SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(MARK ONE)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the Quarterly period ended July 2, 2000
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Commission File Number: 0-19292
Massachusetts 03-0300793
------------------------------ -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4960 Blue Lake Drive, Boca Raton, Florida 33431
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(Address of principal executive offices) (Zip Code)
(561) 912-8000
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(Registrant's telephone number, including area code)
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Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.
As of August 11, 2000, there were 26,945,436 shares of Common Stock, $.01 par value per share, issued, 2,731,800 treasury shares and 24,213,636 shares outstanding.
BLUEGREEN CORPORATION
INDEX TO QUARTERLY REPORT ON FORM 10-Q
PAGE
----
PART I - FINANCIAL INFORMATION (UNAUDITED)
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS AT
APRIL 2, 2000 AND JULY 2, 2000 .............................................. 3
CONDENSED CONSOLIDATED STATEMENTS OF INCOME - THREE MONTHS
ENDED JULY 4, 1999 AND JULY 2, 2000 ......................................... 4
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - THREE MONTHS
ENDED JULY 4, 1999 AND JULY 2, 2000 ......................................... 5
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ............................. 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION ............................... 14
ITEM 3. QUANTITATIVE AND QUALITATIVE
DISCLOSURES ABOUT MARKET RISK ............................................... 25
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS ................................................................ 25
ITEM 2. CHANGES IN SECURITIES ............................................................ 25
ITEM 3. DEFAULTS UPON SENIOR SECURITIES .................................................. 25
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS .............................. 25
ITEM 5. OTHER INFORMATION ................................................................ 26
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K ................................................. 26
SIGNATURES................................................................................. 27
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
BLUEGREEN CORPORATION
Condensed Consolidated Balance Sheets
(amounts in thousands, except per share data)
April 2, July 2,
2000 2000
--------- ---------
(Note) (Unaudited)
ASSETS
Cash and cash equivalents (including restricted cash of
approximately $21.1 million and $19.4 million at
April 2, 2000 and July 2, 2000, respectively) ................ $ 65,526 $ 34,660
Contracts receivable, net ....................................... 8,403 13,757
Notes receivable, net ........................................... 70,114 87,520
Inventory, net .................................................. 196,509 195,576
Investments in securities ....................................... 15,330 14,935
Property and equipment, net ..................................... 35,409 37,099
Other assets .................................................... 24,221 34,771
--------- ---------
TOTAL ASSETS ................................................. $ 415,512 $ 418,318
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Accounts payable ................................................ $ 6,876 $ 8,219
Accrued liabilities and other ................................... 28,776 25,605
Deferred income ................................................. 3,973 3,411
Deferred income taxes ........................................... 13,173 14,891
Receivable-backed notes payable ................................. 11,167 8,627
Lines-of-credit and notes payable ............................... 66,364 66,672
10.50% senior secured notes payable ............................. 110,000 110,000
8.00% convertible subordinated notes payable to related
parties ..................................................... 6,000 6,000
8.25% convertible subordinated debentures ....................... 34,371 34,371
--------- ---------
TOTAL LIABILITIES ............................................ 280,700 277,796
Minority interests .............................................. 768 3,729
SHAREHOLDERS' EQUITY
Preferred stock, $.01 par value, 1,000 shares authorized;
none issued .................................................. -- --
Common stock, $.01 par value, 90,000 shares authorized;
26,935 and 26,945 shares issued at April 2, 2000 and
July 2, 2000, respectively .................................. 269 269
Additional paid-in capital ...................................... 122,533 122,567
Treasury stock, 2,558 and 2,654 common shares at cost at
April 2, 2000 and July 2, 2000, respectively ................ (12,313) (12,610)
Net unrealized gains on investments available-for-sale, net
of income taxes .............................................. 901 901
Retained earnings ............................................... 22,654 25,666
--------- ---------
TOTAL SHAREHOLDERS' EQUITY ................................... 134,044 136,793
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY ................... $ 415,512 $ 418,318
========= =========
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Note: The condensed consolidated balance sheet at April 2, 2000 has been derived from the audited consolidated financial statements at that date but does not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements.
See accompanying notes to condensed consolidated financial statements.
BLUEGREEN CORPORATION
Condensed Consolidated Statements of Income
(Amounts in thousands, except per share data)
(unaudited)
Three Months Ended
----------------------
JULY 4, JULY 2,
1999 2000
-------- --------
REVENUES:
Sales ........................................................... $ 62,714 $ 62,207
Other resort and golf operations revenue ........................ 5,381 7,718
Interest income ................................................. 3,792 4,257
Other income .................................................... 59 360
-------- --------
71,946 74,542
COSTS AND EXPENSES:
Cost of sales ................................................... 21,724 21,883
Cost of other resort and golf operations ........................ 4,902 6,594
Selling, general and administrative expenses .................... 34,171 36,927
Interest expense ................................................ 2,955 3,641
Provision for loan losses ....................................... 788 1,035
-------- --------
64,540 70,080
-------- --------
Income before income taxes ......................................... 7,406 4,462
Provision for income taxes ......................................... 2,926 1,718
Minority interest in income (loss) of consolidated subsidiaries .... 56 (268)
-------- --------
NET INCOME ......................................................... $ 4,424 $ 3,012
======== ========
EARNINGS PER COMMON SHARE:
Basic .............................................................. $ 0.19 $ 0.12
======== ========
Diluted ............................................................ $ 0.17 $ 0.12
======== ========
WEIGHTED AVERAGE NUMBER OF COMMON AND COMMON
EQUIVALENT SHARES:
Basic .............................................................. 23,425 24,359
======== ========
Diluted ............................................................ 29,837 30,198
======== ========
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See accompanying notes to condensed consolidated financial statements.
BLUEGREEN CORPORATION
Condensed Consolidated Statements of Cash Flows
(amounts in thousands)
(unaudited)
Three Months Ended
-------- --------
July 4, July 2,
1999 2000
-------- --------
OPERATING ACTIVITIES:
Net income ............................................................... $ 4,424 $ 3,012
Adjustments to reconcile net income to net
cash flow used by operating activities:
Minority interest in income (loss) of consolidated subsidiaries ........ 56 (268)
Depreciation and amortization .......................................... 940 1,432
Loss on sale of property and equipment ................................. 63 7
Provision for loan losses .............................................. 788 1,035
Provision for deferred income taxes .................................... 2,926 1,718
Interest accretion on investments in securities ........................ (645) (616)
Proceeds from borrowings collateralized by notes
receivable ......................................................... 9,973 --
Payments on borrowings collateralized by notes receivable .............. (853) (2,213)
CHANGE IN OPERATING ASSETS AND LIABILITIES:
Contracts receivable ..................................................... 3,423 (5,354)
Notes receivable ......................................................... (18,565) (20,321)
Inventory ................................................................ (2,569) 7,827
Other assets ............................................................. (2,241) (2,024)
Accounts payable, accrued liabilities and other .......................... (5,213) (2,380)
-------- --------
NET CASH USED BY OPERATING ACTIVITIES ....................................... (7,493) (18,145)
-------- --------
INVESTING ACTIVITIES:
Purchases of property and equipment ...................................... (3,940) (2,124)
Sales of property and equipment .......................................... 619 3
Cash received from investments in securities ............................. 582 1,011
Long-term prepayment to Bass Pro, Inc. (see Note 3) ...................... -- (9,000)
Loan to related party .................................................... (251) --
Principal payments received on loans to related party .................... 192 --
-------- --------
NET CASH USED BY INVESTING ACTIVITIES ....................................... (2,798) (10,110)
-------- --------
FINANCING ACTIVITIES:
Proceeds from borrowings under line-of-credit facilities and
other notes payable .................................................... -- 1,500
Payments under line-of-credit facilities and other notes payable ......... (1,526) (3,831)
Payment of debt issuance costs ........................................... (519) (16)
Payments for treasury stock .............................................. (4,252) (298)
Proceeds from exercise of employee and director stock options ............ 77 34
-------- --------
NET CASH USED BY FINANCING ACTIVITIES ....................................... (6,220) (2,611)
-------- --------
Net decrease in cash and cash equivalents ................................... (16,511) (30,866)
Cash and cash equivalents at beginning of period ............................ 55,557 65,526
-------- --------
Cash and cash equivalents at end of period .................................. 39,046 34,660
Restricted cash and cash equivalents at end of period ....................... (17,457) (19,422)
-------- --------
Unrestricted cash and cash equivalents at end of period ..................... $ 21,589 $ 15,238
======== ========
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See accompanying notes to condensed consolidated financial statements.
BLUEGREEN CORPORATION
Condensed Consolidated Statements of Cash Flows - - Continued
(amounts in thousands)
(unaudited)
Three Months Ended
------------------------------
July 4, July 2,
1999 2000
------------ ------------
SUPPLEMENTAL SCHEDULE OF NON-CASH OPERATING, INVESTING
AND FINANCING ACTIVITIES
Inventory acquired through financing ................. $ -- $ 2,112
============ ============
Property and equipment acquired through financing .... $ -- $ 519
============ ============
Inventory acquired through foreclosure or
deedback in lieu of foreclosure ..................... $ 1,587 $ 1,552
============ ============
Contribution of land inventory by minority
interest ......................................... $ -- $ 3,230
============ ============
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See accompanying notes to condensed consolidated financial statements.
BLUEGREEN CORPORATION
Notes to Condensed Consolidated Financial Statements July 2, 2000
(unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by generally accepted accounting principles for complete financial statements.
The financial information furnished herein reflects all adjustments consisting of normal recurring accruals that, in the opinion of management, are necessary for a fair presentation of the results for the interim periods. The results of operations for the three-month period ended July 2, 2000 are not necessarily indicative of the results to be expected for the fiscal year ending April 1, 2001. For further information, refer to the consolidated financial statements and notes thereto included in Bluegreen Corporation's (the "Company's") Annual Report to Shareholders for the fiscal year ended April 2, 2000.
ORGANIZATION
The Company is a leading marketer of vacation and residential lifestyle choices through its resort and residential land and golf businesses which are located predominantly in the Southeastern, Southwestern and Midwestern United States. The Company's resort business (the "Resorts Division") acquires, develops and markets Timeshare Interests in resorts generally located in popular, high-volume, "drive-to" vacation destinations. "Timeshare Interests" are of two types: one which entitles the fixed-week buyer to a fully-furnished vacation residence for an annual one-week period in perpetuity and the second which entitles the buyer of the Company's points-based Vacation Club product to an annual allotment of "points" in perpetuity (supported by an underlying deeded fixed timeshare week being held in trust for the buyer). "Points" may be exchanged by the buyer in various increments for lodging for varying lengths of time in fully-furnished vacation residences at the Company's participating resorts. The Company currently develops, markets and sells Timeshare Interests in ten resorts located in the United States and Aruba. The Company also markets and sells Timeshare Interests in its resorts at four off-site sales locations. The Company's residential land and golf business (the "Residential Land and Golf Division") acquires, develops and subdivides property and markets the subdivided residential lots to retail customers seeking to build a home in a high quality residential setting, in some cases on properties featuring a golf course and related amenities. During the three months ended July 2, 2000, sales generated by the Company's Resorts Division and Residential Land and Golf Division comprised approximately 55% and 45%, respectively, of the Company's total sales. The Company's other resort and golf operations revenues are generated from resort property management services, resort title services, resort amenity operations, hotel operations and daily-fee golf course operations. The Company also generates significant interest income by providing financing to individual purchasers of Timeshare Interests and, to a nominal extent, land sold by the Residential Land and Golf Division.
PRINCIPLES OF CONSOLIDATION
The condensed consolidated financial statements include the accounts of the Company, all of its wholly-owned subsidiaries and entities in which the Company holds a controlling financial interest. All significant intercompany balances and transactions are eliminated.
USE OF ESTIMATES
The preparation of condensed consolidated financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the condensed consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
FISCAL YEAR
The Company's fiscal year consists of 52 or 53 weeks, ending on the Sunday nearest the last day of March in each year. Fiscal year 2000 was 53 weeks long, while fiscal year 2001 will be 52 weeks long. The three-month periods ended July 4, 1999 and July 2, 2000 consisted of 14 weeks and 13 weeks, respectively.
EARNINGS PER COMMON SHARE
Basic earnings per common share is computed by dividing net income by the weighted average number of common shares outstanding. Diluted earnings per common share is computed in the same manner as basic earnings per share, but also gives effect to all dilutive stock options using the treasury stock method and includes an adjustment, if dilutive, to both net income and shares outstanding as if the Company's 8.00% convertible subordinated notes payable and 8.25% convertible subordinated debentures were converted into common stock on March 29, 1999.
The following table sets forth the computation of basic and diluted earnings per share:
(in thousands, except per share data) Three Months Ended
--------------------
July 4, July 2,
1999 2000
------- -------
Basic earnings per share - numerator:
Net income .............................................. $ 4,424 $ 3,012
======= =======
Diluted earnings per share - numerator:
Net income - basic ...................................... $ 4,424 $ 3,012
Effect of dilutive securities (net of tax effects) ...... 528 510
------- -------
Net income - diluted .................................... $ 4,952 $ 3,522
======= =======
Denominator:
Denominator for basic earnings per share - weighted-
average shares ...................................... 23,425 24,359
Effect of dilutive securities:
Stock options ........................................... 710 137
Convertible securities .................................. 5,702 5,702
------- -------
Dilutive potential common shares ........................... 6,412 5,839
======= =======
Denominator for diluted earnings per share - adjusted
weighted-average shares and assumed conversions ......... 29,837 30,198
======= =======
Basic earnings per common share ........................... $ 0.19 $ 0.12
======= =======
Diluted earnings per common share ......................... $ 0.17 $ 0.12
======= =======
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STOCK COMPENSATION
In March 2000, the Financial Accounting Standards Board ("FASB") issued FASB Interpretation No. 44, ACCOUNTING FOR CERTAIN TRANSACTIONS INVOLVING STOCK COMPENSATION, AN INTERPRETATION OF APB OPINION NO. 25. The Company was required to adopt the Interpretation on July 1, 2000. The adoption of the Interpretation had no impact on the Company's results of operations for the three-month period ended July 2, 2000.
RECLASSIFICATIONS
Certain prior period amounts have been reclassified to conform to the current period presentation.
2. JOINT VENTURE
On June 16, 2000, a wholly-owned subsidiary of the Company entered into an agreement with Big Cedar L.L.C. ("Big Cedar"), an affiliate of Bass Pro, Inc., to form a timeshare development, marketing and sales company known as Bluegreen/Big Cedar Vacations LLC (the "Joint Venture"). The Joint Venture will develop, market and sell Timeshare Interests in a 300-unit, wilderness-themed resort adjacent to the Big Cedar Lodge, a luxury hotel resort owned by Big Cedar, on Table Rock Lake in Missouri. The Company has committed to an initial cash capital contribution to the Joint Venture of approximately $3.2 million, of which $323,000 was funded as of July 2, 2000, in exchange for a 51% ownership interest in the Joint Venture. The Company's remaining initial cash capital contribution to the Joint Venture will be funded prospectively as needed by the Joint Venture, but in any event no later than June 16, 2001. In exchange for a 49% interest in the Joint Venture, Big Cedar has contributed approximately 46 acres of land with a fair market value of $3.2 million to the Joint Venture. See Note 3 regarding payment of profit distributions to Big Cedar. If needed, the Company and Big Cedar have committed to additional capital contributions under certain circumstances, in the future.
In addition to its 51% ownership interest, the Company will also receive a Quarterly management fee from the Joint Venture equal to 3% of the Joint Venture's net sales in exchange for the Company's involvement in the day-to-day operations of the Joint Venture.
Based on the Company's role as the day-to-day manager of the Joint Venture, its majority control of the Joint Venture's Management Committee and its controlling financial interest in the Joint Venture, the accounts of the Joint Venture are included in the Company's condensed consolidated financial statements.
3. MARKETING AGREEMENT
On June 16, 2000, the Company entered into an exclusive, 10-year marketing agreement with Bass Pro, Inc. ("Bass Pro"), a privately-held retailer of fishing, marine, hunting, camping and sports gear. Bass Pro is an affiliate of Big Cedar (see Note 2). Pursuant to the agreement, the Company will have the right to market its Timeshare Interests at each of Bass Pro's national retail locations (currently consisting of eleven stores), in Bass Pro's catalogs and on its web site. The Company will also have access to Bass Pro's customer lists. In exchange for these services, the Company agreed to pay Bass Pro a commission ranging from 3.5% to 7% on each sale of a Timeshare Interest, net of cancellations and defaults, that is made to a customer as a result of one of the Bass Pro marketing channels described above (the "Commission"). The amount of the Commission is dependent on the level of additional marketing efforts required by the Company to convert the prospect into a sale and a defined time frame for such marketing efforts. There is no Commission paid to Bass Pro on sales made by the Joint Venture.
On June 16, 2000, the Company prepaid $9 million to Bass Pro (the "Prepayment"). The Prepayment will be amortized from future Commissions earned by Bass Pro and future member distributions otherwise payable to Big Cedar from the earnings of the Joint Venture as a member thereof. No additional Commissions or member distributions will be paid in cash to Bass Pro or Big Cedar, respectively, until the Prepayment has been fully utilized. The Prepayment is non-interest bearing and is included in other assets on the condensed consolidated balance sheet. As of July 2, 2000, the unamortized balance of the Prepayment was $9 million.
4. RECEIVABLE-BACKED NOTE PAYABLE
On July 18, 2000, the Company borrowed $20.7 million pursuant to a timeshare receivables financing facility with a financial institution (the "Loan"). The Loan is collateralized by $22.2 million of timeshare receivables and is due on August 28, 2000. The Loan bears interest at LIBOR plus 3%, which is paid on a weekly basis. The Company is using the Loan as bridge financing until it is able to sell a majority of these receivables under a new, $90.0 million, timeshare receivables purchase facility with the same financial institution. The Company has entered into commitment letters and a term sheet for the new facility with two financial institutions, and is in the process of negotiating definitive documentation. Subject to the execution of definitive agreements, the first sale under this new facility is expected to take place during the Company's second fiscal Quarter, although no assurances can be given.
5. SUPPLEMENTAL GUARANTOR FINANCIAL INFORMATION
On April 1, 1998, the Company consummated a private placement offering (the "Offering") of $110 million in aggregate principal amount of 10.5% senior secured notes due April 1, 2008 (the "Notes"). None of the assets of Bluegreen Corporation secure its obligations under the Notes, and the Notes are effectively subordinated to secured indebtedness of the Company to any third party to the extent of assets serving as security therefor. The Notes are unconditionally guaranteed, jointly and severally, by each of the Company's subsidiaries (the "Subsidiary Guarantors"), with the exception of Bluegreen/Big Cedar Vacations, LLC, Bluegreen Properties N.V., Resort Title Agency, Inc., any special purpose finance subsidiary, any subsidiary which is formed and continues to operate for the limited purpose of holding a real estate license and acting as a broker, and certain other subsidiaries which have individually less then $50,000 of assets (collectively, "Non-Guarantor Subsidiaries").
Supplemental financial information for Bluegreen Corporation, its combined Non-Guarantor Subsidiaries and its combined Subsidiary Guarantors is presented below:
CONDENSED CONSOLIDATING BALANCE SHEET AT JULY 2, 2000
(IN THOUSANDS)
(UNAUDITED)
COMBINED COMBINED
BLUEGREEN NON-GUARANTOR SUBSIDIARY
CORPORATION SUBSIDIARIES GUARANTORS ELIMINATIONS CONSOLIDATED
----------- ------------- ---------- ------------ ------------
ASSETS
Cash and cash equivalents .................... $ 12,338 $ 11,703 $ 10,619 $ -- $ 34,660
Contracts receivable, net .................... -- 163 13,594 -- 13,757
Intercompany receivable ...................... 150,406 -- -- (150,406) --
Notes receivable, net ........................ 193 6,785 80,542 -- 87,520
Inventory, net ............................... -- 16,028 179,548 -- 195,576
Investments in securities .................... -- 14,935 -- -- 14,935
Investments in subsidiaries .................. 7,979 -- 3,230 (11,209) --
Property and equipment, net .................. 8,354 308 28,437 -- 37,099
Other assets ................................. 11,013 5,540 24,125 (5,907) 34,771
--------- --------- --------- --------- ---------
Total assets .............................. $ 190,283 $ 55,462 $ 340,095 $(167,522) $ 418,318
========= ========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities
Accounts payable, accrued liabilities and
other ..................................... $ 9,295 $ 15,030 $ 15,817 $ (2,907) $ 37,235
Intercompany payable ......................... -- 11,827 138,579 (150,406) --
Deferred income taxes ........................ 3,759 1,670 9,462 -- 14,891
Lines-of-credit and notes payable ............ 3,437 12,483 62,379 (3,000) 75,299
10.50% senior secured notes payable .......... 110,000 -- -- -- 110,000
8.00% convertible subordinated notes
payable to related parties ............... 6,000 -- -- -- 6,000
8.25% convertible subordinated
debentures ................................. 34,371 -- -- -- 34,371
--------- --------- --------- --------- ---------
Total liabilities ......................... 166,862 41,010 226,237 (156,313) 277,796
Minority interests ........................... -- -- -- 3,729 3,729
Total shareholders' equity ....................... 23,421 14,452 113,858 (14,938) 136,793
--------- --------- --------- --------- ---------
Total liabilities and shareholders' equity ....... $ 190,283 $ 55,462 $ 340,095 $(167,522) $ 418,318
========= ========= ========= ========= =========
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CONDENSED CONSOLIDATING STATEMENTS OF INCOME
(IN THOUSANDS)
(UNAUDITED)
THREE MONTHS ENDED JULY 4, 1999
------------------------------------------------------------------------
COMBINED COMBINED
BLUEGREEN NON-GUARANTOR SUBSIDIARY
CORPORATION SUBSIDIARIES GUARANTORS ELIMINATIONS CONSOLIDATED
----------- ------------- ---------- ------------ ------------
REVENUES
Sales ............................................. $ 7,206 $ 3,270 $ 52,238 $ -- $ 62,714
Management fee revenue ............................ 6,340 -- -- (6,340) --
Other resort and golf operations revenue .......... -- 456 4,925 -- 5,381
Interest income ................................... 292 920 2,580 -- 3,792
Other income ...................................... 5 14 40 -- 59
-------- -------- -------- -------- --------
13,843 4,660 59,783 (6,340) 71,946
COST AND EXPENSES
Cost of sales ..................................... 2,413 859 18,452 -- 21,724
Cost of other resort and golf operations .......... -- 283 4,619 -- 4,902
Management fees ................................... -- 465 5,875 (6,340) --
Selling, general and administrative
expenses ...................................... 10,164 2,039 21,968 -- 34,171
Interest expense .................................. 2,360 444 151 -- 2,955
Provision for loan losses ......................... -- (37) 825 -- 788
-------- -------- -------- -------- --------
14,937 4,053 51,890 (6,340) 64,540
-------- -------- -------- -------- --------
Income (loss) before income taxes ................ (1,094) 607 7,893 -- 7,406
Provision (benefit) for income taxes .............. (432) 240 3,118 -- 2,926
Minority interest in income of consolidated
subsidiary .................................... -- -- -- 56 56
-------- -------- -------- -------- --------
Net income ........................................ $ (662) $ 367 $ 4,775 $ (56) $ 4,424
======== ======== ======== ======== ========
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THREE MONTHS ENDED JULY 2, 2000
----------------------------------------------------------------------
COMBINED COMBINED
BLUEGREEN NON-GUARANTOR SUBSIDIARY
CORPORATION SUBSIDIARIES GUARANTORS ELIMINATIONS CONSOLIDATED
----------- ------------ ----------- ------------- ------------
REVENUES
Sales ............................................. $ -- $ 1,439 $ 60,768 $ -- $ 62,207
Management fee revenue ............................ 7,372 -- -- (7,372) --
Other resort and golf operations revenue .......... -- 721 6,997 -- 7,718
Interest income ................................... 464 912 2,881 -- 4,257
Other income ...................................... 154 20 186 -- 360
-------- -------- -------- -------- --------
7,990 3,092 70,832 (7,372) 74,542
COST AND EXPENSES
Cost of sales ..................................... -- 431 21,452 -- 21,883
Cost of other resort and golf operations .......... -- 333 6,261 -- 6,594
Management fees ................................... -- -- 7,372 (7,372) --
Selling, general and administrative
expenses ...................................... 5,754 1,596 29,577 -- 36,927
Interest expense .................................. 2,300 464 877 -- 3,641
Provision for loan losses ......................... -- 122 913 -- 1,035
-------- -------- -------- -------- --------
8,054 2,946 66,452 (7,372) 70,080
-------- -------- -------- -------- --------
Income (loss) before income taxes ................. (64) 146 4,380 -- 4,462
Provision (benefit) for income taxes .............. (25) 85 1,658 -- 1,718
Minority interest in loss of consolidated
subsidiary .................................... -- -- -- (268) (268)
-------- -------- -------- -------- --------
Net income (loss) ................................. $ (39) $ 61 $ 2,722 $ 268 $ 3,012
======== ======== ======== ======== ========
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CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
THREE MONTHS ENDED JULY 4, 1999
----------------------------------------------------------
COMBINED COMBINED
BLUEGREEN NON-GUARANTOR SUBSIDIARY
CORPORATION SUBSIDIARIES GUARANTORS CONSOLIDATED
----------- ------------ ---------- ------------
OPERATING ACTIVITIES:
Net cash (used) provided by operating activities ........... $(10,601) $ (387) $ 3,495 $ (7,493)
-------- -------- -------- --------
INVESTING ACTIVITIES:
Purchases of property and equipment ..................... (617) (6) (3,317) (3,940)
Sales of property and equipment ......................... -- -- 619 619
Cash received from investments in securities ............ -- 582 -- 582
Loan to related party ................................... -- -- (251) (251)
Principal payments received on loan to related party .... -- -- 192 192
-------- -------- -------- --------
Net cash (used) provided by investing activities ........... (617) 576 (2,757) (2,798)
-------- -------- -------- --------
FINANCING ACTIVITIES:
Payments under line-of-credit facilities
and other notes payable ............................... (31) (797) (698) (1,526)
Payment of debt issuance costs .......................... (63) (41) (415) (519)
Payments for treasury stock ............................. (4,252) -- -- (4,252)
Proceeds from exercise of employee and
director stock options ................................ 77 -- -- 77
-------- -------- -------- --------
Net cash used by financing activities ...................... (4,269) (838) (1,113) (6,220)
-------- -------- -------- --------
NET DECREASE IN CASH AND CASH EQUIVALENTS .................. (15,487) (649) (375) (16,511)
Cash and cash equivalents at beginning of period ........... 36,710 8,690 10,157 55,557
-------- -------- -------- --------
Cash and cash equivalents at end of period ................. 21,223 8,041 9,782 39,046
Restricted cash and cash equivalents at end of period ...... (4,993) (8,041) (4,423) (17,457)
-------- -------- -------- --------
Unrestricted cash and cash equivalents at end of period .... $ 16,230 $ -- $ 5,359 $ 21,589
======== ======== ======== ========
|
THREE MONTHS ENDED JULY 2, 2000
------------------------------------------------------------------------
COMBINED COMBINED
BLUEGREEN NON-GUARANTOR SUBSIDIARY
CORPORATION SUBSIDIARIES GUARANTORS ELIMINATIONS CONSOLIDATED
----------- ------------ ---------- ------------ ------------
OPERATING ACTIVITIES:
Net cash (used) provided by operating
activities ........................................... $(31,702) $ (1,415) $ 14,972 $ -- $(18,145)
-------- -------- -------- -------- --------
INVESTING ACTIVITIES:
Investment in joint venture .......................... -- -- (323) 323 --
Purchases of property and equipment .................. (247) (29) (1,848) -- (2,124)
Sales of property and equipment ...................... -- -- 3 -- 3
Cash received from investments in
securities ......................................... -- 1,011 -- -- 1,011
Long-term prepayment to Bass Pro, Inc. ............... -- -- (9,000) -- (9,000)
-------- -------- -------- -------- --------
Net cash (used) provided by investing
activities ........................................... (247) 982 (11,168) 323 (10,110)
-------- -------- -------- -------- --------
FINANCING ACTIVITIES:
Proceeds from borrowings under
line-of-credit facilities and other notes payable .. 1,500 -- -- -- 1,500
Payments under line-of-credit facilities
and other notes payable ............................ (42) (631) (3,158) -- (3,831)
Payment of debt issuance costs ....................... -- (14) (2) -- (16)
Payments for treasury stock .......................... (298) -- -- -- (298)
Proceeds from issuance of membership
interest in joint venture .......................... -- 323 -- (323) --
Proceeds from the exercise of employee and
director stock options ............................. 34 -- -- -- 34
-------- -------- -------- -------- --------
Net cash (used) provided by financing
activities ......................................... 1,194 (322) (3,160) (323) (2,611)
-------- -------- -------- -------- --------
NET (DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS ...................................... (30,755) (755) 644 -- (30,866)
Cash and cash equivalents at beginning of
period ........................................... 43,093 12,458 9,975 -- 65,526
-------- -------- -------- -------- --------
Cash and cash equivalents at end of period ............. 12,338 11,703 10,619 -- 34,660
Restricted cash and cash equivalents at end
of period .......................................... (791) (11,703) (6,928) -- (19,422)
-------- -------- -------- -------- --------
Unrestricted cash and cash equivalents at
end of period ...................................... $ 11,547 $ -- $ 3,691 $ -- $ 15,238
======== ======== ======== ======== ========
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6. CONTINGENCIES
In addition to its other ordinary course litigation, the Company became a defendant in two proceedings during fiscal 1999. First, an action was filed against the Company on December 15, 1999. The plaintiff has asserted that the Company is in breach of its obligations under, and has made certain misrepresentations in connection with, a contract under which the Company acted as marketing agent for the sale of undeveloped property owned by the plaintiff. The plaintiff also alleges fraud, negligence and violation by the Company of an alleged fiduciary duty owed to plaintiff. Among other things, the plaintiff alleges that the Company failed to meet certain minimum sales requirements under the marketing contract and failed to commit sufficient resources to the sale of the property. The complaint seeks damages in excess of $18 million and certain other remedies, including punitive damages.
Second, an action was filed on July 10, 1999 against two subsidiaries of the Company and various other defendants. The Company itself is not named as a defendant. The Company's subsidiaries acquired certain real property (the "Property"). The Property was acquired subject to certain alleged oil and gas leasehold interests and rights (the "Interests") held by the plaintiffs in the action (the "Plaintiffs"). The Company's subsidiaries developed the Property and have resold parcels to numerous customers. The Plaintiffs allege, among other things, breach of contract, slander of title and that the Company's subsidiaries and their purchasers have unlawfully trespassed on easements and otherwise violated and prevented the Plaintiffs from exploiting the Interests. The Plaintiffs claim damages in excess of $40 million, as well as punitive or exemplary damages in an amount of at least $50 million and certain other remedies.
The Company is continuing to evaluate these actions and their potential impact, if any, on the Company and accordingly cannot predict the outcomes with any degree of certainty. However, based upon all of the facts presently under consideration of management, the Company believes that it has substantial defenses to the allegations in each of the actions and intends to defend each of these matters vigorously. The Company does not believe that any likely outcome of either case will have a material adverse effect on the Company's financial condition or results of operations.
On September 17, 1999, the Company received a Notice of Proposed Audit Report
(the "Notice") from the State of Wisconsin Department of Revenue (the "DOR")
alleging that, subject to possible changes made in a final Notice of Field Audit
Action, two subsidiaries now owned by the Company failed to pay sales and use
taxes to the State of Wisconsin during the period from January 1, 1994 through
September 30, 1997. The majority of the proposed assessment is based on the
subsidiaries not charging sales tax to purchasers of Timeshare Interests at the
Company's Christmas Mountain Village resort. In addition to the proposed
assessment, the Notice indicated that interest would be charged, but no
penalties would be assessed. These subsidiaries were acquired by the Company in
connection with the acquisition of RDI on September 30, 1997. Under the RDI
purchase agreement, the Company has the right to set off payments owed by the
Company to RDI's former stockholders pursuant to a $1 million outstanding note
payable balance and to make a claim against such stockholders for certain
amounts previously paid for any breach of representations and warranties. The
Company has notified the former stockholders that it intends to exercise these
rights to mitigate any settlement with the DOR in this matter. If a Notice of
Field Audit Action is issued by the DOR in this matter, the Company intends to
vigorously appeal any assessment of sales tax on Timeshare Interest sales.
7. BUSINESS SEGMENTS
The Company has two reportable business segments. The Resorts Division acquires, develops and markets Timeshare Interests at the Company's resorts and the Residential Land and Golf Division acquires large tracts of real estate which are subdivided, improved (in some cases to include a golf course and related amenities on the property) and sold, typically on a retail basis.
Required disclosures for the Company's business segments are as follows (in thousands):
RESIDENTIAL LAND
RESORTS AND GOLF TOTALS
-------- ---------------- --------
AS OF AND FOR THE THREE MONTHS ENDED JULY 4, 1999
Sales $ 32,279 $ 30,435 $ 62,714
Other resort and golf operations revenue 4,662 719 5,381
Depreciation expense 250 191 441
Field operating profit 3,493 8,089 11,582
Inventory, net 100,248 46,536 146,784
AS OF AND FOR THE THREE MONTHS ENDED JULY 2, 2000
Sales $ 34,351 $ 27,856 $ 62,207
Other resort and golf operations revenue 7,047 671 7,718
Depreciation expense 408 211 619
Field operating profit 2,829 6,015 8,844
Inventory, net 109,990 85,586 195,576
|
Field operating profit for reportable segments reconciled to consolidated income before income taxes (in thousands) is as follows:
Three Months Ended
-----------------------
JULY 4, JULY 2,
1999 2000
-------- --------
Field operating profit for reportable segments $ 11,582 $ 8,844
Interest income 3,792 4,257
Other income 59 360
Corporate general and administrative expenses (4,284) (4,323)
Interest expense (2,955) (3,641)
Provision for loan losses (788) (1,035)
-------- --------
Consolidated income before income taxes $ 7,406 $ 4,462
======== ========
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The Company desires to take advantage of the "safe harbor" provisions of the Private Securities Reform Act of 1995 (the "Act") and is making the following statements pursuant to the Act in order to do so. Certain statements herein and elsewhere in this report and the Company's other filings with the Securities and Exchange Commission constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended. Such statements may be identified by forward-looking words such as "may", "intend", "expect", "anticipate", "believe", "will", "should", "project", "estimate", "plan" or other comparable terminology. All statements, trend analyses and other information relative to the market for the Company's products and trends in the Company's operations or results are forward-looking statements. Such forward-looking statements are subject to known and unknown risks and uncertainties, many of which are beyond the Company's control, that could cause the actual results, performance or achievements of the Company, or industry trends, to differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Given these uncertainties, investors are cautioned not to place undue reliance on such forward-looking statements and no assurance can be given that the plans, estimates and expectations reflected in such statements will be achieved. The Company wishes to caution readers that the following important factors, among others, in some cases have affected, and in the future could affect, the Company's actual results and could cause the Company's actual consolidated results to differ materially from those expressed in any forward-looking statements made by, or on behalf of, the Company:
a) Changes in national, international or regional economic conditions that can affect the real estate market, which is cyclical in nature and highly sensitive to such changes, including, among other factors, levels of employment and discretionary disposable income, consumer confidence, available financing and interest rates.
b) The imposition of additional compliance costs on the Company as the result of changes in any environmental,
zoning or other laws and regulations that govern the acquisition, subdivision and sale of real estate and various aspects of the Company's financing operation or the failure of the Company to comply with any law or regulation.
c) Risks associated with a large investment in real estate inventory at any given time (including risks that real estate inventories will decline in value due to changing market and economic conditions and that the development and carrying costs of inventories may exceed those anticipated).
d) Risks associated with an inability to locate suitable inventory for acquisition, or with a shortage of available inventory in the Company's principal markets.
e) Risks associated with delays in bringing the Company's inventories to market due to, among other things, changes in regulations governing the Company's operations, adverse weather conditions or changes in the availability of development financing on terms acceptable to the Company.
f) Changes in applicable usury laws or the availability of interest deductions or other provisions of federal or state tax law.
g) A decreased willingness on the part of banks to extend direct customer lot financing, which could result in the Company receiving less cash in connection with the sales of real estate and/or lower sales.
h) The inability of the Company to locate external sources of liquidity on favorable terms to support its operations, acquire, carry and develop land and timeshare inventories and satisfy its debt and other obligations.
i) The inability of the Company to locate sources of capital on favorable terms for the pledge and/or sale of land and timeshare notes receivable, including the inability to consummate securitization transactions.
j) An increase in prepayment rates, delinquency rates or defaults with respect to Company-originated loans or an increase in the costs related to reacquiring, carrying and disposing of properties reacquired through foreclosure or deeds in lieu of foreclosure.
k) Costs to develop inventory for sale and/or selling, general and administrative expenses materially exceed those anticipated.
l) An increase or decrease in the number of land or resort properties subject to percentage-of-completion accounting which requires deferral of profit recognition on such projects until development is substantially complete.
m) The failure of the Company to satisfy the covenants contained in the indentures governing certain of its debt instruments and/or other credit agreements, which, among other things, place certain restrictions on the Company's ability to incur debt, incur liens, make investments and pay dividends.
n) The risk of the Company incurring an unfavorable judgement in any litigation, and the impact of any related monetary or equity damages.
o) Risks associated with selling Timeshare Interests in foreign countries including, but not limited to, compliance with legal regulations, labor relations and vendor relationships.
p) The risk that the Company's sales and marketing techniques are not successful, and the risk that the Company's Vacation Club is not accepted by consumers or imposes limitations on the Company's operations, or is adversely impacted by legal or other requirements.
q) The risk that any contemplated transactions currently under negotiation will not close.
The Company does not undertake to update or revise forward-looking statements, even if the Company's situation may change in the future.
GENERAL
Real estate markets are cyclical in nature and highly sensitive to changes in national, regional and international economic conditions, including, among other factors, levels of employment and discretionary disposable income, consumer confidence, available financing and interest rates. A downturn in the economy in general or in the market for real estate could have a material adverse effect on the Company.
The Company recognizes revenue on residential land and Timeshare Interest sales when a minimum of 10% of the sales price has been received in cash, the refund or rescission period has expired, collectibility of the receivable representing the remainder of the sales price is reasonably assured and the Company has completed substantially all of its obligations with respect to any development relating to the real estate sold. In cases where all development has not been completed, the Company recognizes income in accordance with the percentage-of-completion method of accounting. Under this method of income recognition, income is recognized as work progresses. Measures of progress are based on the relationship of costs incurred to date to expected total costs. The Company has been dedicating greater resources to more capital-intensive residential land and timeshare projects. As development on more of these larger projects is begun, and based on the Company's ability and strategy to pre-sell projects when minimal development has been completed, the amount of income deferred under the percentage-of-completion method of accounting may increase significantly.
Costs associated with the acquisition and development of timeshare resorts and residential land properties, including carrying costs such as interest and taxes, are capitalized as inventory and are allocated to cost of real estate sold as the respective revenues are recognized.
The Company has historically experienced and expects to continue to experience seasonal fluctuations in its gross revenues and net earnings. This seasonality may cause significant fluctuations in the Quarterly operating results of the Company, with the majority of the Company's gross revenues and net earnings historically occurring in the first and second Quarters of the fiscal year. As the Company's timeshare revenues grow as a percentage of total revenues, the Company believes that the fluctuations in revenues due to the seasonality may be mitigated in part. In addition, other material fluctuations in operating results may occur due to the timing of development and the Company's use of the percentage-of-completion method of accounting. Management expects that the Company will continue to invest in projects that will require substantial development (with significant capital requirements). There can be no assurances that historical seasonal trends in Quarterly revenues and earnings will continue or be mitigated by the Company's efforts.
The Company believes that inflation and changing prices have not had a material impact on its revenues and results of operations during the three months ended July 4, 1999 or July 2, 2000. Based on the current economic climate, the Company does not expect that inflation and changing prices will have a material impact on the Company's revenues or results of operations in the foreseeable future. To the extent inflationary trends affect short-term interest rates, a portion of the Company's debt service costs may be affected as well as the interest rate the Company charges on its new receivables from its customers.
