
PROVIDED, HOWEVER, that the Lender may disclose such information
(i) at the request or pursuant to any request of a regulatory
authority to which Lender is subject or in connection with an examination of
the Lender by such authority;
(ii) pursuant to subpoena or other court process;
(iii) when required to do so in accordance with the
provisions of any applicable requirement of law;
(iv) to the extent reasonably required in connection with any
litigation or proceeding to which the Lender or any affiliate may be party in
connection with the transactions contemplated by this Agreement;
(v) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any Resort Loan Documents;
(vi) to the Lender's independent auditors and other
professional advisors;
(vii) to any participant or Eligible Assignee, actual or
potential, PROVIDED that such participant or Eligible Assignee agrees in
writing to keep such information confidential to the same extent required of
the Lender hereunder;
(viii) as to the Lender or its affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which Bluegreen or any Eligible Bluegreen Subsidiary is a
party or deemed party with the Lender and its affiliates; and
(ix) to its affiliates, PROVIDED that such affiliates agree
in writing to be bound by the confidentiality provisions hereof.
8.16 CONSENT TO ADVERTISING AND PUBLICITY. Lender may issue and
disseminate to the public press releases and other information describing the
credit accommodations entered into pursuant to this Agreement and/or pursuant
to any Resort Loan, PROVIDED that Bluegreen shall approve the description of
such credit accommodation, which approval shall not be unreasonably withheld.
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IN WITNESS WHEREOF, the parties set their hands as of the date above
first written.
XXXXXX FINANCIAL, INC.
By: /S/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Its: Executive Vice President
BLUEGREEN CORPORATION
By: /S/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Its: Treasurer & Chief Financial Officer
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APPENDIX
DEFINED TERMS
For purposes of this Agreement, the following terms shall have the
respective meanings assigned to them:
AFFILIATE. Any individual, trust, estate, partnership, limited
liability company, corporation or any other incorporated or unincorporated
organization that directly or indirectly, through one or more intermediaries,
Controls or is Controlled by or is under common Control with Bluegreen, any
officer, director, partner or shareholder of Bluegreen, or any relative of any
of the foregoing. The term "Control" means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person or a Resort, whether through the ownership of voting securities, by
contract or otherwise.
AGREEMENT. First paragraph of this Agreement.
APPROVED DEVELOPMENT BUDGET. As defined in clause (e) of the
definition of Eligible Resort.
APPROVED SALES AND MARKETING BUDGET. As defined in clause (f) of the
definition of Eligible Resort.
AVERAGE UNIT CONSTRUCTION COSTS. With respect to any Resort is the
quotient of (a) Resort Development Costs for such Resort DIVIDED BY (b) the
total number of Units in such Resort and to be constructed in respect of such
Resort Development Costs. If a Resort is to be developed in phases, "Average
Unit Construction" Costs shall be determined in respect of each phase of such
Resort.
BLUEGREEN. First paragraph of this Agreement.
CLUB. The RDI Vacation Club Trust, as established pursuant to that
certain RDI Vacation Club Trust Agreement (the "CLUB TRUST AGREEMENT") dated as
of May 18, 1994 by and among RDI Resources, Inc. and Vacation Trust, Inc., as
amended.
CLUB TRUST AGREEMENT. As defined in the definition of Club.
COMMITMENT FEE. A facility commitment fee with respect to Lender's
agreeing to make the Resort Loans upon and subject to the satisfaction of the
terms and conditions set forth herein equal to Two Hundred Fifty Thousand
Dollars ($250,000), One Hundred Thousand Dollars ($100,000) of which has been
paid to Lender on or before the Facility Closing Date and the balance of which
is payable in accordance with Section 1.5 hereof.
COMPONENT SITE. As defined in the Club Trust Agreement.
Appendix-1
22
CONTROL. As defined in the definition of "Affiliate."
DEBTOR RELIEF LAWS. Any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, reorganization, or similar
laws affecting the rights or remedies of creditors generally, as in effect from
time to time.
DECLARATION. With respect to any Resort, that certain condominium
declaration to be recorded in the appropriate land records office of the state
in which such Resort is located, pursuant to which a condominium regimen will
be created in and to such Resort.
ELIGIBLE BLUEGREEN SUBSIDIARY. With respect to any Resort, a
subsidiary of Bluegreen (which may be a corporation, limited liability company
or limited partnership), (a) all of whose capital stock and other equity
interests and debt obligations (other than in respect of one or more Resort
Loans) are directly owned by or owed to Bluegreen, (b) whose sole business is
the ownership, construction, development and operation of one or more Eligible
Resorts and the sale of Intervals in respect thereof and (c) whose
paid-in-capital or equity, in cash, is not less than an amount which shall be
satisfactory to Lender in its sole discretion and which has an unconditional
and irrevocable obligation from Bluegreen to invest additional capital or
equity, in cash, such that the total amount of Bluegreen's cash paid-in-capital
or equity shall not be less than 15% of the Resort Development Costs for such
Resort (which obligation and the timing of the satisfaction thereof shall be
agreed upon by, and otherwise in form and substance satisfactory to, Bluegreen
and Lender).
