Exhibit 10.151
REVOLVING PROMISSORY NOTE
__________________
$50,000,000.00 January 10, 2005
FOR VALUE RECEIVED, BLUEGREEN VACATIONS UNLIMITED, INC., a Florida
corporation ("Borrower"), promises unconditionally to pay to the order of RESORT
FINANCE LLC, a Massachusetts limited liability company ("Holder"), in lawful
money of the United States of America, in immediately available funds, the
principal sum of Fifty Million and No/100 Dollars ($50,000,000.00), or the
portion of such principal amount outstanding from time to time, together with
interest on such unpaid principal balance, as more fully provided below.
This Revolving Promissory Note (this "Note") is executed pursuant to a
Loan Agreement dated as of even date herewith between Borrower and Holder
(together with any and all extensions, renewals, modifications and restatements
thereof, the "Loan Agreement") and evidences advances under a revolving
acquisition, development and construction loan (the "Loan").
Section 1 Definitions
As used herein, the term "Holder" shall mean Holder and any subsequent
holder of this Note, whichever is applicable from time to time. Initially
capitalized terms used herein without definition shall have the meanings set
forth in the Loan Agreement. The Loan Agreement and all other documents now or
hereafter executed in connection with the Loan are collectively referred to
herein as the "Loan Documents."
Section 2 Interest
(a) Except as otherwise provided herein, interest shall be computed and
shall accrue at a variable interest rate per annum equal to LIBOR plus 3.90%
with a floor rate of 6.90%, adjusted monthly on the first Business Day of each
calendar month. As used herein, "LIBOR" means the average of interbank offered
rates for 30-day dollar deposits in the London market based on quotations of
five major banks, as published from time to time in The Wall Street Journal. In
the event that The Wall Street Journal ceases to be published or ceases to
publish such a compilation of interbank offered rates, the Borrower and the
Lender will agree on a substitute source and method of determining the interest
rate generally known as the one-month (or 30-day) LIBOR rate.
(b) Interest shall be computed on the outstanding principal balance of the
Loan on the basis of the actual number of days elapsed during the period for
which interest is being charged predicated on a year consisting of three hundred
sixty (360) days.
Section 3 Principal and Interest Payments
(a) Borrower shall make the principal payments required by Section 2.8 of
the Loan Agreement.
(b) On or before the 5th Business Day of each month, commencing with the
first month after the Holder has made a disbursement pursuant to the terms of
the Loan Agreement, the Holder shall send to Borrower a statement setting forth
the amount of interest due for the previous month. Borrower shall pay the
interest due for the previous month on or before the 15th calendar day of the
month in which it has received the Holder's statement of interest due.
(c) If any payment of interest or principal to be made by Borrower shall
become due on a day other than a Business Day, such payment will be made on the
next succeeding Business Day and such extension of time shall be included in
computing any interest with respect to such payment.
Section 4 Maturity Date
The unpaid principal balance hereof, together with all unpaid interest
accrued thereon, and all other amounts payable by Borrower under the terms of
the Loan Documents shall be due and payable on the first to occur (the "Maturity
Date") of (i) the date which is 48 months after the date of this Note, or (ii)
the date on which this Note is required to be repaid pursuant to the Loan
Agreement, including, without limitation, Section 8.2 of the Loan Agreement. If
the Maturity Date should fall on a day other than a Business Day, payment of the
outstanding principal and all unpaid interest due under the terms hereof shall
be made on the next succeeding Business Day and such extension of time shall be
included in computing any interest in respect of such payment.
Section 5 Prepayment
Except as provided in the Loan Agreement, Borrower shall have the option
to prepay a Project Loan in full or in part upon 30 days prior written notice to
the Holder. No Prepayment Premium or other penalty shall be required for
prepayments of any Project Loan.
Section 6 Manner of Payment
Principal and interest are payable in lawful money of the United States of
America. Payments shall be made in the manner prescribed in Section 2.11 of the
Loan Agreement or in accordance with such other instructions that Holder may
from time to time designate in writing.
Section 7 Applications of Payments; Late Charges
(a) Payments received by Holder pursuant to the terms hereof shall be
applied in the manner required by Section 2.12 of the Loan Agreement.