The Company's real estate operations are managed under two divisions. The Resorts Division manages the Company's timeshare operations and the Residential Land and Golf Division acquires large tracts of real estate which are subdivided, improved (in some cases to include a golf course on the property) and sold, typically on a retail basis.
Inventory is carried at the lower of cost, including costs of improvements and amenities incurred subsequent to acquisition, or fair value, net of costs to dispose.
A portion of the Company's revenues historically has been and, although no assurances can be given, is expected to continue to be comprised of gains on sales of loans. The gains are recorded in the Company's revenues and retained interests in the portfolio are recorded on its balance sheet (as investments in securities) at the time of sale. The amount of gains recorded is based in part on management's estimates of future prepayment, default and loss severity rates and other considerations in light of then-current conditions. If actual prepayments with respect to loans occur more quickly than was projected at the time such loans were sold, as can occur when interest rates decline, interest would be less than expected and earnings would be charged in the future when the retained interests are realized, except for the effect of reduced interest accretion on the Company's retained interest, which would be recognized each period the retained interests are held. If actual defaults or other factors discussed above with respect to loans sold are greater than estimated, charge-offs would exceed previously estimated amounts and
earnings would be charged in the future when the retained interests are realized. There can be no assurances that the carrying value of the Company's investments in securities will be fully realized or that future loan sales will result in gains. Declines in the fair value of the retained interests that are determined to be other than temporary are charged to operations.
RESULTS OF OPERATIONS
(Dollars in Thousands) Residential
Resorts Land and Golf Total
----------------------- ----------------------- ---------------------
THREE MONTHS ENDED JULY 4, 1999
Sales $ 32,279 100.0 % $ 30,435 100.0 % $ 62,714 100.0 %
Cost of sales (1) (7,546) (23.4)% (14,178) (46.6)% (21,724) (34.6)%
-------- -------- -------- -------- -------- --------
Gross profit 24,733 76.6 % 16,257 53.4 % 40,990 65.4 %
Other resort and golf operations revenue 4,662 14.4 % 719 2.4 % 5,381 8.6 %
Cost of other resort and golf operations (3,993) (12.4)% (909) (3.0)% (4,902) (7.8)%
Field selling, general and administrative
expenses(2) (21,909) (67.9)% (7,978) (26.2)% (29,887) (47.7)%
-------- -------- -------- -------- -------- --------
Field operating profit $ 3,493 10.8 % $ 8,089 26.6 % $ 11,582 18.5 %
======== ======== ======== ======== ======== ========
THREE MONTHS ENDED JULY 2, 2000
Sales $ 34,351 100.0 % $ 27,856 100.0 % $ 62,207 100.0 %
Cost of sales (1) (7,907) (23.0)% (13,976) (50.2)% (21,883) (35.2)%
-------- -------- -------- -------- -------- --------
Gross profit 26,444 77.0 % 13,880 49.8 % 40,324 64.8 %
Other resort and golf operations revenue 7,047 20.5 % 671 2.4 % 7,718 12.4 %
Cost of resort and golf operations (5,798) (16.9)% (796) (2.9)% (6,594) (10.6)%
Field selling, general and administrative
expenses(2) (24,864) (72.4)% (7,740) (27.8)% (32,604) (52.4)%
-------- -------- -------- -------- -------- --------
Field operating profit $ 2,829 8.2 % $ 6,015 21.6 % $ 8,844 14.2 %
======== ======== ======== ======== ======== ========
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(1) COST OF SALES REPRESENTS THE COST OF INVENTORY INCLUDING THE COST OF IMPROVEMENTS, AMENITIES AND IN CERTAIN CASES PREVIOUSLY CAPITALIZED INTEREST AND REAL ESTATE TAXES.
(2) GENERAL AND ADMINISTRATIVE EXPENSES ATTRIBUTABLE TO CORPORATE OVERHEAD HAVE BEEN EXCLUDED FROM THE TABLES. CORPORATE GENERAL AND ADMINISTRATIVE EXPENSES TOTALED $4.3 MILLION AND $4.3 MILLION FOR THE THREE MONTHS ENDED JULY 4, 1999 AND JULY 2, 2000, RESPECTIVELY.
SALES
Consolidated sales decreased 0.8% from $62.7 million for the three-month period ended July 4, 1999 (the "2000 Quarter") to $62.2 million for the three-month period ended July 2, 2000 (the "2001 Quarter"). Decreases in Residential Land and Golf Division sales during the 2001 Quarter were partially offset by higher Resorts Division sales. The 2000 Quarter included 14 weeks of operating results as compared to 13 weeks of operating results in the 2001 Quarter. The additional week of operations in the 2000 Quarter produced total operating revenues of $6.5 million.
As of July 2, 2000, approximately $2.4 million in estimated income on sales of $5.2 million was deferred under percentage-of-completion accounting. At April 2, 2000, approximately $2.9 million in estimated income on sales of $7.3 million was deferred. All such amounts are included on the Condensed Consolidated Balance Sheets under the caption Deferred Income.
RESORTS DIVISION. During the 2000 Quarter and the 2001 Quarter, sales of Timeshare Interests contributed $32.3 million or 51.4% and $34.4 million or 55.2%, respectively, of the Company's total consolidated sales.
The table set forth below outlines the number of Timeshare Interests sold and the average sales price per Timeshare Interest for the Resorts Division for the periods indicated, BEFORE giving effect to the percentage-of-completion method of accounting.
THREE MONTHS ENDED
---------------------
JULY 4, JULY 2,
1999 2000
------ --------
Timeshare Interests sold 3,550 3,669
Average sales price per Timeshare Interest $8,929 $9,268
Gross margin 76.6% 77.0%
|
The increase in the number of Timeshare Interests sold during the 2001 Quarter as compared to the 2000 Quarter is primarily due to the Company's "Bluegreen Air" offsite sales offices. The "Bluegreen Air" offsite sales offices (i.e., not located onsite at one of the Company's resorts) serve the Louisville, Kentucky; Cleveland, Ohio; and Detroit, Michigan markets and provide prospective buyers with a virtual-reality jet airline experience to present the Company's Vacation Club product. The Company opened the Detroit office during fiscal 2000, generating 363 Timeshare Interest sales during the 2001 Quarter, with no corresponding sales during the 2000 Quarter. The other "Bluegreen Air" sales offices had comparable sales during the 2000 Quarter and 2001 Quarter.
These increases during fiscal 2001 were partially offset by decreased sales at the Company's Aruba sales location. The Company's La Cabana Beach and Racquet Club in Aruba ("La Cabana") experienced a decrease of 228 in the number of Timeshare Interests sold (395 and 167 Timeshare Interests sold during the 2000 Quarter and 2001 Quarter, respectively). A decreased amount of available Timeshare Interests related to summer weeks contributed to decreased sales during June (as buyers in Aruba tend to want to by Timeshare Interests related to the same period that they are currently there on vacation). The Company is currently in negotiations to enter into a joint venture with a third-party which, if successful, would result in the availability of additional summer inventory at La Cabana. There can be no assurances that the Company will elect to proceed with the negotiations or, if it does, that the Company's negotiations will be successful. If additional summer inventory is not obtained, the Company expects that future sales at La Cabana during the summer months will also be below prior levels.
The Resorts Division's gross margin increased from 76.6% during the 2000 Quarter to 77.0% during the 2001 Quarter primarily due to the increased average sales prices noted above and the approximately 80% gross margin generated by sales of the Company's Orlando's Sunshine Resort II ("OSR II") inventory.
Other resort service revenues and costs increased 51.2% and 45.2%, respectively, during the 2001 Quarter as compared to the 2000 Quarter. The increase is primarily due to an increase of $1.6 million in the amount of initial maintenance fees that are charged to new owners at the time of purchase to cover a portion of the Company's costs to maintain the applicable resort property during the period that the Timeshare Interest is held in inventory. The Company retains these fees. During fiscal 2001, the Company began charging new buyers one full year's maintenance fee as opposed to a pro rata maintenance fee based on the time of year that the sale was made. Also included in the $1.6 million are rentals of Timeshare Interests held in inventory, specifically at the Company's Shore Crest II and OSR II resorts, construction of which was completed in fiscal 2000. The remaining increase was primarily due to increased revenues and costs generated by Resort Title Agency, Inc., the Company's wholly owned title company.
Field selling, general and administrative ("FSG&A") expenses increased as a percentage of sales for the Resorts Division during the 2001 Quarter from the 2000 Quarter to 72.4% from 67.9%, respectively. The increases are due in part to FSG&A expenses approximating 100% of sales at La Cabana due to costs incurred to sell Timeshare Interests on behalf of the third-party which the Company may enter a joint venture with and as discussed above. The Company did not receive any revenues but did incur the selling and marketing costs related to these sales during the 2001 Quarter.
In addition, as indicated above, the Company opened its fourth off-site sales office serving the Detroit market in November 1999. The Detroit office generated an additional $2.7 million of FSG&A expenses on sales of $3.8 million, due primarily to achieving a low conversion rate of prospects to sales directly resulting in significantly higher marketing costs as a percentage of sales.
RESIDENTIAL LAND AND GOLF DIVISION. During the 2000 Quarter and the 2001 Quarter, residential land and golf sales contributed $30.4 million or 48.5% and $27.9 million or 44.8%, respectively, of the Company's total consolidated sales.
The table set forth below outlines the number of parcels sold and the average sales price per parcel for the Residential Land and Golf Division for the periods indicated, BEFORE giving effect to the percentage-of -completion method of accounting and bulk sales.
Three Months Ended
---------------------
July 4, July 2,
1999 2000
------- -------
Number of parcels sold 534 424
Average sales price per parcel $51,391 $52,735
Gross margin 53.4% 49.8%
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The aggregate number of parcels sold decreased during the 2001 Quarter as compared to the 2000 Quarter primarily due to decreases in available inventories due, in part, to a strategic decision not to replace certain properties which either sold out in fiscal 2000 or which are approaching sell-out in areas of the country where the Company has chosen to exit. These areas include Florida, Tennessee, Wisconsin, Colorado, Arizona, and New Mexico. This factor resulted in 84 fewer lot sales in the 2001 Quarter as compared to the 2000 Quarter. The Company intends to primarily focus its Residential Land & Golf Division resources on developing new golf communities, continuing to support its successful regions in Texas and exploring possible expansion into the California market. In addition, the Company's Winding River Plantation golf community generated 34 fewer lot sales in the 2001 Quarter. Higher lot sales in the 2000 Quarter resulted from sales events in connection with the grand opening of the third nine holes at Carolina National Golf Course ("Carolina National").
Gross margins decreased in the 2001 Quarter as compared to the 2000 Quarter. Certain phases of projects which are approaching sellout in the Company's Texas and North Carolina regions yielded gross margins in the 60% to 65% range in the 2000 Quarter as compared to the 55% to 60% range in the 2001 Quarter due to a lower number of premium lots (e.g., waterfront, views, etc.) being available for sale during the 2001 Quarter and price decreases instituted to promote sellout. In addition, gross margins were adversely impacted in the 2001 Quarter by the impact of percentage of completion accounting. The gross margin recognized on sales previously deferred under percentage of completion accounting decreased from 80.9% in the 2000 Quarter to 36.0% in the 2001 Quarter, based on the mix of projects which were subject to sales deferred in each period.
The Company's Investment Committee approves all property acquisitions. In order to be approved for purchase by the Investment Committee, all residential land and golf (as well as resort) properties are expected to achieve certain minimum economics including a minimum gross margin. No assurances can be given that such minimum economics will be achieved.
Golf operations revenues and related costs decreased 6.7% and 12.4% respectively, during the 2001 Quarter as compared to the 2000 Quarter. In the 2000 Quarter, the Company opened another nine holes at Carolina National along with a new clubhouse, featuring food and beverage operations and an expanded pro shop. The initial grand opening and promotional incentives resulted in higher revenues in the 2000 Quarter.
INTEREST INCOME
Interest income was $3.8 million and $4.3 million for the 2000 Quarter and 2001 Quarter, respectively. The Company's interest income is earned from its notes receivable, securities retained pursuant to sales of notes receivable (including REMIC transactions) and cash and cash equivalents. The increase in interest income during the 2001 Quarter was primarily due to an increase in the average notes receivable balance during the 2001 Quarter, as compared to the 2000 Quarter.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES ("S, G & A EXPENSES")
The Company's S, G & A Expenses consist primarily of marketing costs, advertising expenses, sales commissions and field and corporate administrative overhead. S, G & A Expenses totaled $34.2 million and $36.9 million for the 2000 Quarter and 2001 Quarter, respectively. As a percentage of total revenues, S, G & A Expenses were 47.5% and 49.5% for the 2000 Quarter and 2001 Quarter, respectively.
The increase in S, G & A Expenses as a percentage of revenues in the 2001 Quarter was the result of the growth of the Resorts Division (from 51% to 55% of consolidated sales during the 2000 Quarter and 2001 Quarter, respectively), where S, G & A Expenses are typically higher than for the Residential Land and Golf Division. See also discussions of increases in S, G & A expenses for the Company's Resorts Division, above.
INTEREST EXPENSE
Interest expense totaled $3.0 million and $3.6 million for the 2000 Quarter and 2001 Quarter, respectively. The 23.2% increase in interest expense for the 2000 Quarter was primarily due to interest incurred on approximately $28.0 million of acquisition and development borrowings incurred at the end of the second quarter of fiscal 2000.
PROVISION FOR LOAN LOSSES
The Company recorded a provision for loan losses totaling $788,000 and $1.0 million during the 2000 Quarter and 2001 Quarter, respectively. The increase in the provision was due to an increase in the notes receivable portfolio during the 2001 Quarter as compared to the 2000 Quarter. The increase in the portfolio is due to an increased amount of timeshare loans (where historical default rates exceed those for land loans).
The allowance for loan losses by division as of April 2, 2000 and July 2, 2000 was (amounts in thousands):
RESIDENTIAL
RESORTS LAND AND
DIVISION GOLF DIVISION OTHER TOTAL
-------- -------- -------- --------
APRIL 2, 2000
Notes receivable $ 61,520 $ 10,883 $ 735 $ 73,138
Less: allowance for loan losses (2,515) (458) (51) (3,024)
-------- -------- -------- --------
Notes receivable, net $ 59,005 $ 10,425 $ 684 $ 70,114
======== ======== ======== ========
Allowance as a % of gross notes receivable 4.1% 4.2% 6.9% 4.1%
======== ======== ======== ========
JULY 2, 2000
Notes receivable $ 79,618 $ 10,453 $ 686 $ 90,757
Less: allowance for loan losses (2,702) (454) (81) (3,237)
-------- -------- -------- --------
Notes receivable, net $ 76,916 $ 9,999 $ 605 $ 87,520
======== ======== ======== ========
Allowance as a % of gross notes receivable 3.4% 4.3% 11.8% 3.6%
======== ======== ======== ========
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The allowance for loan losses as a percentage of the gross notes receivable balance decreased at July 2, 2000, for the Resorts Division, as the Company did not provide allowance for approximately $19 million of notes receivable which are expected to be sold during the three months ending October 1, 2000 through a new, non-recourse timeshare receivable purchase facility currently being negotiated (see "Liquidity and Capital Resources"). There can be no assurances that such receivables will be sold when expected.
Other notes receivable primarily include secured promissory notes receivable from commercial enterprises upon their purchase of bulk parcels from the Company's Residential Land and Golf Division. The Company monitors the collectibility of these notes based on various factors, including the value of the underlying collateral.
PROVISION FOR INCOME TAXES
The provision for income taxes decreased as a percentage of income before taxes from 39.5% to 38.5% during the 2001 Quarter. The decrease was primarily due to state tax savings generated by a restructuring of the Company's subsidiaries in a state where the Company has significant operations.
SUMMARY
Based on the factors discussed above, the Company's net income decreased from $4.4 million to $3.0 million in the 2000 Quarter and 2001 Quarter, respectively.
CHANGES IN FINANCIAL CONDITION
Consolidated assets of the Company increased $2.8 million from April 2, 2000 to July 2, 2000. This increase is primarily due to a net $17.4 million increase in notes receivable, primarily due to new notes generated by $34.4 million of timeshare sales during quarter, net of principal payments received. In addition, other assets increased $10.5 million, primarily due to the $9 million prepaid marketing fees paid to Bass Pro, Inc. (see Note 3 of Notes to Condensed Consolidated Financial Statements). Also, contracts receivable increased $5.4 million due to increased sales during the month of June 2000 as compared to the month of March 2000. These increases were partially offset by a $30.9 million decrease in cash and cash equivalents more fully described on the Condensed Consolidated Statement of Cash Flows.
Consolidated liabilities decreased $2.9 million from April 2, 2000 to July 2, 2000. The decrease is primarily due to an aggregate $2.5 million in payments made on the Company's receivable backed notes payable.
Minority interest increased $2.9 million due to the $3.2 million capital contribution made by Big Cedar L.L.C. ("Big Cedar") to the Company's 51%-owned joint venture with Big Cedar more fully described in Note 2 of Notes to Condensed Consolidated Financial Statements. This amount is net of minority interest's share of net losses in the Company's consolidated joint venture in Aruba.
Total shareholders' equity increased $2.7 million during the 2001 Quarter, primarily due to net income of $3.0 million. This increase was partially offset by the Company's repurchase of $300,000 of common stock (96,000 shares) to be held in treasury. The Company's book value per common share increased from $5.50 to $5.63 at April 2, 2000 and July 2, 2000, respectively. The debt-to-equity ratio decreased from 1.70:1 to 1.65:1 at April 2, 2000 and July 2, 2000, respectively, primarily due to the debt paydowns and net income discussed above.
LIQUIDITY AND CAPITAL RESOURCES
The Company's capital resources are provided from both internal and external
sources. The Company's primary capital resources from internal operations are:
(i) cash sales, (ii) down payments on lot and timeshare sales which are
financed, (iii) net cash generated from other resort services and golf
operations, (iv) principal and interest payments on the purchase money mortgage
loans and contracts for deed arising from sales of Timeshare Interests and
residential land lots (collectively "Receivables") and (v) proceeds from the
sale of, or borrowings collateralized by, notes receivable. Historically,
external sources of liquidity have included borrowings under secured
lines-of-credit, seller and bank financing of inventory acquisitions and the
issuance of debt securities. The Company's capital resources are used to support
the Company's operations, including (i) acquiring and developing inventory, (ii)
providing financing for customer purchases, (iii) meeting operating expenses and
(iv) satisfying the Company's debt, and other obligations. The Company
anticipates that it will continue to require external sources of liquidity to
support its operations, satisfy its debt and other obligations and to provide
funds for future strategic acquisitions, primarily for the Resorts Division.
CREDIT FACILITIES FOR TIMESHARE RECEIVABLES AND INVENTORIES
The Company maintains and is currently negotiating various credit facilities with financial institutions that provide for receivable financing for its timeshare projects.
On August 1, 2000, the Company executed commitment letters and a term sheet for a timeshare receivables purchase facility (the "Purchase Facility") with two financial institutions, including a commercial paper conduit (the "Senior Purchaser") and the institution who underwrote the Company's immediately prior timeshare receivables purchase facility (the "Subordinated Purchaser") (collectively, the "Purchasers"). Pursuant to the term sheet, under the Purchase Facility, a special purpose finance subsidiary of the Company may receive up to $90 million of cumulative purchase price (as more fully described below) on sales of timeshare receivables to the Purchasers in securitization transactions. The Purchase Facility will include a $50 million extension, if the full $90 million capacity is utilized, at the Company's option, subject to the Purchasers' consent. The Purchase Facility will have detailed requirements with respect to the eligibility of receivables for purchase. Under the Purchase Facility, a purchase price equal to 95% (subject to adjustment in 0.5% increments down to 87.5% depending on the difference between the weighted-average interest rate on the notes receivable sold and the returns to the Purchasers plus the servicing fee, as more fully defined below) of the principal balance of the receivables sold will be paid at closing in cash. A portion of the purchase price will be deferred until such time as the
Purchasers have received their portion of principal payments (to be defined in the Purchase Facility agreement), a return on their advances (as more fully described below), all servicing, custodial and similar fees and expenses have been paid and a cash reserve account has been funded. The 95% purchase price shall be funded 80% by the Senior Purchaser and 15% by the Subordinated Purchaser. The Senior Purchaser shall earn a return equal to the rate equivalent of their borrowing cost (based on then applicable commercial paper rates) plus 0.7%. In the event that there is a disruption in the commercial paper market (to be defined in the Purchase Facility agreement), the Senior Purchaser shall earn a return equal to the one-month LIBOR plus 1.5% or, in the event of a disruption in the LIBOR market (to be defined in the Purchase Facility agreement), a return equal to the greater of the Prime lending rate and the Federal Funds Rate plus 1.0%. The Subordinated Purchaser shall earn a return equal to the one-month LIBOR plus 4.12%. The Company will arrange for an interest rate hedge with another financial institution at a 1.0% strike to preserve the excess spread for credit enhancement purposes. In addition to other fees, if the Company does not sell to the Purchasers during the term of the Purchase Facility notes receivable with a cumulative purchase price of at least $70 million, the Company will pay a minimum usage fee equal to 1.5% of the shortfall in the cumulative purchase price. The Purchase Facility will have an initial revolving term of 364 days from the date the final agreement is executed, renewable for an additional 364-day revolving period thereafter subject to the consent of the Purchasers. Definitive agreements for the Purchase Facility are being negotiated. No assurances can be given that the Purchase Facility will be entered into or that the final terms of the facility will be as discussed herein.
Receivables will be sold under the Purchase Facility without recourse to the Company or its special purpose finance subsidiary except for breaches of representations and warranties made at the time of sale. The Purchasers' obligation to purchase under the Purchase Facility will terminate upon the occurrence of specified events. The Company will act as servicer under the Purchase Facility for a fee, and is required to make advances to the Purchasers to the extent it believes such advances will be recoverable. The Purchase Facility will include various conditions to purchase, covenants, events of default and other provisions customary for a transaction of this type.
The Company has a $35 million timeshare receivables warehouse loan facility, which expires on August 28, 2000, with the Subordinated Purchaser. Loans under the warehouse facility bear interest at LIBOR plus 3.00%. The warehouse facility has detailed requirements with respect to the eligibility of receivables for inclusion and other conditions to funding. The borrowing base under the warehouse facility is 95% of the outstanding principal balance of eligible notes arising from the sale of Timeshare Interests except for eligible notes generated by Bluegreen Properties N.V., the Company's 50%-owned joint venture in Aruba, for which the borrowing base is 85%. The warehouse facility includes affirmative, negative and financial covenants and events of default. On June 30, 1999, the Company borrowed $8.9 million under the warehouse facility, which will be repaid as principal and interest payments are collected on the timeshare notes receivable which collateralize the loan or as the loans are sold through a purchase facility, but in no event later than August 28, 2000. As of July 2, 2000, the outstanding balance on this facility was $1.4 million. On July 18, 2000, the Company borrowed $20.7 million under the warehouse facility, which is also scheduled to mature on August 28, 2000. It is anticipated that a portion of this loan will be repaid by selling some of the underlying receivables through the Purchase Facility, although there can be no assurances. The Company is currently negotiating an extension of the maturity date on these borrowings. There can be no assurances that such negotiations will be successful.
In addition, the Subordinated Purchaser has provided the Company with a $28.0 million acquisition and development facility for its timeshare inventories. The facility includes a two-year draw down period, which expires in October 2000, and matures in January 2006. Principal will be repaid through agreed-upon release prices as Timeshare Interests are sold at the financed resort, subject to minimum required amortization. The indebtedness under the facility bears interest at the three-month LIBOR plus 3%. With respect to any inventory financed under the facility, the Company will be required to have provided equity equal to at least 15% of the approved project costs. On September 14, 1999, the Company borrowed approximately $14.0 million under the acquisition and development facility. The principal must be repaid by November 1, 2005, through agreed-upon release prices as Timeshare Interests in the Company's Lodge Alley Inn resort in Charleston, South Carolina are sold, subject to minimum required amortization. On December 20, 1999, the Company borrowed approximately $13.9 million under the acquisition and development facility. The principal must be repaid by January 1, 2006, through agreed-upon release prices as Timeshare Interests in the Company's Shore Crest II resort are sold, subject to minimum required amortization. The outstanding balance under the acquisition and development facility at July 2, 2000 was $25.2 million. The Company is currently negotiating an extension and increase of the facility. There can be no assurances that the Company's negotiations will be successful.
CREDIT FACILITIES FOR RESIDENTIAL LAND AND GOLF RECEIVABLES AND INVENTORIES
The Company has a $20.0 million revolving credit facility with a financial institution for the pledge of Residential Land and Golf Division Receivables. Under the terms of this facility, the Company is entitled to advances secured by eligible Residential Land and Golf Division receivables up to 90% of the outstanding principal balance. In addition, up to $8.0 million of the facility can be used for land acquisition and development purposes. The interest rate charged on outstanding borrowings ranges from prime plus 0.5% to 1.5%. At July 2, 2000, the outstanding principal balances under the receivables and development portions of this facility were approximately $4.8 million and $309,000, respectively. All principal and interest payments received on pledged Receivables are applied to principal and interest due under the facility. The ability to borrow under the facility expires in September 2000. Any outstanding indebtedness is due in September 2002. The Company is currently negotiating an extension of the facility expiration date. There can be no assurances that such negotiations will be successful.
The Company has a $35.0 million revolving credit facility, which expires in March 2002, with a financial institution. The Company uses this facility to finance the acquisition and development of residential land projects and, potentially to finance land receivables. The facility is secured by the real property (and personal property related thereto) with respect to which borrowings are made, with the lender to advance up to a specified percentage of the value of the mortgaged property and eligible pledged receivables, provided that the maximum outstanding amount secured by pledged receivables may not exceed $20.0 million. The interest charged on outstanding borrowings is prime plus 1.25%. On September 14, 1999, in connection with the acquisition of 1,550 acres adjacent to the Company's Lake Ridge residential land project in Dallas, Texas ("Lake Ridge II"), the Company borrowed approximately $12.0 million under the revolving credit facility. Principal payments will be effected through agreed-upon release prices as lots in Lake Ridge II and in another recently purchased section of Lake Ridge are sold. The principal must be repaid by September 14, 2004. On October 6, 1999, in connection with the acquisition of 6,966 acres for the Company's Mystic Shores residential land project in Canyon Lake, Texas, the Company borrowed $11.9 million under the revolving credit facility. Principal payments will be effected through agreed-upon release prices as lots in Mystic Shores are sold. The principal must be repaid by October 6, 2004. The outstanding balance on this facility was $22.6 million at July 2, 2000.
On September 24, 1999, the Company obtained two lines-of-credit with a bank for the purpose of acquiring and developing a new residential land and golf course community in New Kent County, Virginia, known as Brickshire. The lines-of-credit have an aggregate borrowing capacity of approximately $15.8 million. On September 27, 1999, the Company borrowed approximately $2.0 million under one of the lines-of-credit in connection with the acquisition of the Brickshire property. The outstanding balances under the lines-of-credit bear interest at prime plus 0.5% and interest is due monthly. Principal payments will be effected through agreed-upon release prices as lots in Brickshire are sold, subject to minimum required quarterly amortization commencing on April 30, 2002. The principal must be repaid by January 31, 2004. The loan is secured by the Company's residential land lot inventory in Brickshire. As of July 2, 2000, the outstanding balance on this loan was $1.2 million.
Concurrent with obtaining the Brickshire lines-of-credit discussed above; the Company also obtained from the same bank a $4.2 million line-of-credit for the purpose of developing a golf course on the Brickshire property (the "Golf Course Loan"). The outstanding balances under the Golf Course Loan will bear interest at prime plus 0.5% and interest is due monthly. Principal payments will be payable in equal monthly installments of $35,000 commencing September 1, 2001. The principal must be repaid by October 1, 2005. The loan is secured by the Brickshire golf course property. As of July 2, 2000, no amounts were outstanding under the Golf Course Loan.
Over the past three years, the Company has received approximately 90% to 99% of its land sales proceeds in cash. Accordingly, in recent years the Company has reduced the borrowing capacity under credit agreements secured by land receivables. The Company attributes the significant volume of cash sales to an increased willingness on the part of certain local banks to extend more direct customer lot financing. No assurances can be given that local banks will continue to provide such customer financing.
Historically, the Company has funded development for road and utility construction, amenities, surveys and engineering fees from internal operations and has financed the acquisition of residential land and golf properties through seller, bank or financial institution loans. Terms for repayment under these loans typically call for interest to be paid monthly and principal to be repaid through lot releases. The release price is usually defined as a pre-determined percentage of the gross selling price (typically 25% to 50%) of the parcels in the subdivision. In
addition, the agreements generally call for minimum cumulative annual amortization. When the Company provides financing for its customers (and therefore the release price is not available in cash at closing to repay the lender), it is required to pay the creditor with cash derived from other operating activities, principally from cash sales or the pledge of receivables originated from earlier property sales.
OTHER CREDIT FACILITY
On November 3, 1999, the Company increased the borrowing capacity on its unsecured line-of-credit with a bank from $5 million to $10 million. Amounts borrowed under the line will bear interest at LIBOR plus 1.75%. Interest is due monthly and all principal amounts are due on December 31, 2000. Through July 2, 2000, the Company had not borrowed any amounts under the line.
SUMMARY
The Company intends to continue to pursue a growth-oriented strategy, particularly with respect to its Resorts Division. In connection with this strategy, the Company may from time to time acquire, among other things, additional resort properties and completed Timeshare Interests; land upon which additional resorts may be built; management contracts; loan portfolios of Timeshare Interest mortgages; portfolios which include properties or assets which may be integrated into the Company's operations; and operating companies providing or possessing management, sales, marketing, development, administration and/or other expertise with respect to the Company's operations in the timeshare industry. In addition, the Company intends to continue to focus the Residential Land and Golf Division on larger more capital intensive projects particularly in those regions where the Company believes the market for its products is strongest, such as the Southeast, Southwest, Midwest and Western regions of the United States and to replenish its residential land and golf inventory in such regions as existing projects are sold-out.
The Company estimates that the total cash required to complete preparation for the sale of its residential land and golf and timeshare property inventory as of July 2, 2000 is approximately $206.2 million (based on current costs) expected to be incurred over a five-year period. The Company plans to fund these expenditures primarily with available capacity on existing or proposed credit facilities and cash generated from operations. There can be no assurances that the Company will be able to obtain the financing necessary to complete the foregoing plans.
The Company believes that its existing cash, anticipated cash generated from operations, anticipated future permitted borrowings under existing or proposed credit facilities and anticipated future sales of notes receivable under the proposed timeshare receivables purchase facility (or any replacement facility) will be sufficient to meet the Company's anticipated working capital, capital expenditure and debt service requirements for the foreseeable future. Based on outstanding borrowings at July 2, 2000 and the existing credit facilities described above, the Company has approximately $92.4 million of available credit at its disposal, subject to customary conditions, compliance with covenants and eligible collateral. The Company will be required to obtain a new timeshare receivables purchase facility (see discussion of the term sheet for the new facility, above under "Credit Facilities for Timeshare Receivables and Inventories") and to renew or replace credit facilities scheduled to expire in fiscal 2001. The Company will, in the future, also require additional credit facilities or issuances of other corporate debt or equity securities in connection with acquisitions or otherwise. Any debt incurred or issued by the Company may be secured or unsecured, bear fixed or variable rate interest and may be subject to such terms as the lender may require and management deems prudent. There can be no assurances that the proposed timeshare purchase facility will close, credit facilities scheduled to expire in the near term will be renewed or replaced or that sufficient funds will be available from operations or under existing, proposed or future revolving credit or other borrowing arrangements or receivables purchase facilities to meet the Company's cash needs, including, without limitation, its debt service obligations.
The Company's credit facilities, indentures and other outstanding debt instruments include customary conditions to funding, eligibility requirements for collateral, certain financial and other affirmative and negative covenants, including, among others, limits on the incurrence of indebtedness, limits on the payment of dividends and other restricted payments, the incurrence of liens, transactions with affiliates, covenants concerning net worth, fixed charge coverage requirements, debt-to-equity ratios and events of default. No assurances can be given that such covenants will not limit the Company's ability to satisfy or refinance its obligations or otherwise adversely affect the Company's operations. In addition, the Company's future operating performance and ability to meet its financial obligations will be subject to future economic conditions and to financial, business and other factors, many of which will be beyond the Company's control.
IMPACT OF YEAR 2000
The Company believes it has resolved the potential impact of the year 2000 ("Y2K") issue on its processing of date sensitive information in its information technology and operation and control systems. The Company, to date, has not experienced any negative effects due to the Y2K problem, either internally or with its customers or vendors. If the Company encounters Y2K problems during the year 2000, and if customers or vendors cannot rectify Y2K issues, the Company could incur additional costs, which may be substantial, to develop alternative methods of managing its business and replacing non-compliant equipment, and may experience delays in obtaining goods or services from and making payment to vendors, and making sales and/or providing service to customers. The Company has no contingency plans for critical functions in the event of non-compliance by its customers and vendors.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
For a complete description of the Company's foreign currency and interest rate related market risks, see the discussion in the Company's Annual Report on Form 10-K for the year ended April 2, 2000. There has not been a material change in the Company's exposure to foreign currency and interest rate risks since April 2, 2000.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
In the ordinary course of its business, the Company from time to time becomes subject to claims or proceedings relating to the purchase, subdivision, sale and/or financing of real estate. Additionally, from time to time, the Company becomes involved in disputes with existing and former employees. The Company believes that substantially all of the above are incidental to its business.
Certain other litigation involving the Company is described in the Company's Annual Report on Form 10-K for the year ended April 2, 2000. Subsequent to the filing of such Form 10-K, no material developments have occurred with respect to such litigation.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Annual Meeting of Shareholders held on August 2, 2000, the shareholders voted on the matters listed below and in the proxy materials dated July 13, 2000. The results of voting were as follows:
Shares Voted
------------------------------------------------------
For Against Abstain Total
---------- -------- ------- ----------
Elect each of the following persons as directors of the Company for a
three year term:
Frederick M. Myers 17,794,830 202,632 -- 17,997,462
J. Larry Rutherford 16,319,749 1,677,713 -- 17,997,462
Ratify the appointment of Ernst & Young LLP as independent auditors of
the Company for the fiscal year ending
April 1, 2001 17,970,845 17,421 9,196 17,997,462
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The Company has a classified Board of Directors.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.138 - Amended and Restated Loan and Security Agreement dated as of
June 30, 1999, among the Registrant, Bluegreen Vacations
Unlimited, Inc. and Heller Financial, Inc.
10.139 - Amended and Restated Loan and Security Agreement dated as of
June 29, 2000, among the Registrant, Bluegreen Vacations
Unlimited, Inc. and Heller Financial, Inc.
10.200 - Marketing and Promotions Agreement dated as of June 16, 2000,
by and between Big Cedar L.L.C., Bass Pro, Inc., Bluegreen
Vacations Unlimited, Inc. and Bluegreen/Big Cedar Vacations,
LLC.
10.201 - Advertising Advance Loan dated as of June 16, 2000 by and
between Big Cedar L.L.C., as Maker, and Bluegreen Vacations
Unlimited, Inc., as Holder.
10.202 - Website Hyperlink License Agreement dated as of June 16, 2000
by and between Bluegreen Vacations Unlimited, Inc. (as User),
Bass Pro, Inc. and Bass Pro Outdoors Online, L.L.C.
(as Owners).
10.203 - Website Hyperlink License Agreement dated as of June 16, 2000
by and between Bluegreen Vacations Unlimited, Inc. (as Owner)
Bass Pro, Inc. and Bass Pro Outdoors Online, L.L.C. (as
Users).
10.204 - Contribution Agreement dated as of June 16, 2000 by and
between Bluegreen Vacations Unlimited, Inc. and Big Cedar
L.L.C.
10.205 - Operating Agreement of Bluegreen/Big Cedar Vacations, LLC
dated as of June 16, 2000 by and among Bluegreen Vacations
Unlimited, Inc. and Big Cedar L.L.C.
10.206 - Administrative Services Agreement dated as of June 16, 2000 by
and among Bluegreen/Big Cedar Vacations, LLC and Bluegreen
Vacations Unlimited, Inc.
10.207 - Servicing Agreement dated as of June 16, 2000 by and among the
Registrant, Bluegreen/Big Cedar Vacations, LLC and Big Cedar
L.L.C.
27.1 Financial Data Schedule (for SEC use only).
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(b) Reports on Form 8-K
None.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
BLUEGREEN CORPORATION
(Registrant)
Date: August 15, 2000 By: /s/ George F. Donovan
-----------------------------------
George F. Donovan
President and
Chief Executive Officer
Date: August 15, 2000 By: /s/ John F. Chiste
-----------------------------------
John F. Chiste
Senior Vice President,
Treasurer and Chief Financial Officer
(Principal Financial Officer)
Date: August 15, 2000 By: /s/ Anthony M. Puleo
-----------------------------------
Anthony M. Puleo
Vice President and
Chief Accounting Officer
(Principal Accounting Officer)
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EXHIBIT 10.138
[EXEMPT FROM ALL EXCISE TAXES AS A WHOLESALE WAREHOUSE MORTGAGE AGREEMENT UNDER
SECTION 201.21, F.S. COLLATERAL OBLIGATIONS GREATER THAN PRIMARY OBLIGATIONS.]
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
DATED AS OF JUNE 30, 1999
BLUEGREEN CORPORATION
BLUEGREEN VACATIONS UNLIMITED, INC.
AS BORROWERS,
AND
HELLER FINANCIAL, INC.
