1
EXHIBIT 10.151
--------------
MODIFICATION NUMBER ONE
TO THE LOAN AGREEMENT
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Hereinafter referred to as the "Bank")
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts Management, Inc.
f/k/a RDI Resort Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Holding Corporation (Texas)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Properties of the Southwest One, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Properties of the Southwest, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Asset Management Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Carolina Land, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of Montana
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of Tennessee
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of the Rockies
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
2
Bluegreen Properties of Virginia, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Communities, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Carolina National Golf Club, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Leisure Capital Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Properties of the West, Inc.
f/k/a Properties of the West, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BG/RDI Acquisition Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RDI Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dellona Enterprises, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts of Florida, Inc.
f/k/a Resort Development International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Vacations Unlimited, Inc.
f/k/a RDI Resources, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(INDIVIDUALLY AND COLLECTIVELY "BORROWER")
THIS AGREEMENT is entered into as of August 1, 1999 by and between Bank and
Borrower.
3
RECITALS
Bank is the holder of a Promissory Note executed and delivered by Borrower,
dated September 23, 1998, in the original principal amount of $5,000,000.00 (the
"Note"); and certain other Loan Documents, including a Loan Agreement, dated
September 23, 1998 (the "Loan Agreement"); and
Borrower and Bank have agreed to modify the terms of the Loan Agreement.
In consideration of Bank's continued extension of credit and the agreements
contained herein, the parties agree as follows:
AGREEMENT
OUTSTANDING BALANCE. The total outstanding unpaid principal balance under the
Note as of August 1, 1999 is $0.00.
MODIFICATIONS. Borrower has applied to Bank for an extension of the loan or
loans (individually and collectively, the "Loan") evidenced by one or more
promissory notes (whether one or more, the "Note") as follows:
Line of Credit - in the principal amount of $5,000,000.00 which is evidenced by
a Renewal Promissory Note dated as of August 1, 1999 ("Line of Credit Note"),
under which Borrower may borrow, repay, and reborrow, from time to time, so long
as the total indebtedness outstanding at any one time does not exceed the
principal amount minus the sum of (i) the amount available to be drawn plus (ii)
the amount of unreimbursed drawings under all letters of credit issued by Bank
for the account of Borrower. The Loan proceeds are to be used by Borrower solely
for working capital and to issue letters of credit from time to time. The total
amount of letters of credit to be issued under the Line of Credit Note shall not
exceed $1,000,000.00 at any time nor have maturities greater than December 31,
2000. Bank's obligation to advance or readvance under the Line of Credit Note
shall terminate if Borrower is in Default under the Line of Credit Note.
ACKNOWLEDGMENTS. Borrower acknowledges and represents that the Note and other
Loan Documents, as amended hereby, are in full force and effect without any
defense, counterclaim, right or claim of set-off; that, after giving effect to
this Agreement, no default or event that with the passage of time or giving of
notice would constitute a default under the Loan Documents has occurred; that
all representations and warranties contained in the Loan Documents are true and
correct as of this date; that Borrower has taken all necessary action to
authorize the execution and delivery of this Agreement; and that this Agreement
is a modification of an existing obligation and is not a novation.
MISCELLANEOUS. This Agreement shall be construed in accordance with and governed
by the laws of the applicable state as originally provided in the Loan
Documents, without reference to that state's conflicts of laws principles. This
Agreement and the other Loan Documents constitute the sole agreement of the
parties with respect to the subject matter thereof and supersede all oral
negotiations and prior writings with respect to the subject matter thereof. No
amendment of this Agreement, and no waiver of any one or more of the provisions
hereof shall be effective unless set forth in writing and signed by the parties
hereto. The illegality, unenforceability or inconsistency of any provision of
this Agreement shall not in any way affect or impair the legality,
enforceability or consistency of the remaining provisions of this Agreement or
the other Loan Documents. This Agreement and the other Loan Documents are
intended to be consistent. However, in the event of any inconsistencies among
this Agreement and any of the Loan Documents, the terms of this Agreement, and
then the Note, shall control. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts. Each such
counterpart shall be deemed an original, but all such counterparts shall
together constitute one and the same agreement. Terms used in this Agreement
which are capitalized and not otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Documents.
4
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement the
day and year first above written.
Bluegreen Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Bluegreen Resorts Management, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Resorts, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Holding Corporation (Texas)
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Properties of the Southwest One, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Properties of the Southwest, L.P.