(b) If any installment of interest and/or the payment of principal is not
received by Holder within 5 Business Days after the due date thereof, then in
addition to the remedies conferred upon Holder pursuant to Section 8 hereof and
the other Loan Documents, the Holder
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may elect to assess a late charge of 4% of the amount of the installment due and
unpaid, which such late charge will be added to the delinquent amount to
compensate Holder for the expense of handling the delinquency. Borrower and
Holder agree that such late charge represents a good faith and fair and
reasonable estimate of the probable cost to Holder of such delinquency. Borrower
acknowledges that during the time that any such amount shall be in default,
Holder will incur losses which are impracticable, costly and inconvenient to
ascertain and that such late charge represents a reasonable sum considering all
of the circumstances existing on the date of the execution of this Note and
represents a reasonable estimate of the losses Holder will incur by reason of
late payment. ▇▇▇▇▇▇▇▇ further agrees that proof of actual losses would be
costly, inconvenient, impracticable and extremely difficult to fix. Acceptance
of such late charge shall not constitute a waiver of the default with respect to
the overdue installment, and shall not prevent Holder from exercising any of the
other rights and remedies available hereunder.
Section 8 Remedies
Upon the occurrence of an Event of Default and without demand or notice,
Holder shall have the option to declare the entire balance of principal together
with all accrued interest thereon immediately due and payable and to exercise
all rights and remedies available to it under the Loan Agreement and all other
Loan Documents. Upon the occurrence of an Event of Default (and so long as such
Event of Default shall continue), the entire balance of principal together with
all accrued interest thereon shall bear interest at the Interest Rate plus 2%
(the "Default Rate"). No delay or omission on the part of Holder hereof in
exercising any right under this Note or under any of the Loan Documents shall
operate as a waiver of such right. The application of the Default Rate shall not
be interpreted or deemed to extend any cure period set forth in any Loan
Document or otherwise limit in any way any of Holder's remedies hereunder or
thereunder.
Section 9 Waiver
Except as otherwise provided in the Loan Documents, Borrower hereby waives
diligence, presentment, protest and demand, notice of protest, dishonor and
nonpayment of this Note and expressly agrees that, without in any way affecting
the liability of Borrower hereunder, Holder may extend the Maturity Date or the
time for payment of any installment due hereunder, accept security, release any
party liable hereunder and release any security hereafter securing this Note.
Borrower further waives, to the full extent permitted by law, the right to plead
any and all statutes of limitations as a defense to any demand on this Note, any
other Loan Document or on any Deed of Trust, security agreement or other
agreement now or hereafter securing this Note.
Section 10 Attorneys' Fees
If this Note is not paid when due or if any Event of Default occurs,
Borrower promises to pay all costs of enforcement and collection, including, but
not limited to, ▇▇▇▇▇▇'s reasonable attorneys' fees, whether or not any action
or proceeding is brought to enforce the provisions hereof, including, without
limitation, any action or proceeding in connection with any bankruptcy,
insolvency, liquidation, reorganization, moratorium or other similar proceeding.
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Section 11 Severability
Every provision of this Note is intended to be severable. In the event any
term or provision hereof is declared by a court of competent jurisdiction to be
illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the balance of the terms and provisions hereof, which terms and
provisions shall remain binding and enforceable.
Section 12 Interest Rate Limitation
The provisions of this Note, the Loan Agreement and the other Loan
Documents are hereby expressly limited so that in no contingency or event
whatever shall the amount paid or agreed to be paid to Holder for the use,
forbearance or detention of the sums evidenced by this Note exceed the maximum
amount permissible under applicable law. If from any circumstance whatever the
performance or fulfillment of any provision of this Note, the Loan Agreement or
of any other Loan Document should involve or purport to require any payment in
excess of the limit prescribed by law, then the obligation to be performed or
fulfilled is hereby reduced to the limit of such validity. In addition, if, from
any circumstance whatever, Holder should ever receive as interest an amount
which would exceed the highest lawful rate under applicable law, then the amount
which would be excessive interest shall be applied as an optional reduction of
principal in accordance with the terms of Section 3 of this Note and the
provisions of the Loan Agreement (or, at Holder's option, be paid over to
Borrower), and will not be counted as interest.
Section 13 Headings
Headings at the beginning of each numbered section of this Note are
intended solely for convenience and are not to be deemed or construed to be a
part of this Note.
Section 14 Time is of the Essence
Time is of the essence with respect to all obligations under this Note.
Section 15 Successors
All of the rights, privileges and obligations hereof shall inure to the
benefit of and shall be binding upon Lender and Borrower and any successors and
permitted assigns, if applicable.
Section 16 Governing Law
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
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Section 17 Forum Selection
EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY:
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN MANHATTAN AND THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE
COURTS FROM ANY THEREOF;
CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS
AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
AND
AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN
ANY OTHER JURISDICTION.
[Remainder of Page Intentionally Left Blank, Signature on Next Page]
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IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed and delivered as of the date first set forth above.
BORROWER:
BLUEGREEN VACATIONS UNLIMITED, INC.,
a Florida corporation
By:____________________________________
Printed Name:__________________________
Its:___________________________________
Federal ID #:_________________________