AS LENDER
TABLE OF CONTENTS
Page
----
SECTION 1. THE LOAN...................................................................1
1.1 Loan Availability..........................................................1
1.2 Term.......................................................................2
1.3 Interest Rate..............................................................2
1.4 Funding Advances...........................................................2
1.5 Note.......................................................................2
1.6 Payments...................................................................2
1.7 Prepayments................................................................3
1.8 Fees.......................................................................3
1.9 Increased Costs............................................................3
1.10 [Omitted]..................................................................5
1.11 Interest Loans.............................................................5
SECTION 2. COLLATERAL.................................................................6
2.1 Grant of Security Interest.................................................6
2.2 Exchange Mechanics.........................................................7
2.3 Security Agreement.........................................................7
SECTION 3. CONDITIONS PRECEDENT TO ADVANCES...........................................7
3.1 Closing Deliveries.........................................................8
3.2 Deliveries Prior to Each Advance...........................................8
3.3 Security Interests.........................................................8
3.4 Representations and Warranties.............................................8
3.5 No Default.................................................................9
3.6 Performance of Agreements..................................................9
3.7 Governmental Approvals.....................................................9
3.8 Intercreditor Agreements...................................................9
SECTION 4. GENERAL REPRESENTATIONS AND WARRANTIES.....................................9
4.1 Existence..................................................................9
4.2 Authorization and Enforceability..........................................10
4.3 Financial Statements and Business Condition...............................10
4.4 Taxes.....................................................................10
4.5 Litigation and Proceedings................................................10
4.6 Licenses and Permits......................................................11
4.7 Full Disclosure...........................................................11
4.8 Employee Benefit Plans....................................................11
4.9 Representations as to the Resorts and Additional Resorts..................11
4.10 Timeshare Interval Exchange Network.......................................12
4.11 Collateral................................................................12
4.12 Investment Company Act, Etc...............................................13
4.13 Trade Names...............................................................13
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4.14 Margin Regulations........................................................13
4.15 [Omitted].................................................................13
SECTION 5. AFFIRMATIVE COVENANTS.....................................................13
5.1 Payment of Indebtedness...................................................13
5.2 Maintenance of Insurance..................................................13
5.3 Inspections and Audits....................................................14
5.4 Reporting Requirements....................................................14
5.5 Records...................................................................16
5.6 Management; Contracts.....................................................16
5.7 Net Worth.................................................................16
5.8 Fixed Rate Coverage Ratio.................................................16
5.9 Leverage Ratio Test.......................................................17
5.10 Maintenance...............................................................17
5.11 Release and Bonding of Liens..............................................17
5.12 Claims....................................................................17
5.13 Use of Lender Name........................................................17
5.14 Other Documents...........................................................17
5.15 Additional Indebtedness for Borrowed Money;
Additional Obligations Affiliated with Subordinated Obligations......17
5.16 Loan Servicing............................................................18
5.17 Custodian.................................................................18
5.18 Compliance with Laws......................................................18
5.19 Compliance Documents......................................................18
5.20 Real Estate Taxes.........................................................18
5.21 Omitted...................................................................18
5.22 Omitted...................................................................18
5.23 Borrowers' Financial Maintenance Requirement..............................18
5.24 Year 2000.................................................................19
5.25 Authorized Signatory......................................................19
5.26 Allonge/Assignment Requirements...........................................19
5.27 Environmental.............................................................19
SECTION 6. NEGATIVE COVENANTS........................................................19
6.1 Consolidation and Merger..................................................19
6.2 Restrictions on Transfers.................................................20
6.3 Collateral................................................................20
SECTION 7. EVENTS OF DEFAULT.........................................................20
7.1 Payments..................................................................20
7.2 Failure to Permit Inspections.............................................20
7.3 Covenant Defaults.........................................................20
7.4 Warranties or Representations.............................................21
7.5 Bankruptcy................................................................21
7.6 Attachment, Judgment, Tax Liens...........................................21
7.7 Omitted...................................................................21
7.8 Default by Borrowers in Other Agreements..................................21
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7.9 Omitted...................................................................21
7.10 Tax Liens; ERISA Liens....................................................21
7.11 Loan Exceeds Maximum Exposure For Five Days...............................21
7.12 Validity of Transaction Documents.........................................21
7.13 Default under the Project Loan............................................22
SECTION 8. REMEDIES..................................................................22
8.1 Remedies Upon Default.....................................................22
8.2 Application of Collateral; Termination of Agreements......................23
8.3 Waivers...................................................................23
8.4 Set Off of Payments.......................................................23
8.5 Cumulative Rights.........................................................24
SECTION 9. CERTAIN RIGHTS AND OBLIGATIONS OF LENDER..................................24
9.1 Protection of Collateral..................................................24
9.2 Performance by Lender.....................................................24
9.3 Fees and Expenses.........................................................24
9.4 Release of Security Interest..............................................24
9.5 Notice to Obligor.........................................................24
9.6 Collection of Receivables.................................................24
9.7 Power of Attorney.........................................................25
9.8 Indemnification of Lender.................................................25
9.9 Lender's Right to Provide Financing.......................................26
SECTION 10. PARTICIPATION AND ASSIGNMENTS.............................................26
10.1 Participations in Loan and Assignments in Loan............................27
SECTION 11. MISCELLANEOUS.............................................................28
SECTION 11. MISCELLANEOUS.............................................................28
11.1 Notice....................................................................28
11.2 Survival..................................................................28
11.3 Governing Law.............................................................29
11.4 Invalid Provisions........................................................29
11.5 Counterparts; Effectiveness...............................................29
11.6 Lender Not Fiduciary......................................................29
11.7 Entire Agreement..........................................................29
11.8 Consent to Advertising and Publicity......................................29
11.9 [Omitted].................................................................30
11.10 Headings..................................................................30
11.11 Broker's Fees.............................................................30
11.12 Venue.....................................................................30
11.13 Jury Trial Waiver.........................................................30
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LIST OF EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Assignment of Pledged Receivables and Pledged
Receivables Collateral
Exhibit C Form of Reassignment of Pledged Receivables
Exhibit D Form of Request for Advances
Exhibit E Form of Allonge
Exhibit F Servicing Agreement
Exhibit G Reserved
Exhibit H List of Permitted Liens
(including therein the Condominium Declarations)
Exhibit I List of Resorts Encumbered by Resort Blanket Mortgages
Exhibit J List of Project Loan Documents
Exhibit K Structuring Fee Letter
Exhibit L Time Share Documents
Exhibit M Legal Description of Resorts
Exhibit N Commitment Letter dated March 30, 1998
Exhibit O Borrower Closing Checklist
Exhibit P Resort Closing Checklist
Exhibit Q Additional Resort Closing Checklist
Exhibit R Club Closing Checklist
LIST OF SCHEDULES
Schedule 2.1 Definition of "Material Project Loan Default" to be utilized
in the Project Loan Agreement
Schedule 3.2 List of Deliveries for all Advances
Schedule 4.5 List of Litigation Matters
Schedule 4.13(a) Trade Names Other than Name of Borrower
Schedule 4.13(b) Mergers and Corporate Reorganizations
Schedule 5.2 Insurance
Schedule 5.15 Additional Indebtedness for Borrowed Money; Additional
Obligations
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HSF Loan No. 98-087
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Amended and Restated Loan and Security Agreement (this "Agreement") dated as of June 30, 1999 is made by and between Bluegreen Corporation, a Massachusetts corporation whose address is 4960 Blue Lake Drive, Boca Raton, Florida 33431, ("Bluegreen Corporation") and Bluegreen Vacations Unlimited, Inc., a Florida corporation whose address is 4960 Blue Lake Drive, Boca Raton, Florida 33431 ("Bluegreen Vacations" and together with Bluegreen Corporation and the Additional Borrowers (as hereinafter defined) collectively referred to herein as the "Borrowers" and sometimes referred to herein individually as a "Borrower"), and Heller Financial, Inc., a Delaware corporation ("Lender"), whose address is 500 West Monroe Street, 31st Floor, Chicago, Illinois 60661.
RECITALS
A. Borrowers and Lender are parties to that certain Loan and Security Agreement dated as of October 20, 1998 (as now or heretofore amended, restated, supplemented or otherwise modified, the "Prior Loan Agreement").
B. Borrowers and Lender desire to amend and restate the Prior Loan Agreement for the purpose of reconstituting the Indebtedness outstanding thereunder, subject to the terms and conditions set forth herein.
C. Bluegreen Vacations was the successor by merger with Bluegreen Resorts, Inc., a Delaware corporation ("Resorts"), and, as such, has become a "Borrower" hereunder and succeeds to all of the rights and obligations of Resorts.
D. Borrowers' obligations under the Loan Documents will continue to be secured inter alia by a security interest in the Pledged Receivables (as hereinafter defined).
E. All capitalized terms used herein shall have the meanings ascribed thereto in the Appendix attached hereto and made a part hereof by this reference.
NOW, THEREFORE, in consideration of the foregoing premises and the agreements, provisions and covenants herein contained, Borrowers and Lender agree as follows:
SECTION 1. THE LOAN
1.1 Loan Availability. During the period commencing on the date hereof and ending on June 26, 2000, Lender shall make Advances to the Borrowers not in excess of Availability provided that the Borrowers satisfy all conditions, as applicable, set forth in Section 3 hereof. Advances shall be (a) in minimum amounts of $100,000 each or such lesser amount equal to
Availability hereunder, and (b) made no more frequently than four (4) times each month nor more than one (1) time each week; provided, however, that, subject to Availability, any request for an Advance of less than $100,000 or for any Advance in excess of the number of Advances permitted in any week or month shall be honored by Lender if accompanied by payment to Lender of a fee (the "Service Charge") of $3,000 for each such Advance. Except in connection with a prepayment mandated under Section 1.7(b)(i) below, any amounts repaid during the Term may be reborrowed during the Term.
1.2 Term. The Loan shall be for a term of two (2) years from June 26, 1998 to the end of the Fiscal Month of Bluegreen Corporation in which the date hereof occurs (the "Term").
1.3 Interest Rate. The outstanding principal balance of the Loan together with all other Indebtedness shall bear interest at the Interest Rate; provided, however, that after the occurrence and during the continuance of an Event of Default the Loan will bear interest at the Default Rate which interest shall be payable on a Payment Date.
1.4 Funding Advances. Subject to the satisfaction of the conditions precedent set forth in Section 3 hereof with respect to Advances hereunder and the limitations set forth in Section 1.1, the Lender shall make the proceeds of an Advance available to the Borrowers by wiring funds to such account or such other destination or directive as Bluegreen Corporation on its own behalf or on behalf of the Borrowers as it may direct in writing.
1.5 Note. The Loan shall be evidenced by a promissory grid note (herein, as amended, modified, extended or replaced from time to time, called the "Note") substantially in the form set forth in Exhibit A, with appropriate insertions, payable to the order of the Lender. The Borrowers hereby irrevocably authorize the Lender to make (or cause to be made) appropriate notations on the grid attached to the Note (or on any continuation of such grid, or at the Lender's option, in its records), which notations, if made, shall evidence, inter alia, the date of, the outstanding principal of, and the interest rate and interest period applicable to the Advance evidenced thereby. Such notations shall be rebuttably presumptive evidence of the subject matter thereof absent manifest error; provided, however, that the failure to make any such notations shall not limit or otherwise affect any obligations of the Borrowers.
1.6 Payments.
(a) Weekly Payments. All funds collected by the Lockbox Bank from the Pledged Receivables shall be paid to Lender at least weekly pursuant to the Lockbox Agreement, and applied in the following order: first to the payment of accrued and unpaid interest on the Indebtedness and then to the reduction of the principal balance of the Loan; provided, however, that after the occurrence and during the continuance of an Event of Default hereunder, such amounts shall be applied in the following order: first to the payment of costs and expenses incurred by Lender in collecting any amounts due in connection with the Loan; second, to the payment of accrued but unpaid interest on the Loan; and thereafter to the reduction of the principal balance of the Loan. If the funds received by Lender from the Lockbox Bank with
respect to any month are insufficient to pay interest in full, Borrowers shall pay the difference to Lender within five (5) Business Days of written notice from Lender. Payments received by Borrowers directly from any Obligor shall be delivered to the Lockbox Bank within two (2) Business Days. Notwithstanding anything in this Section 1.6 to the contrary, in the event of the occurrence and during the continuance of an Event of Default, Lender shall have sole discretion as to the order in which said payments shall be applied.
(b) Final Payment. The Indebtedness shall be payable in full on the Maturity Date.
1.7 Prepayments.
(a) Voluntary Prepayments. Borrowers may not make any voluntary prepayments except (i) in accordance with Section 1.6(a), (ii) as may result from the sale of Pledged Receivables financed under this Agreement into the Purchase Facility, (iii) in the event the Purchase Limit is reached under the Purchase Facility and Lender, in its capacity as Purchaser thereunder, has refused to increase the Purchase Limit in accordance with Section 2.12(b) of the Purchase Facility or (iv) in the event Lender has reviewed and rejected Receivables associated with the Club. In connection with any sale to the Purchase Facility of Pledged Receivables, Lender shall release its lien and security interest in and to such Pledged Receivable and the related Pledged Receivables Collateral if but only if the Repayment Price in respect to such Pledged Receivable is paid to Lender. All Repayment Prices shall be applied as prepayments of the Loan. From time to time Lender shall also cause to be released from the lien of a Resort Blanket Mortgage those Intervals with respect to which the related Pledged Receivable has been fully paid and fully performed. Additionally, in the event a Pledged Receivable is no longer an Eligible Completed Unit Receivable or an Eligible Uncompleted Unit Receivable and the Borrowers take the action described in Section 1.7(b), the Lender will release its lien on the Pledged Receivable. All out of pocket costs and expenses in connection with any partial releases shall be for the expense of the Borrowers.
(b) Mandatory Prepayments. If at any time the outstanding principal balance of the Loan exceeds the Maximum Exposure, Borrowers shall, within five (5) Business Days after notice, prepay the Loan in an amount necessary to reduce the principal balance of the Loan to the Maximum Exposure; provided, however, that Borrowers, at their option within five (5) Business Days after notice, may deliver to Lender one (1) or more Pledged Receivables such that, after delivery of such Pledged Receivable(s), the outstanding principal balance of the Loan does not exceed the Maximum Exposure.
1.8 Fees. The Borrowers shall pay to Lender the structuring fees as described in the Structuring Fee Letter attached hereto as Exhibit K.
1.9 Increased Costs. (a) If (i) any change in Regulation D of the Board, or (ii) any Regulatory Change, in each case occurring after the date hereof:
(A) shall subject the Affected Party to any additional tax, duty or other charge with respect to Advances made hereunder or a participation purchased hereunder, or shall change the basis of taxation of payments to such party of the interest on Advances funded by it or any participation purchased hereunder in any material respect, or any other amounts due under this Agreement in respect of any Advances made or funded by it or participations purchased by it (except for changes in the rate of tax on the overall net income of such party imposed by the jurisdiction of such party's principal executive office); or
(B) shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System), but excluding any reserve included in the determination of interest rates, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Affected Party; or
(C) shall change the amount of capital maintained or required or requested or directed to be maintained by any Affected Party; or
(D) shall impose on any Affected Party any other condition affecting any Advance or participation made or funded by any Affected Party; and the result of any of the foregoing is or would be to increase the cost to (or in the case of Regulation D referred to above, to impose a cost on) (a) an Affected Party funding or making or maintaining any Advances or purchasing participations, or (b) the Lender for continuing its relationship with the Borrowers, to reduce the amount of any sum received or contracted by an Affected Party under this Agreement, the Note, or any other Loan Document with respect thereto, or in the good faith determination of such Affected Party, to reduce the rate of return on the capital of an Affected Party as a consequence of its obligations hereunder or arising in connection herewith to a level below that which such Affected Party would otherwise have achieved, then within five Business Days after demand by the Lender on behalf of such Affected Party to Borrowers (which demand shall be accompanied by a written statement of such Affected Party, subject to the second sentence of subsection (e) below), Borrowers shall pay the Affected Party such additional amount or amounts as will (in the reasonable determination of such Affected Party) compensate such Affected Party for such increased cost or such reduction. Such written statement (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be rebuttably presumptive evidence of the subject matter thereof; and
(E) Each Affected Party will promptly notify the Lender (which
shall promptly notify the Borrowers) within 90 days after such
Affected Party has actual knowledge of any event occurring
after the date hereof that will entitle such Affected Party to
such additional amounts as compensation pursuant to this
Section 1.9. Such additional amounts shall accrue from the
date of such event (or if such notice is not given within 90
days after such Affected Party's knowledge of such event, from
the date which is 90 days prior to the date such notice is
given by such Affected Party).
(F) If any Lender requests compensation under this Section 1.9 which materially increases the Borrowers' cost of funds with respect to the Loan or if any Lender defaults in its obligation to fund loans hereunder, then the Borrowers may upon five (5) Business Days notice to such Lender, require such Lender to assign and delegate, without payment by Borrowers of any prepayment fee or premium, all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if another Lender accepts such assignment); provided that (i) such transferring Lender shall have received payment of an amount equal to the outstanding principal amount of its loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest) or Borrowers (in the case of all other amounts) and (ii) in the case of any such assignment resulting from a claim for compensation under Section 1.9, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation ceases to apply.
1.10 [Omitted]
1.11 Interest Loans. Notwithstanding any provision to the contrary contained in this Agreement or any other Loan Document, Borrowers shall not be required to pay, and the Lender shall not be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by applicable law ("Excess Interest"). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any other Loan Document, then in such event: (1) the provisions of this subsection shall govern and control; (2) the Borrowers shall not be obligated to pay any Excess Interest; (3) any Excess Interest that the Lender may have received hereunder shall be, at the Lender's option, (a) applied as a credit against the outstanding principal balance of the Indebtedness or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (b) refunded to the payor thereof,
or (c) any combination of the foregoing; (4) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the "Maximum Rate"), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (5) the Borrowers shall not have any action against the Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Indebtedness is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on the Indebtedness shall remain at the Maximum Rate until the Lender shall have received the amount of interest which such Lender would have received during such period on the Indebtedness had the rate of interest not been limited to the Maximum Rate during such period.
SECTION 2. COLLATERAL
2.1 Grant of Security Interest. To secure the payment and
performance of the Indebtedness and, subject to the last sentence of this
Section 2.1, Project Indebtedness, Borrowers do hereby, subject to the terms of
this Agreement unconditionally and irrevocably assign, pledge and grant to
Lender a first priority continuing security interest and lien in and to the
right, title and interest of Borrowers in the following property of Borrowers
with respect to the Resorts and Additional Resorts, whether now owned or
existing or hereafter acquired regardless of where located (collectively, the
"Collateral"):
(a) All Pledged Receivables;
(b) All Pledged Receivables Collateral;
(c) All Project Loan Collateral;
(d) All "Mortgaged Property", as such term is defined in each of the Resort Blanket Mortgages;
(e) All Club Collateral (except to the extent the assignment, pledge or granting of a security interest in any Club Collateral would constitute a default under any license or lease of any such Club Collateral);
(f) All cash, other monies and property of Borrowers in the possession or under the control of Lender other than cash and other monies and property delivered to the Lender in error;
(g) All books, records, ledger cards, files, correspondence, computer tapes, disks and software (subject to licensing agreements) relating to the Pledged Receivables and Pledged Receivable Collateral or any other Collateral (except to the extent the assignment, pledge or granting of a security interest in any Club Collateral would constitute a default under any license or lease of any such Club Collateral); and
(h) All proceeds, extensions, amendments, additions, improvements, betterments, renewals, substitutions and replacements of the foregoing.
So long as there is no "Material Project Loan Default" (as the same is defined on Schedule 2.1 hereto which definition shall be included in the Project Loan Agreement), the Collateral shall not secure the Project Indebtedness and the Lender, upon the Borrowers' written request, shall release its lien hereunder.
Lender shall execute such releases and termination statements, to the extent deemed necessary by Lender, so as to facilitate the purchase and sale of Receivables under the Purchase Facility, it being the intent of the parties hereto that this Agreement contemplates the financing of Pledged Receivables until such time as such Pledged Receivables and Pledged Receivables Collateral are sold pursuant to the terms of the Purchase Facility.
2.2 Exchange Mechanics. This Agreement contemplates the financing of Pledged Receivables associated with the Club. The Borrowers anticipate exchanging certain conditional land sale contracts for notes and Purchase Money Mortgages to facilitate Obligors joining the Club. Notwithstanding anything to the contrary contained herein, in no event shall such exchange affect the Lender's first perfected security interest in a Pledged Receivable. Lender hereby agrees to cooperate with Borrowers to facilitate the exchange contemplated in the second sentence of this Section 2.2; provided such exchange has no negative impact on the Lender's first priority perfected lien and security interest on the Collateral (i.e. the Lender shall have a first priority perfected lien and security interest in the new Pledged Receivable which has been exchanged for the prior Pledged Receivable) and provided further that the Borrowers pay all of Lender's reasonable costs (including but not limited to legal expenses) associated with the exchange contemplated in the second sentence of this Section 2.2.
2.3 Security Agreement. This Agreement shall be deemed a security agreement as defined in the Code, and the remedies for any violation of the covenants, terms and conditions of the agreements herein contained shall be cumulative and be as prescribed (a) herein, or (b) by applicable law, or (c) as to such part of the Collateral which is also reflected in any filed financing statement, by the specific provisions of the Code now or hereafter enacted, all at Lender's sole election.
SECTION 3. CONDITIONS PRECEDENT TO ADVANCES
The obligation of Lender to make Advances is subject to satisfaction of all of the conditions set forth below (to the extent applicable to the Pledged Receivables being financed
hereby). Notwithstanding anything contained in this Agreement to the contrary, in no event shall the execution of this Agreement on the date hereof be deemed a waiver by Lender of any of the conditions set forth below with respect to any Advance.
3.1 Closing Deliveries.
(a) Lender shall have received, in form and substance satisfactory to Lender, all documents, instruments and information identified on the Closing Checklist attached hereto as Exhibit O, including, without limitation, one or more executed legal opinions, issued by counsel acceptable to Lender, in form and content acceptable to Lender.
(b) Lender shall have received, in form and substance satisfactory to Lender, all documents, instruments and information identified on the Resort Closing Checklist attached hereto as Exhibit P with respect to the Resorts (including, without limitation, one or more executed legal opinions, issued by counsel acceptable to Lender in each of the states wherein the Resorts are located, in form and content acceptable to Lender).
(c) Lender shall have received, in form and substance satisfactory to Lender, all documents, instruments and information identified on the Additional Resort Closing Checklist attached hereto as Exhibit Q including, without limitation, one or more executed legal opinions, issued by counsel acceptable to Lender in each of the states wherein the Additional Resorts are located, in form and content acceptable to Lender).
(d) Lender shall have received, in form and substance satisfactory to Lender, all documents, instruments and information identified on the Club Closing Checklist attached hereto as Exhibit R with respect to the Club (including, without limitation, one or more executed legal opinions, issued by counsel acceptable to Lender in the state wherein the Club is located, in form and content acceptable to Lender).
3.2 Deliveries Prior to Each Advance. Prior to each Advance, Lender shall have received all documents, instruments and information identified on Schedule 3.2 attached hereto. Requests for Advance ("Advance Request") shall be made at least five (5) Business Days prior to the requested date of disbursement and shall be in the form of Exhibit D hereto. Any Advance Request given by a Borrower pursuant to this Section 3.2 shall be irrevocable and binding on such Borrower. Such Advance Request shall designate a specific account for the respective Borrower and designate the specific Resort relating to the respective Borrower's Pledged Receivables.
3.3 Security Interests. Lender shall have received satisfactory evidence that all security interests and liens granted to Lender pursuant to this Agreement or the other Loan Documents have been duly perfected and constitute first priority liens on the Collateral.
3.4 Representations and Warranties. The representations and warranties contained herein and in the Loan Documents shall be true, correct and complete in all material respects on and as of the date of funding of each Advance except for any representation or warranty limited
by its terms to a specific date or affected by the transactions permitted by this Agreement and taking into account any amendments to the Schedules or Exhibits as a result of any disclosures made by the Borrowers to Lender after the date hereof and approved by Lender, and except to the extent of changes occurring in the ordinary course of business that, either singly or in the aggregate, have not had and could not reasonably be expected to have a Material Adverse Effect.
3.5 No Default. No Event of Default shall have occurred and be continuing.
3.6 Performance of Agreements. Borrowers shall have performed in all material respects all agreements, paid all fees, costs and expenses and satisfied all conditions which any Loan Document provides shall be paid or performed by it as of such date.
3.7 Governmental Approvals. Borrowers shall have obtained all approvals, licenses, permits and consents for the sale of Intervals to Obligors which are the subject of any requested Advance.
3.8 Intercreditor Agreements. To the extent the Borrowers or one of their respective Affiliates has incurred, or will incur, debt for borrowed money secured by the Resorts, Additional Resorts or Project Loan Collateral from a source other than the Lender, the Lender shall have the opportunity to review such other financing sources loan documentation and, to the extent necessary to maintain its first perfected security interest in the Collateral, shall have the opportunity to enter into a satisfactory Intercreditor Agreement or other arrangement with the Borrowers and the party extending such credit. Such Intercreditor Agreement or other arrangements shall provide satisfactory assurances to the Lender that the Collateral shall not be adversely affected by the security securing such other financing source.
SECTION 4. GENERAL REPRESENTATIONS AND WARRANTIES
Borrowers hereby jointly and severally represent and warrant to Lender as follows, which representations and warranties shall remain true throughout the term of the Loan:
4.1 Existence.
(a) Bluegreen Corporation is a corporation duly formed, validly existing and in good standing under the laws of the Commonwealth of Massachusetts with its principal place of business at Boca Raton, Florida. Bluegreen Corporation 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 be so authorized would have a Material Adverse Effect.
(b) Bluegreen Vacations Unlimited, Inc., a Florida corporation, is a corporation duly formed, validly existing and in good standing under the laws of the State of Florida with its principal place of business at Boca Raton, Florida. Bluegreen Vacations Unlimited, Inc. is in good standing under the laws of the State of Florida and is authorized to
transact business in each state where the failure to be so authorized would have a Material Adverse Effect.
4.2 Authorization and Enforceability.
(a) Execution. The Loan Documents have been duly authorized, executed and delivered and constitute the duly authorized, valid and legally binding obligations of the Borrowers, enforceable against the Borrowers and the other parties signatory thereto (other than Lender) in accordance with their respective terms subject, as to enforceability, to the effect of bankruptcy and other laws generally affecting creditors' rights.
(b) Other Agreements.The execution, delivery and compliance with the terms and provisions of the Loan Documents will not (i) to the best of Borrowers' knowledge, violate any provisions of law or any applicable 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 material contract, agreement or commitment to which the Borrowers are bound.
4.3 Financial Statements and Business Condition. Bluegreen Corporation has delivered to Lender its financial statements for the Fiscal Year ending March 29, 1998. Such financial statements fairly present the financial condition and (if applicable) results of operations of Bluegreen Corporation 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 Corporation since March 29, 1998. Borrowers are able to pay all of their respective debts as they become due, and Borrowers shall maintain such solvent financial condition, giving effect to all obligations, absolute and contingent, of each such Borrowers. Each such Borrower's obligations under this Agreement and under the Loan Documents will not render the respective Borrower unable to pay its debts as they become due. The present fair market value of each Borrower's assets is greater than the amount required to pay its total liabilities.
4.4 Taxes. All ad valorem taxes and other taxes and assessments
against each Resort, Additional Resort and the Collateral have been paid and the
Borrowers know of no basis for any additional taxes or assessments against any
Resort, Additional Resort or the Collateral. Borrowers have filed all required
tax returns and has paid all taxes shown to be due and payable on such returns,
including interest and penalties, and all other taxes which are payable by it,
to the extent the same have become due and payable except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
(b) the Borrowers have set aside on their books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
4.5 Litigation and Proceedings. Except as disclosed in Schedule 4.5 attached hereto, as of the date hereof there are no actions, suits, proceedings, orders or injunctions pending or, to
the best of Borrowers' knowledge, threatened against or affecting the Borrowers, the Timeshare Associations or any Affiliate thereof, at law or in equity, or before or by any governmental authority the result of which, if adversely determined, would have a Material Adverse Effect. The Borrowers have not received any notice from any court or governmental authority alleging that such Person, any Affiliate or any of the Timeshare Associations has violated the applicable timeshare act, any of the rules or regulations thereunder, or any other applicable laws, the result of which, if adversely determined, would have a Material Adverse Effect.
4.6 Licenses and Permits. Borrowers possess all requisite franchises, certificates of convenience and necessity, operating rights, licenses, permits, consents, authorizations, exemptions and orders as are necessary to carry on their businesses 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 Full Disclosure. No written information or written report furnished by or on behalf of Borrowers to Lender in connection with the Loan, when taken together with all other written information provided, contains any untrue statement of a material fact or omits any material fact necessary to make the statement contained herein or therein, in light of the circumstances in which made, not misleading. Borrowers know of no legal or contractual restriction which will prevent them from offering or selling Intervals in any state where each Borrowers is selling Intervals.
4.8 Employee Benefit Plans. Each Borrower 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 such Borrower for the benefit of its employees. No material liability has been incurred by either Borrower which remains unsatisfied for any funding obligation, taxes or penalties with respect to any such employee benefit plan.
4.9 Representations as to the Resorts and Additional Resorts. Borrowers jointly and severally represent and warrant with respect to a Resort or an Additional Resort the following:
(a) Title; Prior liens. Borrowers have good and marketable title to the Resorts or Additional Resorts (excluding sold Intervals and any equitable rights of the Obligors under applicable state law to the Units under any conditional land sales contracts which are the subject of any Pledged Receivable). Borrowers are not in default under any of the documents evidencing or securing any indebtedness for borrowed money in an outstanding amount in excess of $1,000,000 which is secured, wholly or in part, by the Resorts or Additional Resorts, and no event has occurred which with the giving of notice, the passage of time or both, would constitute a default under any of the documents evidencing or securing any such indebtedness. There are no liens or encumbrances against the Resorts or Additional Resorts and relating to the Collateral other than Permitted Adverse Claims or Permitted Liens.
(b) Access. The Resorts and Additional Resorts relating to Eligible Completed Unit Receivables have direct access to a publicly dedicated road over a recorded easement and all
roadways, if any, inside the Resorts and Additional Resorts are or will be common areas under the Declaration after the first Advance against Receivables originated at such Resort.
(c) Utilities. Electric, gas, sewer, water facilities and other necessary utilities are lawfully available in sufficient capacity to service the Units relating to the Intervals in the Resorts and Additional Resorts relating to Eligible Completed Unit Receivables and any easements necessary to the furnishing of such utility service have been obtained and duly recorded.
(d) Amenities. All amenities described in the sales prospectus and the "Public Reports" for the Resorts and Additional Resorts relating to Eligible Completed Unit Receivables are completed, or will be completed, in the time periods described in the "Public Reports", or a bond insuring their completion has been posted. Each Obligor has or will have, in the time period described in the Public Reports, access to and the use of all of the amenities and public utilities of the Resorts and the Additional Resorts relating to Eligible Completed Unit Receivables as and to the extent provided in the Declaration and the "Public Reports".
(e) Construction. All costs arising from the construction of any improvements and the purchase of any equipment, inventory, or furnishings located in or on the Resorts and Additional Resorts relating to the Units relating to the Intervals and relating to Eligible Completed Unit Receivables have been paid or will be paid when due.
4.9A Representations as to the Units. No Unit or Pledged Receivable relating to a Unit relates to a campground/tent site, recreational vehicle site or other non-permanent building or structure.
4.10 Timeshare Interval Exchange Network. Each Borrower is a member and participant in respect to each Resort and Additional Resort, pursuant to a validly executed and, to Borrower's knowledge, enforceable agreement in writing, in Interval International, Inc. or Resorts Condominium International, Inc. Borrowers has paid all fees and other amounts due and owing under such agreement and is not otherwise in default in any respect, the effect of which could reasonably be expected to have a Material Adverse Effect thereunder.
4.11 Collateral. The Collateral, including without limitation, the Pledged Receivables and the Pledged Receivables Collateral, in which a security interest is to be granted to the Lender pursuant to this Agreement shall be owned by Borrowers free and clear of any Adverse Claim (other than any Permitted Adverse Claim or Permitted Liens). The Borrowers have a first priority perfected ownership interest in the Collateral including but not limited to the Pledged Receivables and the Pledged Receivables Collateral, subject to Permitted Adverse Claims and Permitted Liens. This Agreement creates a valid first priority security interest in favor of the Lender (for the benefit of the Lender) in the Collateral granted by such Borrower, including without limitation the Pledged Receivables and Pledged Receivables Collateral, which security interest has been perfected (free and clear of any Adverse Claim other than any Permitted Adverse Claim or
Permitted Lien and any equitable rights of the Obligors under applicable state law to the Units under any conditional land sales contracts which are the subject of any Pledged Receivable) as security for the Indebtedness. No effective financing statement or other instrument similar in effect covering any of the Collateral or any interest therein is on file in any recording office except for financing statements that may be filed (i) in favor of the Lender in accordance with the Agreement or (ii) in favor of Borrowers and assigned to the Lender. Borrowers shall defend Lender against and save it harmless from all claims of any Persons other than Lender with respect to the Collateral, and this indemnity shall include all reasonable attorneys' fees and legal expenses.
4.12 Investment Company Act, Etc. No Borrower is an "investment company" within the meaning of the Investment Company Act of 1940, as amended, or a "holding company," or a "subsidiary company," of a "holding company," or an "affiliate" of a "holding company," or of a "subsidiary company" of a "holding company," within the meaning of the Public Utility Holding Company Act of 1935, as amended.
4.13 Trade Names. Except as disclosed on Schedule 4.13(a), no Borrower uses any trade name other than its actual corporate name. From and after the date that fell five (5) years before the date hereof, the Borrowers have not been known by any legal name other than their respective corporate names as of the date hereof, nor have the Borrowers been the subject of any merger or other corporate reorganization, except as set forth in Schedule 4.13(b).
4.14 Margin Regulations. The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of the Loan, directly or indirectly, will be used for a purpose that violates, or would be inconsistent with, Regulations T, U and X promulgated by the Board from time to time.
4.15 [Omitted]
SECTION 5. AFFIRMATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid or Lender is committed to make Advances hereunder, unless Lender otherwise consents in writing, Borrowers jointly and severally covenant as follows:
5.1 Payment of Indebtedness. Borrowers shall pay all of the Indebtedness hereunder and under the Loan Documents when due.
5.2 Maintenance of Insurance. For so long as the Borrowers control the Resorts and Additional Resorts, the Resorts and Additional Resorts shall at all times and for so long as any Indebtedness remains outstanding be kept insured with such general liability coverage and such other coverages acceptable to Lender, by carrier(s), in the amounts described on Schedule 5.2 hereto, which carrier(s), amounts and form shall not be changed without the prior written consent of Lender. All insurance required under the preceding sentence for each Resort and Additional Resorts may be maintained by the Timeshare Association as required by the applicable
Declaration or Time Share Declaration, provided that in the event such Timeshare Association fails to maintain any insurance required under this Section 5.2, then the Borrowers shall be required to obtain and maintain such insurance.
5.3 Inspections and Audits. Borrowers shall, at such reasonable times during normal business hours and as often as may be reasonably requested, permit any agents or representatives of Lender to inspect the Resorts and Additional Resorts and any of Borrowers' assets (including financial and accounting books and records), to examine and make copies of and abstracts from the records and books of account of the Borrowers or the Timeshare Association (to the extent controlled by Borrowers) or serviced under the Servicing Agreement and to discuss its affairs, finances and accounts with any of its officers, employees or independent public accountants. Borrowers acknowledge that Lender intends to conduct such audits and inspections on at least an annual basis. Borrowers shall make available to Lender all credit information in Borrowers' possession or under Borrowers' control with respect to Obligors as Lender may reasonably request. Upon Lender's request, Borrowers shall furnish to Lender evidence of payment of all real estate taxes relating to the Resorts and the Additional Resorts. All audits, inspections of the Resorts, Additional Resorts and credit investigations shall be at Borrowers' expense; provided, however, that except with respect to any audits, inspections of the Resorts, Additional Resorts or credit investigations conducted after and during the continuance of an Event of Default hereunder, Borrowers shall not be required to pay in excess of Ten Thousand Dollars ($10,000) in any calendar year for audits performed during such year. After the occurrence and during the continuance of an Event of Default, Borrowers shall be required to pay all reasonable fees, costs and expenses incurred by Lender for any and all Resorts and Additional Resorts inspections, audits and any other diligence relating to Borrowers' finances or books or records.
5.4 Reporting Requirements. So long as the Indebtedness remains unpaid, Borrowers shall furnish the following to Lender:
(a) Monthly Reports. To the extent not provided to Lender pursuant to the requirements of the Servicing Agreement, within twelve (12) Business Days after the end of each Fiscal Month, reports showing through the end of the preceding month, (i) the following information with respect to each Pledged Receivable: (A) the opening and closing balances, (B) all payments received allocated to interest, principal, late charges, taxes or the like, (C) the rate of interest, (D) an itemization of delinquencies, extensions, refinances, prepayments, upgrades, payoffs, cancellations and other adjustments, (E) the remaining term, (F) the nature and status of any claims asserted or legal action pending with respect thereto, and (G) any exchange of one form of Pledged Receivable for another form of Pledged Receivable (i.e., any exchange of a conditional sales contract to a note and mortgage format required by the Club); and (ii) the weighted average interest rate and the average remaining term of all Pledged Receivables.
(b) Sales and Inventory Reports. Within twelve (12) Business Days after the end of each quarter, a quarterly report showing all sales and cancellations of sales of Intervals on Resorts and Additional Resorts on a resort by resort basis, in form and content satisfactory to Lender; and within thirty (30) Business Days after the end of each fiscal year of Borrowers, an
annual sales and inventory report for the Resorts and Additional Resorts detailing the sales of all Intervals on a resort by resort basis during such fiscal year and the available inventory of Units and Intervals, certified by each Borrowers to be true, correct and complete and otherwise in the form approved by Lender.
(c) Quarterly Financial Reports. Within forty-five (45) days after the end of each of Borrowers' first three fiscal quarterly periods each year (or, if later, that date by which any Borrower is required to file financial statements with the Securities and Exchange Commission), unaudited financial statements of Borrowers certified by its chief financial officer as well as, to the extent requested by the Lender and available to Borrowers, unaudited financial statements of the Timeshare Association.
(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 Corporation: (i) the balance sheet of Bluegreen Corporation as of the end of such year and the related statements of income and cash flow for such Fiscal Year; (ii) a schedule of all outstanding indebtedness of Bluegreen Corporation 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; and (iii) a copy of a report from a firm of independent certified public accountants selected by Bluegreen Corporation, 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 Bluegreen Corporation as of the dates indicated and the results of its operations and cash flow for the periods indicated in conformity with GAAP.
(e) Officer's Certificate. Each set of financial statements delivered hereunder shall be accompanied by a certificate of the Chief Financial Officer of the respective Borrower setting forth to the extent applicable:
(i) Covenant Compliance. The information (including detailed calculations) required in order to establish whether the Borrower was in compliance with the requirements of Sections 5.7, 5.8 and 5.9 hereof, during the quarterly or annual period covered by the statements then being furnished;
(ii) Event of Default. A statement that such officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Borrowers and their respective Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes an Event of Default or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the respective Borrowers shall have taken or proposed to take with respect thereto.
(f) Timeshare Association Reports. To the extent the respective Borrower controls the Resort or Additional Resort the semiannual and annual financial statements of the Timeshare Association and to the extent the Resort or Additional Resort is not in a Borrower's control, the respective Borrower shall make a good faith effort to obtain the same from the respective Timeshare Association.
(g) Audit Reports. Promptly upon receipt thereof, one (1) copy of each other report submitted to Bluegreen Corporation by their independent public accountants in connection with any annual, interim or special audit made by them of the books of Bluegreen Corporation.
(h) Other Reports. Such other reports, statements, notices or written communications relating to the Borrowers, the Time Share Associations, the Resorts or the Additional Resorts as are available to Borrowers and as Lender may reasonably require.
(i) SEC Reports. Promptly upon their becoming publicly available, one (1) copy of each financial statement, report, notice or proxy statement sent by Borrowers to security holders generally, and of each regular or periodic report and any registration statement, prospectus or written communication (other than transmittal letters) in respect thereof filed by Borrowers with, or received by Borrowers in connection therewith from, any securities exchange or the Securities and Exchange Commission or any successor agency.
5.5 Records. Borrowers shall keep adequate records and books of account reflecting all financial transactions of Borrowers and (to the extent available to the Borrowers) the Time Share Associations, including sales of Intervals, in which complete entries will be made in accordance with GAAP.
5.6 Management; Contracts. For so long as the Borrowers control the Resorts and the Additional Resorts, the manager, related management contract and master marketing and sale contract (if applicable) for each Resort shall at all times be satisfactory to Lender. For so long as the Borrowers control the Timeshare Association for the Resorts or Additional Resorts, and the Borrowers or an Affiliate thereof is the manager, the management contracts and primary marketing and sale contracts may be amended or modified only with the prior written consent of Lender, which consent shall not be unreasonably withheld.
5.7 Net Worth. At all times Indebtedness is outstanding or Lender is obligated to make Advances, Bluegreen Corporation agrees to maintain a Tangible Net Worth, determined in accordance with GAAP, of Eighty Million Dollars ($80,000,000).
5.8 Fixed Rate Coverage Ratio. Bluegreen Corporation's ratio of EBITDA to Consolidated Fixed Charges shall not be less than 2.00 to 1.00.
5.9 Leverage Ratio Test. Bluegreen Corporation's ratio of Total Indebtedness to Tangible Net Worth shall not be more than 2.00 to 1.00.
5.10 Maintenance. For so long as the Borrowers control the Resorts and Additional Resorts, the Borrowers shall maintain the Resorts and Additional Resorts in good repair, working order and condition (ordinary wear and tear excepted).
5.11 Release and Bonding of Liens. In the event any lien securing indebtedness for borrowed money in an amount in excess of $250,000 attaches to any Collateral (other than Permitted Adverse Claims), Borrowers shall, within the earlier to occur of ten (10) days after such attachment or the respective lienholder's action to foreclose on such lien, either (a) cause such lien to be released of record, or (b) provide Lender with a bond in accordance with the applicable laws of the state in which the Collateral is located, issued by a corporate surety acceptable to Lender, in an amount and in form reasonably acceptable to Lender, or (c) provide Lender with such other security as Lender may reasonably require.
5.12 Claims. Borrowers shall: (a) promptly notify Lender of (i) any claim, action or proceeding affecting the Collateral, or any part thereof, or any of the security interests granted hereunder which would have a Material Adverse Effect, and (ii) any action, suit, proceeding, order or injunction of which Borrowers become aware after the date hereof pending or threatened against or affecting Borrowers or any Affiliate which would, if adversely determined, have a Material Adverse Effect; (b) at the request of Lender, appear in and defend, at Borrowers' expense, any such claim, action or proceeding which would, if adversely determined, have a Material Adverse Effect; and (c) comply in all respects, and shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a Material Adverse Effect.