ELIGIBLE RESORT. Any Resort which has satisfied the following
requirements (in the sole determination of Lender):
(a) such Resort is located in a state of the United States of
America;
(b) the acquisition and/or development of such Resort shall
be pursuant to a purchase and sale agreement (a "RESORT PURCHASE AND
SALE AGREEMENT") which shall have been delivered to Lender and shall
be satisfactory to Lender in its sole discretion; and title in such
Resort to be acquired by Bluegreen or the applicable Eligible
Bluegreen Subsidiary (including, without limitation, all title
exceptions set forth on Schedule B to an owner's mortgagee policy in
respect of such Resort) shall be satisfactory to Lender in its sole
discretion;
(c) the construction of such Resort shall be pursuant to a
contract (a "RESORT CONSTRUCTION CONTRACT") with a general contractor,
which contract shall have been delivered to Lender and which contract
and general contractor shall be satisfactory to Lender in its sole
discretion;
(d) the construction of such Resort shall be pursuant to an
architectural contract (a "RESORT ARCHITECTURAL CONTRACT") and certain
plans, specifications and designs prepared by an architect licensed in
the state in which such Resort is to be located, which contract,
plans, specifications and designs shall have been delivered to
Appendix-2
23
Lender and shall be acceptable to Lender in its sole discretion and,
if Lender shall so elect, shall be satisfactory to Lender's Architect;
(e) a detailed construction budget (with respect to any
Resort, an "APPROVED DEVELOPMENT BUDGET") shall have been delivered to
Lender and shall be satisfactory to Lender in its sole discretion
(such budget shall include, among other things, all costs of
materials, fixtures, furnishings, personal property and labor to be
incurred in the construction and furnishing of such Resort, all common
elements and amenities in respect thereof and the provision of all
utilities to such Resort and shall, among other things, consist of
(i) a description of work (such work being
classified and shown on a line item basis reasonably
satisfactory to Lender for each building and the other
improvements to be built at such Resort; such classification
should include: "construction line items" for sitework,
concrete work, masonry work, rough carpentry work, finish
carpentry and cabinet work, architectural carpentry work,
waterproofing, insulation, fireproofing, drywall, ceiling
work, flooring and base work, painting and finishing work,
wall covering work, windows, ceramic tile work, bathroom
fixtures and hardware, kitchen fixtures and hardware, HVAC,
plumbing work, sprinkler work and electrical work;
"furniture, fixtures and equipment line items"; and
"professional fee line items" (including architectural,
engineering, accounting and legal services)),
(ii) an allocation to each construction line item of
a scheduled portion of the fixed construction price in the
Resort Construction Contract for such Resort, and
(iii) an estimated completion timeline for each
construction line item indicating when such item is
anticipated to be 25%, 50%, 75% and 100% completed);
(f) a detailed sales and marketing budget (with respect to
any Resort, an "APPROVED SALES AND MARKETING BUDGET") showing all
expenses and out-of-pocket costs to be incurred by Bluegreen or the
applicable Eligible Bluegreen Subsidiary in connection with selling
and marketing of the Intervals in respect of such Resort (together
with an estimated sales timeline indicating when 25%, 50%, 75% and
100% sell-out of such Resort is anticipated) shall have been delivered
to Lender and shall be satisfactory to Lender in its sole discretion
(such budget shall show "marketing costs line items;" "sale cost line
items"; "commissions payable line items"; and "professional fee line
items");
(g) (i) the total acquisition costs, construction costs
(including so-called "soft costs" but excluding any sales and
marketing costs) and furnishing costs of such Resort as set forth in
the Approved Development Budget for such Resort (collectively, with
respect to any Resort, the "RESORT DEVELOPMENT COSTS") shall be
estimated to be not in excess of $20,000,000, (ii) the Average Unit
Construction Costs for such Resort
Appendix-3
24
shall exceed $75,000 but be less than $200,000, (iii) the Resort
Development Costs for such Resort shall not exceed 35% of the
Projected Resort Net Sales Proceeds for such Resort, (iv) the sum of
the paid-in-capital or equity, in cash, of the Eligible Bluegreen
Subsidiary that is to own such Resort together with the aggregate
amount of any future unconditional obligation of Bluegreen to make
additional cash contributions of capital or equity to such Eligible
Bluegreen Subsidiary shall not be less than 15% of the Resort
Development Costs of such Resort and (v) a detailed certificate of the
chief financial officer of Bluegreen shall have been received by
Lender confirming the correctness and calculations of clauses (i),
(ii), (iii) and (iv) above and shall be satisfactory to Lender in its
sole discretion;
(h) The portion of the Resort Development Costs attributable
to the amenities of such Resort (which shall be certified to Lender by
the chief financial officer of Bluegreen, which certificate shall be
acceptable to Lender in its sole discretion and which certificate
shall reasonably allocate such Resort Development Costs over any one
or more of the phases of such Resort if such Resort is to be developed
in phases) shall not exceed 30% of the maximum principal amount of the
Resort Loan being requested by Bluegreen for such Resort; if a Resort
is to be developed in phases, the determinations under this clause (h)
shall be made in respect of each phase of such Resort; the term
"amenities" used in this sub-clause (h) shall not include
infrastructural items (by way of an example only and not by way of
exclusion or inclusion, a sidewalk or a flower bed would be classified
as an infrastructural item for purposes of this sub-clause (h) while a
swimming pool, shuffle board court or miniature golf course would be
classified as an amenity for purposes of this sub-clause (h));
(i) A projected sources and uses of cash for such Resort and
the Eligible Bluegreen Subsidiary that will own it (presented in a
month-by-month format) for each year during which the requested Resort
Loan for such Resort is anticipated to be outstanding shall be
delivered to Lender together with a detailed statement of the
assumptions upon which such sources and uses statement was prepared
and such statement and such assumptions shall be satisfactory to
Lender in its sole discretion (with respect to any Resort, a "SOURCES
AND USES OF CASH PROJECTION") ; and
(j) The following additional deliveries shall be made to
Lender in respect of such Resort and shall be satisfactory to Lender
in its sole discretion: (i) a current phase I environmental survey in
respect of such Resort, (ii) a soil report in respect of such Resort,
(iii) copies of all payment and performance bonds in respect of the
general contractor under the Resort Construction Contract for such
Resort, (iv) copies of such general contractor's builder's risk
insurance policy, (v) copies of all excavation, foundation and
building permits for such Resort, (vi) copies of all zoning, density
and design approvals, waivers or variances, (vii) copies of all
organization documents, bylaws, operating agreements and other organic
documents of the Eligible Bluegreen Subsidiary that is to own such
Resort, (viii) a perimeter survey of the Resort by a licensed surveyor
that meets the ALTA/ACSM 1997 Minimum Survey Requirements (which shall
show any flood zones or plains in which such Resort may be located)
and
Appendix-4
25
(ix) such other documents, reports or information as Lender may
reasonably request in order for Lender to make a credit/resort
determination in respect of such Resort.