By: Properties of the Southwest One, Inc.,
its: General Partner
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
5
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Bluegreen Asset Management Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Carolina Land, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Montana
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Tennessee
Taxpayer Identification Number: 03-0316460
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of the Rockies
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Virginia, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
6
Bluegreen Communities, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Resorts International, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Carolina National Golf Club, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Leisure Capital Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Properties of the West, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
BG/RDI Acquisition Corp.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
7
RDI Group, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Dellona Enterprises, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Bluegreen Resorts of Florida, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Bluegreen Vacations Unlimited, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
First Union National Bank
CORPORATE By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SEAL -------------------------------------------
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
8
(FIRST UNION LOGO)
RENEWAL PROMISSORY NOTE
$5,000,000.00 August 1, 1999
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts Management, Inc.
f/k/a RDI Resort Services Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Holding Corporation (Texas)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Properties of the Southwest One, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Properties of the Southwest, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Asset Management Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Carolina Land, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of Montana
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of Tennessee
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Corporation of the Rockies
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
9
Bluegreen Properties of Virginia, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Communities, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Carolina National Golf Club, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Leisure Capital Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Properties of the West, Inc.
f/k/a Properties of the West, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
BG/RDI Acquisition Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RDI Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dellona Enterprises, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Resorts of Florida, Inc.
f/k/a Resort Development International, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bluegreen Vacations Unlimited, Inc.
f/k/a RDI Resources, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(INDIVIDUALLY AND COLLECTIVELY "BORROWER")
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(HEREINAFTER REFERRED TO AS THE "BANK")
10
RENEWAL/MODIFICATION. This Promissory Note renews, extends and/or modifies that
certain Promissory Note dated September 23, 1998, evidencing an original
principal indebtedness of $5,000,000.00 of which $0 is currently outstanding.
This Promissory Note is not a novation.
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of Five Million and No/100 Dollars ($5,000,000.00) or such sum
as may be advanced and outstanding from time to time with interest on the unpaid
principal balance at the rate and on the terms provided in this Promissory Note
(including all renewals, extensions or modifications hereof, this "Note").
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this
Note from the date hereof at the LIBOR Market Index Rate plus 1.5% as that rate
may change from day to day in accordance with changes in the LIBOR Market Index
Rate ("Interest Rate"). "LIBOR Market Index Rate", for any day, is the rate for
1 month U.S. dollar deposits as reported on Telerate page 3750 as of 11:00 a.m.,
London time, on such day, or if such day is not a London business day, then the
immediately preceding London business day (or if not so reported, then as
determined by Bank from another recognized source or interbank quotation).
DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (defined herein) occurs and as long as a Default continues, all
outstanding Obligations shall bear interest at the Interest Rate plus 3%
("Default Rate"). The Default Rate shall also apply from acceleration until the
Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION. (ACTUAL/360). Interest and fees, if any, shall
be computed on the basis of a 360-day year for the actual number of days in the
applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective yield by taking the stated (nominal) rate for a
year's period and then dividing said rate by 360 to determine the daily periodic
rate to be applied for each day in the applicable period. Application of the
Actual/360 Computation produces an annualized effective rate exceeding that of
the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only commencing on August 23, 1998, and on the same
day of each month thereafter until fully paid. In any event, all principal and
accrued interest shall be due and payable on December 31, 2000.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application
toward payment of the Obligations shall be applied to accrued interest and then
to principal. If a Default occurs, monies may be applied to the Obligations in
any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. LOAN DOCUMENTS. The term "Loan Documents" used in this Note and
other Loan Documents refers to all documents executed in connection with the
loan evidenced by this Note and any prior notes which evidence all or any
portion of the loan evidenced by this Note, and may include, without limitation,
a commitment letter that survives closing, a loan agreement, this Note, guaranty
agreements, security agreements, security instruments, financing statements,
mortgage instruments, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as defined in 11
U.S.C. Section 101). OBLIGATIONs. The term "Obligations" used in this Note
refers to any and all indebtedness and other obligations under this Note, all
other obligations under any other Loan Document(s), and all obligations under
any swap agreements as defined in 11 U.S.C. Section 101 between Borrower and
Bank whenever executed. CERTAIN OTHER TERMs. All terms that are used but not
otherwise
11
defined in any of the Loan Documents shall have the definitions provided in the
Uniform Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 5% of each payment past due for 10 or more days.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be deemed a waiver of Bank's right to collect such late charge or to collect
a late charge for any subsequent late payment received.