5.13 Use of Lender Name. Borrowers will not, and will not permit any Affiliate to, without the prior written consent of Lender, use the name of Lender or the name of any affiliates of Lender in connection with any of their respective businesses or activities, except in connection with internal business matters, administration of the Loan and as required in dealings with governmental agencies including any reports required to be filed with the Securities and Exchange Commission.
5.14 Other Documents. To the extent not maintained by the Custodian, Borrowers will maintain accurate and complete files relating to the Pledged Receivables, the Pledged Receivables Collateral and other Collateral to the satisfaction of Lender, and such files (to the extent not computerized) will contain copies of each Pledged Receivable and the Pledged Receivable Collateral together with the purchase agreements, truth-in-lending statements, all relevant credit memoranda and all collection information and correspondence relating to such Pledged Receivables.
5.15 Additional Indebtedness for Borrowed Money; Additional Obligations Affiliated with Subordinated Obligations. Borrowers will not, directly or indirectly, permit any payment to
be made in respect of any indebtedness, liabilities or obligations, direct or contingent for borrowed money (except any payments required or permitted with respect to the indebtedness on Schedule 5.15), to any Affiliates (excluding trade payables incurred in the ordinary course of business), which payments shall and are hereby made subordinate to the payment of principal of, and interest on, the Note.
5.16 Loan Servicing. Borrowers may not amend or terminate the Servicing Agreement attached hereto as Exhibit F without Lender's prior approval. Borrowers agree not to interfere with a Successor Servicer's performance of its duties under the Servicing Agreement or to take any action that would be inconsistent with the terms of the Servicing Agreement. The Servicing Agreement shall be cancelable by Lender, as applicable under the terms of the Servicing Agreement. All servicing fees, and the costs and expenses of the Servicer shall be paid by the Borrowers.
5.17 Custodian. Lender shall utilize a Custodian to maintain custody of the Pledged Receivables and the Pledged Receivables Collateral. Borrowers agree not to interfere with Custodian's performance of its duties under the Custodial Agreement or to take any action that would conflict with the terms of the Custodial Agreement. All custodial fees, and the costs and expenses of the Custodian, shall be paid by the Borrowers.
5.18 Compliance with Laws. Borrowers, and each of the Resorts in which Intervals are being sold, shall comply with, conform to and obey each and every judgment, law, statute, rule and governmental regulation applicable to it and each indenture, order, instrument, agreement or document to which it is a party or by which it is bound except where the failure to comply would not have a Material Adverse Effect.
5.19 Compliance Documents. Upon request by Lender, Borrowers will provide Lender with copies of all Compliance Documents relating to the sale of any Intervals relating to Pledged Receivables outside of the States of South Carolina, Missouri or Tennessee.
5.20 Real Estate Taxes. Borrowers will pay when due all of the Borrowers' liabilities in respect of real estate taxes relating to the Resorts and the Additional Resorts.
5.21 Omitted.
5.22 Omitted.
5.23 Borrowers' Financial Maintenance Requirement. For as long as any Borrower controls a Resort or Additional Resort, such Borrower shall be obligated to pay the Timeshare Association dues relating to such Resort or Additional Resort and shall provide such monies as are necessary to maintain services for a Resort or an Additional Resort which is equal to or greater than one hundred percent (100%) of such Resort's or Additional Resort's total operating expenses, taxes, utilities and associated reserve fund requirements.
5.24 Year 2000. Borrowers have made an assessment of the microchip and computer-based systems and the software used in their respective businesses and based upon such assessment believe that they will be "Year 2000 Compliant" by January 1, 2000. For purposes of this Section 5.24, "Year 2000 Compliant" means that all software, embedded microchips and other processing capabilities utilized by, and material to the business operations or financial condition of, the respective Borrower 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 the Lender, Borrowers shall provide to Lender such updated information as is requested regarding the status of its effort to become Year 2000 Compliant.
5.25 Authorized Signatory. Any person signing an Advance Request on behalf of such Borrower, as provided in Schedule 3.2 hereof shall have the requisite power and authority to sign the same on behalf of the related Borrower.
5.26 Allonge/Assignment Requirements. The Borrower will attach an Allonge in the form attached hereto as Exhibit E to each Pledged Receivable with respect to Pledged Receivables which take the form of a Note or other instrument secured by a Purchase Money Mortgage or a master assignment with respect to Receivables which take the form of conditional sales contracts (the "Assignment Document"). The signature of the authorized signatory with respect to an Allonge or an Assignment Document may be either an original signature, a signature stamp or a computer generated signature.
5.27 Environmental. So long as the Loan is outstanding, no Hazardous Materials may be used, generated, treated, stored or disposed of by any Person for any purpose upon any Collateral except in material compliance with all applicable Environmental Laws except where the failure to comply would not have a Material Adverse Effect. If the Lender, at any time, has a reasonable basis to believe that Borrowers or any Resort or Additional Resort may be in violation of any Environmental Law, then Borrowers agree, upon request from the Lender to provide the Lender with such reports, certificates, engineering studies or other written material or data as the Lender may require, in its reasonable discretion, so as to satisfy the Lender that Borrowers, any Resort or any Additional Resort are in compliance with all applicable Environmental Laws and that the marketability and value of such Resort or Additional Resort is adequately maintained.
SECTION 6. NEGATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid or Lender is committed to lend hereunder, unless Lender otherwise consents in writing, Borrowers hereby jointly and severally covenant and agree with Lender as follows:
6.1 Consolidation and Merger. Each Borrower will not consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into it or convey all or substantially all of its assets to any person, unless (i) either the respective Borrowers shall be the continuing corporation or the successor corporation or the person which acquires by sale or
conveyance substantially all the assets of the respective Borrowers shall be a corporation organized under the laws of the United States of America or any State thereof and shall expressly assume the due and punctual payment of the Indebtedness hereunder, and the due and punctual performance and observance of all of the covenants and conditions of this Agreement to be performed or observed by the respective Borrowers, by an amendment hereto in form satisfactory to the Lender, and (ii) the respective Borrowers or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
6.2 Restrictions on Transfers. The Borrowers shall not, without obtaining the prior written consent of Lender, which may be granted or withheld in Lender's sole discretion, transfer, sell, pledge, convey, assign or encumber all or any portion of the Collateral except with respect to the sales of Pledged Receivables to the Purchase Facility and Permitted Adverse Claims and Permitted Liens.
6.3 Collateral. The Borrowers shall not take any action (nor permit or consent to the taking of any action) which might reasonably be anticipated to impair the value of the Collateral or any of the rights of Lender in the Collateral. Borrowers shall not (i) except in connection with a so-called "upgrade" or a modification of a Pledged Receivable with no change in financial terms or an exchange contemplated by Section 2.2 hereof, provided the conditions in this Agreement are met, modify or amend any of the Pledged Receivables or the Pledged Receivables Collateral without Lender's prior written consent, or (ii) grant extensions of time for the payment of, compromise for less than the full face value, release in whole or in part any Obligor liable for the payment of, or allow any credit whatsoever except for the cash to be paid upon, any Collateral or any instrument or document representing the Collateral other than in the ordinary course of business in accordance with accepted industry loan servicing standards.
SECTION 7. EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
7.1 Payments. Borrowers shall fail to make any payment of interest on the Indebtedness within five (5) Business Days of the date such payment is due and shall fail to make payments on the principal of the Indebtedness on the date such payment is due.
7.2 Failure to Permit Inspections. Borrowers shall fail to strictly comply with the provisions of Section 5.3 of this Agreement.
7.3 Covenant Defaults. Borrowers shall fail to perform or observe any covenant, agreement or obligation contained in this Agreement or in any of the Loan Documents (other than any covenant or agreement obligating Borrowers to pay the Indebtedness), and such failure shall continue for thirty (30) days after Lender delivers written notice thereof to Borrowers, provided, however, if the failure is incapable of cure within such thirty (30) day period and Borrowers shall
be diligently pursuing a cure, such thirty (30) day cure period shall be extended by an additional period not to exceed sixty (60) days.
7.4 Warranties or Representations. Any representation or other statement made by or on behalf of Borrowers in this Agreement, in any of the Loan Documents or in any instrument furnished in compliance with or in reference to the Loan Documents, shall be false, misleading or incorrect in any material respect as of the date made.
7.5 Bankruptcy. A petition under any Chapter of Title 11 of the United States Code or any similar law or regulation is filed by or against any Borrower, (and in the case of an involuntary petition in bankruptcy, such petition is not discharged within sixty (60) days of its filing), or a custodian, receiver or trustee for any of the Resorts or Additional Resorts is appointed, or any Borrower makes an assignment for the benefit of creditors, or any of them are adjudged insolvent by any state or federal court of competent jurisdiction, or any of them admit their insolvency or inability to pay their debts as they become due or an attachment or execution is levied against any of the Resorts or Additional Resorts.
7.6 Attachment, Judgment, Tax Liens. The issuance, filing or levy against the Borrowers 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.
7.7 Omitted.
7.8 Default by Borrowers in Other Agreements. Any default by a Borrower 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 a Borrower or any Affiliate in the payment of indebtedness for borrowed money owing to Lender under any other agreement) which accelerates or permits the acceleration (after the giving of notice or passage of time, or both) of the maturity of such indebtedness.
7.9 Omitted.
7.10 Tax Liens; ERISA Liens. The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Borrowers, and such lien shall not have been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of Borrowers, and such lien shall not have been released within 30 days.
7.11 Loan Exceeds Maximum Exposure For Five Days. The provisions of
Section 1.7(b) hereof have not been met.
7.12 Validity of Transaction Documents. (a) Any Loan Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable
obligation of Borrowers, (b) Borrowers, or any other party shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any Loan Document or (c) any security interest securing the Indebtedness shall, in whole or in part, cease to be a perfected first priority security interest, except as contemplated by this Agreement.
7.13 Default under the Project Loan. The occurrence and continuance of an Event of Default under the Project Loan Documents.
SECTION 8. REMEDIES
8.1 Remedies Upon Default. Upon the occurrence and during the continuance of an Event of Default, Lender may take any one or more of the following actions, without notice to Borrowers except as expressly stated below or required by applicable law:
(a) Acceleration. Declare by written notice to Borrowers, (except upon the occurrence of any event specified in Section 7.5 above, in which case the Indebtedness shall automatically be accelerated simultaneously with the occurrence of such event) the unpaid balance of the Indebtedness, or any part thereof, immediately due and payable, whereupon the same shall be due and payable.
(b) Termination of Obligation to Advance. Terminate by written notice to Borrowers any commitment of Lender to lend under this Agreement in its entirety, or any portion of any such commitment, to the extent Lender shall deem appropriate.
(c) Judgment. Reduce Lender's claim to judgment, foreclose or otherwise enforce Lender's security interest in all or any part of the Collateral by any available judicial procedure.
(d) Sale of Collateral. Exercise all the rights and remedies of a secured party on default under the Code (whether or not the Code applies to the affected Collateral) including (i) require the Borrowers to, and the Borrowers hereby agree that they will, at their expense and upon request of Lender forthwith, assemble all or part of the Collateral as directed by Lender and make it available to Lender at a place to be designated by Lender which is reasonably convenient to both parties; (ii) enter upon any premises of the Borrowers and take possession of the Collateral; and (iii) sell the Collateral or any part thereof at public or private sale, at any of the Lender's offices or elsewhere, at such time or times, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as Lender may deem commercially reasonable. Borrowers agree that, whether or not notice of sale shall be required by law, ten (10) days notice of the time and place of any sale shall constitute reasonable notification. At any sale of the Collateral, if permitted by law, Lender may bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) for the purchase of the Collateral or any portion thereof for the account of Lender. Subject to compliance by Lender with all applicable laws, Borrowers shall remain jointly and severally liable for any deficiency. Lender shall not be required to proceed against any Collateral but may proceed against the Borrowers directly. To the extent permitted
by law, the Borrowers hereby specifically waive all rights of redemption, stay or appraisal which it has or may have under any law now existing or hereafter enacted.
(e) Omitted.
(f) Exercise of Other Rights. Exercise any and all other rights or remedies afforded by any applicable laws or by the Loan Documents as Lender shall deem appropriate, at law, in equity or otherwise, including the right to bring suit or other proceeding, either for specific performance of any covenant or condition contained in the Loan Documents or in aid of the exercise of any right or remedy granted to Lender in the Loan Documents.
8.2 Application of Collateral; Termination of Agreements. Upon the occurrence and during the continuance of an Event of Default and subject to the conditions provided in Section 2.1 hereof, Lender may apply against the Indebtedness, any other indebtedness to Lender with respect to any Resort, Additional Resort or any Project Indebtedness any and all Collateral in its possession, other than any monies of the Borrowers received in error, any and all balances, credits, deposits, accounts, reserves, indebtedness or other moneys due or owing to Borrowers held by Lender hereunder or under any other financing agreement or otherwise, whether accrued or not.
8.3 Waivers. No waiver by Lender of any Event of Default shall be deemed to be a waiver of any other or subsequent Event of Default. No delay or omission by Lender in exercising any right or remedy under the Loan Documents shall impair such right or remedy or be construed as a waiver thereof or an acquiescence therein, nor shall any single or partial exercise of any such right or remedy preclude other or further exercise thereof, or the exercise of any other right or remedy under the Loan Documents or otherwise. Further, Borrowers waive notice of the occurrence of any Event of Default, presentment and demand for payment, protest, and notice of protest, notice of intention to accelerate, acceleration and nonpayment, and agree that their liability shall not be affected by any renewal or extension in the time of payment of the Indebtedness, or by any release or change in any security for the payment or performance of the Indebtedness, regardless of the number of such renewals, extensions, releases or changes. Borrowers also hereby waive the right to assert any statute of limitations as a bar to the enforcement of the lien created by any of the Loan Documents or to any action brought to enforce the Note or any other obligation secured by the Loan Documents.
8.4 Set Off of Payments. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default, the Lender is hereby authorized by Borrowers at any time or from time to time, with reasonably prompt subsequent notice to Borrowers or to any other Person (any prior or contemporaneous notice being hereby expressly waived) to set off and to appropriate and to apply any and all (A) balances held by the Lender or such holder at any of its offices for the account of Borrowers (regardless of whether such balances are then due to Borrowers), and (B) other property at any time held or owing by the Lender or such holder to or
for the credit or for the account of Borrowers, against and on account of any of the Indebtedness which are not paid when due other than monies of the Borrowers received by Lender in error.
8.5 Cumulative Rights. All rights and remedies available to Lender under the Loan Documents shall be cumulative and in addition to all other rights and remedies granted to Lender at law or in equity, whether or not the Indebtedness is due and payable and whether or not Lender shall have instituted any suit for collection or other action in connection with the Loan Documents.
SECTION 9. CERTAIN RIGHTS AND OBLIGATIONS OF LENDER
9.1 Protection of Collateral. Lender may at any time and from time to time take such actions as Lender deems necessary or appropriate to protect Lender's liens and security interests in and to preserve the Collateral. Borrowers agree to cooperate fully with all of Lender's efforts to preserve the Collateral and Lender's liens and security interests therein.
9.2 Performance by Lender. If Borrowers fail to perform any agreement contained herein, Lender may, but shall not be obligated to, cause the performance of, such agreement, and the expenses of Lender incurred in connection therewith shall be payable by Borrowers pursuant to Section 9.3 below.
9.3 Fees and Expenses. Borrowers agree to promptly pay all reasonable Costs and all such Costs shall be included as additional Indebtedness.
9.4 Release of Security Interest. Upon satisfaction in full of an Obligor's obligations under a Receivable, Lender shall release its security interest in such Obligor's Receivable and, in connection therewith, shall execute such amendments or partial releases to the related Resort Blanket Mortgage as shall be necessary to enable the applicable Borrower to convey an unencumbered deed to the related Interval to such Obligor. Lender's security interest in all other Pledged Receivables shall remain in full force and effect. Lender's obligations under this Section 9.4 shall be unaffected by the pendency of an Event of Default hereunder.
9.5 Notice to Obligor. After the occurrence of and during the continuance of an Event of Default, Borrowers authorize both the Lender and the Custodian (but neither the Lender nor the Custodian shall be obligated) to communicate at any time and from time to time, after a sale of an Interval, with any Obligor or any other Person primarily or secondarily liable under a Pledged Receivable with regard to the lien of Lender thereon and any other matter relating thereto.
9.6 Collection of Receivables. Following the occurrence of and
during the continuance of an Event of Default, Lender shall have the right to
(a) require that all payments due under the Pledged Receivables be paid directly
to Lender or to such party as Lender may designate, and to receive, collect,
hold and apply the same in accordance with the provisions of this Agreement or
to such party as Lender may designate, and (b) take such remedial action
available to it for the enforcement of any defaulted Pledged Receivables including the foreclosure of any Pledged Receivable Collateral securing the payment thereof. Borrowers hereby further irrevocably authorize, direct and empower Lender, after the occurrence and during the continuance of an Event of Default, to collect and receive all checks and drafts evidencing such payments and to endorse such checks or drafts in the name of Borrowers and upon such endorsements, to collect and receive the money therefor.
Upon payment and satisfaction in full of all Indebtedness and subject to Section 2.1 hereof, Lender will, at Borrowers' request and sole expense, give written notice as necessary to redirect payment of the Pledged Receivables as requested by Borrowers.
9.7 Power of Attorney. The Borrowers do hereby irrevocably constitute and appoint Lender as Borrowers' true and lawful agent and attorney-in-fact, with full power of substitution, for Borrowers and in Borrowers' name, place and stead, or otherwise, to (i) attach an Allonge in the form attached hereto as Exhibit E to each Pledged Receivable with respect to Pledged Receivables which take the form of a note or other instrument secured by a Purchase Money Mortgage and (ii) following the occurrence and during the continuance of an Event of Default (a) endorse any checks or drafts payable to Borrowers in the name of Borrowers and in favor of Lender as provided in Section 9.6 above; (b) to demand and receive from time to time any and all property, rights, titles, interests and liens hereby sold, assigned and transferred, or intended so to be, and to give receipts for same; and (c) to institute and prosecute in the name of Borrowers or otherwise, but for the benefit of Lender, any and all proceedings at law, in equity, or otherwise, that Lender may deem proper in order to collect, assert or enforce any claim, right or title, of any kind, in and to the property, rights, titles, interests and liens hereby sold, assigned or transferred, or intended so to be, and to defend and compromise any and all actions, suits or proceedings in respect of any of the said property, rights, titles, interests and liens. Borrowers hereby declare that the appointment made and the powers granted pursuant to this Section are coupled with an interest and are and shall be irrevocable by the Borrowers in any manner, or for any reason, unless and until all obligations of the Borrowers to Lender have been satisfied.
9.8 Indemnification of Lender. Borrowers shall jointly and severally indemnify Lender and hold Lender harmless from and against any and all liabilities, indebtedness, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses, and disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Lender, in any way relating to or arising out of (a) this Agreement and the Loan Documents and/or (b) any of the transactions contemplated therein or thereby (including those in any way relating to or arising out of the violation by Borrowers of any federal or state laws including the Interstate Land Sales Full Disclosure Act or any applicable timeshare acts) other than liabilities, indebtedness, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements which are caused by the Lender's material breach of, or gross negligence or willful misconduct with respect to its actions or inactions under this Agreement or any other Loan Document. Upon receiving knowledge of any suit, claim or demand asserted by a third party that Lender believes is covered by this indemnity, Lender shall give Borrowers notice of the matter and an opportunity to defend it, at Borrowers' sole cost and expense, with legal counsel satisfactory to Lender.
Notwithstanding any defense by Borrowers of any such suit, claim or demand, Lender shall have the right to participate in any material decision affecting the conduct or settlement of any dispute or proceeding for which indemnification may be claimed.
9.9 Lender's Right to Provide Financing. Borrowers hereby covenant with Lender that, from the date hereof until the first to occur of (a) the Maturity Date, (b) the date on which an event occurs which relieves the Purchaser from making purchases under the Asset Purchase Agreement and the Purchaser ceases making purchases thereunder, (c) the acceleration of the Indebtedness following an Event of Default, or (d) the termination of the Lender's commitment under Section 8.1(b) of this Agreement, Lender shall have, and Lender is hereby granted, the right and option, subject to the terms set forth below (the "Funding Option") to provide secured financing for Eligible Receivables (which for this purpose shall obligate the Borrowers, as well as any Affiliate thereof, to disclose to Lender all resorts developed by the Borrowers or any Affiliate thereof in order to provide Lender the opportunity to make a determination whether such resort may be an Additional Resort). Lender shall notify the Borrowers within forty-five (45) days of its receipt of satisfactory information with respect to a resort whether such resort qualifies as an Additional Resort.
The Funding Option may be exercised or not exercised in Lender's sole discretion. If Lender declines to exercise the Funding Option, Lender shall have no further Funding Option with respect to the Receivables; provided, however, Lender shall have no Funding Option with respect to (i) Receivables relating to resorts for which Lender has reviewed and denied financing pursuant to the terms of the Project Loan Agreement, (ii) Receivables from a resort that does not qualify as an Additional Resort after Lender has reviewed such resort in accordance with the preceding paragraph or (iii) Receivables associated with the Club after the date on which Lender has reviewed and rejected the Club and associated Receivables. Lender's decision to decline to exercise the Funding Option shall be deemed to be a decision to decline to exercise the Purchase Option (as defined in the Purchase Facility) under the Purchase Facility. Notwithstanding anything contained herein to the contrary, it is expressly agreed and understood that any financing to be extended pursuant to the Funding Option shall be subject to approval by Lender's loan committees in accordance with Lender's standard credit guidelines and it is further expressly understood and agreed that Lender is under no obligation to exercise the Funding Option and that nothing in this Section 9.9 shall be deemed or construed to create any such obligation.
SECTION 10. PARTICIPATION AND ASSIGNMENTS
10.1 Participations in Loan and Assignments in Loan.
(a) Lender may sell Participations in all or any part of Advances made hereunder to another Person; provided, that such Person is not a competitor of the Borrowers as determined by the Borrowers in their reasonable discretion all amounts payable by Borrowers hereunder shall be determined as if that Lender had not sold such participation. Borrowers hereby acknowledges and agree that the participant under each participation shall for purposes of subsection 1.9, 1.10, 1.11 and 9.8 be considered to be a "Lender".
(b) Lender shall have the right to assign all or any portion of its rights in this Agreement and the Loan hereunder to an Eligible Assignee; provided that Lender and its Affiliates agree to retain 30% of the Advances hereunder at all times, and provided that there shall not be more than five (5) Eligible Assignees at any time. Any Eligible Assignee may assign its rights and delegate its obligations under this Agreement to any other Eligible Assignee; provided that such assigning Eligible Assignee shall first obtain the written consent of Lender. In all events Heller Financial, Inc. shall be the agent for the Loan hereunder.
(c) Except as otherwise provided in this Section 10.1 the Lender shall not, as between Borrowers and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loan or other Indebtedness owed to the Lender.
(d) Lender agrees to take and to 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 the Borrowers and neither Lender nor any of its Affiliates shall use any such information other than in connection with or in enforcement of this Agreement and the other Loan Documents or in connection with other business now or hereafter existing or contemplated with the Borrowers; except to the extent such information (i) was or becomes generally available to the public other than as a result of disclosure by Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Borrowers, provided that such source is not bound by a confidentiality agreement with the Borrowers known to the Lender; provided, however, that the Lender may disclose such information (A) at the request or pursuant to any request of a regulatory authority of which Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable requirement of law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Lender or any Affiliates may be party in connection with the transactions contemplated by this Agreement; (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document; (F) to the Lender's independent auditors and other professional advisors; (G) 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; (H) as to the Lender or its Affiliate, as expressly permitted under the terms of any other document or agreement regarding confidentiality to which the Borrower is party or is deemed party with the
Lender as its Affiliates; and (I) to its Affiliates provided such Affiliates agree in writing to be bound by the confidentiality provisions hereof.
SECTION 11. MISCELLANEOUS
11.1 Notice. 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 U.S. Mail 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 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 U.S. Mail, certified or registered mail, return receipt requested on the fourth (4th) day after deposit in the mail postage prepaid.
Notices to Borrowers: Bluegreen Corporation
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Patrick E. Rondeau, Esq.
Telephone No.: (561) 912-8005
Telecopy: (561) 912-8100
Bluegreen Vacations Unlimited, Inc.
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Patrick E. Rondeau, Esq.
Telephone No.: (561) 912-8005
Telecopy: (561) 912-8100
Notices to Lender: Heller Financial, Inc.
Attn: Portfolio Manager, Vacation Ownership
HSF Loan No. 98-087
500 West Monroe St., 31st Fl.
Chicago, Illinois 60661
Telecopy: (312) 441-7924
With a copy to: Heller Financial, Inc.
Vacation Ownership Finance
Attn: Legal Department - Relationship Manager
HSF Loan No. 98-087
500 West Monroe St., 31st Fl.
Chicago, Illinois 60661
Telecopy: (312) 441-7924
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11.2 Survival. All representations, warranties, covenants and agreements made by Borrowers herein, in the other Loan Documents or in any other agreement, document, instrument
or certificate delivered by or on behalf of Borrowers under or pursuant to the Loan Documents shall be considered to have been relied upon by Lender and shall survive the delivery to Lender of such Loan Documents and the extension of the Indebtedness (and each part thereof), regardless of any investigation made by or on behalf of Lender.
11.3 Governing Law. This Agreement shall be governed by and shall be construed and enforced in accordance with the internal laws of the State of Illinois, (without regard to conflicts of law principles) and applicable laws of the United States.
11.4 Invalid Provisions. If any provision of this Agreement or any of the other Loan Documents is held to be illegal, invalid or unenforceable under present or future laws effective during the term thereof, such provision shall be fully severable, this Agreement and the other Loan Documents shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof or thereof, and the remaining provisions hereof or thereof shall remain in full force and effect.
11.5 Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signature thereto and hereto were on the same instrument. This Agreement shall become effective upon Lender's receipt of one or more counterparts hereof signed by Borrowers and Lender.
11.6 Lender Not Fiduciary. The relationship between Borrowers and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrowers, and no term or provision of any of the Loan Documents shall be construed so as to deem the relationship between Borrowers and Lender to be other than that of debtor and creditor.
11.7 Entire Agreement. This Agreement, including the Exhibits, Schedules and other Loan Documents and agreements referred to herein embody the entire agreement between the parties hereto, supersedes all prior agreements and understandings between the parties whether written or oral relating to the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties. There are no oral agreements among Lender or Borrowers. This Agreement may be modified or changed only in a writing executed by both Lender and Borrowers and/or the other affected parties.
11.8 Consent to Advertising and Publicity. Lender may issue and disseminate to the public information describing the credit accommodation entered into pursuant to this Agreement; provided the Borrowers shall have approved the description of such credit accommodation which approval shall not be unreasonably withheld.
11.9 [Omitted]
11.10 Headings. Section headings have been inserted in the Agreement as a matter of convenience of reference only; such section headings are not a part of the Agreement and shall not be used in the interpretation of this Agreement.
11.11 Broker's Fees. There are no brokers, finders' or other similar fees or commitments due with respect to the transactions described in the Agreement. Borrowers shall defend Lender and save and hold it harmless from all claims of any Persons for any such fees which indemnity shall include reasonable attorneys' fees and legal expenses.
11.12 Venue. BORROWERS HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF COOK STATE OF ILLINOIS. BORROWERS EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. BORROWERS HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON BORROWERS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO BORROWERS, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
11.13 Jury Trial Waiver. BORROWERS 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 AND THE OTHER LOAN DOCUMENTS. BORROWERS 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 THE OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWERS 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.
The parties hereto have executed this Agreement or has caused the same to be executed by their duly authorized representatives as of the date first above written.
BORROWERS:
BLUEGREEN CORPORATION
BLUEGREEN VACATIONS UNLIMITED, INC.
LENDER:
HELLER FINANCIAL, INC.
APPENDIX
Defined Terms
The following terms used in this Agreement shall have the following meanings:
Additional Borrowers. Such other Subsidiaries and/or Affiliates of the Borrowers which may own a Resort or an Additional Resort and become a "Borrower" hereunder with the approval of Lender.
Additional Resorts. Those certain timeshare vacation resorts which the Lender may approve in the future which Intervals may be financed hereunder, which approval shall be in the Lender's reasonable discretion.
Advance. Proceeds of the Loan advanced from time to time by Lender to Borrowers in accordance with this Agreement.
Adverse Claim. A Lien, security interest, pledge, charge or encumbrance, or similar right or claim of any Person.
Affected Party. The Lender and any permitted assignee of Lender including any person who purchases a Loan participation or an assignment of the Loan pursuant to Section 10 hereof, an Eligible Assignee, the holding company of any such Person and any successor holding company thereof; provided, however, in no event shall Heller Financial, Inc. or its Affiliates be an "Affected Party."
Affiliate. Any individual, trust, estate, partnership, limited liability company, corporation or any other incorporated or unincorporated organization (each, a "Person") that directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with Borrowers; any officer, director or partner of Borrowers; 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, whether through the ownership of voting securities, by contract or otherwise.
Assignment. The Assignment of Pledged Receivables and Pledged Receivables Collateral in the form set forth on Exhibit B of this Agreement.
Availability. At all times during the term of this Agreement, the lesser of (i) $35,000,000 minus outstanding Advances, or (ii) an amount equal to 95% of the principal balance of Pledged Receivables; provided, that notwithstanding anything to the contrary contained herein the amounts advanced against Pledged Receivables (i) relating to Eligible Uncompleted Unit Receivables shall not at any time represent in the aggregate more than the lesser of $5,000,000.00 or 30% of the aggregate principal amount of all Advances outstanding under this Agreement and (ii) relating to Managed Resorts shall not at any time represent in the aggregate more than $5,000,000 of the aggregate principal amount of all Advances outstanding under this Agreement.
After the Maturity Date or at the option of Lender in accordance with Section 8.10, after the occurrence and during the continuance of an Event of Default hereunder, Availability shall be zero ($0).
Board. Board of Governors of the Federal Reserve System.
Business Day. Any day which is not a Saturday or Sunday or a legal holiday under the laws of the State of Illinois, the Commonwealth of Pennsylvania, the State of Florida or the United States and which is a London Banking Day.
Capital Lease. At any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
Capitalized Lease Obligations. With respect to any Person, all outstanding obligations of such Person in respect of all Capital Leases, taken at the capitalized amount thereof accounted for as indebtedness in accordance with GAAP.
Club. The RDI Club formed pursuant to the RDI Vacation Club Trust Agreement dated the 2nd day of August, 1995 by and among RDI Resources, Inc., Vacation Trust, Inc. and the beneficiaries named therein, as amended from time to time as well as such other clubs as the Lender shall approve.
Club Collateral. With respect to the Club, and to the extent owned by a Borrower, the reservation systems and related computer software and hardware.
Code. The Uniform Commercial Code as adopted and in force in the State of Illinois as the same may be amended from time to time.
Collateral. Has the meaning assigned in Section 2.1.
Completed Units. A Unit at a Resort or Additional Resort which has been fully constructed and furnished, has received a valid permanent certificate of occupancy, is ready for occupancy and is subject to a Time Share Declaration.
Compliance Documents. With respect to sales of Intervals in any state or jurisdiction: (i) evidence satisfactory to Lender that the governmental authority of such state or jurisdiction having jurisdiction over sales of timeshare intervals has issued all required approvals of Borrowers' offering materials, sales and financing documents and sales practices, and (ii) copies of Borrowers' offering materials, sales and financing documents as approved by such state.
Consolidated Fixed Charge. The sum for Bluegreen Corporation and its subsidiaries, determined on a consolidated basis in accordance with GAAP, of all amounts which would be deducted in computing Consolidated Net Income on account of interest on indebtedness (including imputed interest in respect of Capitalized Lease Obligations and amortization of debt discount and expenses).
Consolidated Net Income. The net income of Bluegreen Corporation and its subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, excluding:
(i) the proceeds of any life insurance policy,
(ii) any gains arising from (a) the sale or other disposition of any assets (other than land, timeshare intervals, current assets and other receivables sold in the ordinary course of business, including without limitation under the Purchase Facility, to the extent that the aggregate amount of the gains during such period exceeds the aggregate amount of the losses during such period from the sale, abandonment or other disposition of assets (other than current assets and other receivables sold in the ordinary course of business), (b) any write-up of assets or (c) the acquisition of outstanding securities of Bluegreen Corporation or any subsidiary,
(iii) any amount representing any interest in the undistributed earnings of any other person (other than a subsidiary),
(iv) any earnings, prior to the date of acquisition, of any person acquired in any manner, and any earnings of any subsidiary acquired prior to its becoming a subsidiary,
(v) any earnings of a successor to or transferee of the assets of Bluegreen Corporation prior to its becoming such successor or transferee,
(vi) any deferred credit (or amortization of a deferred credit) arising from the acquisition of any person, and
(vii) any extraordinary gains not covered by clause (ii) above.
Consolidated Net Worth. On a consolidated basis for Bluegreen Corporation and its subsidiaries, at any date, (i) the sum of (a) capital stock taken at par or stated value plus (b) capital in excess of par or stated value relating to capital stock plus (c) retained earnings (or minus any retained earning deficit) minus (ii) the sum of treasury stock, capital stock subscribed for and unissued and other contra-equity accounts, all determined in accordance with GAAP.
Costs. All expenditures and expenses which may be paid or incurred by or on behalf of Lender in connection with the documentation, modification, workout, collection or enforcement of the Loan or any of the Loan Documents. Notwithstanding the foregoing, Costs payable on the date of the initial Advance shall be limited to (i) the fees and costs of Lender's attorneys in connection with the documentation of the Loan and the due diligence review of Borrowers' deliveries; (ii) the costs of the Back-up Servicer, if applicable; and (iii) all applicable title, filing and recording fees and other closing costs. During the term of the Loan, Costs payable by Borrowers shall include: payments to remove or protect against liens; attorneys' fees; receivers'
fees; engineers' fees; accountants' fees; independent consultants' fees (including environmental consultants); fees of the Custodian, the Servicer and the Back-up Servicer; all costs and expenses incurred in connection with any of the foregoing; outlays for documentary and expert evidence; stenographers' charges; stamp taxes; publication costs; and costs (which may be estimates as to items to be expended after entry of an order or judgment) for procuring all such abstracts of title, title and UCC searches, and examination, title insurance policies, and similar data and assurances with respect to title as Lender may deem reasonably necessary either to prosecute any action or to evidence to bidders at any foreclosure sale a true condition of the title to, or the value of, the Collateral.
Credit Policy. Bluegreen's Credit Scoring Matrix dated July 7, 1997 and the collection policies with respect to the Receivables and the Receivables Collateral, which policies may not be amended or supplemented without the Lender's written approval, which shall not be unreasonably withheld.
Custodial Agreement. An agency and custodial agreement; in such form as shall be reasonably satisfactory to both the Lender and the Borrowers which Agreement shall be by and among Borrowers, Lender and Custodian providing for the maintenance of the Receivables File relating to the Pledged Receivables.
Custodian. Norwest Bank Minnesota, N.A. or such other Person designated by Lender and approved by Borrowers to maintain physical possession of the Pledged Receivables and the Pledged Receivables Collateral.
Declaration. With respect to each Resort, the Condominium Declaration set forth on Exhibit H.
Deed of Trust. An instrument by which legal title to an Interval is placed in one or more trustees to secure an Obligor's payment performance with respect to a Pledged Receivable.
Default Rate. A per annum rate of interest equal to the Interest Rate plus two percent (2%).
Determination Date. The last day of each Fiscal Month.
Due Period. Each period consisting of a Fiscal Month.
EBITDA. Consolidated Net Income plus all amounts deducted in the computation of Consolidated Net Income on account of (i) Consolidated Fixed Charges, (ii) depreciation and amortization expenses and other non-cash charges and (iii) income and profits taxes; provided, however, with respect to Bluegreen Corporation's 1999 Fiscal Year (ending March 28, 1999) the approximately $3,000,000 associated with prepayments penalties associated with its $110,000,000 Rule 144A debt offering shall be added back into income.
Eligible Assignee. Any of (a) a commercial bank organized under the laws of the United States, or any state thereof or the District of Columbia, and having total assets in excess of
$1,000,000,000; (b) a savings and loan association or savings bank organized under the laws of the United States, or any state thereof or the District of Columbia, and having a net worth of at least $100,000,000, calculated in accordance with GAAP; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the "OECD"), or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD; and (d) the central bank of any country which is a member of the OECD.
Eligible Completed Unit Receivable. A Receivable which satisfies all of the following criteria:
(a) payments due under the Receivable shall be self-amortizing and payable in monthly installments;
(b) the weighted average term to maturity of all Receivables financed hereunder from the date when such receivable is pledged to Lender as Collateral pursuant to this Agreement is at least thirty-six (36) months at the time the Receivable is pledged hereunder;
(c) as of the date of Funding, the Obligor thereunder has made a cash down payment of at least 10% percent of the actual purchase price of the Interval (which cash down payment may be represented by the principal payments on such Receivable since its date of origination) and no part of such payment has been made or loaned to Obligor by Borrowers or an Affiliate thereof;
(d) the weighted average interest rate of all Receivables financed under this Agreement is not less than 13.90% per annum at the time and inclusive of the Receivable to be financed hereunder;
(e) no principal or interest with respect to the receivable is more than thirty (30) days past due on a contractual basis at the time of Lender's Advance against such Receivable hereunder, nor becomes more than sixty (60) days past due;
(f) the Obligor is not an Affiliate of the Borrowers; provided that an Obligor may be related to or employed by the Borrowers if such Receivables do not, in the aggregate, exceed $1,000,000, but only if such Obligor purchases the Interval on no less than the same terms and conditions offered to any non-Affiliate purchaser; provided that solely for the purposes of this clause (f) a relative of an employee of the Borrowers (or any of their Affiliates) shall not be deemed to be an "Affiliate";
(g) the Receivable is free and clear of adverse claims, liens and encumbrances and is not currently, subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset or counterclaim;
(h) if the Receivable is evidenced by a promissory note separate from the conditional sales contract, the Receivable is secured directly by a first priority Purchase Money Mortgage or Deed of Trust on the purchased Interval;
(i) if the Purchase Money Mortgage secures a Pledged Receivable, the title to the Interval is insured under a mortgagee title insurance policy in form and substance acceptable to Lender;
(j) no Receivable hereunder shall be in excess of $25,000 and no Obligor shall be the payor of aggregate Receivables herein and in the Purchase Facility in excess of $50,000;
(k) payments with respect to the Receivable are to be in legal tender of the United States;
(l) at least 90% of the aggregate outstanding principal balance of all Receivables arise from Obligors who are either residents of the U.S. or Canada at the time the Pledged Receivable is financed hereunder;
(m) all monthly payments on the Receivable have been made by the Obligor and not by Borrowers or any Affiliate of Borrowers on the Obligor's behalf;
(n) the Receivable relates to a Resort or any Additional Resort;
(o) the Receivable constitutes either "chattel paper", a "general intangible" or an "instrument" as defined in the Code as in effect in all applicable jurisdictions;
(p) the assignment of the Receivable and the Receivables Collateral does not contravene or conflict with any law, rule or regulation or any contractual or other restriction, limitation or encumbrance, and the sale or assignment of the Receivable and Receivable Collateral does not require the consent of the Obligor;
(q) the Receivable and Receivables Collateral is in full force and effect, constitutes the legal, valid and binding obligation of the Obligor thereof enforceable against such Obligor in accordance with its terms subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, assignment, liquidation,
conservatorship and moratorium laws, is not, to the Borrowers' actual knowledge, subject to any dispute, offset, counterclaim, defense or assignment whatsoever;
(r) the Receivable relates to a Completed Unit and the Receivables Collateral does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, retail installment sales, truth in lending, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party thereto is in violation of any such law, rule or regulation in any material respect if such violation would impair the collectibility of such Receivable and Receivable Collateral;
(s) the Receivable and Receivable Collateral satisfies all applicable requirements of the Credit Policy and was acquired by Borrowers in compliance with the underwriting guidelines set forth therein and has not been modified in any respect due to the deteriorative credit quality of the Obligor;
(t) as to which to the Seller's knowledge (i) no bankruptcy is currently existing with respect to the Obligor and (ii) as to which the Obligor is not insolvent;
(u) the Receivable shall not have an initial term to maturity of more than 120 months;
(v) the Receivable has not been pledged as Collateral under this Agreement for more than one year except Receivables in respect of an Interval at Christmas Mountain Campground, The Timbers at Christmas Mountain and The Villas at Christmas Mountain;
(w) the Receivable shall not have a contractual interest rate less than 12.90% per annum;
(x) if a Resort is subject to a construction loan, the construction lender shall have signed and delivered a non-disturbance agreement (which may be contained in such lender's mortgage) pursuant to which such construction lender agrees not to foreclose on any Intervals relating to Pledged Receivables; and
(y) the Receivable shall meet the Minimum Credit Scoring Standard.