ELIGIBILITY PERIOD. The period commencing on the Facility Closing Date
and ending on the earlier of (a) October 20, 2000 (subject to the extension of
such date set forth in the second sentence of this definition) or (b) the date
on which this Agreement is terminated under Section 7.1 as a result of the
existence of a Termination Event. The date stated in clause (a) above (being
October 20, 2000) shall be automatically extended to a date thereafter that is
365 days after the last Resort Loan Closing Date that shall have occurred on or
prior to October 20, 2000. The portion of the Eligibility Period, if any,
falling after October 20, 2000 by virtue of the aforesaid extension and
continuing to the date to which it has been so automatically extended, as
provided above, or its earlier termination pursuant to clause (b) above, is
referred to herein as the "EXTENSION PERIOD." For the avoidance of doubt, (i)
requests for new Resort Loans under Section 1.2 hereof may not be made during
the Extension Period and no Resort Loan Closing Dates may fall within the
Extension Period and (ii) Resort Advances (subject to the satisfaction of all
conditions precedent in respect thereof) shall be made by Lender during the
Extension Period in respect of Resort Loans whose Resort Loan Closing Dates
occurred on or prior to October 20, 2000.
ESTIMATED NET SALES PRICE. With respect to any Resort, the sales
prices for an Interval therein (giving effect to the type of Unit associated
with such Interval, the seasonality of such Interval and any other use
restrictions or advantages associated with such Interval) certified to Lender
by the chief financial officer of Bluegreen and the treasurer of the Eligible
Bluegreen Subsidiary in respect of such Resort (which certification shall be
acceptable to Lender in its sole discretion) less all estimated out-of-pocket
costs and expenses (including commissions) that would be incurred in
consummating the sale of such Interval, likewise certified to Lender (which
certification shall also be acceptable to Lender in its sole discretion). If a
Resort is to be developed in phases, "Estimated Sales Price" shall be
determined in respect of each phase of such Resort. If a Resort is to be a
Component Site, then the aforesaid sales prices for an Interval shall be based
on the purchase price of the number of points to be acquired in connection with
the contribution and/or conveyance of such Interval to the Club, all in
accordance with then current Club pricing policies (as certified by the chief
financial officer of Bluegreen and acceptable to Lender in its sole
discretion).
EXTENSION PERIOD. As defined in the definition of Eligibility Period.
FACILITY CLOSING DATE. October 20, 1998.
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.
Appendix-5
26
GOVERNMENTAL AUTHORITY. The United States of America, the states and
counties in which any of the Eligible Resorts are located, and any other
governmental authorities having jurisdiction over Bluegreen or any Eligible
Bluegreen Subsidiary, any of the Eligible Resorts or any other property of
either Bluegreen or any Eligible Bluegreen Subsidiary, or the sale of Intervals
in any of the Eligible Resorts.
GOVERNMENTAL REGULATIONS. All Federal, State and local rules,
regulations, ordinances, laws and statutes which affect any one or more of the
Eligible Resorts or the right of Bluegreen or any Eligible Bluegreen Subsidiary
to sell Intervals.
INTEREST RATE. Floating rate per annum equal to the Base Rate plus
three percent (3.00%). "Base Rate" shall mean the rate published each business
day in THE WALL STREET JOURNAL for deposits maturing three (3) months after
issuance under the caption "Money Rates, London Interbank Offered Rates
(LIBOR)" as the same may be adjusted by the Statutory Reserve Rate (as such
term is defined in the Warehouse Facility). The Interest Rate for each calendar
month shall be fixed based upon the Interest Rate published prior to and in
effect on the first (1st) business day of such month. Interest shall be
calculated based on a 360 day year and charged for the actual number of days
elapsed.
INTERVAL. With respect to any Resort, an undivided fee simple
ownership interest as a tenant in common in and to a Unit located at such
Resort, with a right to use such Unit, or a Unit of such type, for one week
annually, together with all appurtenant rights and interests as more
particularly described in the Timeshare Declaration with respect to such
Resort.
LENDER. First paragraph of this Agreement.
LENDER'S ARCHITECT. With respect to any Eligible Resort, (a) an
architect or engineer licensed under the laws of the state in which such
Eligible Resort is located that has been hired by Lender or (b) any other
construction consultant selected and retained by Lender in its sole discretion.
MATERIAL ADVERSE EFFECT. With respect to any event or circumstance, a
material adverse effect on:
(a) the business, assets, financial condition or operations
of Bluegreen and its subsidiaries, taken as a whole;
(b) the ability of Bluegreen or any Eligible Bluegreen
Subsidiary to perform its respective obligations under this Agreement
or any Resort Loan Document to which it is a party;
(c) the validity, enforceability or collectibility against
Bluegreen or any Eligible Bluegreen Subsidiary of this Agreement or
any Resort Loan Document to which it is a party; or
Xxxxxxxx-0
00
(x) the status, existence, perfection or priority of (i)
Lender's security interest and lien in the collateral securing any
Resort Loan or (ii) the ownership interest in any Eligible Resort of
any Eligible Bluegreen Resort which is a borrower under a Resort Loan.