If this Note is secured by owner-occupied residential real property located
outside the state in which the office of Bank first shown above is located, the
late charge laws of the state where the real property is located shall apply to
this Note and the late charge shall be the highest amount allowable under such
laws. If no amount is stated thereunder, the late charge shall be 5% of each
payment past due for 10 or more days.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations,
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but for
this paragraph, exceed the maximum lawful rate, the effective interest rate
under this Note shall be the maximum lawful rate, and any amount received by
Bank in excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: NONPAYMENT; NONPERFORMANCE. The failure of timely payment or
performance of the Obligations or Default under this Note or any other Loan
Documents. FALSE WARRANTY. A warranty or representation made or deemed made in
the Loan Documents or furnished Bank in connection with the loan evidenced by
this Note proves materially false, or if of a continuing nature, becomes
materially false. CROSS DEFAULT. At Bank's option, any default in payment or
performance of any obligation under any other loans, contracts or agreements of
Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the
holder(s) of the majority ownership interests of Borrower with Bank or its
affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. Section
101, except that the term "debtor" therein shall be substituted by the term
"Borrower" herein; "Subsidiary" shall mean any business in which Borrower holds,
directly or indirectly, a controlling interest). CESSATION; BANKRUPTCY. The
death of, appointment of guardian for, dissolution of, termination of existence
of, loss of good standing status by, appointment of a receiver for, assignment
for the benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against the Borrower, its Subsidiaries or Affiliates, if any,
or any general partner of or the holder(s) of the majority ownership interests
of Borrower, or any party to the Loan Documents. MATERIAL CAPITAL STRUCTURE OR
BUSINESS ALTERATION. Without prior written consent of Bank, (i) a material
alteration in the kind or type of Borrower's business or that of Borrower's
Subsidiaries or Affiliates, if any; (ii) the sale of substantially all of the
business or assets of Borrower, any of Borrower's Subsidiaries or Affiliates or
guarantor or a material portion (10% or more) of such business or assets if such
a sale is outside the ordinary course of business of Borrower, or any of
Borrower's Subsidiaries or Affiliates or any guarantor or more than 50% of the
outstanding stock or voting power of or in any such entity in a single
transaction or a series of transactions; (iii) the acquisition of substantially
all of the business or assets or more than 50% of the outstanding stock or
voting power of any other entity; or (iv) should any Borrower, or any of
Borrower's Subsidiaries or Affiliates or any guarantor enter into any merger or
consolidation.
12
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions: BANK
LIEN. Foreclose its security interest or lien against Borrower's accounts
without notice. ACCELERATION UPON DEFAULT. Accelerate the maturity of this Note
and all other Obligations, and all of the Obligations shall be immediately due
and payable. CUMULATIVE. Exercise any rights and remedies as provided under the
Note and other Loan Documents, or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information
as Bank may reasonably request from time to time, including without limitation,
financial statements and information pertaining to Borrower's financial
condition. Such information shall be true, complete, and accurate.
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary to ensure that
Borrower's computer based systems are able to operate and effectively process
data including dates on and after January 1, 2000. At the request of Bank,
Borrower shall provide Bank assurance acceptable to Bank of Borrower's Year 2000
compatibility.
LINE OF CREDIT ADVANCES. Borrower may borrow, repay and reborrow, and Bank may
advance and readvance under this Note respectively from time to time until the
maturity hereof (each an "Advance" and together the "Advances"), so long as the
total indebtedness outstanding under this Note at any one time does not exceed
the principal amount stated on the face of this Note minus the sum of (i) the
amount available to be drawn plus (ii) the amount of unreimbursed drawings under
all letters of credit issued by Bank for the account of Borrower. The total
amount of letters of credit to be issued under the Line of Credit Note shall not
exceed $1,000,000.00 at any time. Bank's obligation to make Advances under this
Note shall terminate if Borrower is in Default or a representation in any of the
Loan Documents is false or has become false. As of the date of each proposed
Advance, Borrower shall be deemed to represent that each representation made in
the Loan Documents is true as of such date. 45-DAY PAYOUT. During the term of
the Note, Borrower agrees to pay down the outstanding balance to a maximum of
$100.00 for 45 consecutive days annually.
If Borrower subscribes to Bank's cash management services and such services are
applicable to this line of credit, the terms of such service shall control the
manner in which funds are transferred between the applicable demand deposit
account and the line of credit for credit or debit to the line of credit.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or remedy under this
Note and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend, modify or renew
this Note or make a novation of the loan evidenced by this Note for any period
and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all without notice
to or consent of each Borrower or each person who may be liable under this Note
or other Loan Documents and without affecting the liability of Borrower or any
person who may be liable under this Note or other Loan Documents.