Eligible Receivable. Shall mean Eligible Completed Unit Receivables and Eligible Uncompleted Unit Receivables.
Eligible Uncompleted Unit Receivable. A Receivable in respect of an Interval in and to an Uncompleted Unit at a Resort which satisfies all of the following criteria:
(a) payments due under the Receivable (after the Receivable shall have been released from any document or Payment Escrow in respect thereof) shall be self-amortizing and payable in monthly installments;
(b) the weighted average term to maturity of all Receivables financed hereunder from the date when such receivable is pledged to Lender as Collateral pursuant to this Agreement is at least thirty-six (36) months at the time the Receivable is pledged hereunder;
(c) as of the date of Funding, the Obligor thereunder has made a cash down payment (in the Payment Escrow if required by applicable law) of at least ten (10%) percent of the actual purchase price of the Interval (which cash down payment may be represented by the principal payments on such Receivable since its date of origination) and no part of such payment has been made or loaned to Obligor by Borrowers or an Affiliate thereof;
(d) the weighted average interest rate of all Receivables financed under this Agreement is not less than 13.90% per annum at the time and inclusive of the Receivable to be financed hereunder;
(e) no installment with respect to the Receivable (after the Receivable shall have been released from any document or Payment Escrow in respect thereof) is more than thirty (30) days past due on a contractual basis at the time of such release nor becomes more than sixty (60) days past due;
(f) the Obligor is not an Affiliate of the Borrowers; provided that an Obligor may be related to or employed by the Borrowers if such Receivables do not, in the aggregate, exceed $1,000,000, but only if such Obligor purchases the Interval on no less than the same terms and conditions offered to any non-Affiliate purchaser; provided that solely for the purposes of this clause (f), a relative of an employee of the Borrowers (or any of their Affiliates) shall not be deemed to be an "Affiliate".
(g) the Receivable (after the Receivable shall have been released from any document or Payment Escrow in respect thereof) is free and clear of adverse claims, liens and encumbrances and is not currently, nor shall it (after such release) be potentially in the future, subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset or counterclaim;
(h) if the Receivable is evidenced by a promissory note separate from the conditional sales contract, the Receivable (after the Pledged Receivable shall have been released from any document or Payment Escrow in respect thereof) is secured directly by a first priority Purchase Money Mortgage or Deed of Trust on the purchased Interval;
(i) if the Purchase Money Mortgage secures a Receivable, the title to the Interval is insured under a mortgagee title insurance policy in form and substance acceptable to Lender;
(j) no Receivable hereunder shall be in excess of $25,000 and no Obligor shall be the payor of aggregate Pledged Receivables herein and in the Purchase Facility in excess of $50,000;
(k) payments with respect to the Pledged Receivable are to be in legal tender of the United States;
(l) at least 90% of the aggregate outstanding principal balance of all Receivables arise from Obligors who are either residents of the U.S. or Canada at the time the Receivable is financed hereunder;
(m) all monthly payments on the Receivable (including, without limitation, any payments held in the Payment Escrow) have been made by the Obligor and not by Borrowers or any Affiliate of Borrowers on the Obligor's behalf;
(n) the Receivable constitutes either "chattel paper", a "general intangible" or an "instrument" as defined in the Code as in effect in all applicable jurisdictions;
(o) the Assignment of the Receivable and the Receivables Collateral does not contravene or conflict with any law, rule or regulation or any contractual or other restriction, limitation or encumbrance, and the Assignment of the Receivable and Receivable Collateral does not require the consent of the Obligor, provided that any such Assignment shall be subject to the terms of any document or Payment Escrow in respect of such Receivable;
(p) the Receivable and Receivables Collateral after the Receivable shall have been released from any document or Payment Escrow in respect thereof is in full force and effect, constitutes the legal, valid and binding obligation of the Obligor thereof enforceable against such Obligor in accordance with its terms subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, assignment, liquidation, conservatorship and
moratorium laws, is after the Receivable shall have been released from any document or Payment Escrow in respect thereof is not to the Borrowers' actual knowledge, subject to any dispute, offset, counterclaim, defense or assignment whatsoever;
(q) the Receivable relates to an Uncompleted Unit at a Resort and the Receivable and Receivables Collateral does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, retail installment sales, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party thereto is in violation of any such law, rule or regulation in any material respect if such violation would impair the collectibility of such Receivable and Receivable Collateral;
(r) the Receivable and Receivable Collateral satisfies all applicable requirements of the Credit Policy and was acquired by Borrowers in compliance with the underwriting guidelines set forth therein and has not been modified in any respect due to the deteriorative credit quality of the Obligor or otherwise;
(s) as to which to the Seller's knowledge (i) no bankruptcy is currently existing with respect to the Obligor and (ii) as to which the Obligor is not insolvent;
(t) the Receivable shall not have an initial term to maturity of more than 120 months;
(u) the Receivable has not been pledged under this Agreement for more than one year except Receivables in respect of an Interval at Christmas Mountain Campground, The Timbers at Christmas Mountain and The Villas at Christmas Mountain;
(v) the Receivable shall not have a contractual interest rate less than 12.90% per annum;
(w) a valid permanent certificate of occupancy in respect of the Uncompleted Unit related to the Receivable shall have been issued within 365 days of the date on which such Receivable was initially pledged to Lender under this Agreement;
(x) at the time of the initial pledge of the Receivable to Lender under this Agreement, the construction of the Resort in which the Uncompleted Unit related to such Receivable is located shall have commenced, all permits and licensing in respect of such construction shall have been obtained
(including, without limitation, all construction permits, all zoning, density, accommodation and design approvals, all subdivision approvals, all utility approvals and all pre-sale marketing approvals and registrations) and all acquisition and construction financing, if any, shall have been obtained, shall be available and in place and shall be sufficient to acquire and fully construct and furnish the Resort and all amenities in respect thereof.
If at any time during which a Receivable shall be held in document or Payment Escrow such Receivable would, in the opinion of the Lender and without giving effect to such Payment Escrow, be subject to any Adverse Claims, liens or encumbrances, be subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset or counterclaim, not be in full force and effect, not constitute the legal, valid and binding obligation of the Obligor thereunder, be subject to any dispute, offset, counterclaim or defense whatsoever, contravene in any material respect any laws, rules or regulations applicable thereto so as to materially impair the collectibility of such Pledged Receivable, such Pledged Receivable shall be deemed not to have satisfied this definition of "Eligible Uncompleted Unit Receivable."
After the Receivable shall have been released from any document or Payment Escrow in respect thereof and as soon as such Receivable satisfies the requirements of an "Eligible Competed Unit Receivable" and Borrowers certify the same in writing to Lender, such Pledged Receivable shall no longer be considered an "Eligible Uncompleted Unit Receivable."; and
(y) the Receivable shall meet the Minimum Credit Scoring Standard.
Environmental Laws. Means and includes the following as now in effect or hereafter amended: the Comprehensive Environmental Response Compensation and Liability Act, ("CERCLA"), 42 U.S.C. ss.9601 et. seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss.6901 et. seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. ss.2601, et. seq.; the Clean Air Act, 42 U.S.C. ss.7401 et. seq.; the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. ss.1251 et. seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. ss.11001 et. seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et. seq.; the Atomic Energy Act, 42 U.S.C. ss.2011 et. seq.; the Safe Drinking Water Act, 42 U.S.C. ss.300f et. seq. and the state law equivalents; any so-called "Superfund" or "Superlien" law; and any statute, ordinance, code, rule, regulation, order, decree or requirement under international, federal, state, regional, provincial or local law (including, without limitation, administrative orders and consent decrees) in effect and as amended regulating, relating to or imposing liability or standards of conduct concerning public health and safety, protection of the environment, or any pollutant or contaminant or hazardous, toxic or dangerous substance, waste, chemical or material, as now or any time hereafter may be existing.
Event of Bankruptcy. A petition under any Chapter of Title 11 of the United States Code or any similar law or regulation is filed by or against an Obligor (and in the case of an involuntary petition in bankruptcy, such petition is not discharged within sixty (60) days of its filing), or a custodian, receiver or trustee for an Obligor is appointed, or an obligor makes an assignment for the benefit of creditors, or obligor is adjudged insolvent by any state or federal court of competent jurisdiction, or Obligor admits its insolvency or inability to pay its debts as they become due or an attachment or execution is levied against the Unit by a creditor of an Obligor.
Event of Default. Has the meaning set forth in Section 8.1 of this Agreement.
Fiscal Month. With respect to any Fiscal Year, the monthly fiscal periods utilized by the Borrowers as of the date hereof which may not be modified without the Lender's written consent, which consent will not be unreasonably withheld.
Fiscal Quarter. With respect to any Fiscal Year, the quarterly fiscal periods utilized by the Borrowers as of the date hereof which may not be modified without the Lender's written consent, which consent will not be unreasonably withheld.
Fiscal Year. The annual fiscal periods utilized by the Borrowers as of the date hereof which may not be modified without the Lender's written consent, which consent will not be unreasonably withheld.
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.
Guaranty. With respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
Hazardous Materials. Means the following: hazardous substances; hazardous wastes; polychlorinated biphenyls ("PCB's") or any substance or compound containing PCB's; asbestos or any asbestos-containing materials in any form or condition; radon; any other radioactive materials including any source, special nuclear or by-product material; petroleum, crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute); and any other pollutant or contaminant or hazardous, toxic or dangerous chemicals, materials or substances, as all such terms are defined by Environmental Laws.
Indebtedness. All payment obligations of Borrowers to Lender under the Loan Documents.
Insurance Proceeds. Proceeds, paid by any insurer pursuant to any insurance policy covering a Unit, Receivable or Receivables Collateral.
Intangible Asset. A nonphysical, noncurrent right that gives Bluegreen or any of its subsidiaries an exclusive or preferred position in the marketplace including but not limited to a copyright, patent, trademark, goodwill, organization costs, capitalized advertising cost, computer programs, licenses for any of the preceding, government licenses (e.g., broadcasting or the right to sell liquor), leases, franchises, mailing lists, exploration permits, import and export permits, construction permits, and marketing quotas.
Interest Rate. A floating rate per annum equal to the Base Rate plus
2.75% (the aggregate rate referred to as the "Interest Rate"). "Base Rate" shall
mean the rate published each business day in The Wall Street Journal for
deposits maturing ninety (90) days after issuance under the caption "Money
Rates, London Interbank Offered Rates (LIBOR)" as the same may be adjusted by
the Statutory Reserve Rate. The Interest Rate for each Fiscal Month shall be
fixed based upon the Interest Rate published prior to and in effect on the first
(1st) Business Day of such Fiscal 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 or Additional Resort, (i) an undivided fee simple ownership interest as a tenant in common or (ii) with respect to Christmas Mountain
Campground, The Timbers at Christmas Mountain, The Villas at Christmas Mountain, an undivided fee simple ownership interest as a tenant in common and the applicable Resort Interest, in either case, with respect to any Unit in such Resort or Additional Resort, with a right to use such Unit, or a Unit of such type, generally for one week annually, together with all appurtenant rights and interests as more particularly described in the Timeshare Documents.
Lien. With respect to any Collateral, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
Loan. The Thirty-five Million Dollar ($35,000,000) credit facility described in this Agreement.
Loan Documents. Collectively, this Agreement, the Note, the Servicing Agreement, the Structuring Fee Letter, the Resort Blanket Mortgages and any and all other agreements, documents, instruments and certificates delivered or contemplated to be delivered in connection with this Agreement, as such may be amended, renewed, extended, restated or supplemented from time to time.
Lockbox Bank. Such banking institution selected by Borrowers and approved by Lender to act as the depositary of payments on the Pledged Receivables and the Pledged Receivables Collateral under the Lockbox Agreement.
Lockbox Agreement. An agreement among Bluegreen Corporation, Lender and Lockbox Bank providing for the receipt by Lockbox Bank of payments on the Pledged Receivables and the Pledged Receivables Collateral and disbursement of such payments to Lender.
London Banking Day. Any day on which dealings in deposits in U.S. Dollars are transacted in the London interbank market.
Managed Resorts. Those certain timeshare vacation resorts commonly known as Landmark Holiday Beach Resort, Ocean Towers Beach Club, Panama City Resort and Club, Surfrider Beach Club, Tropical Sands Resort, Resort Sixty Six, Via Roma Beach Resort, Orlando's Sunshine Resort, Gulfstream Manor, Dolphin Beach Club, Fantasy Island Resort II, Outrigger Beach Club, Petit Crest Resort, and any other Resort approved in writing by the Lender.
Mandatory Prepayment. Any prepayment required by Section 1.7(b) of this Agreement.
Material Adverse Effect. With respect to any event or circumstance, a material adverse effect on:
(a) the business, assets, financial condition or operations of Borrowers and their respective subsidiaries, taken as a whole;
(b) the ability of Borrowers or its direct or indirect subsidiaries to perform their respective obligations under this Agreement or any other Loan Document;
(c) the validity, enforceability or collectibility against Borrowers of this Agreement or the other Loan Documents;
(d) the status, existence, perfection or priority of (i) the Lender's security interest in the Collateral, or (ii) Borrowers' ownership interest in the Pledged Receivables or Pledged Receivables Collateral; or
(e) the validity, enforceability or collectibility of the Pledged Receivables or Pledged Receivables Collateral.
Maturity Date. June 26, 2000.
Maximum Exposure. The lesser of (a) $35,000,000, or (b) ninety-five percent (95%) of the outstanding principal balance of all Pledged Receivables; provided, however, notwithstanding anything to the contrary contained herein the outstanding principal amount of Advances made (i) with respect to Eligible Uncompleted Unit Receivables shall not in the aggregate represent more than the lesser of $5,000,000 or thirty percent (30%) of the aggregate principal amount of Advances outstanding hereunder, and (ii) relating to Managed Resorts shall not at any time represent in the aggregate more than $5,000,000 of the aggregate principal amount of all Advances outstanding under this Agreement and, in each such case, any such excess shall require a prepayment of the Loan or the pledge of Eligible Receivables consistent with Section 1.7(b) hereof.
Minimum Credit Scoring Standard. The Receivable does not have a "20," "25" or "99" designation under the Credit Policy provided that no more than thirty percent (30%) of the Receivables shall have a designation of "10." Notwithstanding the preceding sentence, any Receivable shall satisfy the Minimum Credit Scoring Standard if the Obligor relating to such Receivable has made the aggregate required payments over the most recent twelve (12) months with respect to the Receivable.
Monthly Reports. The monthly reports required pursuant to Section 5.4(a) of this Agreement.
Note. The promissory note evidencing the Loan executed and delivered by Borrowers to Lender concurrently herewith and attached hereto as Exhibit A.
Obligor. Any Person who purchases one or more Intervals and finances the purchase of the same.
Payment Date. Wednesday of each week; provided, however, in the event such date is not a Business Day the next succeeding Business Day.
Payment Escrow. An escrow into which payments made by an Obligor under an Eligible Uncompleted Unit Receivable are required to be made pursuant to applicable state law.
Permitted Adverse Claims means (a) any Adverse Claim created under any
Loan Document; (b) any Adverse Claim for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without penalty,
provided that no notice of Adverse Claim has been filed or recorded under the
Code of any of the states wherein the Resorts or Additional Resorts are located;
(c) carriers, warehousemen's, mechanics', landlords', materialmen's, repairmen's
or other similar Adverse Claims arising in the ordinary course of business which
are not delinquent or remain payable without penalty; and (d) Permitted Liens.
Permitted Liens. Each of the liens listed on Exhibit H attached hereto.
Person. Natural persons, corporations, limited partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof.
Pledged Receivables. At any date of determination, (i) all Eligible Receivables against which Lender shall have made an Advance which remains outstanding as of such date, and (ii) all Receivables which are no longer Eligible Receivables and for which a mandatory prepayment under Section 1.7(b)(i) is required and has not occurred; provided, however, in no event shall the Receivables described in this clause (ii) be utilized in the definition of "Availability" or in the definition of "Maximum Exposure" in which case the references to "Pledged Receivable" therein shall be only to Eligible Receivables.
Pledged Receivables Collateral. Receivables Collateral relating to Pledged Receivables.
Preferred Stock. Shall mean stock that takes priority over common stock in regard to the payment of dividends.
Project Indebtedness. All payment obligations of Borrowers under or in respect of any of the Project Loan Documents.
Project Loan. The Loan which may be made by Lender pursuant to the Project Loan Agreement by and between Lender and Borrowers.
Project Loan Agreement. The Agreement by and between Lender and Borrowers pursuant to which the Project Loan may be made.
Project Loan Collateral. Each of the Project Loan Mortgages associated with the Project Loans.
Project Loan Mortgages. The mortgages and deeds of trust made by Borrowers for the benefit of Lender required pursuant to the Project Loan Agreement.
Purchase Documents. Any purchase agreement and related sale and escrow documents executed and delivered by an Obligor to any Borrower or the Additional Resort Owners with respect to the purchase of an Interval which is the subject of a Pledged Receivable.
Purchase Facility. The Asset Purchase Agreement dated June 26, 1998 by and among Bluegreen Receivables Finance Corporation III, as seller, BRFC III Deed Corporation, as deed custodian solely for the benefit of Heller Financial, Inc., Heller Financial, Inc., as purchaser, Bluegreen Corporation, as originator and servicer, and U.S. Bank National Association, as cash administrator.
Purchase Limit. $100,000,000, as such amount may be adjusted from time to time pursuant to Section 2.12(b) of the Purchase Facility.
Purchase Money Mortgage. Any mortgage or deed of trust executed and delivered by an Obligor to Borrowers or an Additional Resort Owner with respect to the purchase of an Interval, encumbering all of the right, title and interest of each such Obligor in and to the purchased Interval as security for the Obligor's obligations under any Receivable.
Reassignment of Pledged Receivables. The Reassignment of Receivables and Receivables Collateral in the form set forth on Exhibit C of this Agreement.
Receivables. A conditional sale contract or note and its related security, including but not limited to any Purchase Money Mortgage, Deed of Trust or security interest in the related Interval (any accessions thereto) and any and all rights to payments thereunder.
Receivables Collateral. The Receivables, including: (i) all interest,
finance charges, and principal received on or with respect to the Receivables;
(ii) the Receivables Files; (iii) property which secured a Receivable and which
has been acquired by repossession or otherwise; (iv) all rights to Insurance
Proceeds and Liquidation Proceeds; and (v) the proceeds of the foregoing and the
rights to enforce the foregoing.
Receivables File. With respect to a Receivable, such Receivable; the Assignment of such Receivable; the Purchase Money Mortgage or UCC financing statement, if any, evidencing that the security interest granted under such Receivable has been perfected under applicable state law; the original of any assumption agreement or any modification extension or refinancing agreement; the application of the related Obligor to obtain the financing extended by such Receivable; and the Purchase Documents.
Regulatory Change means relative to any Affected Party:
(a) any change in (or the adoption, implementation, change in the phase-in or commencement of effectiveness of) any:
(i) United States Federal or state law or foreign law applicable to such Affected Party,
(ii) regulation, interpretation, directive, requirement or
request (whether or not having the force of law)
applicable to such Affected Party of (A) any court or
government authority charged with the interpretation
or administration of any law referred to in clause
(a)(i), or of (B) any rating agency, fiscal, monetary
or other authority having jurisdiction over such
Affected Party, or
(iii) GAAP or regulatory accounting principles applicable to such Affected Party and affecting the application to such Affected Party of any law, regulation, interpretation, directive, requirement or request referred to in clause (a)(i) or (a)(ii) above; or
(b) any change in the application to such Affected Party of any existing law, regulation, interpretation, directive, requirement, request or accounting principles referred to in clause (a)(i), (a)(ii) or (a)(iii) above.
Repayment Price. With respect to any Receivable, 95% of the outstanding principal amount of the Receivable at the time of any prepayment of the same under Section 1.7(a) or such lesser amount as may be equal to outstanding Advances provided Advances do not exceed Maximum Exposure.
Resorts. Those certain timeshare vacation resorts commonly known as Shore Crest (Myrtle Beach, South Carolina), Harbour Lights (Myrtle Beach, South Carolina), Mountain Loft (Gatlinburg, Tennessee), Laurel Crest (Pigeon Forge, Tennessee), Falls Village (Branson, Missouri) Christmas Mountain Campground (Wisconsin Dells, Wisconsin), The Timbers at Christmas Mountain (Wisconsin Dells, Wisconsin), The Villas at Christmas Mountain (Wisconsin Dells, Wisconsin) as more particularly described on Exhibit M and shall include the Managed Resorts.
Resort Blanket Mortgage. Each of the mortgages and deeds of trust made by Borrowers, or the Additional Resort Owners, for the benefit of Lender, encumbering at each Resort or Additional Resort listed on Exhibit I the Intervals which are the subject of a Pledged Receivable.
Resort Interest. With respect to Christmas Mountain Campground, a 1/3 divided interest in an undivided fee simple ownership interest, with respect to The Timbers at Christmas Mountain, a 1/3 divided interest in an undivided fee simple ownership interest and a 1/6 divided interest in an undivided fee simple ownership interest relating to the usage of a townhome, and
with respect to The Villas at Christmas Mountain, a 1/3 divided interest in an undivided fee simple ownership interest, all as more particularly described in the Timeshare Documents.
Servicer. Initially means Bluegreen Corporation, a Massachusetts corporation, together with its successors and assigns.
Servicing Agreement. A servicing agreement between Lender, Borrowers and the Servicer approved by Lender providing for the servicing of the Pledged Receivables and the Pledged Receivables Collateral in the form attached hereto as Exhibit F.
Statutory Reserve Rate. A fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board, for advances (currently referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D and shall be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to the Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
Structuring Fee Letter. That certain letter agreement between Borrowers and Lender dated as of the date of this Agreement, a copy of which is attached hereto as Exhibit K, setting forth therein the structuring fees required to be paid by Borrowers to Lender.
Subordinated Indebtedness. Indebtedness of Borrowers or its subsidiaries, whether direct or indirect, to non-affiliated Persons which is subordinated to the Indebtedness on a basis acceptable to the Lender. No indebtedness shall be considered Subordinated Indebtedness unless the obligations of each of the Borrowers or its subsidiaries (whether direct, indirect or contingent) is subordinated on a basis acceptable to the Lender.
Successor Servicer. Any Servicer other than the Borrowers or an Affiliate of the Borrowers appointed pursuant to the terms of the Servicing Agreement.
Tangible Net Worth. Consolidated Net Worth minus Intangible Assets plus Subordinated Indebtedness.
Term. Has the meaning set forth in Section 1.2 of this Agreement.
Time Share Association. A not-for-profit corporation under applicable state law which is responsible for operating and maintaining a Resort or an Additional Resort pursuant to the terms of the Declaration and/or Time Share Declaration in respect thereof.
Time Share Declaration. With respect to each Resort, the Time Share Declaration set forth on Exhibit L.
Time Share Documents. With respect to any Resort, the documents relating to the sale of Intervals by Borrowers, including without limitation the documents on Exhibit L.
Total Indebtedness. With respect to the Borrowers and its subsidiaries means, at any time, without duplication,
(a) its liabilities for borrowed money (exclusive of Advances hereunder and Subordinated Indebtedness) and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);
(c) all Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money);
(f) Interest Rate Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
Uncompleted Unit. Any Unit that is not a Completed Unit.
Unit. One individual air-space condominium unit, cabin, villa, cottage or townhome within a Resort or Additional Resort, together with all furniture, fixtures and furnishings therein, and together with any and all interests in common elements appurtenant thereto, as provided in a Declaration; provided that the definition of "Unit" shall not include or apply to those units relating a campground/tent site, recreational vehicle site or other non-permanent building or structure.
EXHIBIT A
AMENDED AND RESTATED
NOTE
$35,000,000.00 June ___, 1999
FOR VALUE RECEIVED, BLUEGREEN CORPORATION AND BLUEGREEN VACATIONS
UNLIMITED, INC.("Makers") whose addresses are 4960 Blue Lake Drive, Boca Raton,
Florida 33431, jointly and severally promise to pay to the order of HELLER
FINANCIAL, INC., a Delaware corporation, and its successors and assigns
("Holder") the sum of up to THIRTY-FIVE MILLION AND NO/100 DOLLARS ($35,000,000
OR, IF LESS, THE AGGREGATE UNPAID AMOUNT OF ALL ADVANCES SHOWN ON THE SCHEDULE
ATTACHED HERETO), together with all other amounts added thereto pursuant to this
Note or otherwise payable to Holder (the "Loan") (or so much thereof as may from
time to time be outstanding), together with interest thereon as hereinafter set
forth, payable in lawful money of the United States of America. Payments shall
be made to Holder at 500 West Monroe Street, 28th Floor, Chicago, Illinois 60661
(or such other address as Holder may hereafter designate in writing to Makers).
The repayment of the Loan evidenced by this Note is secured by that certain Amended and Restated Loan and Security Agreement of even date herewith (the "Agreement"), which amends and restates that certain Loan and Security Agreement dated as of October 20, 1998 (the "Prior Loan Agreement") pursuant to which Makers have granted Lender a first priority lien on the Collateral as of the Closing Date. This Note, the Agreement, and any other documents evidencing or securing the Loan or executed in connection therewith, and any modification, renewal or extension of any of the foregoing are collectively called the "Loan Documents".
This Note has been issued pursuant to the Agreement, and all of the terms, covenants and conditions of the Agreement (including all Exhibits thereto), and all other instruments evidencing or securing the indebtedness hereunder are hereby made a part of this Note and are deemed incorporated herein in full. Defined terms used herein and not otherwise defined shall have the meanings set forth in the Agreement.
1. Principal and Interest.
Principal and Interest shall be payable as provided in the Agreement.
2. Payment.
Makers shall make payments on the Loan as set forth in the Agreement. If not sooner repaid, the entire outstanding principal amount of the Loan, together with all accrued but unpaid interest, fees, and charges shall be payable by the Maturity Date.
3. Prepayment.
Makers may prepay the Loan as provided in the Agreement.
4. Default.
4.1 Events of Default.
Events of Default shall be as described in Section 7.1 of the Agreement.
4.2 Remedies.
So long as an Event of Default remains outstanding and subject to the terms of the Agreement: (a) interest shall accrue at a rate equal to the Interest Rate plus two percent (2%) per annum; (b) Holder may, at its option and without notice (such notice being expressly waived) except as provided in the Agreement, declare the Loan immediately due and payable; and (c) Holder may pursue all rights and remedies available under the Agreement, or any other Loan Documents. Holder's rights, remedies and powers, as provided in this Note, and the other Loan Documents are cumulative and concurrent, and may be pursued singly, successively or together against Makers, the security described in the Loan Documents, and any other security given at any time to secure the payment hereof, all at the sole discretion of Holder. Additionally, Holder may resort to every other right or remedy available at law or in equity without first exhausting the rights and remedies contained herein, all in Holder's sole discretion. Failure of Holder, for any period of time or on more than one occasion, to exercise its option to accelerate the Maturity Date shall not constitute a waiver of the right to exercise the same at any time during the continued existence of any Event of Default or any subsequent Event of Default.
If any attorney is engaged: (i) to collect the Loan or any sums due
under the Loan Documents whether or not legal proceedings are thereafter
instituted by Holder; (ii) to represent Holder in any bankruptcy,
reorganization, receivership or other proceedings affecting creditors' rights
and involving a claim under this Note; (iii) to protect the liens and security
interests of the Loan Agreement or any of the Loan Documents; (iv) to foreclose
on the Collateral; (v) to represent Holder in any other proceedings whatsoever
in connection with the Agreement or any of the Loan Documents including post
judgment proceedings to enforce any judgment related to the Loan Documents; or
(vi) in connection with seeking an out-of-court workout or settlement of any of
the foregoing, then Makers shall pay to Holder all costs, reasonable attorneys'
fees and expenses in connection therewith, in addition to all other amounts due
hereunder.
5. Late Charge.
If payments of principal and/or interest, or any other amounts under
the Loan Documents are not timely made or remain overdue for a period of ten
(10) days, Makers, without notice or demand by Holder, promptly shall pay an
amount ("Late Charge") equal to two percent (2%) of each delinquent payment;
provided, however, the Late Charge shall not be applicable in the event the
Default Rate shall be accruing; provided, further, that nothing in this
paragraph 5 shall give Holder the option to apply the Late Charge if Holder is
entitled to cause the Default Rate to accrue.
6. Governing Law; Severability.
This Note shall be governed by and construed in accordance with the internal laws of the State of Illinois. The invalidity, illegality or unenforceability of any provision of this Note shall not affect or impair the validity, legality or enforceability of the remainder of this Note, and to this end, the provisions of this Note are declared to be severable.
7. Waiver.
To the extent permitted by law, Makers, for themselves and all endorsers, guarantors and sureties of this Note, and their heirs, successors and assigns, legal representatives, hereby waive presentment for payment, demand, notice of nonpayment, notice of dishonor, protest of any dishonor, notice of protest and protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, and agree that their respective liability shall be unconditional and without regard to the liability of any other party and shall not be in any manner affected by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Holder. Makers, for themselves and all endorsers, guarantors and sureties of this Note, and their heirs, legal representatives, successors and assigns, hereby consent to every extension of time, renewal, waiver or modification that may be granted by Holder with respect to the payment or other provisions of this Note, and to the release of any makers, endorsers, guarantors or sureties, and of any collateral given to secure the payment hereof, or any part hereof, with or without substitution, and agrees that additional makers, endorsers, guarantors or sureties may become parties hereto without notice to Makers or to any endorser, guarantor or surety and without affecting the liability of any of them.
8. Security, Application of Payments.
This Note is secured by the liens, encumbrances and obligations created hereby and by the other Loan Documents. Payments will be applied to any fees, expenses or other costs Makers are obligated to pay under this Note or the other Loan Documents, to interest due on the Loan and to the outstanding principal balance of the Loan, in any order that Holder, at its sole option, may deem appropriate.
9. Miscellaneous.
9.1 Amendments.
This Note may not be terminated or amended orally, but only by a termination or amendment in writing signed by Holder.
9.2 Lawful Rate of Interest.
The maximum amount of interest paid or to be paid to Holder pursuant to this Note or any Loan Document shall be governed by the Agreement.
9.3 Captions.
The captions of the Paragraphs of this Note are for convenience of reference only and shall not be deemed to modify, explain, enlarge or restrict any of the provisions hereof.
9.4 Notices.
Notices shall be given under this Note in conformity with the terms and conditions of the Agreement.
9.5 Joint and Several.
The obligations of Makers under this Note shall be joint and several obligations of each Maker and of each Maker's heirs, personal representatives, successors and assigns.
9.6 Time of Essence.
Time is of the essence of this Note and the performance of each of the covenants and agreements contained herein.
10. Venue.
MAKERS HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY AND STATE. MAKERS HEREBY IRREVOCABLY APPOINT AND DESIGNATE CSC, WHOSE ADDRESS IS MAKERS, C/O CSC, 33 NORTH LASALLE STREET, CHICAGO, ILLINOIS 60602, AS ITS DULY AUTHORIZED AGENT FOR SERVICE OF LEGAL PROCESS AND AGREE THAT SERVICE OF SUCH PROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL SERVICE OF PROCESS UPON MAKERS. IN THE EVENT SERVICE IS UNDELIVERABLE BECAUSE SUCH AGENT MOVES OR CEASES TO DO BUSINESS IN CHICAGO, ILLINOIS, MAKERS SHALL, WITHIN TEN (10) DAYS AFTER HOLDER'S REQUEST, APPOINT A SUBSTITUTE AGENT (IN CHICAGO, ILLINOIS) ON THEIR BEHALF AND WITHIN SUCH PERIOD NOTIFY HOLDER OF SUCH APPOINTMENT. IF SUCH SUBSTITUTE AGENT IS NOT TIMELY APPOINTED, HOLDER SHALL, IN ITS SOLE DISCRETION, HAVE THE RIGHT TO DESIGNATE A SUBSTITUTE AGENT UPON FIVE (5) DAYS NOTICE TO MAKERS. MAKERS HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST THEM BY HOLDER ON THE LOAN DOCUMENTS OR RELATED LOAN DOCUMENTS IN ACCORDANCE WITH THIS PARAGRAPH.
11. Sale of Loan.
Subject to the terms of the Agreement, Holder, at any time and without the consent of Makers, may grant Participations in or sell, transfer, assign and convey all or any portion of its right, title and interest in and to the Loan, this Note, the Agreement and the other Loan Documents, any guaranties given in connection with the Loan and any Collateral given to secure the Loan.
12. Jury Trial Waiver.
MAKERS, AND HOLDER BY ITS ACCEPTANCE OF THIS NOTE, HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS NOTE AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY MAKERS AND BY HOLDER, AND MAKERS ACKNOWLEDGE THAT NEITHER HOLDER NOR ANY PERSON ACTING ON BEHALF OF HOLDER HAS MADE ANY REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. MAKERS AND HOLDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT MAKERS AND HOLDER HAVE ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS NOTE AND THAT EACH OF THEM WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. MAKERS AND HOLDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
13. No Novation.
This Note issued on the date hereof is issued in replacement of and substitution for any Note issued under the Prior Loan Agreement prior to the date hereof, and does not represent a repayment, extinguishment or novation of the Loan. The Loan, including, without limitation, all accrued and unpaid interest thereon, shall be deemed to continue and shall hereafter be evidenced by this Note.
IN WITNESS WHEREOF, Makers have executed this Note or have caused the same to be executed by its duly authorized representatives as of the date set first forth above.
MAKERS:
BLUEGREEN CORPORATION
BLUEGREEN VACATIONS UNLIMITED,
INC.
Schedule attached to Note dated June ___, 1999 of Bluegreen Corporation and Bluegreen Vacations Unlimited, Inc.
payable to the order of Heller Financial, Inc.
-----------------------------------------------------------------------------------------------------------------
Date of Loan Amount of Loan Amount of Repayment
------------ -------------- -------------------
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EXHIBIT B
Form of Assignment
When Recorded Mail To:
[Custodian]
Assignment of Receivables and Receivables Collateral
Assignment (this "Assignment") made and executed as of June ___, 1999, is made by and between Bluegreen Corporation, a Massachusetts corporation, whose address is 4960 Blue Lake Drive, Boca Raton, Florida 33431 ("Bluegreen Corporation"), Bluegreen Vacations Unlimited, Inc., whose address is 4960 Blue Lake Drive, Boca Raton, Florida 33431 ("Bluegreen Vacations" and together with Bluegreen Corporation and the Additional Borrowers (as hereinafter defined) collectively referred to herein as the "Makers" or the "Borrowers" and sometimes referred to herein individually as a "Maker" or "Borrower"), and Heller Financial, Inc., a Delaware corporation ("Lender"), whose address is 500 West Monroe Street, 28th Floor, Chicago, Illinois 60661.
WITNESSETH:
WHEREAS, Borrowers and Lender have entered into an Amended and Restated Loan and Security Agreement, dated as of June ___, 1999 (as amended from time to time, the "Agreement"), pursuant to which Lender has agreed to lend, upon the terms and conditions set forth in the Agreement, up to $35,000,000 (the "Loan") to Borrowers to be evidenced by a Promissory Note dated June ___, 1999 (together with any renewals, extensions, substitutions or modifications thereof, the "Note") and secured by a security interest granted by Borrowers to Lender on certain Receivables and Receivables Collateral as well as other Collateral of Borrowers (as such terms are defined in the Agreement).
NOW THEREFORE, to secure the payment and performance of the Indebtedness, the Project Indebtedness and other obligations of Borrowers to Lender under the Agreement, the Note and the other the Project Indebtedness Loan Documents (as such terms are defined in the Agreement) and in consideration of the extension of the Loan to Borrowers and subject to the terms of the Agreement, Borrowers hereby collaterally convey, assign, transfer and set over unto Lender as collateral security for the Loan, the Indebtedness and the Project Indebtedness all of its right, title and interest in and to the Receivables and the Receivables Collateral, set forth on Schedule 1 attached hereto, and all other Collateral connected therewith collaterally assigned to Lender pursuant to the terms of the Agreement, together with all proceeds derived therefrom and other Collateral delivered in substitution or replacement thereof.
The execution and delivery of this Assignment shall not subject Lender to, or transfer or pass to Lender, or in any way affect or modify, the liability of Borrowers under any or all of the Receivables and Receivables Collateral hereby assigned, it being understood and agreed that notwithstanding this Assignment or any subsequent collateral assignment, all of the obligations of the Borrowers to each and every other party under each and every one of such Receivables and Receivables Collateral shall be and remain enforceable by such other party, its successors and assigns, only against Borrowers and their successors and assigns, and that Lender has not assumed any of the obligations or duties of Borrowers under or with respect to any of such Receivables and Receivables Collateral.
Borrowers hereby agree and acknowledge that neither the acceptance of this Assignment by Lender nor the exercise of, or failure to exercise, any right, power or remedy in this instrument conferred upon Lender shall be deemed or construed to obligate Lender, or its successors or assigns, to pay any sum of money, take any action or incur any liability in connection with any of the Receivables and Receivables Collateral hereby assigned to Lender. It is further agreed and understood by Borrowers that neither Lender nor its successors or assigns shall be liable in any way for any costs, expenses or liabilities connected with, or any charges or liabilities resulting from, any of such Receivables and Receivables Collateral.
If any provision of this Assignment is held to be illegal, invalid or unenforceable under present or future laws effective during the term thereof, such provision shall be fully severable, this Assignment shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof or thereof, and the remaining provisions hereof or thereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
This Assignment shall be binding upon Borrowers and their successors and assigns, and shall inure to the benefit of Lender and its successors and assigns.
This Assignment shall be governed by and shall be construed and enforced in accordance with the internal laws of the State of Illinois (without regard to conflicts of law principles) and applicable laws of the United States.
IN WITNESS WHEREOF, Borrowers have executed this Assignment on the date first written above.
BLUEGREEN CORPORATION
BLUEGREEN VACATIONS UNLIMITED,
INC.
STATE OF ________ )
) ss.
COUNTY OF _____ )
On this day _____ of ______________, 1998 before me, a Notary Public, personally appeared _______________________, personally known to me, the ________________ of ____________________, a ____________ corporation, who being by me first duly sworn declared that the foregoing instrument was signed by him/her on behalf of the aforesaid corporation, acknowledging said instrument to be its free act and deed.
My term expires:
[NOTARIAL SEAL]
My Commission Expires:
SCHEDULE 1
List of Receivables and Receivables Collateral
EXHIBIT C
Form of Reassignment of Receivables and Receivables Collateral
Reassignment of Receivables and
Receivables Collateral
This Reassignment of Receivables and Receivables Collateral ("Reassignment") is made and executed as of _______________, 1999, by Heller Financial, Inc., a Delaware corporation (the "Lender") to ___________________, a ______________________ (the "Borrowers").
WITNESSETH:
WHEREAS, the Borrowers and Lender have entered into an Amended and Restated Loan and Security Agreement, dated as of June ___, 1999 (as amended from time, to time, the " Agreement"), pursuant to which Lender has agreed to lend, upon the terms and conditions set forth in the Agreement, up to $__________ (the "Receivables Loan") to Borrowers, evidenced by a Promissory Note dated _________, 19__ (the "Note"), which is secured by a security interest and lien granted by the Borrowers to Lender on certain Receivables and the Receivables Collateral related thereto, as well as other Collateral of the Borrowers (as such terms are defined in the Agreement), pursuant to one or more Assignments of Receivables and Receivables Collateral (collectively, the "Assignment"); and
WHEREAS, the Agreement provides that upon the occurrence of certain events, including but not limited to repayment of any of the Receivables held as collateral under the Assignment, Lender will reassign such Receivables and the Receivables Collateral related thereto to the Borrowers.