PERSON. Natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability 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.
PROJECTED RESORT NET SALES PROCEEDS. With respect to any Resort is the
product of (a) the number of Intervals in respect of the Units to be
constructed at such Resort that will be available for sale to the public TIMES
(b) the Estimated Net Sales Price in respect of such Intervals. If a Resort is
to be developed in phases, "Projected Resort Net Sales Proceeds" shall be
determined in respect of each phase of such Resort.
PURCHASE FACILITY. That certain Asset Purchase Agreement dated June
26, 1998 between the Lender and Bluegreen, as amended from time to time.
RESORT. Any property and the improvements and amenities existing or to
be constructed thereon that (a) is owned or is to be acquired by an Eligible
Bluegreen Subsidiary, (b) is to be made subject to a condominium and timeshare
regimen under applicable state law, (c) pursuant to such condominium and
timeshare regimen is to be divided into Intervals and (d) is to be directly
marketed and sold as a timeshare resort or marketed or sold indirectly as a
Component Site in the Club.
RESORT ADVANCE. As defined in the definition of Resort Loan.
RESORT ARCHITECTURAL CONTRACT. As defined in clause (d) of the
definition of Eligible Resort.
RESORT ASSOCIATION. A condominium, timeshare or homeowners'
association in which owners of Intervals in an Eligible Resort are members.
RESORT CONSTRUCTION CONTRACT. As defined in clause (c) of the
definition of Eligible Resort.
RESORT DEVELOPMENT COSTS. As defined in clause (g) of the definition
of Eligible Resort.
RESORT LOAN. With respect to any Resort, a loan from Lender to
Bluegreen or the Eligible Bluegreen Subsidiary that owns such Resort to fund
not more than 85% of the Resort Development Costs for such Resort, which loan
is to be advanced in a series of advances (each a "RESORT ADVANCE"); such loan
shall have a maturity not in excess of seven (7) years from the Facility
Closing Date, and Resort Advances in respect of such Resort Loan shall be
Appendix-7
28
made available to Bluegreen or such Eligible Bluegreen Subsidiary (subject to
the satisfaction of the conditions precedent set forth in the Resort Loan
Documents in respect thereof) during the Eligibility Period (including the
Extension Period and with a maximum of one such Resort Advance to be extended
during each calendar month in the Eligibility Period and the Extension Period).
Lender shall have the right, in its sole discretion, to establish a maximum
loan amount for each Resort Loan which may be less than the aforesaid 85%
amount and to require that certain equity or capital moneys of Bluegreen or
such Eligible Bluegreen Subsidiary be contributed and utilized at the same time
as a Resort Advance is being made. If a Resort is to be developed in phases, a
"Resort Loan" shall be extended separately for each phase and such "Resort
Loan" may be referred to herein from time to time as tranche "X," "X", "C",
etc. with respect to each successive phase of such Resort.
RESORT LOAN CLOSING DATE. With respect to any Resort Loan, the date on
which the Resort Loan Documents for such Resort Loan are signed and delivered
and all conditions precedent in respect of the extension of such Resort Loan to
the applicable Eligible Bluegreen Subsidiary are satisfied or otherwise waived
by Lender.
RESORT LOAN DOCUMENTS. With respect to any Eligible Resort and the
Resort Loan in respect thereof, each of the following: (a) the acquisition and
construction loan agreement for such Resort Loan, (b) the
acquisition/construction promissory note or notes for such Resort Loan, (c) the
guarantee of Bluegreen in respect of such Resort Loan, if applicable, (d) the
guarantee of Bluegreen in respect of the completion of the construction of such
Eligible Resort, (e) the mortgage, security agreement and assignment of leases
and rents or the deed of trust, security agreement and assignment of leases and
rents in and to such Eligible Resort securing such Resort Loan (a "RESORT LOAN
MORTGAGE"), (f) the collateral assignment of the Resort Construction Contract
in respect of such Eligible Resort, (g) the collateral assignment of the Resort
Architectural Contract in respect of such Eligible Resort, (h) the collateral
assignment of Purchase and Sale Agreement in respect of such Eligible Resort,
(i) the hazardous material indemnity agreement in respect of such Eligible
Resort and (j) such other collateral security documents as are customarily
obtained by prudent construction lenders.
RESORT LOAN LIMIT. At any time during the Eligibility Period, the
remainder of (i) $25,000,000 MINUS the (ii) sum of (1) the aggregate original
principal amount of all Resort Advances made under all Resort Loans previously
extended hereunder and (2) the aggregate amount of unutilized borrowing
availability under all Resort Loans that have been previously extended
hereunder and which have not been fully drawn down. After expiration of the
Eligibility Period and applicable Extension Period, the Resort Loan Limit shall
be zero ($0).
RESORT LOAN MORTGAGE. As defined in the definition of Resort Loan
Documents.
RESORT PURCHASE AND SALE AGREEMENT. As defined in clause (b) of the
definition of Eligible Resort.
SOURCES AND USES OF CASH PROJECTION. As defined in clause (i) of the
definition of Eligible Resort.
Appendix-8
29
TERMINATION EVENT. As defined in Section 6 hereof.