MISCELLANEOUS PROVISIONS. ASSIGNMENT. This Note and other Loan Documents shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Bank's interests in and
rights under this Note and other Loan Documents are freely assignable, in whole
or in part, by Bank. In addition, nothing in this Note or any of the Loan
Documents
13
shall prohibit Bank from pledging or assigning this Note or any of the Loan
Documents or any interest therein to any Federal Reserve Bank. Borrower shall
not assign its rights and interest hereunder without the prior written consent
of Bank, and any attempt by Borrower to assign without Bank's prior written
consent is null and void. Any assignment shall not release Borrower from the
Obligations. APPLICABLE LAW; CONFLICT BETWEEN DOCUMENTS. This Note and other
Loan Documents shall be governed by and construed under the laws of the state
named in Bank's address shown above without regard to that state's conflict of
laws principles. If the terms of this Note should conflict with the terms of the
loan agreement or any commitment letter that survives closing, the terms of this
Note shall control. BORROWER'S ACCOUNTS. Except as prohibited by law, Borrower
grants Bank a security interest in all of Borrower's accounts with Bank and any
of its affiliates. JURISDICTION. Borrower irrevocably agrees to non-exclusive
personal jurisdiction in the state named in Bank's address shown above.
SEVERABILITY. If any provision of this Note or of the other Loan Documents shall
be prohibited or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note or other such document. NOTICES. Any notices to Borrower shall be
sufficiently given, if in writing and mailed or delivered to the Borrower's
address shown above or such other address as provided hereunder, and to Bank, if
in writing and mailed or delivered to Bank's office address shown above or such
other address as Bank may specify in writing from time to time. In the event
that Borrower changes Borrower's address at any time prior to the date the
Obligations are paid in full, Borrower agrees to promptly give written notice of
said change of address by registered or certified mail, return receipt
requested, all charges prepaid. PLURAL; CAPTIONS. All references in the Loan
Documents to Borrower, guarantor, person, document or other nouns of reference
mean both the singular and plural form, as the case may be, and the term
"person" shall mean any individual, person or entity. The captions contained in
the Loan Documents are inserted for convenience only and shall not affect the
meaning or interpretation of the Loan Documents. BINDING CONTRACT.
Borrower by execution of and Bank by acceptance of this Note agree that each
party is bound to all terms and provisions of this Note. ADVANCES. Bank in its
sole discretion may make other Advances under this Note pursuant hereto. POSTING
OF PAYMENTS. All payments received during normal banking hours after 2:00 p.m.
local time at the office of Bank first shown above shall be deemed received at
the opening of the next banking day. JOINT AND SEVERAL OBLIGATIONS. Each
Borrower is jointly and severally obligated under this Note. FEES AND TAXES.
Borrower shall promptly pay all documentary, intangible recordation and/or
similar taxes on this transaction whether assessed at closing or arising from
time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements. SPECIAL RULES. All arbitration hearings shall be conducted in the
city named in the address of Bank first stated above. A hearing shall begin
within 90 days of demand for arbitration and all hearings shall conclude within
120 days of demand for arbitration. These time limitations may not be extended
unless a party shows cause for extension and then for no more than a total of 60
days. The expedited procedures set forth in Rule 51 ET SEQ. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators
shall be licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties do not waive applicable Federal or
state substantive law except as provided herein. PRESERVATION AND LIMITATION OF
REMEDIES. Notwithstanding the preceding binding arbitration provisions, the
parties agree to preserve, without diminution, certain remedies that any party
may exercise before or after an arbitration proceeding is brought. The parties
shall have the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help
including peaceful
14
occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute. WAIVER OF EXEMPLARY DAMAGES. The parties agree that they shall not have
a remedy of punitive or exemplary damages against other parties in any Dispute
and hereby waive any right or claim to punitive or exemplary damages they have
now or which may arise in the future in connection with any Dispute whether the
Dispute is resolved by arbitration or judicially. WAIVER OF JURY TRIAL. THE
PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A
DISPUTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
Bluegreen Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
Bluegreen Resorts Management, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Resorts, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Holding Corporation (Texas)
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
15
Properties of the Southwest One, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Properties of the Southwest, L.P.
By: Properties of the Southwest One, Inc.,
its: General Partner
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
Bluegreen Asset Management Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Carolina Land, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Montana
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Tennessee
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
16
Bluegreen Corporation of the Rockies
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Corporation of Virginia, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Communities, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Bluegreen Resorts International, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Carolina National Golf Club, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Leisure Capital Corporation
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
17
Bluegreen Properties of the West, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
BG/RDI Acquisition Corp.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
RDI Group, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Dellona Enterprises, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Bluegreen Resorts of Florida, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary
Bluegreen Vacations Unlimited, Inc.
Taxpayer Identification Number: ▇▇-▇▇▇▇▇▇▇
CORPORATE By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SEAL ------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President