NOW THEREFORE, Lender hereby reconveys, reassigns, transfers and sets over unto the Borrowers all of its right, title and interest in and to the Receivables and the Receivables Collateral related thereto described in Exhibit 1 attached hereto and incorporated herein by this reference, without recourse and without warranty of any kind.
IN WITNESS WHEREOF, Lender has executed this Reassignment on the date first written above.
HELLER FINANCIAL, INC.,
a Delaware corporation
Attest:
STATE OF ILLINOIS )
)SS
COUNTY OF _______ )
|
I, _________________________________, a notary public in and for said county, in the State aforesaid, do hereby certify that ____________, personally known to me to be the _________________ of Heller Financial, Inc., a corporation of the State of Delaware, whose name is subscribed to the within instrument, appeared before me this day in person and acknowledged that as such _____________ he/she signed and delivered the said instrument as ___________________ of said corporation to be thereunto affixed, as their free and voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this ____ day of __________________, 1999.
My Commission expires:
EXHIBIT 1
Description of Reassigned
Receivables and Receivables Collateral
EXHIBIT D
Requests For Advance
Heller Financial, Inc.
Attn: Portfolio Administrator,
Vacation Ownership
500 West Monroe St., 31st Fl.
Chicago, Illinois 60661
RE: HSF Loan No. 98-087 $35,000,000 credit facility described in that certain Amended and Restated Loan and Security Agreement (the "Agreement") between Heller Financial, Inc. ("Lender") and Bluegreen Corporation ("Bluegreen") on behalf of the Borrowers described thereunder.
Dear Sir or Madam:
In accordance with the terms of the Amended and Restated Loan and Security Agreement, Borrowers wish to obtain an Advance of $_______________________ on ___________________, 19____. All terms used herein, unless otherwise specified, shall have the meanings assigned in the Agreement. In order to induce Lender to make such Advance, Bluegreen on behalf of Borrowers hereby represent and warrant to Lender:
1. No Event of Default exists, and no event exists which, with the passage of time or notice or both, would constitute an Event of Default or will occur as a result of the Advance requested herein.
2. The representations and warranties contained in the Agreement are true, correct and complete in all material respects on and as of the date of funding of each Advance except for any representation or warranty limited by its terms to a specific date or affected by the transactions permitted by the Agreement and taking into account any amendments to the schedules or exhibits as a result of any subsequent disclosures made by Borrowers in writing to and approved by Lender, and except to the extent of changes occurring in the ordinary course of business that, either singly or in the aggregate, have not had and could not reasonably be expected to have a Material Adverse Effect.
3. Borrowers are in compliance with each and every one of its covenants, agreements and obligations under the Agreement.
4. Borrowers have no defenses or offsets with respect to the payment of any amounts due Lender.
6. Lender has performed all of its obligations to Borrowers.
7. All Receivables listed on Schedule A attached hereto meet all of the requirements of Eligible Receivables and relate to the ________ Resort.
8. Borrowers shall grant Lender a security interest in and lien upon those certain Receivables and Receivables Collateral set forth in Schedule A attached hereto.
9. Advances shall be wired to Bluegreen's account #___________.
10. All Receivables arising from the Resorts listed on Schedule A attached hereto have been originated by the applicable Borrower set forth opposite such Resort below:
RESORT BORROWER ------ -------- Mountain Loft Resort Bluegreen Corporation Laurel Crest Resort Bluegreen Corporation Shore Crest Resort Bluegreen Vacations Unlimited, Inc. Harbour Lights Resort Bluegreen Vacations Unlimited, Inc. Falls Village Resort Bluegreen Vacations Unlimited, Inc. Christmas Mountain Campground Bluegreen Vacations Unlimited, Inc. The Timbers at Christmas Mountain Bluegreen Vacations Unlimited, Inc. Christmas Mountain Campground, The Bluegreen Vacations Unlimited, Inc. Timbers at Christmas Mountain, The Villas at Christmas Mountain, Mountain Landmark Holiday Beach Resort, Ocean Towers Beach Club, Panama City Resort and Club, Surfrider Beach Club, Tropical Sands Resort, Resort Sixty Six, Via Roma Beach Resort, Orlando's Sunshine Resort, Gulfstream Manor, Dolphin Beach Club, Fantasy Island Resort II, Outrigger Beach Club, Petit Crest Resort |
BLUEGREEN CORPORATION
SCHEDULE A
Description of Pledged Receivables
and Pledged Receivables Collateral
EXHIBIT E
Form of Allonge
ALLONGE
The foregoing note or instrument shall be and is hereby endorsed as follows with respect to the Loan and Security Agreement:
"Pay to the order of Heller Financial, Inc., with recourse."
The foregoing endorsement shall have the same effect as though it were written directly on the note or instrument identified above.
The foregoing note or instrument shall be and is hereby endorsed as follows with respect to the Sale and Contribution Agreement:
"Pay to the order of Bluegreen Receivables Finance Corporation III, without recourse, representation or warranty except as provided in the Sale and Contribution Agreement."
The foregoing endorsement shall have the same effect as though it were written directly on the note or instrument identified above.
The foregoing note or instrument shall be and is hereby endorsed as follows with respect to the Purchase Facility:
"Pay to the order of Heller Financial, Inc., without recourse, representation or warranty except as provided in the Asset Purchase Agreement."
The foregoing endorsement shall have the same effect as though it were written directly on the note or instrument identified above.
EXHIBIT F
Servicing Agreement
EXHIBIT G
RESERVED
EXHIBIT H
List of Permitted Liens
(including therein the condominium declarations)
(a) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 4.4;
(b) carriers', warehouseman's, mechanics', materialmen's, repairmen' and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 4.4;
(c) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business; and
(e) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of any Borrower or any Subsidiary.
EXHIBIT I
List of Resorts Encumbered by Resort Blanket Mortgages
EXHIBIT J
List of Project Loan Documents
EXHIBIT K
Structuring Fee Letter
EXHIBIT L
Time Share Documents
EXHIBIT M
Legal Description of Resorts
EXHIBIT N
Commitment Letter dated March 30, 1998
SCHEDULE 2.1
Material Project Loan Default
A "Material Project Loan Default" shall mean:
(a) Any indebtedness evidenced, governed or secured by any of the Project 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 the Project Loan Agreement, any of the Project Loan Documents, any financial statement or any other writing delivered by the Borrowers or any Subsidiary thereof to Lender in connection with the Project Loan Agreement is false, misleading or incorrect in any material respect as of the date made and has a Material Adverse Effect; or
(c) Any failure to comply with the financial covenants set forth in Section 3 of the Project Loan Agreement (which shall be the same financial covenants as set forth in the Loan and Security Agreement)
SCHEDULE 3.2
List of Deliveries For All Advances
Pursuant to Section 3.2 of the Agreement, Lender shall not be obligated to fund any Advance unless Lender and Custodian shall have received, in form and substance satisfactory to Lender, all documents, instruments and information as follows:
To Lender at least five (5) Business Days prior to the requested funding date:
1. A Request for Advance (in the form of Exhibit D to the Agreement) listing all Receivables and Receivables Collateral to be financed.
2. A computer diskette or magnetic tape prepared in accordance and in the form provided by Exhibit 1 attached hereto which shall include, but not be limited to, the aging report and Credit Code relating to the Receivables to be pledged in connection with the Advance.
3. UCC-1 financing statements, executed by the Borrowers in favor of the Lender relating to and describing the Lender's security interest in the contract rights evidenced by the conditional sales contract.
4. To the extent that the title commitment hereinafter described
has not been issued with respect to a Resort Blanket Mortgage at a Resort other
than the Resorts approved as of the date of the Closing of the Loan, a
commitment for title insurance insuring each individual Resort Blanket Mortgage
as a valid first lien on such Intervals being financed subject only to the
Permitted Liens; provided that a title policy shall be delivered within sixty
(60) days after the date of the Advance or as soon as practicable.
5. Such additional information as Lender may reasonably require.
To Custodian at least five (5) Business Days prior to the requested funding date:
1. A Request for Advance (in the form of Exhibit D to the Agreement) listing all Receivables and Receivable Collateral to be financed.
2. Originals of all Receivables and Receivables Collateral, and the form of Assignment attached hereto as Exhibit B (with only such modifications to such form as are necessary to properly identify the collateral and to cause the document to be properly recorded), covering all of the Receivables and Receivables Collateral to be pledged in relation with such Advance except that copies of the recordable Purchase Money Mortgages and Assignments, to extent applicable, shall be satisfactory provided that recorded originals are delivered to the Custodian within sixty (60) days after the Advance date or as soon as practicable after received), all in forms approved by Lender, with each Receivable endorsed with (i) an allonge in the form
attached hereto as Exhibit E in respect of Receivables evidenced by notes and mortgages (which such allonge may be signed via facsimile signature), (ii) an assignment in the form of Exhibit B in respect of Receivables evidenced by conditional sales contracts, or (iii) other appropriate form acceptable to Lender.
3. A current aging report for the Receivables and Receivables Collateral to be pledged in connection with the requested Advance.
4. UCC-1 financing statements, executed by Borrowers in favor of Lender relating to and describing Lender's security interest in the contract rights evidenced by the CSC.
All documents to be delivered to Lender should be sent to:
Carol Gilday
Portfolio Administrator, Vacation Ownership
Heller Financial, Inc.
500 West Monroe, Suite 2800
Chicago, Illinois 60661
Tel: (312) 441-7880
Fax: (312) 441-7924
All documents to be delivered to the Custodian should be sent to:
Mark Hammer
Norwest Bank Minnesota, N.A.
1015 10th Avenue S.E.
Minneapolis, MN 55414
Mail Station 0031
Tel: (612) 667-1117
Fax: (612) 667-1068
EXHIBIT O
Borrowers Closing Checklist
EXHIBIT P
Resort Closing Checklist
EXHIBIT Q
Additional Resort Closing Checklist
EXHIBIT R
Club Closing Checklist
SCHEDULE 4.5
List of Litigation Matters
SCHEDULE 4.13(A)
Trade Names other than Name of Borrowers
Bluegreen Corporation
Bluegreen Resorts, Inc.
Bluegreen Vacations Unlimited, Inc.
Patten Corporation
Patten Resorts, Inc.
Mountain Loft Resort
Laurel Crest Resort
Shore Crest Resort
Harbour Lights Resort
Falls Village Resort
RDI Resources, Inc.
Christmas Mountain Campground
The Timbers at Christmas Mountain
The Villas at Christmas Mountain
SCHEDULE 4.13(B)
Mergers and Corporate Reorganizations
SCHEDULE 5.2
Insurance
SCHEDULE 5.15
Additional Indebtedness for Borrowed Money; Additional Obligations
EXHIBIT 10.139
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment"), dated as of June 29, 2000, among BLUEGREEN CORPORATION
("Bluegreen"), BLUEGREEN VACATIONS UNLIMITED, INC. ("Vacations", and together
with Bluegreen, the "Borrowers"), and HELLER FINANCIAL, INC., (together with its
successors and permitted assigns, the "Lender").
RECITALS
A. Lender and Borrowers are party to that certain Amended and Restated Loan and Security Agreement dated as of June 30, 1999 (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement").
B. On and subject to the terms and conditions hereof, Borrowers have requested from Lender, and Lender is willing to grant, certain amendments to certain provisions of the Loan Agreement, all on terms and conditions set forth herein.
C. This Amendment shall constitute a Loan Document and these Recitals shall be construed as part of this Amendment; capitalized terms used herein without definition are so used as defined in the Appendix to the Loan Agreement or the Loan Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:
1. AMENDMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by deleting the reference to "June 26, 2000" therein and substituting therefor "August 28, 2000".
(b) Section 1.2 of the Loan Agreement is hereby amended by deleting it in its entirety and substituting therefor the following:
"1.2Term. The Loan shall be from June 26, 1998 to the Maturity Date (the "Term").
(c) Section 1.7(a) of the Loan Agreement is hereby amended by deleting the last sentence thereof and substituting therefor the following:
"All out of pocket costs and expenses in connection with any partial releases shall be at the expense of the Borrowers."
(d) Section 1.7(b) of the Loan Agreement is hereby amended by deleting it in its entirety and substituting therefor the following:
"(b)MANDATORY PREPAYMENTS. If at any time (i) the outstanding principal balance of the Loan exceeds the Maximum Exposure or (ii) Bluegreen Corporation ceases to own, directly or indirectly, at least 51% of the economic and voting interests of Bluegreen Properties, N.V. Borrowers shall, within five (5) Business Days after notice, prepay the Loan in an amount necessary to reduce the principal balance of the Loan to the Maximum Exposure; provided, however, that Borrowers at their option within (5) Business Days after notice, may deliver to Lender one (1) or more Pledged Receivables such that, after delivery of such Pledged Receivable(s), the outstanding principal balance of the Loan does not exceed the Maximum Exposure."
(e) The Appendix to the Loan Agreement is hereby amended as follows:
(i) by deleting the following definitions in their entirety and substituting therefor the following:
AVAILABILITY. At all times during the term of this Agreement, the
lesser of (i) $ $35,000,000 minus outstanding Advances, or (ii) an
amount equal to 95% of the principal balance of Pledged Receivables;
provided that with respect to Aruba Receivables, such amount shall be
85% of the principal balance of such Pledged Receivables; provided
further, that notwithstanding anything to the contrary contained herein
the amounts advanced against Pledged Receivables (i) relating to
Eligible Uncompleted Unit Receivables shall not at any time represent
in the aggregate more than the lesser of $5,000,000.00 or 30% of the
aggregate principal amount of all Advances outstanding under this
Agreement; (ii) relating to Managed Resorts shall not at any time
represent in the aggregate more than $2,000,000 of the aggregate
principal amount of all Advances outstanding under this Agreement and
(iii) relating to Aruba Receivables shall not exceed on a cumulative
basis $6,000,000 of all Advances made under this Agreement. After the
Maturity Date or, at the option of Lender in accordance with Section
8.10, after the occurrence and during the continuance of an Event of
Default hereunder, Availability shall be zero ($0). At any time
Bluegreen Corporation ceases to own, directly or indirectly, at least
51% of the economic and voting interests of Bluegreen Properties, N.V.,
Availability with respect to Aruba Receivables shall be zero ($0).
CUSTODIAN. U.S. Bank Trust National Association, or such other Person designated by Lender and approved by Borrowers to maintain physical possession of the Pledged Receivables and the Pledged Receivables Collateral.
MATURITY DATE. August 28, 2000.
MAXIMUM EXPOSURE. The lesser of (a) $35,000,000, or (b) ninety-five percent (95%) of the outstanding principal balance of all Pledged
Receivables; PROVIDED that with respect to Aruba Receivables, such amount shall be 85% of the outstanding principal balance of such Pledged Receivables; PROVIDED, HOWEVER, notwithstanding anything to the contrary contained herein, the outstanding principal amount of Advances made with respect to Eligible Uncompleted Unit Receivables shall not in the aggregate represent more than the lesser of $5,000,000 or thirty percent (30%) of the aggregate principal amount of Advances outstanding hereunder and any such excess
shall require a prepayment of the Loan or the pledge of Eligible Receivables consistent with Section 1.7(b) hereof.
RECEIVABLES. A conditional sale contract or note and its related security, including but not limited to any Purchase Money Mortgage, Deed of Trust or security interest in the related Interval (any accessions thereof) and any and all rights to payments thereunder. The term "Receivables" shall also include "Aruba Receivables".
RESORTS. Those certain timeshare vacation resorts commonly known as La Cabana Beach and Racquet Club (Oranjestad, Aruba), Orlando Sunshine II (Orlando, Florida), Shenandoah Crossing (Gordonsville, Virginia). Shore Crest I and II (Myrtle Beach, South Carolina), Harbour Lights (Myrtle Beach, South Carolina), Mountain Loft (Gatlinburg, Tennessee), Laurel Crest (Pigeon Forge, Tennessee), Lodge Alley Inn (Charleston, South Carolina), Falls Village (Branson, Missouri), Christmas Mountain Campground (Wisconsin Dells, Wisconsin), The Timbers at Christmas Mountain (Wisconsin Dells, Wisconsin), The Villas at Christmas Mountain (Wisconsin Dells, Wisconsin) as more particularly described on EXHIBIT M and shall include the Managed Resorts.
(ii) by adding the following definitions in alphabetical order:
ARUBA RECEIVABLES. With the respect to Receivables relating to La Cabana, a purchase and finance agreement and any and all rights to payments thereunder.
LA CABANA. That certain timeshare vacations resort commonly known as La Cabana Beach and Racquet Club.
(iii) By deleting clause (d) of the definition of "Eligible Completed Unit Receivable" and substituting therefor the following:
"(d) (i) the weighted average interest rate of all Receivables financed under this Agreement is not less than 14.90% per annum at the time and inclusive of the Receivable to be financed hereunder and (ii) the weighted average interest rate of all Aruba Receivables financed under this Agreement is not less than 14.00% per annum at the time and inclusive of the Receivables to be financed hereunder;"
(iv) by deleting clause (l) of the definition of "Eligible Completed Unit Receivable" and the definition of Eligible Uncompleted Unit Receivable" and substituting therefor the following:
"(l) at least 90% of the aggregate outstanding principal balance of all Receivables arise from Obligors who are either residents of the U.S. or Canada at the time the Pledged Receivable is financed hereunder; provided that with respect to Aruba Receivables, at least 60% of the aggregate outstanding principal balance of tall Receivables arise from Obligors who are either residents of the U.S. or Canada at the time the Aruba Receivable is financed hereunder; provided, further, that in no event shall the aggregate outstanding principal balance of Receivables arising from Obligors who are not residents of the U.S. or Canada exceed $2,400,000;"
(v) by deleting clause (d) of the definition of "Eligible Uncompleted Unit Receivable" and substituting therefor the following:
"(d) (i) the weighted average interest rate of all Receivables financed under this Agreement is not less than 14.90% per annum at the time and inclusive of the Receivables to be financed hereunder and (ii) the weighted average interest rate of all Aruba Receivables financed under this Agreement is not less than 14.00% per annum at the time and inclusive of the Receivable to be financed hereunder;"
(vi) by adding the following clause (z) to the definition of "Eligible Completed Unit Receivable":
"(z) with respect to Aruba Receivables only, Bluegreen Corporation shall own, directly or indirectly, at least 51% of the economic and voting interests of Bluegreen Properties, N.V."
(vii) by deleting the reference to "2.755" contained in the definition of "Interest Rate" and substituting therefor "3.00%";
(viii) by adding the following to clause (y) to the definition of "Eligible Completed Unit Receivable" and the definition of "Eligible Uncompleted Unit Receivable":
":provided that the Receivable need not meet the Minimum Credit Scoring Standard during the period beginning on the date of effectiveness of this Amendment and ending on the sixtieth day following such date to effectiveness."
(f) The parties hereto agree that notwithstanding anything contained in
this Amendment, the Loan Agreement and any other Loan Document to the contrary,
(a) the Borrowers shall not be required to provide any notice of the
transactions contemplated by the Loan Documents to any Obligor on a Receivable
which is first pledged under the Loan Agreement after June 26, 2000 (a "New
Obligor"), (b) the Borrowers shall not be required to instruct any New Obligor
to remit payments to a lockbox maintained for the benefit of the Lender and (c)
absent an Event of Default, the Lender shall not record any mortgage assignment
relating to the Receivable of a New Obligor.
2. REPRESENTATIONS AND WARRANTIES.
(a) After giving effect to this Amendment and the transactions contemplated hereby (i) no Event of Default shall have occurred or be continuing and (ii) the representations and warranties of Borrowers contained in the Loan Documents shall be true, correct and complete in all material respects on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date.
(b) Borrowers jointly and severally represent and warrant to Lender that the execution, delivery and performance by each Borrower of this Amendment and the other documents and transactions contemplated hereby are within such Borrower's corporate powers, have been duly authorized by all necessary corporate action (including, without limitation, all necessary shareholder approval) of such Borrower, have received all necessary governmental approvals, and do not and will not contravene of conflict with any provision of any law applicable to such Borrower, the certificate or articles of incorporation or
bylaws of such Borrower, or any order, judgment or decree of any court or other agency of government or any contractual obligation binding upon such Borrower; and this Amendment, the Loan Agreement and each other Loan Document constitutes the legal, valid and binding obligation of each Borrower enforceable against each Borrower in accordance with its terms.
3. CONDITIONS PRECEDENT. This Amendment shall become effective upon Lender's receipt of the following item and the satisfaction of the following conditions, as the case may be, all in form and substance satisfactory to Lender.
(a) DOCUMENTATION
(i) AMENDMENT. This Amendment, duly executed by each Borrower and Lender.
(ii) ASSIGNMENTS. Duly executed assignment and other conveyancing documents ("Assignments") necessary to transfer ownership of the Aruba Receivables from Bluegreen Properties, N.V. to Bluegreen Corporation.
(iii) OPINION. A duly executed legal opinion of (i) Aruban counsel to the Borrowers and Bluegreen Properties, N.V., as to certain corporate matters, enforceability of the Assignments, no conflict with laws, and perfection of security interest in Aruban Receivables, together with opinions on such other matters as Lender or its counsel may reasonably request, (ii) Choate, Hall & Stewart as t certain corporate matters and no conflict with laws, together with opinions on such other matters as Lender or its counsel may reasonably request, and (iii) in-house counsel to Borrowers as to certain corporation matters and no conflict with laws, together with opinions on such other matters as Lender or its counsel may reasonably request.
(iv) RECEIVABLES FILE. The Receivables File and Pledged Receivables Collateral relating to Receivables subject to a proposed Advance (other than those Receivables Files relating to the Aruba Receivables that the Lender has in its possession as of the date hereof) shall have been delivered to the Custodian.
(v) ARUBA RECEIVABLES DOCUMENTS. Copies of all documents executed and delivered in connection with the Aruba Receivables.
(vi) SECRETARY'S CERTIFICATE; RESOLUTIONS. A certificate
of the Clerk, Secretary, an Assistant Clerk or and
Assistant Secretary of each of the Borrowers
certifying (i) the names and true signatures of the
officers authorized on its behalf to sign this
Amendment (ii) a copy of such party's certificate or
articles of incorporation and by-laws, and (iii) a
copy of the resolutions of the board of directors of
such party approving this Amendment and the related
transactions to which it is a party, all in form and
substance satisfactory to the Lender. Such
certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or
rescinded as of the date of such certificate.
(vii) CUSTODIAL AGREEMENT. A duly executed Custodial Agreement among Lender, Borrowers and the Custodian.
(viii) UCC SEARCHES. UCC lien searches against Borrowers.
(ix) UCC FINANCING STATEMENTS. Duly executed UCC financing statements naming the Borrowers as debtors and Lender as secured party to be filed in such jurisdictions as Lender may require.
(x) REAL ESTATE DOCUMENTATION. Duly executed assignments of mortgages in respect of Receivables and Pledged Receivables Collateral pledged to Lender together with title commitments relating thereto (except no title insurance commitments or assignment of mortgages shall be required with respect to any Aruba Receivable).
(b) NO EVENT OF DEFAULT. No event of Default shall have occurred and be continuing, or would result after giving effect hereto.
(c) WARRANTIES AND REPRESENTATIONS. The warranties and representations of each Borrower contained in this Amendment and the other Loan Documents shall be true and correct in all material respects after giving effect hereto.
4. EFFECT ON LOAN DOCUMENTS. This Amendments is limited to the specific purpose for which it is granted and, except as specifically set forth above (a) shall not be construed as a consent, waiver or other notification with respect to any term, condition or other provision of any Loan Document and (b) each of the Loan Documents shall remain in full force and effect and are each hereby ratified and confirmed. Notwithstanding anything contained in this Amendment to the contrary, the amendments contained in Sections I (e)(iii) and (v) hereof shall only be applicable to Receivables which are proposed to be the subject of an Advance made on and after the date of this Amendment and shall not be applicable to Receivables which constituted "Eligible Completed Unit Receivables" or "Eligible Uncompleted Unit Receivables" before giving effect to this Amendment and for which Lender has previously made an Advance.
5. SUCCESSORS AND ASSIGNS. This Amendment shall be binding on and shall inure to the benefit of Borrowers, Lender and their respective successors and assigns; provided that no Borrower may assign its rights, obligations, duties or other interest hereunder without the prior written consent of Lender. The terms and provisions of this Amendment are for the purpose of defining the relative rights and obligations of Borrowers and Lender with respect to the transactions contemplated hereby and there shall be no third party beneficiaries or any of the terms and provisions of this Amendment.
6. ENTIRE AGREEMENT. This Amendment, including all documents attached hereto, incorporated by reference herein or delivered herewith, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all other understandings, oral or written, with respect to the subject matter hereof.
7. FEES AND EXPENSES. As provided in Section 9.3 of the Loan Agreement, Borrowers agree to pay on demand all Costs incurred by Lender in connection with the preparation, execution and delivery of this Amendment.
8. INCORPORATION OF LOAN AGREEMENT. The provisions contained in Sections 11.12 and 11.13 of the Loan Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety with respect to this Amendment and the subject matter hereof.
9. CAPTIONS. Section captions used in this Amendment are for convenience only, and shall not affect the construction of this Amendment.
10. SEVERABILITY. Whenever possible each provision of this Amendment shall be interpreted in such manner as to be effected and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
11. COUNTERPARTS. This Amendments may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telecopy shall be effective as delivery of a manually executed counterpart of this Amendment.
12. PAYMENT UPON MATURITY DATE. The parties hereto acknowledge and agree that payment of the Indebtedness pursuant to Section 1.6(b) of the Loan Agreement shall not constitute a prepayment under Section 1.7 of Loan Agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the day and year first above written,
BLUEGREEN CORPORATION
By: /s/ John F. Chiste
---------------------------------
Title: CHIEF FINANCIAL OFFICER
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BLUEGREEN VACATIONS UNLIMITED, INC.
By: /s/ John F. Chiste
---------------------------------
Title: CHIEF FINANCIAL OFFICER
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HELLER FINANCIAL, INC.
By: /s/ Dennis Holland
---------------------------------
Title: VICE PRESIDENT
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EXHIBIT 10.200
MARKETING AND PROMOTIONS AGREEMENT
Made on this 16th day of June, 2000
LIST OF EXHIBITS
Exhibit A - Bass Pro Catalog
Exhibit B - Big Cedar Lodge Property Description
Exhibit C - Big Cedar Timeshare Project Property Description
Exhibit D-1 - Bass Pro Trademarks, Trade Names, Service Marks, Proprietary Marks,
Logos and Unique Signs
Exhibit D-2 - Big Cedar Trademarks, Trade Names, Service Marks, Proprietary Marks,
Logos and Unique Signs
Exhibit E - Prospect Track
Exhibit F - Advertising Space Receipt and Confirmation Agreement
Exhibit G-1 - License and Concession Agreement
Exhibit G-2 - Schematic Plans
Exhibit H - Website Hyperlink License Agreement
Exhibit I-1 - Bass Pro Mailing List Agreement
Exhibit I-2 Big Cedar Mailing List Agreement
Exhibit I-3 Bluegreen Mailing List Agreement
Exhibit J - Security Agreement - Bass Pro
Exhibit K Intercreditor Agreement - Fleet Retail Finance, Inc.
Exhibit L - Commercial Lease of Sales Office
Exhibit M - Cabin Fever House Facility Lease
Exhibit N - Bass Pro/Big Cedar Trademark License Agreements
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MARKETING AND PROMOTIONS AGREEMENT
THIS MARKETING AND PROMOTIONS AGREEMENT ("Agreement") is made and entered into as of this 16th day of June, 2000 by and between Big Cedar, L.L.C., a Missouri limited liability company ("Big Cedar"), having a principal address of 2500 East Kearney Street, Springfield, Missouri 65898, Attn: Toni Miller and Bass Pro, Inc., a Delaware corporation ( (hereinafter sometimes referred to as "Bass Pro") having a principal address of 2500 East Kearney Street, Springfield, Missouri 65898, Attn: Toni Miller and Bluegreen Vacations Unlimited, Inc., a Florida corporation ("Bluegreen"), having a principal address of 4960 Blue Lake Drive, Boca Raton, Florida 33431, and Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company having a principal address of 4960 Blue Lake Drive, Boca Raton, Florida 33431, (the "LLC").
W I T N E S S E T H
WHEREAS, the LLC has been formed, activated and capitalized by Bluegreen and Big Cedar to design, develop, market and sell a timeshare project contiguous to the current Big Cedar Lodge, located in Taney County, Missouri (hereafter the "Big Cedar Timeshare Project");
WHEREAS, Bluegreen is in the business of designing, developing, marketing, and selling timeshare developments and timeshare interests, including but not limited to the Bluegreen Vacation Club (hereinafter such developments and interests referred to collectively as "Bluegreen's Timeshare Facilities") in and throughout the United States and internationally;
WHEREAS, Big Cedar, (and Bass Pro and Bass Pro Affiliates (Bass Pro Affiliates being defined herein as set forth in paragraph 1(c) of this Agreement), control, own and have available extensive promotional and marketing opportunities;
WHEREAS, it is the intention of this Agreement to provide for an arrangement by which Big Cedar, Bass Pro and Bass Pro Affiliates will provide to Bluegreen and Bluegreen Affiliates (as defined in paragraph 1(o), below), for the benefit of Bluegreen's Timeshare Facilities and to Bluegreen and the LLC for the benefit of the Big Cedar Timeshare Project, promotional, marketing and advertising services as provided for herein, and Bluegreen, Bluegreen Affiliates and the LLC, desire to receive such promotional, marketing and advertising services;
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions pursuant to which Big Cedar, Bass Pro and Bass Pro Affiliates shall provide such promotional, marketing and advertising services to Bluegreen and Bluegreen Affiliates and to the LLC;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual promises contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) AD LOAN shall be that certain secured advance advertising loan described in and attached to the Contribution Agreement.
(b) BASS PRO shall mean Bass Pro, Inc., a Delaware corporation, together with its successors in interest.
(c) BASS PRO AFFILIATES shall mean Bass Pro Outdoor World, LLC, a Missouri limited liability company, Bass Pro Outdoors Online, LLC, a Missouri limited liability company, Bass Pro Trademarks, LLC, a Missouri limited liability company, BPS Catalog, LP., a Missouri limited partnership, BPS Catalog GP, Inc., a Missouri corporation and Worldwide Sportsman, Inc., a South Carolina corporation.
(d) BASS PRO MAILING LIST shall mean the mailing lists of customers, clients and contacts of Bass Pro and Bass Pro Affiliates which mailing lists shall include by way of example and not limitation, the name, address, telephone number and e-mail address, where available, together with the date of the last order, total dollar amount of purchase and the source from where such customer or client was located (i.e. catalog, retail or internet) of each such customer or client, together with Bass Pro Reward Members and Bass Pro catalog subscribers, and such other fields of information as is customarily kept by Bass Pro and Bass Pro Affiliates respecting its customers, clients and contacts. Such Bass Pro Mailing List shall include such customers and clients as now exist or hereafter may exist subject to such limitations as may otherwise be set forth herein.
(e) BASS PRO SHOPS shall mean those certain retail stores and operations operated by Bass Pro or its respective Bass Pro Affiliates, including but not limited to Bass Pro Outdoor Shops and Bass Pro Shops.
(f) BASS PRO CATALOG shall mean those certain retail catalogs, published seasonally by Bass Pro and Bass Pro Affiliates as set forth on Exhibit "A" attached hereto and incorporated herein by this reference.
(g) BASS PRO MARKS shall mean those certain trademarks, trade names, service marks, proprietary marks, logos and unique signs or marks owned by Bass Pro or Bass Pro Affiliates, identification of which is attached hereto as Exhibit "D-1" and incorporated herein by this reference.
(h) BIG CEDAR shall mean Big Cedar, L.L.C., a Missouri limited liability company.
(i) BIG CEDAR AFFILIATES shall mean (i) John Morris, together
with any relative within the third degree of kindred of John Morris; (ii) any
Person controlled by or under common control of John Morris, a partner of John
Morris or any such relative as set forth in subsection (i) of this paragraph;
(iii) any officer, director, trustee, partner or employee of any entity
described in subsection (ii) of this paragraph; and (iv) any trust for the
benefit of John Morris or any officer, director, trustee, partner, member or
employee of a Person described in subsection (i) of this paragraph; provided
that Big Cedar Affiliates shall not include Gaylord Entertainment Company, a
Delaware corporation, JWC Equity Funding Two, Inc., a Delaware corporation, JW
Childs Associates, LP., a Delaware limited partnership or Tracker Marine, LLC.,
a Missouri limited liability company.
(j) BIG CEDAR LODGE shall mean that certain hotel facility located in Taney County, Missouri, which as of the date hereof is owned and operated by Big Cedar, which lodge is located on that certain property identified on Exhibit "B" attached hereto and incorporated herein by this reference.
(k) BIG CEDAR MARKS shall mean those certain trademarks, trade names, service marks, proprietary marks, logos and unique signs or marks owned by Big Cedar, identification of which is attached hereto as Exhibit "D-2" and incorporated herein by this reference.
(l) BIG CEDAR'S RIGHT OF PARTICIPATION shall mean that certain
right of Big Cedar set forth in Section 6.11 of the Operating Agreement of the
LLC.
(m) BIG CEDAR TIMESHARE PROJECT shall mean that certain timeshare project developed by the LLC, located contiguous to the Big Cedar Lodge in Taney County, Missouri, which timeshare project is located on that certain property described on Exhibit "C."
(n) BLUEGREEN shall mean Bluegreen Vacations Unlimited, Inc., a Florida corporation.
(o) BLUEGREEN AFFILIATE shall mean Bluegreen Corporation, a Massachusetts corporation, together with any subsidiary enterprise now or hereafter existing.
(p) BLUEGREEN'S TIMESHARE FACILITIES shall mean timeshare developments and timeshare interests, including but not limited to the Bluegreen Vacation Club, designed, developed, marketed and/or sold by Bluegreen or a Bluegreen Affiliate, whether such facilities now exist or may from time to time exist in the future..
(q) BLUEGREEN VACATION CLUB shall mean that certain vacation club operated by Bluegreen, which was initially filed pursuant to Chapter 721 (the Florida Timeshare Act), and is identified in accordance with such registration as the Bluegreen Vacation Club.
(r) COMPETING RESORT shall mean any seller, marketer, developer, exchange company, club or lead generator, together with any officer, director, employee, member, shareholder, partner, trustee or relative within the third degree or kindred of any of the foregoing, or any other person or entity which is controlled by or under common control with any of the foregoing, or any partner, member, shareholder, trustee or beneficiary of any of the foregoing, as respects any timeshare resort or resort interest development, together with any party or entity that may be in competition with Bluegreen or any Bluegreen Affiliate, excepting, however, Bluegreen and any Bluegreen Affiliate.
(s) CONTRIBUTION AGREEMENT shall mean that certain Contribution Agreement made and entered into as of the date hereof, by and between Bluegreen and Big Cedar.
(t) DISTRIBUTIONS shall mean any and all cash or other property, including timeshare receivables, of the LLC as may be distributed by the LLC to Big Cedar or Bluegreen as members of the LLC.
(u) FRACTIONAL INTEREST DEVELOPMENT shall mean a program in which one-quarter (1/4) interests of an accommodation is offered and conveyed to a consumer in such respective accommodation, which one-quarter (1/4) interest provides for three (3) months (i.e. one-quarter interest) of use by such respective purchaser.
(v) LICENSE AGREEMENTS shall mean the Advertising Space Receipt and Confirmation Agreement referred to in paragraph 2(a)(i) of this Agreement; the License and Concession Agreement referred to in paragraph 2(a)(ii)(2) of this Agreement; the Website Hyperlink License Agreement referred to in paragraph 2(a)(iii); the Mailing List Agreements referred to in paragraphs 2(a)(iv) and 2(a)(v) of this Agreement; and the Trademark License Agreements referred to in paragraph 2(a)(xiv).
(w) LLC shall mean Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company.
(x) MARKS shall mean Big Cedar Marks and Bass Pro Marks.
(y) NET SALES VOLUME shall mean annual sales of timeshare interests less purchaser cancellations or defaults.
(z) PREFERENTIAL TREATMENT shall mean preferred and preferential pricing on a "most favored nation" basis with respect to any and all fees, costs, price reductions, rebates, allowances, expenses or charges as might be offered to any other person, party or enterprise, and at all times at least as favorable to the best pricing offered any other person, party or enterprise.
(aa) RESORT INTEREST PROGRAM shall mean any form of timeshare, interval interest, timeshare exchange, undivided interest program, timeshare club membership, points-based program, or occupancy program, other than as may be offered by the LLC in respect to the Big Cedar Timeshare Project, or offered by Bluegreen or Bluegreen Affiliates, or any Fractional Interest Development offered by Big Cedar or Big Cedar Affiliates or Bass Pro or Bass Pro Affiliates, whereby the use, occupancy or possession of real property has been made subject to a conveyance or a use and such use, conveyance, occupancy or possession circulates among purchasers according to a first come, first serve reservation system, or a floating or fixed time schedule on a periodic, re-occurring basis, over any period of time in excess of one (1) year in duration.
(bb) GENERATION COMMISSION shall mean that certain amount payable by Bluegreen to Big Cedar, which amount shall be an amount equal to seven percent (7%) or three and one half percent (3.5%), as hereafter stated, of the Net Sales Volume of timeshare interests located in Bluegreen's Timeshare Facilities sold by Bluegreen or Bluegreen Affiliates to buyers generated as a result of Big Cedar's, Bass Pro's or Bass Pro Affiliates' promotional, marketing or advertising services provided for under this Agreement, excepting, however, Net Sales Volume arising from sales of any Resort Interests in the Big Cedar Timeshare Project or the Bluegreen Vacation Club, predicated upon conveyance of a Resort Interest at the Big Cedar Timeshare Project for which the Generation Commission is agreed not to be applicable. For purposes of this Agreement, a sale shall be deemed generated as a result of Big Cedar's, Bass Pro's or Bass Pro Affiliates' promotional, marketing or advertising services as provided for in this Agreement, and Big Cedar shall be entitled to seven percent (7%) of the Net Sales Volume of timeshare interests, as aforesaid, if such sale is to a prospect uniquely identified through a service provided by Big Cedar, Bass Pro or a Bass Pro Affiliate under this Agreement, and such prospect accepts a promotional marketing offer from Bluegreen or a Bluegreen Affiliate within one hundred eighty (180) days of delivery of such promotional marketing offer and which prospect acquires a timeshare interest at any time thereafter without additional marketing expense to Bluegreen or a Bluegreen Affiliate, other than the expense of fulfillment of the promotional marketing offer so made, and which prospect generally follows the track as set forth in Exhibit "E" attached hereto and incorporated herein by this reference. In all events, other than when Big Cedar is entitled to the seven percent (7%) above referred to, Big Cedar shall be entitled to a Generation Commission equal to three and one half percent (3.5%) of the Net Sales Volume arising from sales of timeshare interests located in Bluegreen's Timeshare Facilities sold by Bluegreen or Bluegreen Affiliates to buyers (excepting sales of any Resort Interests in the Big Cedar Timeshare Project or Bluegreen Vacation Club, predicated upon conveyance of a Resort Interest at the Big Cedar Timeshare Project) if the purchaser of the timeshare interest is a prospect uniquely identified through a service provided by Big Cedar, Bass Pro or a Bass Pro Affiliate under this Agreement who has accepted a promotional marketing offer from Bluegreen or a Bluegreen Affiliate, and thereafter at any time acquired a timeshare interest, despite additional marketing expense to Bluegreen or a Bluegreen Affiliate. For purposes of the foregoing, a prospect may be deemed unique through production from one source under this Agreement as well as unique through production from another source under this Agreement.