TIMESHARE DECLARATION. With respect to any Resort, that certain
timeshare declaration to be recorded in the appropriate land records office of
the state in which such Resort is located, pursuant to which a timeshare
regimen based on Intervals will be created in and to such Resort. The Timeshare
Declaration may be combined with, and made a part of, the Declaration.
UNIT. With respect to any Resort, an individual condominium unit
within such Resort, together with all furniture, fixtures and furnishings
therein, and together with any and all interest in common elements appurtenant
thereto, as provided in the Declaration of such Resort.
WAREHOUSE FACILITY. The Loan and Security Agreement dated as of
October 20, 1998 between Bluegreen and Lender, as amended from time to time.
Appendix-9
30
SCHEDULE 1.2
[REQUEST FOR RESORT LOAN]
DATE:___________________________
Xxxxxx Financial, Inc.
Xxxxxx Sales Finance
Attn: Portfolio Manager, Vacation Ownership
000 Xxxx Xxxxxx Xx., 00xx Xx.
Xxxxxxx, Xxxxxxxx 00000
RE: HSF Loan No. 98-087
$25,000,0000 Master Resort Loan Facility (the "AGREEMENT")
between Xxxxxx Financial, Inc. ("LENDER") and Bluegreen
Corporation ("BLUEGREEN")
Dear Sir or Madam:
Capitalized terms used herein shall have the meanings assigned thereto
in the Agreement.
In accordance with the terms of the Agreement, Bluegreen hereby
notifies Lender that it desires to obtain a new Resort Loan from Lender in a
maximum principal amount not to exceed $_______________________. The following
information is true and correct with respect to such Resort Loan:
(d) Borrower: [Name of Eligible Bluegreen Subsidiary].
(e) All of the equity of Borrower is owned directly by Bluegreen.
(f) Borrower's certificate of incorporation and bylaws are
attached hereto as Exhibit A hereto.
(g) The Borrower satisfies all of the eligibility requirements of
an "Eligible Bluegreen Subsidiary."
(h) The Resort to be acquired and/or developed by Borrower is
described on Exhibit B hereto and is located at
_____________.
(i) The Resort Purchase and Sale Agreement for such Resort is
attached hereto as Exhibit C.
(j) The Resort Construction Contract for such Resort is attached
hereto as Exhibit D.
Schedule 1.2-1
31
(k) The Resort Architectural Contract for such Resort is attached
hereto as Exhibit E.
(l) The construction and sales and marketing budgets for such
Resort are attached hereto as Exhibit F (including, without
limitation, sales and marketing budgets that will form the
basis of the Approved Sales and Marketing Budget, a detailed
construction budget that will form the basis of the Approved
Development Budget and the necessary detail in respect of the
Resort Development Costs).
(m) The Sources and Uses of Cash Projection for such Resort is
attached hereto as Exhibit G.
(n) The total Resort Development Costs for the Resort are
estimated to be $_______________. Bluegreen intends to
provide cash equity contributions to the Borrower of
$____________ on or prior to the Resort Loan Closing Date and
an additional __________ thereafter, as more particularly
provided for on Exhibit H hereto. The maximum principal to be
obtained under the Resort Loan from Lender would not exceed
85% of the Resort Development Costs.
(o) The Resort satisfies all of the eligibility requirements of
an "Eligible Resort." All certificates required to be
provided pursuant to clause (g) and clause (h) of the
definition of "Eligible Resort" are attached hereto as
Exhibit H.
(p) A current phase I environmental survey of the Resort is
attached hereto as Exhibit I.
(q) A soil report in respect of the Resort is attached hereto as
Exhibit J.
(r) A perimeter survey of the Resort is attached hereto as
Exhibit K.
(s) A [preliminary] owner's title insurance policy is attached
hereto as Exhibit L.
(t) Bluegreen requests that the Resort Loan have a maturity date
of ____ [may not be later than 7 years from the Facility
Closing Date] and a draw period during which Resort Advances
will be available for ____ years [may not extend beyond
Eligibility Period (including the Extension Period)].
Bluegreen requests that the Resort Advances be made available
monthly.
Schedule 1.2-2
32
(u) The Resort Loan Limit, without giving effect to the requested
Resort Loan, is $_________. The requested Resort Loan is
within the Resort Loan Limit.
(v) Bluegreen requests that the release price per Interval be as
set forth on Exhibit M hereto (subject to adjustment as
provided for in Section 1.4 of the Agreement) and that the
minimum amortization be as set forth on Exhibit N hereto.
(w) Bluegreen requests that the Resort Loan Closing Date for the
requested Resort Loan be ______ __, ____.
(x) The form of Declaration and Timeshare Declaration for the
Resort, all forms of property and other disclosure reports,
purchase agreements and consumer interval financing documents
and any franchise, management, sub-management or other
affiliate agreements are set forth on Exhibit O hereto.
(y) No Termination Event has occurred and is continuing and no
event under Section 2.13 of the Agreement shall then exist.
The Warehouse Facility is in full force and effect (after
giving effect to any extensions thereof).
(w) Bluegreen confirms that Intervals at the Resort will be sold
and financed on a deed basis using mortgage notes and
mortgages substantially in the form set forth on Exhibit O
hereto.
(x) Bluegreen confirms that the Resort [will][will not] be a
Component Site. [The points awarded to each Interval at the
Resort by the Club together with the purchase price thereof
are set forth on Exhibit P hereto.]
2. The representations and warranties contained in the Agreement are
true, correct and complete in all material respects on the date hereof.
3. Bluegreen is in compliance with each and every one of its
covenants, agreements and obligations in all material respects under the
Agreement and the Warehouse Facility.
4. Bluegreen has no knowledge of any defenses or offsets with respect
to the payment of any amounts due Lender.
5. Bluegreen acknowledges that this request is subject to approval by
Lender. Bluegreen requests that Lender use its best efforts to respond to this
request on or prior to ________ ___, ______.
Schedule 1.2-3
33
BLUEGREEN CORPORATION
By:
--------------------------------------
Name:
Its:
Schedule 1.2-4
34
SCHEDULE 2.2
------------
[Closing Checklist]
HFS No. 98-087
XXXXXX FINANCIAL, INC. $___________
RESORT LOAN TO [NAME OF ELIGIBLE BLUEGREEN SUBSIDIARY]
LENDER: Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Account Executive
Telephone: 000-000-0000
Facsimile: 000-000-0000
Vacation Ownership Legal Representative
Facsimile: 000-000-0000
LENDER'S COUNSEL: Xxxx & Xxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx X. X'Xxxx, Esq.
Telephone: 000-000-0000/2707
Facsimile: 000-000-0000
BORROWER: [Name of Eligible Bluegreen Subsidiary], a ____________ corporation
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
BORROWER'S COUNSEL: [To Be Supplied]
GUARANTOR: Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
RESORT: [Name of Eligible Resort]
Schedule 2.2-1
35
-------------------------------------------------------------------------------------------------------------
ITEM RESPONSIBILITY STATUS
-------------------------------------------------------------------------------------------------------------
1. BORROWER/GUARANTOR BACKGROUND
DOCUMENTS
-------------------------------------------------------------------------------------------------------------
a. UCC judgment and tax lien search Lender's
counsel
i. Borrower
ii. Guarantor
iii. Resort
-------------------------------------------------------------------------------------------------------------
b. Borrower's/Guarantor's Certificate re: litigation and Borrower;
other matters affecting Borrower and Guarantor Guarantor
-------------------------------------------------------------------------------------------------------------
c. Intercompany agreements and loans between Borrower;
Borrower, Guarantor or any other affiliate Guarantor
-------------------------------------------------------------------------------------------------------------
d. Credit reports Lender
-------------------------------------------------------------------------------------------------------------
2. ACQUISITION/CONSTRUCTION DOCUMENTS
-------------------------------------------------------------------------------------------------------------
a. Resort Purchase and Sale Contract Borrower
i. Owner's policy of title insurance and
copies of all exceptions and liens on
Schedule B thereto
-------------------------------------------------------------------------------------------------------------
b. Resort Architectural Contract Borrower
-------------------------------------------------------------------------------------------------------------
c. Resort Construction Contract Borrower
i. Copies of major subcontracts Borrower
-------------------------------------------------------------------------------------------------------------
d. Plans, Specifications and Drawings Borrower
-------------------------------------------------------------------------------------------------------------
e. Approved Development Budget Borrower
i. Construction timeline Borrower
-------------------------------------------------------------------------------------------------------------
f. Approved Sales and Marketing Budget Borrower
-------------------------------------------------------------------------------------------------------------
g. Soil/Engineering Report Borrower
-------------------------------------------------------------------------------------------------------------
h. Payment and Performance Bonds Borrower
i. Co-obligee endorsement in favor of Borrower
Lender
-------------------------------------------------------------------------------------------------------------
i. Sources and Uses of Cash Projection Borrower
-------------------------------------------------------------------------------------------------------------
j. Certificates re: Resort Development Costs, Borrower
Average Unit Construction Costs, Projected Resort
Net Sales Proceeds, Paid-in-capital to Borrower
and Percentage of Resort Loan to be used to
construct amenities
-------------------------------------------------------------------------------------------------------------
k. Excavation, foundation and building permits; water Borrower
connection permit; storm sewer connection permit;
other permits
-------------------------------------------------------------------------------------------------------------
3. RESORT DOCUMENTS
-------------------------------------------------------------------------------------------------------------
a. Draft Condominium Declaration Borrower
i. Draft Condominium plat and Borrower
horizontal/vertical site drawings
-------------------------------------------------------------------------------------------------------------
Schedule 2.2-2
36
-----------------------------------------------------------------------------------------
b. Draft Timeshare Declaration Borrower
-----------------------------------------------------------------------------------------
c. [PUD or other Horizontal Plan Documents] Borrower
-----------------------------------------------------------------------------------------
d. [Copies of all Restrictive Covenants Running with Borrower
Land]
-----------------------------------------------------------------------------------------
e. Draft Articles of Incorporation and Bylaws of Borrower
Condominium Homeowners' Association
-----------------------------------------------------------------------------------------
f. Draft Articles of Incorporation and Bylaws of Borrower
Timeshare Owners' Association
-----------------------------------------------------------------------------------------
g. Draft Condominium Rules and Regulations Borrower
-----------------------------------------------------------------------------------------
h. Draft Timesharing Rules and Regulations Borrower
-----------------------------------------------------------------------------------------
i. Draft Management Agreement for Resort Borrower
-----------------------------------------------------------------------------------------
j. [Registration, Public Offering Statement and other Borrower
Filed Time Share Documents for Resort in
___________, __________, _________, and ________]
-----------------------------------------------------------------------------------------
k. Form of purchaser credit application Borrower
-----------------------------------------------------------------------------------------
l. Form of reservation agreement Borrower
-----------------------------------------------------------------------------------------
m. Form of escrow agreement for pre-sales Borrower
i. Location of downpayment escrow deposit
-----------------------------------------------------------------------------------------
n. Form of purchaser buy/sell agreement Borrower
-----------------------------------------------------------------------------------------
o. Form of purchase money mortgage note Borrower
-----------------------------------------------------------------------------------------
p. Form of purchase money mortgage Borrower