(cc) TIMESHARE RESORT OR RESORT INTEREST DEVELOPMENT shall mean any vacation ownership interest resort, timeshare resort, club, point-based system, and any arrangement whereby the use, occupancy or possession of real property has been made subject to a conveyance or a use whereby such use, conveyance, occupancy or possession circulates among purchasers according to a first come, first serve reservation system, or a floating or fixed time schedule on a periodic, re-occurring basis, over any period of time in excess of one (1) year in duration.
2. MARKETING AND PROMOTION OF BLUEGREEN'S TIMESHARE FACILITIES AND THE BIG CEDAR TIMESHARE PROJECT.
(a) SERVICES IN GENERAL. During the term of this Agreement, Big Cedar, Bass Pro and Bass Pro Affiliates shall provide promotional, marketing and advertising services, as provided in this Agreement, to Bluegreen and Bluegreen Affiliates for the benefit of the Bluegreen's Timeshare Facilities, and to Bluegreen and the LLC for the benefit of the Big Cedar Timeshare Project. Such promotional, marketing and advertising services shall be provided in the amount and quantities and at such times as specified herein and as may, from time to time, be requested by Bluegreen as respects Bluegreen's Timeshare Facilities and by the LLC as respects the Big Cedar Timeshare Project, subject to such restrictions, limitations and conditions set forth herein. The parties intend that this Agreement shall define the extent and specifics of the promotional, marketing and advertising services to be provided by Big Cedar, Bass Pro and Bass Pro Affiliates to the benefit of Bluegreen, Bluegreen Affiliates and the LLC. Such promotional, advertisement and marketing services and exposure shall include the following primary areas to be provided as set forth hereinbelow by Big Cedar, Bass Pro and Bass Pro Affiliates:
(i) BASS PRO CATALOG.
(1) ADVERTISING. During the term of this Agreement, Bass Pro, Bass Pro Catalog L.P., a Missouri limited partnership and BPS Catalog GP, Inc., a Missouri corporation agree to make advertising, marketing and promotion copy space routinely and consistently available to the LLC and Bluegreen within each Bass Pro Catalog. Bass Pro, Bass Pro Catalog L.P., a Missouri limited partnership and BPS Catalog GP, Inc., a Missouri corporation, by execution hereof, and by execution of the Advertising Space Receipt and Confirmation Agreement, attached hereto as Exhibit "F" and incorporated herein by this reference, agree that such copy space has been paid for by Bluegreen in full. Such space shall be used by the LLC and Bluegreen for advertising, marketing and promotion relating to or connected with the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities; provided, however, that copy space shall be used to give priority to promotion of the Big Cedar Timeshare Project, and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club over promotion of Bluegreen's Timeshare Facilities. The LLC and Bluegreen agree to pay Bass Pro Catalog L.P., a Missouri limited partnership a publication cost in accordance with the following: The LLC shall pay Bass Pro Catalog, L.P. for catalog publication costs if the advertising space primarily relates to the Big Cedar Timeshare Project or the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Bluegreen shall pay Bass Pro Catalog L.P., a Missouri limited partnership publication costs if the advertising space primarily relates to a Bluegreen Timeshare Facility other than the Big Cedar Timeshare Project or the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Payments for publication costs by the LLC or Bluegreen shall be for direct cost of postage, printing, paper, creative, color separation and a fair and reasonable allocation of administrative overhead, at cost, and without markup, on a Preferential Treatment basis. The size and method of the exposure and promotions as respects publications in each Bass Pro Catalog shall be sufficient to establish prominent marketing support for the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities in amounts not less than one full page per Bass
Pro Catalog. While the foregoing advertising space shall be made available by Bass Pro, Bass Pro Catalog L.P. and BPS Catalog GP, Inc., nothing herein contained shall require the LLC, Bluegreen nor any Bluegreen Affiliate to use the available space on each and every occasion.
(2) RESTRICTIONS. During the term of this Agreement, except as otherwise provided herein, neither Bass Pro, any Bass Pro Affiliate nor Big Cedar, shall allow, accept, publish, print, include or authorize any advertising, marketing or promotional material in any of the Bass Pro Catalogs, or other respective catalogs or publications published by Bass Pro, Bass Pro Affiliates or Big Cedar, which reference, promote or relate to any Competing Resort; provided, however, that Bass Pro, Bass Pro Affiliates and Big Cedar may accept advertisements or promotions in their respective catalogs, which advertisements or promotions may include therein the name of an enterprise and its respective property so long as such advertisements or promotions do not promote, advertise or market Resort Interest Programs relating to such enterprise or prospects respecting the foregoing, nor does such advertisement or promotion constitute a timeshare resort advertisement, nor do the properties included in such advertisements constitute a timeshare resort or Resort Interest Programs. Nothing herein contained shall limit the right of Bass Pro or Bass Pro Affiliates to sell their retail products in stores and catalogs to other purchasers, even though such purchasers may be in competition with the LLC or Bluegreen (such as sales of retail products to Opryland, Disney World, John Q. Hammons Industries and other similar enterprises). Bass Pro and Bass Pro Affiliates may advertise such companies and other resorts in Bass Pro Shops and within the Bass Pro Catalogues, so long as Bass Pro and Bass Pro Affiliates do not promote or market Resort Interest Programs of such companies, nor do the resorts advertised include or contain any Resort Interest Programs nor efforts to market Resort Interest Programs.
(ii) BASS PRO SHOPS
(1) During the term of this Agreement, Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited liability company and Worldwide Sportsman, Inc., a South Carolina corporation (and any other future affiliate of any of the foregoing as may relate to future Bass Pro Shops) shall cause and permit marketing and advertising exposure and promotions of Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities to be provided to the benefit of the LLC, Bluegreen and Bluegreen Affiliates in and from Bass Pro Shops. Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited liability company and Worldwide Sportsman, Inc., a South Carolina corporation agree that such marketing and advertising exposure and promotions shall be routinely and consistently available in and from such Bass Pro Shops. Additionally, the agreements herein regarding use of Bass Pro Shops is made by Bass Pro in respect to future Bass Pro Shops as may exist whether owned or operated by Bass Pro, any Bass Pro Affiliate or any future or to be formed affiliate of Bass Pro. Accordingly, Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited liability company and World Wide Sportsman, Inc., a South Carolina corporation, the LLC and Bluegreen agree as follows:
(2) FLOOR SPACE. During the term of this Agreement and by execution hereof, Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited liability company and World Wide Sportsman, Inc., a South Carolina corporation, do hereby irrevocably license to Bluegreen and the LLC for the use by the LLC and Bluegreen, floor space marketing areas for promotional purposes, including kiosk space, in each Bass Pro Shop, now or hereafter existing, on the terms and conditions set forth herein. It is agreed that Bass Pro and Bass Pro Affiliates agree that use of the floor space by Bluegreen and the LLC has been paid for in full and no rent cost or expense shall be due or payable therefor by Bluegreen or the LLC; provided the actual expenses of telephone and facilities included in the promotional space, including kiosk space, by the LLC or Bluegreen, and personnel staffing of such space shall be paid by Bluegreen or the LLC as provided herein. All personnel staffing the kiosk will be employed by Bluegreen, and the LLC shall reimburse Bluegreen for the full portion of such expenses, including benefits paid to such employees, if the primary benefit of the floor space is to the LLC. Bass Pro, Bass Pro Outdoor World, LLC and World Wide Sportsman, Inc. and Bluegreen shall, upon execution
hereof, execute for each Bass Pro Shop that certain License and Concession Agreement attached hereto as Exhibit "G-1" and incorporated herein by this reference. The minimum total floor space marketing area for promotional purposes in each Bass Pro Shop, except such floor space marketing areas as may be located at Islamorada, Florida, is one hundred (100) square feet used singularly or in multiple separate areas in and throughout each Bass Pro Shop. The floor space marketing area in the Islamorada, Florida Bass Pro Shop is determined by the reasonable, mutual agreement of both parties following execution hereof. The configuration of such floor space marketing areas shall be determined, from time to time by Bluegreen and Bass Pro, as may mutually be agreed from time to time; provided, however, that in the absence of any agreement otherwise, the schematic plans attached hereto as Exhibit "G-2," are deemed to be acceptable configurations and locations for use of the floor space marketing areas by Bluegreen and the LLC. The entirety of the floor space marketing areas shall not exceed one hundred (100) square feet in each store (subject to such greater area as provided herein). Floor space marketing areas contained within the Bass Pro Shops located in Springfield, Missouri; Nashville, Tennessee; Dallas, Texas; Houston, Texas; Chicago, Illinois; and Detroit, Michigan, may, upon subsequent agreement of Bass Pro and Bluegreen, be increased to one thousand (1,000) square feet of floor space marketing area (provided such additional space shall not interfere with the customary and normal operations of such retail store), upon establishment that the minimum floor space in the foregoing stores is effectively producing prospects in respect to the Big Cedar Timeshare Project or Bluegreen's Timeshare Facilities. All floor space marketing areas shall be located to effectively promote, market and advertise the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities. Floor space marketing areas may be used for establishment of kiosks, interactive computers, a stepped marketing track or program through which prospective consumers may proceed, or such alternative similar uses as may be determined by the LLC and Bluegreen. The location of the kiosks, computers, marketing tracks or similar uses, shall not interfere with the customary and normal retail operations of the respective Bass Pro Store and the establishment and placement of the foregoing shall be located consistent with the mutual agreement of Bluegreen and Bass Pro, or in the absence of such agreement, consistent with the attached schematic plan. Any modifications regarding the location of the floor space and the foregoing particulars (i.e. kiosks, interactive computers, marketing track, etc.) inconsistent with the schematic plan referenced above, shall only occur upon approval of Bass Pro, whose approval shall not be unreasonably withheld or denied. All potential sales prospects who are originated from contact at any of such floor space marketing areas shall not be limited to marketing or sales for any particular or specific Bluegreen Timeshare Facility or the Big Cedar Timeshare Project; provided, however, that the floor space marketing areas located in the Bass Pro Shops located in Springfield, Missouri; Nashville, Tennessee; Dallas, Texas; Houston, Texas; Chicago, Illinois, and Detroit, Michigan, shall be primary floor space marketing areas devoted to the Big Cedar Timeshare Project and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club from and after such time as the Big Cedar Timeshare Project is available for sales and marketing in accordance with the customary practices of Bluegreen, and the floor space marketing areas located in the Bass Pro Shops in Islamorada, Florida; Ft. Lauderdale, Florida; Orlando, Florida; Charlotte, North Carolina, and Atlanta, Georgia, shall be primary floor space marketing areas devoted to Bluegreen's Timeshare Facilities. Any additional Bass Pro Shops, as may be established by Bass Pro or Bass Pro Affiliates (or any other affiliate of Bass Pro) from and after the date hereof, shall likewise be usable by the LLC and Bluegreen in accordance with the terms of this Agreement. Configuration of floor space marketing areas in future stores shall be in accordance with schematic plans agreed to by Bluegreen and Bass Pro (or the respective Bass Pro Affiliate as may open a new Bass Pro Shop). The Bass Pro Shop located in Springfield, Missouri and the Big Cedar Lodge, shall not be used to promote or market that certain Bluegreen Timeshare Facility known as The Falls, located in Branson, Missouri, nor any other Bluegreen Timeshare Facility located within one hundred (100) miles of the Springfield, Missouri Bass Pro Shop.
(3) ADDITIONAL SPACE.
(a) Floor space marketing areas in the Bass Pro Shop located in Springfield, Missouri may, upon subsequent agreement of Bass Pro, be increased up to a total of one thousand five hundred (1,500) square feet of floor space upon establishment that the existing floor space marketing areas is effectively producing prospects in respect to the Big Cedar Timeshare Project or the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Such additional floor space shall be usable for promotional, advertising and marketing services relating to sales and marketing of Bluegreen's Timeshare Facilities and the Big Cedar Timeshare Project (excepting, however, any Bluegreen Timeshare Facilities located within one hundred (100) miles of the Springfield, Missouri Bass Pro Shop , other than the Big Cedar Timeshare Project) and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Such additional floor space shall be primary floor space marketing areas devoted to the Big Cedar Timeshare Project and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Such additional space shall not interfere with the customary and normal operations of the retail store. In addition, Bass Pro and Bass Pro Affiliates do hereby agree to allow the LLC use of an outdoor area immediately adjacent (i.e. within the parking lot area, or otherwise suitably located as determined by the LLC, subject to the approval of Bass Pro) of the Springfield, Missouri and Grapevine (Dallas), Texas Bass Pro Shops for purposes of installation of a cabin prototype timeshare sales area, at the expense of the LLC, which cabin prototype shall be consistent with the architectural design of accommodations at the Big Cedar Lodge. Each cabin prototype shall prominently feature the Big Cedar Timeshare Projector the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club.
(b) In addition to the floor space marketing area specified hereinabove, Bass Pro, Bass Pro Outdoor World, LLC and World Wide Sportsman, Inc. agree that additional floor space marketing areas in each Bass Pro Shop may be made available to the LLC and Bluegreen on terms to be negotiated and on a store-by-store case basis, upon request by the LLC or Bluegreen to Bass Pro for such additional floor space marketing areas; provided such additional space shall not interfere with the customary normal operations of any retail store and upon establishment that the existing floor space marketing areas is effectively inducing prospects in respect to timeshare sales. Upon such request, as part of any future negotiations, Bass Pro shall factor in the projected revenue stream generated from such additional floor space marketing areas (taking into account the Generation Commission to be generated to Big Cedar from such additional space) as compared to the revenue generated from such floor space used as traditional purpose retail space within the respective Bass Pro Shop. Notwithstanding the foregoing, in no event shall the combined floor space marketing areas in any one respective Bass Pro Shop exceed one thousand five hundred (1,500) square feet.
(4) EXPENSE. The floor space marketing areas at each respective Bass Pro Shop are licensed to the LLC or Bluegreen by the terms hereof, and in accordance with the License and Concession Agreement(s) attached hereto as Exhibit "G-1" and incorporated herein by this reference. Such floor space has been paid for in full for the term of this Agreement and shall be utilized in accordance with the terms of this Agreement and the License and Concession Agreement(s), at no further cost or expense to Bluegreen or the LLC; provided, however, that the LLC and Bluegreen agree to pay the actual expenses incurred by Bluegreen or the LLC for telephones and/or additional facilities or improvements, including computers, installed in or operating from the floor space marketing areas, and staff personnel. It is agreed that the kiosk floor space marketing areas primary to the Big Cedar Timeshare Project shall be operated at the expense of the LLC and the kiosk floor space marketing areas which are primary to Bluegreen shall be operated at the expense of Bluegreen. If kiosk floor space marketing areas that are primary to the Big Cedar Timeshare Project are utilized by Bluegreen to the benefit of the Bluegreen Timeshare Facilities other than the Big Cedar Timeshare Project, before the Big Cedar
Timeshare Project is available for sales and marketing in accordance with the customary practices of Bluegreen, then such kiosk floor space marketing areas shall be operated at the expense of Bluegreen.
(5) RESTRICTION. The Bass Pro Shop located in Springfield, Missouri shall not be used by Bluegreen or the LLC to promote the Bluegreen Timeshare Facility located in Branson, Missouri, known as The Falls nor any other Bluegreen Timeshare Facility within one hundred (100) miles of the Springfield, Missouri Bass Pro Shop.
(iii) WEBSITE. Bass Pro and Bass Pro Outdoors Online, L.L.C., a Missouri limited liability company acknowledge that they presently have an operable website accessible through www.basspro.com. By execution hereof, Bass Pro and Bass Pro Outdoors Online, L.L.C. agree that they shall create website linkage for the benefit of the LLC and Bluegreen to the WWW.BASSPRO.COM website in accordance with the terms of this paragraph. Bass Pro and Bass Pro Outdoors Online, L.L.C. agree, by execution hereof, that Bluegreen has paid adequate good and valuable consideration to Bass Pro and Bass Pro Outdoors Online, LLC for Bass Pro and Bass Pro Outdoors Online, L.L.C. to create such linkage and accessibility through the WWW.BASSPRO.COM website. The linkage provided for under this paragraph shall be as follows: On the WWW.BASSPRO.COM website, an icon shall exist identified as "Resorts" or such other icon as is mutually acceptable to Bluegreen and Bass Pro. Upon opening of the icon identified as "Resorts" (or such other icon as is mutually acceptable) existing on the WWW.BASSPRO.COM website, a list and icons respecting resorts associated with Big Cedar and Bluegreen shall exist. Such list and icons shall include (i) the Big Cedar Timeshare Project and (ii) Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club. Upon accessing these respective icons, the home page shall exist for the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club. These website home pages shall be of a design acceptable to Bluegreen and the LLC. The website pages and icons shall interconnect and be accessible one to the other. Bass Pro and Bass Pro Outdoors Online, L.L.C. shall additionally create internet linkage from the website known as WWW.BASSPRO.COM to the website owned by Bluegreen, known as WWW.BLUEGREENONLINE.COM. Furthermore, by execution hereof, it is agreed that Bluegreen, on its website known as www.bluegreenonline.com, may establish an icon and linkage to WWW.BASSPRO.COM and to internet information concerning the Big Cedar Timeshare Project, inclusive of use of the Marks of Bass Pro and Big Cedar to reflect such connection. The cost of the creation of the foregoing website pages and linkage shall be without additional charge or expense to Bluegreen or the LLC, excepting for reimbursement of actual expenses reasonably incurred by Bass Pro and Bass Pro Outdoors Online, L.L.C. in respect to their establishment of the website pages and linkage referred to above, which reimbursement shall be paid by the LLC or Bluegreen, dependent upon whomever the web page and linkage so benefits, which determination shall be made reasonably and in good faith. Such web pages and linkage shall be established and operable within one hundred twenty (120) days from the date of Closing. By execution hereof, and as further evidenced by the Website Hyperlink License Agreements attached hereto as Exhibit "H" and incorporated herein by this reference, Bass Pro and Bass Pro Outdoors Online, L.L.C. do hereby license and grant a worldwide, royalty free, non-exclusive, irrevocable license, during the term of this Agreement, to Bluegreen and the LLC for use of the Bass Pro WWW.BASSPRO.COM internet website, together with a non-exclusive, royalty free, irrevocable license to establish hyperlinks from and to such site as provided hereinabove. Furthermore, by execution hereof, Bluegreen agrees that Big Cedar and Bass Pro shall have the right and option to place on Bluegreen's website known as WWW.BLUEGREENONLINE.COM an icon and linkage to WWW.BASSPRO.COM which, if established, shall be for the purpose of access to WWW.BASSPRO.COM and information concerning Big Cedar Lodge and the Big Cedar Timeshare Project. The cost and creation of the foregoing shall be at the cost and expense of Bass Pro and Bass Pro Outdoors Online, L.L.C. If established, such license to the benefit of Big Cedar and Bass Pro shall be identical to the terms of the license existing hereunder to the benefit of Bluegreen and the LLC and shall be evidenced by the Website Hyperlink License Agreement attached hereto as Exhibit "H."
(iv) BASS PRO MAILING LIST. By execution hereof, during the term of this Agreement, Bass Pro and Bass Pro Trademarks, LLC do hereby grant a non-exclusive, limited, irrevocable license to the LLC and Bluegreen to use the Bass Pro Mailing List as is now or hereafter possessed, used, obtained or compiled by Bass Pro and Bass Pro Affiliates for the LLC's and Bluegreen's promotional and marketing purposes. By execution hereof, Bass Pro and Bass Pro Affiliates acknowledge and agree that they have received good and valuable consideration for the right and license of the LLC and Bluegreen to use the Bass Pro Mailing List. In furtherance of the foregoing, Bass Pro and Bass Pro Trademarks, LLC, shall execute that certain Mailing List Agreement attached hereto as Exhibit "I-1" and incorporated herein by this reference. Use of the Bass Pro Mailing List and enjoyment of the license granted hereby by the LLC and Bluegreen shall be administered by a third party selected by Bluegreen and Bass Pro, whose mutual selection shall not be unreasonably withheld or denied, to whom Bass Pro and Bass Pro Trademarks, LLC will deliver the Bass Pro Mailing List. Such mailing list intermediary may include, by way of example and not limitation, Fair Issac at 4295 Lexington Avenue North, St. Paul, MN 55126-6164 (telephone number 651-482-8593; Fax No. 651-481-8077) is an example of an acceptable mailing list intermediary. During the term of this Agreement, Bass Pro and Bass Pro Affiliates shall not make such Bass Pro Mailing List otherwise available to any Competing Resort or any operator of any Competing Resort. Such Bass Pro Mailing List shall be updated and redelivered to the third party administrator as provided hereinbelow, for use by the LLC and Bluegreen in the promotion, advertisement and marketing of the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities. Such Bass Pro Mailing List is licensed for use by Bluegreen and the LLC by execution hereof and such license is further evidenced by the Mailing List Agreement attached hereto as Exhibit "I-1." Such license shall be without further cost or expense to Bluegreen or the LLC, excepting, however, that the LLC and Bluegreen shall pay the actual expense of the third party administrator and the formatting of such Bass Pro Mailing List on labels, diskettes, or magnetic tapes, in a format as necessary for use by the LLC and Bluegreen in their respective promotional, advertising and marketing efforts. The initial Bass Pro Mailing List under this paragraph shall be delivered by Bass Pro and Bass Pro Trademark, LLC to the third party administrator designated by Bass Pro, Bass Pro Trademark, LLC and Bluegreen within thirty (30) days after signing this Agreement, and thereafter every calendar quarter, annually.
(1) To assure the continued and uninterrupted use of the Bass Pro Mailing List, and enjoyment of the license set forth hereinabove by the LLC and Bluegreen, Bass Pro and Bass Pro Trademarks, L.L.C. do, by execution hereof grant unto the LLC and Bluegreen a security interest in and to and the Bass Pro Mailing List, which security interest shall be a second priority security interest (the Fleet Retail Finance, Inc. security interest being a first priority security interest in and to the Bass Pro Mailing List) and which security interest shall be further evidenced by a security agreement in the form attached hereto as Exhibit "J" and incorporated herein by this reference and a UCC financing statement acceptable to the LLC and Bluegreen. Such documentation shall perfect the security interest in the Bass Pro Mailing List to the benefit of the LLC and Bluegreen. Such security agreement and UCC financing statement shall establish a second priority security interest to the benefit of the LLC and Bluegreen in and to Bass Pro Mailing List subject to the Fleet Retail Finance, Inc., as Agent, first priority security interest; provided Fleet Retail Finance, Inc. shall execute to the benefit of Bluegreen and the LLC the Intercreditor Agreement in the form attached hereto as Exhibit "K" and incorporated herein by this reference. Bluegreen and the LLC agree to subordinate their security interest to future financing of Bass Pro and Bass Pro Trademark, LLC arranged for the benefit of the business of Bass Pro or Bass Pro Trademarks, LLC, so long as Bluegreen and the LLC are notified of such future financing and such future lender executes an agreement not to disturb the rights of Bluegreen and the LLC hereunder and under the Mailing List Agreement attached hereto as Exhibit "I-1." In the event that Bass Pro or any Bass Pro Affiliate is
in default of the terms of this Marketing and Promotions Agreement or a License Agreement, then Bluegreen shall be entitled to receive immediately physical possession and custody of a copy of the Bass Pro Mailing List in the form as exists on the date of default, and Bass Pro and Bass Pro Affiliates, including Bass Pro Trademarks, L.L.C., or the mailing list intermediary holding the Bass Pro Mailing List for use by Bluegreen and the LLC hereunder, shall immediately upon such default deliver to Bluegreen physical possession and custody of a copy of the Bass Pro Mailing List in the form as it exists on the date of such default. Any agreement with a mailing list intermediary shall so provide. From and after delivery to Bluegreen of the Bass Pro Mailing List, Bluegreen shall be entitled to retain physical possession and custody of a copy of the Bass Pro Mailing List and Bluegreen's use of the Bass Pro Mailing List shall continue indefinitely and unrestricted as may be determined from time to time by Bluegreen, subject to the restriction that Bluegreen's use of the Bass Pro Mailing List shall be only within the timeshare industry and the Bass Pro Mailing List shall not be sold by Bluegreen to any competitor of Bass Pro or Bass Pro Affiliates. Delivery of the Bass Pro Mailing List in accordance with the terms hereof shall be in such a media form as to be usable by Bluegreen. The right of Bluegreen to receive the Bass Pro Mailing List shall be specifically enforceable by Bluegreen.
(v) BIG CEDAR MAILING LISTS. By execution hereof, during the term of this Agreement, Big Cedar does hereby grant the non-exclusive, limited, irrevocable license to the LLC and Bluegreen to use Big Cedar's present and future mailing lists of customers of Big Cedar, including but not limited to occupants of the Big Cedar Lodge, as is now or hereafter possessed, used, obtained or complied by Big Cedar (the "Big Cedar Mailing List"), for the LLC's and Bluegreen's promotional and marketing purposes. Such license has been fully paid for by Bluegreen and the LLC and by execution hereof, Big Cedar acknowledges and agrees that it has received good and valuable consideration for the license to use such Big Cedar Mailing List. In furtherance of the foregoing, Big Cedar shall execute that certain Mailing List Agreement, attached hereto as Exhibit "I-2" and incorporated herein by this reference. Use of the foregoing Big Cedar Mailing List by Big Cedar and enjoyment of the license granted hereby by the LLC and Bluegreen shall be administered by a third party selected by Bluegreen and Big Cedar to whom Big Cedar will deliver its Big Cedar Mailing List. It is agreed that Fair Issac at 4295 Lexington Avenue North, St. Paul, MN 55126-6164 (telephone number 651-482-8593; Fax No. 651-481-8077) is an example of an acceptable mailing list intermediary. During the term of this Agreement, Big Cedar shall not make such Big Cedar Mailing List otherwise available to any Competing Resort or any operator of any Competing Resort Such Big Cedar Mailing List shall contain, at least, the name, address, telephone number and e-mail address, if available, of each occupant of the Big Cedar Lodge, together with their respective dates of occupancy. Such Big Cedar Mailing List shall include such customers and clients, including Big Cedar Lodge occupants, as exists now or hereafter. Such Big Cedar Mailing Lists shall be updated and redelivered as provided hereinbelow to the LLC and Bluegreen for use by the LLC and Bluegreen in the promotion, advertising and marketing of the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities. Such Big Cedar Mailing List is licensed for use by Bluegreen and the LLC by execution hereof, and such license is further evidenced by the Mailing List Agreement attached hereto as Exhibit "I-2." Such license shall be without further cost or expense to Bluegreen or the LLC, excepting, however, that the LLC and Bluegreen shall pay the actual expense of the third party bureau administrator and the formatting of such mailing list on labels, diskettes or magnetic tapes, in a format as necessary for use by the LLC and Bluegreen in their respective promotional, advertising and marketing efforts. The initial Big Cedar Mailing List under this paragraph shall be delivered by Big Cedar to the third party administrator designated by Big Cedar and Bluegreen within thirty (30) days after signing this Agreement, and thereafter every calendar quarter, annually.
(vi) BLUEGREEN MAILING LIST. During the term of this Agreement, Bluegreen does hereby grant the non-exclusive, limited, irrevocable license to Big Cedar, Bass Pro and Bass Pro Affiliates to use Bluegreen's present and future mailing list of customers,, clients and contacts as are possessed, used, obtained or compiled by Bluegreen and Bluegreen Affiliates (the :Bluegreen Mailing List"). Use of the Bluegreen Mailing List shall be limited, however, to offering to such persons identified therefrom, outdoor retail products of Bass Pro or Bass Pro Affiliates so long as the same are not offered through or in relation to businesses which compete with Bluegreen or Bluegreen Affiliates. In furtherance of the foregoing, Bluegreen and Bluegreen Affiliates shall execute that certain Mailing List Agreement, attached hereto as Exhibit "I-3" and incorporated herein by this reference. Use of the foregoing Bluegreen Mailing List by Big Cedar, Bass Pro and Bass Pro Affiliates shall be administered by a third party selected by Bluegreen, Big Cedar and Bass Pro. Such Bluegreen Mailing List shall contain, at least, the name, address and telephone number and where collected, the e-mail address of each customer, client or contact. Such
Bluegreen Mailing List shall be routinely and consistently updated and redelivered as provided hereinbelow to Big Cedar and Bass Pro for use by Big Cedar, Bass Pro and Bass Pro Affiliates for the purposes set forth herein. Such Bluegreen Mailing List is licensed by execution hereof in accordance with the License Agreement attached hereto, by Bluegreen and Bluegreen Affiliates to Big Cedar, Bass Pro and Bass Pro Affiliates for the limited use as aforesaid, without cost or expense to Big Cedar, Bass Pro or Bass Pro Affiliates, excepting, however, that Big Cedar, Bass Pro and Bass Pro Affiliates shall pay the actual expense of the third party bureau administrator and the formatting of such mailing lists on labels, diskettes or magnetic tapes, in a format as necessary for use by Big Cedar, Bass Pro and Bass Pro Affiliates in their promotional, advertising and marketing efforts. The initial Bluegreen Mailing List under this paragraph shall be delivered by Bluegreen and Bluegreen Affiliates to the third party bureau administrator designated by Bluegreen, Big Cedar and Bass Pro within thirty (30) days after signing this Agreement, and thereafter every calendar quarter, annually. The license set forth in this paragraph shall terminate if Big Cedar breaches the terms of the Ad Loan due and payable to Bluegreen. Samples of each advertising material proposed to be delivered to persons who are obtained by Big Cedar, Bass Pro or a Bass Pro Affiliate from such Bluegreen Mailing List shall be submitted to and subject to the approval of Bluegreen prior to use. In the event of submission of any advertising, marketing and promotional program by Big Cedar, Bass Pro or Bass Pro Affiliates, the same shall be deemed approved within fourteen (14) days of delivery thereof to Bluegreen, unless Bluegreen denies the approval or approves the same within an earlier period. Upon denial of any such approval, Bluegreen shall deliver to Big Cedar, Bass Pro or Bass Pro Affiliates specific reasons for such denial, and upon which cure thereof Bluegreen shall be deemed to have approved such advertising (it being agreed that any proposed cure shall be presented to Bluegreen for its subsequent review, comment and approval, whose approval shall be deemed given unless Bluegreen denies that the cure has been successful within five (5) days from delivery thereof). Once approved, any such sample of advertising, marketing or promotional materials may be re-used or incorporated into any advertising, marketing or promotional program of Big Cedar, Bass Pro or a Bass Pro Affiliate offering of outdoor retail products as determined from time to time by Bass Pro or Bass Pro Affiliates without the necessity of further approval; provided, however, if following approval of any respective advertising, marketing or promotional materials, Bluegreen is notified that such approved advertising, marketing or promotional material is in violation of any applicable legal principles, then Bluegreen may notify Big Cedar, Bass Pro or any respective Bass Pro Affiliate that it is not to use such approved advertising, marketing or promotional materials until any claimed violation is cured.
(vii) CROSS PROMOTIONAL STRATEGIES. During the term of this Agreement, Big Cedar, Big Cedar Affiliates, Bass Pro and Bass Pro Affiliates and Bluegreen (acting on behalf of Bluegreen and Bluegreen Affiliates) and the LLC agree to negotiate, in good faith, promotional advantages or opportunities now existing or as may hereafter be identified, including cross-promotional strategies, as well as services as may otherwise be available and identified as may be beneficial to the LLC and Bluegreen in the marketing and promotion of timeshares and as may be beneficial to Big Cedar, Bass Pro and Bass Pro Affiliates in the marketing and promotion of outdoor retail products. Such marketing and promotional advantages or opportunities and services of Big Cedar, Bass Pro and Bass Pro Affiliates shall be made available non-exclusively to Bluegreen and Bluegreen Affiliates; provided such shall not be made available or identified to any other timeshare sellers, re-sellers, promoters, marketers, developers,
exchange companies, clubs or lead generators therefor. Such marketing and promotional advantages or opportunities and services of Bluegreen and Bluegreen Affiliates shall be made available non-exclusively to Big Cedar, Bass Pro and Bass Pro Affiliates, provided such shall not be available to any competitor of Big Cedar, Bass Pro and Bass Pro Affiliates engaged in the business of retail sales of outdoor products. The cross-promotional strategies and programs may include by way of example and not limitation, radio and television commercials (including infomercials, announcements, promotions, advertisements on in-room televisions at Big Cedar Lodge), newspaper and magazine advertisements, billboards, card and tent promotions in respective accommodations and facilities (such as Big Cedar Lodge and Bass Pro Shops), leaflets, postcards and website opportunities.
The foregoing shall not otherwise reduce or limit the services otherwise agreed to herein.
(viii) PREFERENTIAL TREATMENT. During the term of this Agreement, any marketing and promotional advantages and opportunities or any other services hereunder for which the LLC, Bluegreen or a Bluegreen Affiliate is to pay Big Cedar, Bass Pro or Bass Pro Affiliates an amount, shall, in all events, be made available to the LLC, Bluegreen and Bluegreen Affiliate on a Preferential Treatment basis.
(ix) SALES OFFICE PROPERTY. Big Cedar agrees to lease (and by execution of the Commercial Lease of Sales Office lease attached hereto as Exhibit "L" which is incorporated herein by this reference, does hereby lease) a certain parcel of property to the LLC (the "Sales Office Property"). The Sales Office Property shall be leased to the LLC by Big Cedar for a term being the lesser of ten (10) years or until such time as ninety percent (90%) sellout and conveyance of the timeshare interests of the Big Cedar Timeshare Project as are contemplated to exist therein. It is agreed that the LLC may construct on the Sales Office Property a sales office, at its expense. Upon termination of the lease, any improvements and structures thereon shall inure to the benefit of Big Cedar. The rent payable for lease of the Sales Office Property shall be One and No/100 Dollars ($1.00) per year, without any other expense, rental or charge to the LLC or Bluegreen, excepting, however, the LLC shall pay the actual costs and expenses of constructing the sales office facility, and such other costs and expenses as are actually incurred in respect to the use of the Sales Office Property. Any deed of trust on the Sales Office Property shall be subject to a non-disturbance as relates to such deed of trust. Any sales office facility constructed on the Sales Office Property shall be consistent with the architectural design of the accommodations at the Big Cedar Lodge, which design shall be approved by Big Cedar.
(x) USE OF CABIN FEVER HOUSE FACILITY. Big Cedar agrees that it shall lease to Bluegreen and the LLC the Cabin Fever House Facility as a secondary sales office on terms and conditions identical to the terms and conditions of the lease for the Sales Office Property referred to hereinabove. Such shall be leased pursuant to the Cabin Fever House Commercial Lease attached hereto as Exhibit "M." Any deed of trust on such property shall be subject to a non-disturbance as relates to such deed of trust. During the Cabin Fever House Commercial Lease, any modifications to the Cabin Fever House proposed by the LLC shall be made at the expense of the LLC and subject to the prior approval of Big Cedar.
(xi) BIG CEDAR LODGE. By execution hereof, Big Cedar agrees that the rights set forth hereinafter respecting use of the Big Cedar Lodge have been paid for in full by Bluegreen and the LLC, and that Big Cedar has received good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, contemporaneously with the grant of the rights hereinafter set forth. The rights hereinafter granted are granted by Big Cedar to the LLC and Bluegreen without further cost or expense to the LLC and Bluegreen, other than specifically set forth hereinbelow. Any deed of trust on the Big Cedar Lodge Property shall be subject to a non-disturbance agreement, to the benefit of the LLC and Bluegreen, as relates to such deed of trust.
(1) ADVERTISING MATERIALS. During the term of this Agreement, Big Cedar does hereby irrevocably grant to the LLC and Bluegreen the right to use the Big Cedar Lodge for the purpose of promoting, advertising, and
marketing of the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities; excepting, however, the Big Cedar Lodge shall not be used for promoting, advertising and marketing of The Falls Timeshare Resort, located in Branson, Missouri, or any Bluegreen Timeshare Facility located within one hundred (100) miles of the Big Cedar Lodge, excepting, however, the Big Cedar Timeshare Project and/or its inclusion in the Bluegreen Vacation Club. By execution hereof, Big Cedar does hereby acknowledge that the right to use granted to the LLC and Bluegreen hereunder has been paid for in full and that the same has been granted for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Big Cedar shall provide and deliver guest history files and in-room television support in the Big Cedar Lodge, and agrees that the LLC and Bluegreen shall be authorized and permitted to distribute packet information at check-in to those who might occupy Big Cedar Lodge. Such packet distribution may include promotional, marketing and advertising information relating to the sale of timeshare in the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club. Moreover, Big Cedar agrees that the LLC and Bluegreen may place reasonable and unobtrusive displays and other forms of promotions in and about the Big Cedar Lodge, and the guest rooms therein, to assure that each guest is aware of the opportunity to purchase a timeshare interest in the Big Cedar Timeshare Project and/or Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club. Despite the above, the content, location and placement of all advertising materials to be utilized at the Big Cedar Lodge shall be subject to the review and prior approval of John Morris or his designate.
(2) OCCUPANCY LIST. During the term of this Agreement, Big Cedar does hereby grant an irrevocable license and right to use to the LLC and Bluegreen in and to the occupancy list of those who have occupied or will occupy rooms at the Big Cedar Lodge. During the term of this Agreement, Big Cedar shall on a weekly basis, deliver a list of all individuals, including their names, addresses, telephone numbers and e-mail addresses (to the extent available), who have occupied or who will occupy rooms at the Big Cedar Lodge to the LLC and Bluegreen for the purpose of the LLC and Bluegreen marketing, promoting and selling timeshare interests of the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities to such persons. To the extent reasonably possible, Big Cedar shall make available to the LLC and Bluegreen such information, before occupancy by the respective identified party. Bluegreen may make a promotional contact to such individuals prior to, after or while such individuals are in occupancy at the Big Cedar Lodge. Despite the above, John Morris, or his designate, shall have the right to pre-approve the presentation, content, method and frequency of contact with guests at the Big Cedar Lodge and content of the materials to be utilized in connection with the occupancy list contact. Occupancy lists provided hereunder will contain information concerning leisure guests, but shall not be required to include business group market guests.
(3) PROSPECT OCCUPANCY. During the term of this Agreement, Big Cedar grants to the LLC and Bluegreen, an irrevocable right to use on a space available basis, rooms for occupancy and use by potential prospects for the marketing of timeshare interests. During the term of this Agreement, Big Cedar shall make guest rooms, common areas and facilities available to Bluegreen and the LLC on a space available basis, which rooms may be used for occupancy and use by potential prospects for the marketing of timeshare interests. Rates for such guest rooms, common areas and facilities shall be charged to the LLC and Bluegreen on a Preferential Treatment basis. By execution hereof, Big Cedar does hereby license to Bluegreen use of the guest rooms, common areas and facilities, as aforesaid. Use of common areas and facilities for advertising and promotional purposes shall be subject to the prior approval of Big Cedar, including the content, location and placement of such advertising materials and promotional activities.
(4) CONCIERGE DESK. During the term of this Agreement, Big Cedar does hereby grant an irrevocable license as respects the Big Cedar Lodge lobby to Bluegreen and the LLC for use by the LLC and Bluegreen of a concierge desk. Such concierge desk and sufficient space for use thereof
shall be provided to the LLC and Bluegreen by Big Cedar from and after the date of execution hereof. Such concierge desk shall be staffed by personnel of Bluegreen or the LLC and may be utilized for the purpose of allowing introduction of guests to the opportunity to acquire a timeshare interest at the Big Cedar Timeshare Project or Bluegreen's Timeshare Facilities; excepting, however, such concierge desk shall not be used to promote The Falls Resort, located in Branson, Missouri, or any other Bluegreen Timeshare Facility located within one hundred (100) miles of the Big Cedar Lodge. Such concierge desk and related desk space shall be provided by Big Cedar without charge or expense to the LLC or Bluegreen; provided however, actual expenses incurred by Bluegreen or the LLC in respect to staffing and supplying services relating to such concierge desk shall be paid by the LLC. The specific location of the concierge desk shall be as agreed to prior to the date hereof (and as may be set forth on a schematic plan as approved by the LLC, Bluegreen and Big Cedar) and any relocation thereof shall be first agreed to by the LLC and Bluegreen on the one hand, and Big Cedar on the other. The concierge desk will be operated such that guests will be given the option to approach the desk to receive information regarding timeshares and that guests will not be approached in the Big Cedar Lodge lobby, but will be given the opportunity to obtain additional information.