-----------------------------------------------------------------------------------------
q. Form of Regulation Z Disclosure Statement Borrower
-----------------------------------------------------------------------------------------
r. Form of Rescission Statement Borrower
-----------------------------------------------------------------------------------------
s. Form of Regulation X Servicing Statement Borrower
-----------------------------------------------------------------------------------------
t. Form of RESPA Settlement Statement Borrower
-----------------------------------------------------------------------------------------
u. Pro-forma Mortgagee's Title Insurance Policy Borrower
-----------------------------------------------------------------------------------------
v. Form of timeshare documents receipt Borrower
-----------------------------------------------------------------------------------------
w. Purchaser's affidavit and acknowledgement Borrower
-----------------------------------------------------------------------------------------
x. State timeshare filings (_____, _____ and Borrower
______)
i. Subdivision/Developer/Declaration licensing Borrower
-----------------------------------------------------------------------------------------
y. Certificate from Guarantor that Receivables from Guarantor
Resort meet eligibility requirements for "Eligible
Completed Unit Receivables" or "Eligible
Uncompleted Unit Receivables" under Warehouse
Facility
-----------------------------------------------------------------------------------------
z. Evidence that forms meet state and federal Borrower
requirements
-----------------------------------------------------------------------------------------
aa. Sales/marketing contracts for intervals and/or Club Borrower
memberships
-----------------------------------------------------------------------------------------
bb. All Affiliate contracts with respect to Resort (except Borrower/
as listed above) Guarantor
-----------------------------------------------------------------------------------------
Schedule 2.2-3
37
------------------------------------------------------------------------------------------
cc. Form of the transfer/conveyance documents from Borrower
Borrower to Guarantor for purposes of pledging
receivables under Warehouse Facility
i. [Form of lien release/subordination of Lender
Lender]
------------------------------------------------------------------------------------------
4. CLUB DOCUMENTATION
------------------------------------------------------------------------------------------
a. Memorandum of Bluegreen Vacation Club Guarantor
recorded in real property records of _________
------------------------------------------------------------------------------------------
b. [Registration, Public Offering Statement and other Guarantor
Filed Time Share Documents for Club in [state in
which Resort is located and with Division of
Florida Land Sales, Condominium and Mobile
Homes of the Department of Business &
Professional Regulation]
------------------------------------------------------------------------------------------
c. Qualification of Trustee as foreign corporation in Guarantor
[state in which Resort is located]
------------------------------------------------------------------------------------------
d. Qualification of Trust as "foreign trust" in [state in Guarantor
which Resort is located] (if applicable)
------------------------------------------------------------------------------------------
e. Trustee acknowledgement that Accommodations Guarantor
of Resort will constitute a Component Site under
the RDI Vacation Club
------------------------------------------------------------------------------------------
f. Form of RDI Owner Agreement to be used with Guarantor
purchasers of Intervals
------------------------------------------------------------------------------------------
g. Form of deed to be used for conveyance of Guarantor
Intervals by purchasers to the Trust
------------------------------------------------------------------------------------------
h. Schedule of Vacation Points allocated to Intervals Guarantor
at the Resort
------------------------------------------------------------------------------------------
i. Addenda to public offering statements used in Guarantor
other states in marketing the RDI Vacation Club to
reflect the Resort as a Component Site
------------------------------------------------------------------------------------------
j. Acknowledgement by Trustee and Club that the Guarantor
holder of purchase money mortgages on Intervals
at the Resort qualify as Interest Holder
Beneficiaries under the Trust Agreement
------------------------------------------------------------------------------------------
k. Certified copy of RDI Vacation Club Trust Guarantor
Agreement, rules and regulations for the RDI
Vacation Club and point guidelines
------------------------------------------------------------------------------------------
l. Certified copy of Trustee's certificate of Guarantor
incorporation and bylaws and good standing
certificates from state of incorporation and states
in which qualified as a foreign corporation
------------------------------------------------------------------------------------------
m. Certified copy of Club's certificate of incorporation Guarantor
and bylaws and good standing certificates from
state of incorporation and states in which qualified
as a foreign corporation
------------------------------------------------------------------------------------------
Schedule 2.2-4
38
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n. Certified copy of Vacation Club Managing Entity's Guarantor
certificate of incorporation and bylaws and
good standing certificates from state of
incorporation and states in which qualified as
a foreign corporation
-------------------------------------------------------------------------------
o. Copy of management agreement between Club Guarantor
and Vacation Club Managing Entity
-------------------------------------------------------------------------------
p. Copy of most recent audit and report prepared Guarantor
by independent accounting firm
-------------------------------------------------------------------------------
q. Copy of most recent operating budget for Club Guarantor
(including operating fund budget and trust fund
budget)
-------------------------------------------------------------------------------
r. Certificates of insurance maintained by the Guarantor
Trustee, the Trust and/or the Club
i. Business interruption insurance
-------------------------------------------------------------------------------
5. RESORT ACQUISITION AND OTHER INFORMATION
-------------------------------------------------------------------------------
a. Schedule of Acquisition Closing Costs and Borrower's
Expenses (if applicable) counsel
-------------------------------------------------------------------------------
b. Conveyance Documents (if applicable) Borrower's
counsel
-------------------------------------------------------------------------------
c. Resort Loan Request under Master Bluegreen Guarantor
Resort Loan Facility
-------------------------------------------------------------------------------
d. Perimeter ALTA Survey for Resort Borrower
i. Surveyor's Certificate Borrower
ii. Flood zone classification (if applicable) Borrower
-------------------------------------------------------------------------------
e. Phase I Environmental Survey for Resort Borrower
x. Xxxxxx Reliance Letter Borrower
-------------------------------------------------------------------------------
f. Certificates of Insurance (including flood and Borrower
builder's risk) and proof of payment of premiums
i. Lender named as mortgage loss payee/co-insured Borrower
-------------------------------------------------------------------------------
g. Other Resort Information Borrower
i. Receipts evidencing payment of property taxes Borrower
ii. Copies of utility contracts (if any) Borrower
iii. Certificates of occupancy (if any) Borrower
iv. Lender's Architect's Inspection Results Borrower
-------------------------------------------------------------------------------
h. Appraisal Borrower
-------------------------------------------------------------------------------
Schedule 2.2-5
39
-------------------------------------------------------------------------------
i. Mechanic's, materialmen's and supplier's lien Borrower
partial waivers and reconciliation of all
payments to date of closing (if applicable)
-------------------------------------------------------------------------------
j. Licensing Borrower
i. Real estate broker licensing for sales Borrower
of intervals
ii. Amenities Borrower
-------------------------------------------------------------------------------
k. Zoning compliance Borrower
-------------------------------------------------------------------------------
l. ADA/HUD accessibility compliance (if applicable) Borrower
-------------------------------------------------------------------------------
m. Financial statements of Borrower and Guarantor Borrower
-------------------------------------------------------------------------------
n. Certificate or other evidence of satisfaction
of net worth requirement
i. Copy of agreement of Guarantor to make Guarantor
further net worth contributions to
Borrower
ii. Copy of completion of construction Guarantor
guarantee from Guarantor
-------------------------------------------------------------------------------
6. RESORT LOAN DOCUMENTS
-------------------------------------------------------------------------------
a. Promissory note Lender's
counsel
-------------------------------------------------------------------------------
b. Acquisition and Construction Loan Agreement Lender's
counsel
-------------------------------------------------------------------------------
c. Guarantee Lender's
counsel
-------------------------------------------------------------------------------
d. Mortgage, Assignment of Rents and Security Lender's
Agreement counsel
i. Mortgagee's title insurance Borrower's
Commitment/Pro forma mortgagee's title counsel/title
Insurance policy company
ii. Endorsements: future advance, usury, Borrower's
condominium/pud, mechanic's lien, counsel/title
zoning, elimination of survey/easement company
exceptions
iii. Copies of all listed Schedule B exceptions Borrower's
counsel/title
company
-------------------------------------------------------------------------------
e. UCC-1's - Borrower Lender's
i. Central/Local:____________ counsel
ii. Central/Local:____________
-------------------------------------------------------------------------------
f. Hazardous Materials Indemnity Agreement Lender's
counsel
-------------------------------------------------------------------------------
g. Collateral Assignment of Declarant's Rights Lender's
counsel
-------------------------------------------------------------------------------
Schedule 2.2 - 6
40
------------------------------------------------------------------------------------
h. Collateral Assignment of Resort-related contracts Lender's
counsel
i. Collateral Blanket Assignment of Pre-Sale
Contracts (if not assigned to Warehouse
Facility)
ii. Collateral Blanket Assignment of Notes
and Mortgages (if not assigned to
Warehouse Facility)
iii. Collateral Assignment of Resort
Construction Contract
iv. Collateral Assignment of Resort
Architectural Contract
v. [Other]
------------------------------------------------------------------------------------
i. [Escrow Arrangement Lender's
counsel
i. insured closing agent's letter]
------------------------------------------------------------------------------------
j. Corporate authorization for the Borrower and the Borrower
Guarantor
i. Good Standing Certificate from State of Borrower
Incorporation for the Borrower
ii. Massachusetts Good Standing Certificate Guarantor
for the Guarantor
iii. Foreign Authorization Certificates for the Borrower
Borrower from [state in which Resort is
located]
iv. Foreign Authorization Certificates for the Guarantor
Guarantor from Florida and [state in
which Resort is located]
v. Certificates of Incorporation for Borrower Borrower
vi. Articles of Incorporation for Guarantor Guarantor
vii. Bylaws of Borrower Borrower
viii. Bylaws of Guarantor Guarantor
------------------------------------------------------------------------------------
k. Opinion of counsel for Borrower and Guarantor Borrower
counsel
------------------------------------------------------------------------------------
l. Subordination agreement for subordinate affiliate Lender's
debt counsel
i. Copies of all documentation for
subordinate affiliate debt
------------------------------------------------------------------------------------
Schedule 2.2-7
41
------------------------------------------------------------------------------
m. Custodial Agreement (if applicable) Lender's
counsel
------------------------------------------------------------------------------
n. Servicing and Lockbox Agreement (if applicable) Lender's
counsel
------------------------------------------------------------------------------
o. Borrower's officer's and secretary's Certificates Lender's
counsel
i. Resolutions attached
------------------------------------------------------------------------------
p. Guarantor's officer's and secretary's certificates Lender's
counsel
i. Resolutions attached
------------------------------------------------------------------------------
q. [Construction Disbursement Agreement Borrower's
counsel/
i. Form of Notice Lender's
counsel/title
ii. Wire instructions company
iii. Escrow Funding Account]
------------------------------------------------------------------------------
r. Form of Architect's Certificate for Lender's
disbursements counsel
------------------------------------------------------------------------------
s. Form of General Contractor's Certificate for Lender's
disbursements counsel
------------------------------------------------------------------------------
t. Payment of Commitment Fee Installment Borrower
------------------------------------------------------------------------------
u. Reimbursement of Lender's costs and expenses Borrower
------------------------------------------------------------------------------
v. Payment of Legal Fees of Lender Borrower
------------------------------------------------------------------------------
Schedule 2.2-8