(xii) APPROVALS. John Morris or his designate shall have the right to review and approve all advertising materials to be used in the Bass Pro Shops or Bass Pro Catalogs or that involve contact with customers of Bass Pro Shops identified through the Big Cedar Mailing List or the Bass Pro Mailing List or which make use of the Big Cedar Lodge or involve contact with the guests of Big Cedar Lodge. Such approval rights shall be exercised by John Morris or his designate who is appointed to act on behalf of Big Cedar, Bass Pro and Bass Pro Affiliates for the purpose of receiving and approving such advertising material. Any advertising material so approved shall be maintained by Bluegreen in a file designated as approved advertisements. Such advertising material proposed to be delivered shall be submitted to John Morris, or his designate, at 2500 East Kearney Street, Springfield, Missouri 65898 prior to use. The approval rights set forth herein shall include editing rights. In the event of submission of any such sample of advertising, marketing and promotional materials by the LLC or Bluegreen hereunder, the same shall be deemed approved within fourteen (14) days after receipt thereof, at the address set forth above, unless John Morris or his designate denies approval or approves the same within an earlier time period. Upon denial of any such approval, John Morris or his designate shall deliver to the LLC or Bluegreen (whomsoever shall be the party that has delivered the advertisement to John Morris or his designate) specific reasons for such denial upon which cure thereof the LLC or Bluegreen may proceed to use such advertising, marketing and promotional material. Any proposed cure in respect to a denial shall be submitted by the respective party to John Morris or his designate for further approval, whose approval shall not be unreasonably withheld or denied, and whose approval shall be deemed given if denial thereof is not delivered within five (5) days of delivery of the proposed cure. No advertising, marketing or promotional program using the Big Cedar Lodge shall promote The Falls Village Resort located in Branson, Missouri, or any Bluegreen Timeshare Facility located within one hundred (100) miles of the Bass Pro Shop located in Springfield, Missouri; provided, however, that the same may be usable for promotion of the Bluegreen Vacation Club. Once approved, any such advertising, marketing and promotional program may be reused or incorporated into any advertising, marketing or promotional program for any or all of the Bluegreen Timeshare Facilities, as determined from time to time by Bluegreen without necessity of further approval; provided, however, if following approval, any advertising, marketing or promotional materials, Big Cedar, Bass Pro or Bass Pro Affiliates are notified that such approved advertising is in violation of applicable principles, then, Big Cedar, Bass Pro or Bass Pro Affiliates may notify Bluegreen that it is not to use such approved advertising, marketing or
promotional materials until any claimed violation is cured. Despite anything
contained herein to the contrary, no advertising, marketing or promotional
materials may (i) incorporate use of the Bass Pro Mark unless such use has been
first approved by John Morris or his designate in his sole and absolute
discretion as provided for in paragraph (xv) below; or (ii) incorporate use of
the Big Cedar Mark (a) unless such use has been first approved by John Morris or
his designate, in his sole and absolute discretion as provided for in paragraph
(xv) below, or (b) unless such use of the Big Cedar Mark relates to the Big
Cedar Timeshare Project or its inclusion in the Bluegreen Vacation Club as
provided for in paragraph (xv) below.
(xiii) SIGNAGE. By execution hereof, Bass Pro and Bass Pro
Affiliates do hereby grant to Bluegreen and the LLC an irrevocable license to
place advertising, promotional and marketing signage in the floor space
marketing areas existing in the Bass Pro Shops, and in the cabin prototype
timeshare sales areas. By execution hereof, Big Cedar Lodge does hereby grant to
Bluegreen and the LLC an irrevocable license to place advertising, promotional
and marketing signage in the Big Cedar Lodge in accordance with the terms of
this Agreement. The specific location, placement, creation and content of such
signage shall be subject to agreement of Bluegreen and John Morris or his
designate, who shall act on behalf of Big Cedar, Bass Pro and Bass Pro
Affiliates in respect to such approval. The approval of John Morris or his
designate shall not be unreasonably withheld or denied. By execution hereof, Big
Cedar, Bass Pro and Bass Pro Affiliates acknowledge that Bluegreen and the LLC
have paid in full for the license hereby granted. Notwithstanding the foregoing,
Bluegreen shall be responsible for all expenses incurred by Bluegreen relative
to the creation and placement of such signage placed in Bass Pro Shops located
in Islamorada, Florida; Ft. Lauderdale, Florida; Orlando, Florida; Charlotte,
North Carolina; and Atlanta, Georgia, unless the signage placed within any of
such facilities primarily references the Big Cedar Timeshare Project or its
inclusion in the Bluegreen Vacation Club; provided, however, that the parties
hereto agree that an equitable reallocation of expenses based on actual benefits
from various promotions, including leads and sales generated therefrom, may be
annually reviewed and reasonably determined, in the exercise of good faith. The
LLC shall be responsible for all expenses incurred by Bluegreen or the LLC
relative to the creation and placement of signage placed in the Bass Pro Shop
located in Springfield, Missouri; Nashville, Tennessee; Dallas, Texas; Houston,
Texas; Chicago, Illinois; and Detroit Michigan, unless the signage placed within
any such facilities primarily references the Bluegreen Timeshare Facilities,
other than the Big Cedar Timeshare Project or its inclusion in the Bluegreen
Vacation Club; provided, however, the parties hereto agree that an equitable
reallocation of expenses based on actual benefits from the various promotions,
including leads and sales generated therefrom may be annually reviewed and
reasonably determined in the exercise of good faith. Signage at Big Cedar Lodge
shall be consistent, architecturally, with the existing signage located thereat.
Signage at any Bass Pro Shop shall be of a design mutually agreed to by
Bluegreen and Bass Pro (and Bass Pro, by execution hereof, appoints John Morris
or his designate to act on its behalf). Notwithstanding the foregoing, the
parties agree that such signage is to exist and that the location, placement and
content of such signage shall be maximized to promote the sale and marketing of
timeshare interests at the Big Cedar Timeshare Project and Bluegreen's Timeshare
Facilities. Despite anything contained herein to the contrary, no signage may
incorporate use of the Bass Pro Mark unless use of such Bass Pro Mark has been
first approved by John Morris or his designate, as provided for in paragraph
(xv) below.
(xiv) BIG CEDAR, BASS PRO AND BASS PRO AFFILIATE'S EMPLOYEES. During the term of this Agreement, Big Cedar, Bass Pro and Bass Pro Affiliates, shall make available their respective employees who have customer contact for training by Bluegreen respecting the details of the timesharing concept, and instructions and directions on how such employees may inform customers of Big Cedar, Bass Pro and Bass Pro Affiliates about timeshare opportunities and how such employees are to be supportive of the timeshare marketing opportunities at the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities. In furtherance thereof, Big Cedar, Bass Pro and Bass Pro Affiliates, shall strive to educate employees to be supportive of the goals of this Agreement.
(xv) TRADENAMES AND MARKS. During the term of this Agreement, Bass Pro and Bass Pro Trademarks, LLC do hereby grant, bargain and exchange a limited, irrevocable, non-exclusive license to use the Bass Pro Mark to Bluegreen and the LLC for use by Bluegreen, Bluegreen's Affiliates and the LLC, in the promotion, marketing and advertising of the Big Cedar Timeshare Project, its inclusion in the Bluegreen Vacation Club and the Bluegreen Timeshare Facilities in accordance with the terms of this Agreement. During the term of this Agreement, Big Cedar hereby grants, bargains and exchanges a limited, irrevocable, non-exclusive license to use the Big Cedar Marks to Bluegreen and
the LLC for use by Bluegreen, Bluegreen Affiliates and the LLC in the promotion, marketing and advertising of the Big Cedar Timeshare Project, its inclusion in the Bluegreen Vacation Club and the Bluegreen Timeshare Facilities in accordance with the terms of this Agreement By execution hereof, Big Cedar, Bass Pro and Bass Pro Affiliates acknowledge and agree that the license set forth herein has been paid for in full by Bluegreen and that Big Cedar, Bass Pro and Bass Pro Affiliates have received good and valuable consideration in exchange for the grant of such license. The Marks may be used as follows:
(1) Bass Pro Marks may be used by the LLC and Bluegreen in all promotional materials, advertisements, and other materials for the promotion, marketing and sale of the Big Cedar Timeshare Project or the Bluegreen Timeshare Facilities, so long as such use is first approved by John Morris or his designate in accordance with the approval procedures set out below.
(2) The Big Cedar Mark and the name Big Cedar may be used by the LLC and Bluegreen in respect to the identity, location and name of the Big Cedar Timeshare Project. Use of the Big Cedar Mark as set forth in this paragraph shall be in perpetuity and irrevocable. Use of the Big Cedar Mark and the name Big Cedar, as set forth in this paragraph (2), shall be as determined by the LLC and Bluegreen.
(3) The Big Cedar Mark may be used by the LLC and Bluegreen in all promotional materials, advertisements and other materials for the promotion, marketing and sale of the Big Cedar Timeshare Project or the Big Cedar Project's inclusion in the Bluegreen Vacation Club, so long as such use is first approved by John Morris or his designate in accordance with the approval procedure set out below:
(4) APPROVAL PROCEDURE. Use of the Bass Pro Mark or Big Cedar Mark shall be submitted to John Morris (or his designate), who is to act on behalf of Bass Pro and Bass Pro Affiliates for approval of use of the Bass Pro Mark, and Big Cedar for approval of use of the Big Cedar Mark in respect to promotional materials. Samples shall be submitted to John L. Morris or his designate, at 2500 East Kearney Street, Springfield, Missouri 65898. As respects the Bass Pro Marks, approval of use of the Bass Pro Mark shall be deemed given if not granted or denied within thirty (30) calendar days after receipt at the above address of the sample, including the proposed use of the Bass Pro Mark. As respects the Big Cedar Mark, approval of use of the Big Cedar Mark shall be deemed given if not granted or denied within fourteen (14) calendar days after receipt at the above address of the sample including the proposed use of the Big Cedar Mark. Upon denial of any such proposed use of the Big Cedar Mark, John Morris or his designate, shall deliver to the LLC or Bluegreen its specific reasons for such denial. Upon cure thereof, the LLC or Bluegreen may proceed to use such advertising, marketing and promotional material. Any proposed cure in respect to a denial shall be submitted to John Morris or his designate for further approval, whose approval shall not be unreasonably withheld or denied, and whose approval shall be deemed given if denial thereof is not delivered within five (5) days of delivery of the proposed cure. Once approved, any such sample of advertising, marketing and promotional program may be re-used or incorporated into any advertising, marketing or promotional program for the foregoing, as determined from time to time by Bluegreen, without necessity of further approval; provided, however, if following approval John L. Morris or his designate determines that such approved advertising, marketing or promotional material is to cease, then, he or his designate may notify Bluegreen that it is not to use such approved advertising, marketing or promotional materials until further notice.
(5) Big Cedar shall provide and deliver to the LLC and Bluegreen creative materials containing the Big Cedar Mark for the purpose of developing and implementing such advertising, promotional and marketing programs and opportunities incorporating the Big Cedar Marks. Bass Pro and Bass Pro Trademarks, LLC shall provide and deliver to the LLC and Bluegreen creative
materials containing the Bass Pro Marks for the purpose of developing and implementing such advertising, promotional and marketing programs and opportunities incorporating the Bass Pro Marks. Delivery and use of the Marks shall be without charge or expense (and the licenses hereunder is agreed to have been paid for in full), excepting, however, the LLC shall pay the actual costs incurred by Big Cedar for delivery of the Big Cedar Mark, and Bluegreen and the LLC shall equally pay the costs of Bass Pro and Bass Pro Affiliates for delivery of the Bass Pro Mark. Bluegreen shall be entitled, at its sole cost and expense to take pictures, videos and other reproductions and depictions of the Big Cedar Lodge and the respective Bass Pro Shops, including all facilities thereat, and to utilize such pictures and depictions in its promotional materials relating to the Big Cedar Timeshare Project, Bluegreen Timeshare Facilities, Bluegreen Vacation Club and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Such pictures, videos and other reproductions and depictions shall, prior to use, be subject to the approval of John Morris or his designate in accordance with the procedures set forth in subparagraph (4) hereinabove. By execution hereof, Big Cedar, Bass Pro and Bass Pro Affiliates acknowledge and agree that the license set forth herein has been paid for in full by Bluegreen and that Big Cedar, Bass Pro and Bass Pro Affiliates have received good and valuable consideration in exchange for the grant of such license. In furtherance of the foregoing, Big Cedar, Bass Pro and Bass Pro Affiliates shall execute The Trademark License Agreements, attached hereto as Exhibit "N" and incorporated herein by reference.
(xvi) PROMOTIONAL RETAIL CERTIFICATES. In the event that Bluegreen or the LLC, elects to use retail merchandise or gift certificates for retail merchandise as incentives to encourage timeshare tours or sales presentations as respects the Big Cedar Timeshare Project, such merchandise and/or certificates shall be acquired from Bass Pro and Bass Pro Affiliates, so long as (i) such merchandise and/or certificates are readily available from Bass Pro Shops or Bass Pro Catalogs at prices otherwise competitive to what the LLC or Bluegreen would customarily pay for the same or similar merchandise and/or certificates; or (ii) where practicable and without detriment to the LLC's or Bluegreen's systematic and routine marketing, the same can be readily available, without delay or interference with the LLC's or Bluegreen's routine time framework, from Bass Pro or Bass Pro Affiliates, at competitive prices to that which the LLC or Bluegreen would be anticipating paying for the same merchandise (provided that at no time is subparagraph (ii) immediately preceding to be operative if the LLC or Bluegreen deems prior contact to Bass Pro and Bass Pro Affiliates to be impractical in relation to the LLC's or Bluegreen's continued and systematic marketing efforts). In all events, Bluegreen and the LLC shall receive, at a minimum, the lesser of a ten percent (10%) price discount off the lowest offered price for all standard full selection merchandise or Preferential Treatment. Bluegreen and the LLC shall not be restricted from purchasing non-merchandise premiums such as lodging accommodations, travel opportunities or other non-merchandise premiums from third parties unrelated to Bass Pro or Bass Pro Affiliates. Notwithstanding the foregoing, however, the LLC and Bluegreen shall, as respects the marketing of timeshare interests at the Big Cedar Timeshare Project, when overnight occupancy is needed in relation to such marketing, seek to place occupants in the Big Cedar Lodge as a first priority, subject to the agreement of Big Cedar to provide such on a Preferential Treatment Basis. Bass Pro agrees that the agreement of Bluegreen under this paragraph is given in partial consideration of the obligations of Bass Pro and Bass Pro Affiliates hereunder. Coupons for services offered by Big Cedar Lodge shall be subject to review and approval of John Morris or his designate. In addition to the foregoing, coupons for services will be offered by Big Cedar to Bluegreen and the LLC as incentives to encourage timeshare tours or sales presentations as respects the Big Cedar Timeshare Project. Such coupons for services offered by Big Cedar shall be subject to review and approval of John Morris or his designate. Such coupons will be issued with the dollar limitation and honored, provided Big Cedar shall be entitled to reimbursement for the total amount of coupons redeemed and Big Cedar shall be reimbursed for the redeemed coupons by the LLC or Bluegreen on a monthly basis.
3. ADDITIONAL AGREEMENTS. In the event any of the herein described advertising, marketing or promotional services to be provided to Bluegreen or the LLC are provided by a Big Cedar Affiliate or Bass Pro Affiliate (or any future affiliate of Bass Pro), then Big Cedar and Bass Pro shall cause such Big Cedar Affiliate and Bass Pro Affiliate (or future Bass Pro affiliates), to enter into an agreement for such services directly with the LLC or Bluegreen. Notwithstanding any provision contained herein to the contrary, the License, Agreements, rights of use and grants provided herein to the LLC and/or Bluegreen by Big Cedar, Bass Pro or Bass Pro Affiliates shall be irrevocable for the term of this Agreement, and the parties hereto acknowledge that Bluegreen and the LLC may justifiably rely on such licenses, rights to use, grants and agreements
4. RESTRICTIONS ON BIG CEDAR, BIG CEDAR AFFILIATES, BASS PRO AND BASS PRO AFFILIATES.
(a) RESTRICTION ON MARKETING SERVICES. During the term of this Agreement, and except as otherwise provided in this Agreement, any and all promotional, advertising and marketing services to be provided by Big Cedar (and any Big Cedar Affiliate) and Bass Pro and Bass Pro Affiliates hereunder or under the License Agreements, shall only be provided to Bluegreen and Bluegreen Affiliates and the LLC and shall not be provided, made available or offered to or allowed to be taken advantage of by any Competing Resort or the operator thereof (except as may otherwise be provided in accordance with paragraph 2(a)(i)(2) hereinabove). The restrictions contained in this subparagraph (a) shall terminate in the event that Bluegreen files or has filed against it a bankruptcy proceeding.
(b) RESTRICTION ON RESORT INTEREST PROGRAMS. During the term
of this Agreement, for the benefit of Bluegreen and its Affiliates, Big Cedar
and Big Cedar Affiliates and Bass Pro and Bass Pro Affiliates agree that they
shall not sell, market, advertise or promote any Resort Interest Program,
excepting, however, the Big Cedar Timeshare Project, the Bluegreen Vacation
Club, or any Bluegreen Timeshare Facility as offered by Bluegreen. Neither Big
Cedar, Big Cedar Affiliates, nor Bass Pro or Bass Pro Affiliates shall develop
any Resort Interest Program, excepting (i) in accordance with Big Cedar's Right
to Participate as provided for in Section 6.11 of the Operating Agreement; or
(ii) Big Cedar's rights in regard to Fractional Interest Developments as
provided in the Operating Agreement. Neither Big Cedar nor any Big Cedar
Affiliates, nor Bass Pro or any Bass Pro Affiliates shall affiliate with any
entity for the purpose of developing, marketing, promoting or advertising any
other Resort Interest Program, excepting with Bluegreen and as excepting
Fractional Interest Developments as provided for in the Operating Agreement. Big
Cedar may sell, develop, market, advertise or promote a Fractional Interest
Development if developed by Big Cedar or its Affiliates, so long as such
Fractional Interest Development contains no more than twenty five (25)
accommodations in the respective Fractional Interest Development. Such
Fractional Interest Developments may, by way of example and not limitation,
include projects owned or controlled by Big Cedar and its Affiliates existing at
Valhalla Island, Florida; Floridian Sports Club; Welaka, Florida; and Frying Pan
River Ranch, Colorado. The restrictions contained in this subparagraph (b) shall
terminate in the event that Bluegreen files or has filed against it a bankruptcy
proceeding.
(c) BLUEGREEN'S REALIZATION OF BENEFITS. Big Cedar, Bass Pro and Bass Pro Affiliates acknowledge that the realization of the benefits under this Marketing Agreement to Bluegreen and the LLC are dependent upon Bluegreen and the LLC's ability to market the timeshare interests of the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities and maximizing the growth sales of such interests, and that any form of direct or indirect competition from Big Cedar, Big Cedar Affiliates, Bass Pro and Bass Pro Affiliates, except as otherwise provided herein, is inconsistent with its intended purposes. The
parties acknowledge that the terms of this Agreement were negotiated giving consideration to the concept that competition by Big Cedar, Big Cedar Affiliates, Bass Pro and Bass Pro Affiliates to the sale, marketing and promotion of timeshare interests by Bluegreen or the LLC will deprive Bluegreen and the LLC of a bargain for consideration.
5. LEAD GENERATION PROGRAMS. Subject to the terms of this Agreement, Bluegreen shall be authorized to develop its own lead generation programs respecting marketing of timeshare interests at the Big Cedar Timeshare Project or Bluegreen's Timeshare Facilities, regardless of whether such generation programs are to be used respecting leads to be obtained by way of floor space marketing areas at Bass Pro Shops, the cabin prototype timeshare areas, Big Cedar's customer data base, or otherwise.
6. FEES. Bluegreen shall pay Big Cedar a Generation Commission, as defined hereinabove, so long as such purchaser is generated to Bluegreen as a result of promotional, marketing or advertising services provided by Big Cedar or Bass Pro or Bass Pro Affiliates to the LLC or Bluegreen under the terms of this Agreement. The Generation Commission shall not be payable, however, for sales of Resort Interests located at the Big Cedar Timeshare Project or of the Bluegreen Vacation Club predicated upon conveyance of Resort Interest sales located at the Big Cedar Timeshare Project. Bluegreen and Big Cedar shall establish and maintain a system of audit and reporting of such sales and commissions, accounting for the same on a monthly basis. All such fees shall be credited by Bluegreen as payment of principal on the Ad Loan, due and payable by Big Cedar to Bluegreen until repayment of the Ad Loan, in full, except as otherwise provided in the paragraph 12 hereinbelow. Upon payment in full payment thereof, such fee shall be payable to Big Cedar on the last day of a respective month for the Net Sales Volume accomplished during the preceding month. In addition, Bluegreen shall exercise reasonable efforts to establish a tracking system regarding production and generation of sales prospects for purposes of determining whether or not a sale is generated as a result of the promotional, marketing and advertising services as provided for in this Agreement, as defined hereinabove and it is agreed that the tracking system set forth on Exhibit "E" attached hereto is an acceptable tracking system.
7. TERM. This Agreement shall be for a term the earlier of: (i) ten
(10) years from the date hereof, or (ii) until ninety percent (90%) of the Big
Cedar Timeshare Project's timeshares contemplated to exist therein have been
sold and conveyed.. If either party elects to participate in additional resorts
or Fractional Interest Developments as may, from and after the date hereof, be
offered by either party in accordance with the right of participation as defined
and set forth in the LLC Operating Agreement.
8. ADDITIONAL AGREEMENTS BETWEEN BASS PRO AFFILIATES AND BLUEGREEN.
(a) TRACKER BOATS. From and after the date hereof, if the LLC or Bluegreen acquires for use at Bluegreen's Timeshare Facilities boats similar to Tracker Marine boats available from Tracker Marine, LLC, then Bluegreen agrees to acquire such Tracker Marine boats from Tracker Marine, LLC, a Bass Pro Affiliate, so long as the acquisition thereof, including pricing and terms, are at least as favorable for similar products as the discount terms available to Big Cedar Lodge as of the date of this Agreement (or if such discount terms are more favorable at the time of acquisition, are at least as favorable as such terms at that time). At the time of acquisition, the LLC and Bluegreen shall be given Preferential Treatment. Bass Pro and Bass Pro Affiliates, including Tracker Marine, LLC agree that the agreement of Bluegreen under this paragraph is given in partial consideration of the obligations of Bass Pro and Bass Pro Affiliates hereunder. THE RESTRICTIONS CONTAINED IN THIS SUBPARAGRAPH (A) SHALL TERMINATE IN THE EVENT THAT TRACKER MARINE, LLC FILES OR HAS FILED AGAINST IT A BANKRUPTCY PROCEEDING
(b) BLUEGREEN RESTRICTION. During the term of this Agreement, for the benefit of Bass Pro and Bass Pro Affiliates, Bluegreen agrees that it shall not affiliate with any entity for the purpose of selling outdoor recreational products or services, and shall not sell or offer for sale outdoor recreational products and services of any entity which sells such outdoor
recreational products or services and which are in competition with the outdoor recreational products and services of Bass Pro or Bass Pro Affiliates. The restrictions contained in this subparagraph (b) shall terminate in the event that Bass Pro or Bass Pro Affiliates files or has filed against it a bankruptcy proceeding.
(c) RECORDS OF THE LLC. The parties agree that the LLC will provide to Big Cedar and Bluegreen complete access to and right to audit books and records of the LLC, at the expense of Big Cedar. Bluegreen shall provide Big Cedar with a monthly report and certification of all timeshare sales of the Project with names and addresses of the purchasers, the same being due within twenty (20) days after the first of each calendar month.
(d) EXECUTIVE PRIVILEGES. During the term of this Agreement, Bluegreen shall make available to Big Cedar, Bass Pro and Bass Pro Affiliates' senior executives and their immediate families the right to rent timeshare space available at Bluegreen owned/operated projects at Bluegreen employee/executive rates on a space available basis. Big Cedar, Bass Pro and Bass Pro Affiliates shall make available to Bluegreen's senior executives and their immediate families the right to rent hotel and lodge space and to acquire products from Big Cedar, Bass Pro and Bass Pro Affiliates at Big Cedar/Bass Pro employee/executive rates on a space available, as available, basis in accordance with the standard discount policy.
9. OWNER AND PROSPECT BENEFITS. Any and all services as may be offered by Big Cedar respecting the Big Cedar Lodge or otherwise, shall be offered at standard discounted rates by Big Cedar to owners of timeshare interests at the Big Cedar Timeshare Project and others who occupy and use the Big Cedar Timeshare Project. Such discounted rates shall be on a Preferential Treatment basis. This paragraph shall survive termination of this Agreement.
10. FAILURE TO PERFORM/DEFAULT/REMEDIES.
(a) FAILURE TO PERFORM BY BIG CEDAR, BASS PRO OR BASS PRO AFFILIATES.
(i) In the event that Big Cedar fails to perform or observe any provision of this Agreement which failure is not cured before expiration of the period for cure as provided for in paragraph 10(d) hereinbelow, then Big Cedar shall be deemed to be in default of this Agreement. In the event that Bass Pro or any Bass Pro Affiliate fails to perform or observe any provision of this Agreement or any of the License Agreements, which failure is not cured before expiration of the period for cure as provided for in paragraph 10(d) hereinbelow, then Bass Pro and Bass Pro Affiliates shall be deemed in default of this Agreement. In the event of default of this Agreement by Big Cedar, Bass Pro or a Bass Pro Affiliate, then the LLC and/or Bluegreen (as may be effected or entitled) shall be entitled to all rights and remedies as may be available under law or in equity as applicable thereto against Big Cedar if Big Cedar is in default, and Bass Pro and Bass Pro Affiliates if Bass Pro or Bass Pro Affiliates are in default. The LLC and Bluegreen shall be entitled to such rights and remedies, independent one from the other. Specifically, by way of example and not limitation, Bluegreen and the LLC, upon default by Big Cedar and/or Bass Pro or a respective Bass Pro Affiliate, shall, independently and severally, be entitled to any and all damages as against Big Cedar (in the event of a Big Cedar default) and Bass Pro and Bass Pro Affiliates (in the event of a Bass Pro or Bass Pro Affiliate default) provable as a consequence thereof, including incidental damages, or any other consequential damages resulting from default under this Agreement. Despite the foregoing, if Big Cedar, Bass Pro or a Bass Pro Affiliate is in default of a License Agreement or a provision of this Agreement providing for use by the LLC or Bluegreen of the Big Cedar Mailing List, the Bass Pro Mailing List, the Marks, the Bass Pro Shops or outlets, the Bass Pro Catalogs, or the Big Cedar Lodge (including placements of signs,
location of a concierge desk, placement and distribution of promotional materials, occupancy of rooms by potential timeshare guests, etc. therein), in accordance with the terms of this Agreement then it is agreed that the same would cause irreparable harm and significant injury to the LLC or Bluegreen that would be difficult to ascertain and would not be compensable by damages alone. Accordingly, the parties agree that Bluegreen and the LLC shall, independently and severally, have the right to enforce the terms of the License Agreements and use of the Bass Pro Mailing List, the Big Cedar Mailing List, the Marks, the Bass Pro Shops, the Bass Pro Catalogs and the Big Cedar Lodge as set forth herein and in each License Agreement by injunction, specific performance, or other equitable relief without prejudice to any other rights and remedies the enforcing party may have. The reference to specific provisions of this Agreement and in this section is not a wavier of any party's rights to seek equitable relief for breaches of other sections.
(ii) In the event Big Cedar is in default of this
Agreement, , (a) all Distributions from the LLC to Big Cedar shall cease and
desist (such Distributions being any Distributions from the LLC to Big Cedar
pursuant to the Operating Agreement for such LLC); and (b) the Ad Loan, as
referenced and provided for elsewhere, shall immediately be due and payable one
(1) year from the date of such default together with interest at the rate of
nine percent (9%) per annum from and after the expiration of the applicable cure
period. Despite any Big Cedar default, all License Agreements and all licenses
and rights of use of the LLC and Bluegreen provided for hereunder, including but
not limited to licenses and rights of use as relate to Bass Pro Shops, Bass Pro
Catalogs, the Marks, Big Cedar Lodge, Bass Pro Mailing List and the Big Cedar
Mailing List shall continue and be uninterrupted for the term hereof. It is the
stated intention and purpose hereof that in the event of default of this
Agreement by Big Cedar, Bass Pro or Bass Pro Affiliates, nevertheless, the
rights of Bluegreen and the LLC to receive the marketing, promotional and
advertising benefits set forth herein and in the License Agreements shall
continue uninterrupted for the term hereof.
(iii) In the event that Big Cedar, Bass Pro or Bass
Pro Affiliates are in default of this Agreement, then Bluegreen shall be
entitled to foreclosure and exercise all of its remedies, rights and privileges
respecting the pledge by Big Cedar of its interests in the LLC to Bluegreen and
the deed of trust granted to Bluegreen as against the Additional Property, which
deed of trust is to be granted by Big Cedar to Bluegreen on or about the date
hereof. Such Additional Property is as described in such deed of trust, and is
defined in the Contribution Agreement by and between Bluegreen and Big Cedar,
made on or about the date hereof. Big Cedar's pledge of the membership interests
shall be pledged for a period of six (6) years following the date of the
security agreement given in respect to the membership interest. The Additional
Property deed of trust to Bluegreen shall have be for a term, the earlier of:
(i) seven (7) years from the date of the Additional Property deed of trust, or
(ii)until ninety percent (90%) of the Big Cedar Timeshare Project timeshares
contemplated to exist therein have been sold and conveyed.
(iv) In the event that Bass Pro and/or a Bass Pro Affiliate is in default of this Agreement or a License Agreement (or otherwise fails to make the Bass Pro Mailing List available for use by Bluegreen and the LLC for the term of this Agreement, then Bluegreen shall be entitled to receive immediately physical possession and custody of a copy of the Bass Pro Mailing List in the form as exists on the date of default, and Bass Pro and Bass Pro Affiliates, including Bass Pro Trademarks, LLC, or the third party administrator holding the Bass Pro Mailing List for use by Bluegreen and the LLC hereunder, shall immediately upon such default deliver to Bluegreen physical possession and custody of a copy of the Bass Pro Mailing List in the form as it exists on the date of such default. Any agreement with a third party administrator shall so provide. From and after delivery to Bluegreen of the Bass Pro Mailing List, Bluegreen shall be entitled to retain physical possession and custody of a copy of the Bass Pro Mailing List and Bluegreen's use of the Bass Pro Mailing List shall continue indefinitely and unrestricted as may be determined from time to time by Bluegreen, subject to the restriction that Bluegreen's use of the Bass Pro Mailing List shall be only within the timeshare industry and the Bass Pro Mailing List shall not be sold by Bluegreen to any competitor of Bass Pro or Bass Pro Affiliates. Delivery of the Bass Pro Mailing List in accordance with the terms hereof shall be in such a media form as to be usable by Bluegreen. The right of Bluegreen to receive the Bass Pro Mailing List shall be specifically enforceable by Bluegreen.
(b) FAILURE TO PERFORM BY LLC. In the event of material failure to perform or observe this Agreement by the LLC, which failure is not cured before expiration of the period for cure as provided for in paragraph 10(d) hereinbelow, then the LLC shall be deemed in default of this Agreement. If the LLC is in default of this Agreement, then such other party or parties hereto who are not in default shall be entitled to all rights and remedies as may be available under law or in equity as applicable thereto. Specifically, by way of example and not limitation, Big Cedar, Bass Pro and Bass Pro Affiliates shall, if the LLC is in default of this Agreement, independently and severally, be entitled to any and all damages provable as a consequence thereof, including incidental damages or any consequential damages resulting therefrom.
(c) FAILURE TO PERFORM BY BLUEGREEN. In the event of material failure to perform or observe this Agreement by Bluegreen which failure is not cured before expiration of the period for cure as provided for in paragraph 10(d) hereinbelow, then Bluegreen shall be deemed in default of this Agreement. If Bluegreen is in default of this Agreement,, then such other party or parties hereto who are not in default shall, unless stated otherwise as between Bluegreen and Big Cedar in the LLC Operating Agreement, be entitled to all rights and remedies as may be available under law or in equity as applicable thereto. Specifically, by way of example and not limitation, Big Cedar, Bass Pro and Bass Pro Affiliates shall, if Bluegreen is in default of this Agreement, independently and severally, be entitled to any and all damages provable as a consequence thereof, including incidental damages or any consequential damages resulting herefrom. Because, however, the provisions of this Agreement providing for use of Bluegreen's Mailing Lists by Big Cedar and Bass Pro, in accordance with the terms of this Agreement, would cause irreparable harm and significant injury that would be difficult to ascertain, it would not be compensable by damages alone, the parties agree that Big Cedar and Bass Pro shall, independently and severally, have the right to enforce such provisions by injunction, specific performance or other equitable relief without prejudice to any other rights and remedies the enforcing party may have. The reference to specific provisions of this Agreement and in this section is not a waiver of any party's right to seek equitable relief for breaches of other sections.
(d) NOTICE/DEFAULT. Notwithstanding any provision herein
otherwise, no default of this Agreement shall be determined to exist until and
unless any failure to observe or perform any provision of this Agreement
continues for ninety (90) days after written notice thereof by a party hereunder
to a party not so performing or observing; provided, however, that if the nature
of such failure is such that it cannot reasonably be cured within such ninety
(90) day period, and such non-performing party, within the ninety (90) day
period commences to cure, and thereafter diligently processes such cure to
completion, such cure period shall be extended for a period of no more than
sixty (60) days.
(e) EFFECT OF DEFAULT. Except as stated in paragraph 12(b) below, notwithstanding any of the provisions contained herein to the contrary, in the event of a default of this Agreement entitling any party to remedies as may be available under law or in equity, as applicable thereto, the License Agreements and services to be provided hereunder shall continue uninterrupted for the term specified therein.
(f) EFFECT ON AD LOAN OF DEFAULT HEREOF. If Big Cedar, Bass Pro or Bass Pro Affiliates is in default, paragraph 12 shall govern the effect on the Ad Loan.
11. SPECIAL DISPUTE RESOLUTION PROCEDURE. Notwithstanding the provisions of the preceding paragraph regarding Default/Remedies, if any dispute or disagreement between Big Cedar, Bass Pro and Bass Pro Affiliates and Bluegreen, Bluegreen Affiliates or the LLC, shall arise relating to any provision of this Agreement, and such provision shall require or permit either party to invoke the provisions of Default/Remedies set forth immediately hereinabove, the following procedures shall apply as a condition precedent to the exercise of any Default/Remedies provision provided hereinabove which procedures may run simultaneous in time with the ninety (90) days notice hereinabove set forth:
(a) Such party shall give written notification of such dispute or disagreement to, if such party is Big Cedar, Bass Pro or Bass Pro Affiliates, George Donovan, or the person then performing the duties at Bluegreen currently performed by George Donovan ("Bluegreen, CEO") and if such party is Bluegreen, acting as Bluegreen, Bluegreen Affiliates or the LLC, to John L. Morris, or the person performing the duties at Marketer currently performed by John L. Morris ("Marketer, CEO"); and (iii) the CEOs shall communicate with each other promptly with a view to resolving such dispute or disagreement within twenty (20) days of commencing any negotiations (or such extended period as the CEOs agree is appropriate in any such case). The foregoing shall be a condition precedent to applicability of the Default/Remedies section, as provided in paragraph 10, set forth hereinabove. During any period of such communications, services as provided herein prior to any claimed default shall continue without any alteration or modification, except as acceptable to the party receiving such services.
12. EFFECT ON AD LOAN OF DEFAULT HEREOF.
(a) If Big Cedar is in default of this Agreement, Bluegreen may declare the balance of the Ad Loan due and payable, and Big Cedar shall be personally liable for and pay the balance due thereof and Bluegreen may proceed to foreclose on its lien against the membership interest of Big Cedar in the LLC and foreclose on its deed of trust concerning the Additional Property. In the event Bass Pro or Bass Pro Affiliates are in default of this Agreement, then Bluegreen shall be entitled to all of the remedies set forth hereinabove; provided, however, that the Ad Loan shall not be immediately due and payable by Big Cedar.
(b) Pursuant to the terms of the Ad Loan, if Bluegreen defaults under the LLC Operating Agreement by committing acts of fraud in management of the LLC in a manner inconsistent with the terms thereof and such default causes actual damages to Big Cedar in an amount equal to or in excess of thirty five percent (35%) of the then outstanding principal amount due on the Ad Loan, and in such event Bluegreen fails to cure such default within thirty (30) days after receiving written notice of the specific facts claimed by Big Cedar to constitute such default then, so long as Big Cedar, Bass Pro or a Bass Pro Affiliate is not in breach or default of this Agreement, nor is Big Cedar in default of the Operating Agreement of the LLC, then (i) there shall be no further obligation of Big Cedar whatsoever to repay the outstanding balance of the Ad Loan, and Bluegreen shall execute any and all documents necessary to acknowledge release of Big Cedar's obligations with respect to the Ad Loan and security therefore; provided any payments previously received by Bluegreen from Big Cedar respecting payoff of the Ad Loan shall remain the property of Bluegreen; and (ii) this Agreement and all License Agreements shall terminate.
13. NOTICES. All notices required or permitted by the terms hereof shall be given by hand delivery or by sent and paid Federal Express or other overnight delivery, at the following addresses or at such other addresses as either party hereto shall, in writing, advise the other:
If to Bluegreen: Bluegreen Corporation, Attn: Patrick Rondeau
4960 Blue Lake Drive
Boca Raton, Florida 33431
With a copy to: James J. Scavo, Esq.
WEINSTOCK & SCAVO, P.C.
3405 Piedmont Road, N.E., Suite 300
Atlanta, Georgia 30305
e-mail address: JSCAVO@WSLAW.NET
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(Delivery hereto, however, shall not be deemed notice to Bluegreen).
If to Big Cedar, Bass Pro or Big Cedar Affiliates or Bass
Pro Affiliates:
Big Cedar, L.L.C. : 2500 East Kearney Street
Springfield, Missouri 65898
Attn: Toni Miller
With a copy to: J. Christopher Greene, Esq.
GREENE & CURTIS, L.L.P.
1340 East Woodhurst
Springfield, Missouri 65804
e-mail address: GANDCLAW@AOL.COM
(Delivery hereto, however, shall not be deemed notice to Big
Cedar or Bass Pro).
If to the LLC: Bluegreen/Big Cedar Vacations, LLC
Attn: Patrick Rondeau
C/o Bluegreen Corporation
4960 Blue Lake Drive
Boca Raton, Florida 33431
With a copy to: James J. Scavo, Esq.
WEINSTOCK & SCAVO, P.C.
3405 Piedmont Road, N.E.
Suite 300
Atlanta, Georgia 30305
With a copy to: J. Christopher Greene, Esq.
GREENE & CURTIS, L.L.P.
1340 East Woodhurst
Springfield, Missouri 65804
e-mail address: GANDCLAW@AOL.COM
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All notices shall be deemed given at the time of hand delivery or the time such deposited with Federal Express or other reputable overnight delivery for transmittal as aforesaid; provided, however, that the time at which response or action in response to any notice must be given or taken shall run from the time of actual receipt of such notice.
14. ASSIGNMENT. No party shall assign this Agreement nor any of its rights or obligations hereunder without the prior written consent of the other parties, except that no such consent shall be required for a transfer by operation of law in connection with a merger or consolidation of such party. Any attempt to assignment of this Agreement in violation of this section, shall be void and of no effect. This Agreement shall be binding upon, inure to benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, Big Cedar shall have the right to transfer its interests in the LLC at any time to an entity which is controlled by John L. Morris, provided, however, that (i) neither the LLC nor Bluegreen, nor any Bluegreen Affiliate shall be subject to any liability, expense, cost or obligation arising or resulting from such assignment; (ii) John L. Morris and Big Cedar shall indemnify the LLC, Bluegreen and Bluegreen Affiliates from any cost, expenses, liabilities or obligations as might arise or
result from such assignment; and (iii) legal counsel to Big Cedar and John L. Morris shall provide an opinion to the LLC, Bluegreen and Bluegreen Affiliates that, to the best of their knowledge, information and belief, after due inquiry and investigation, such assignment is valid, enforceable and in compliance with applicable law.
15. CONFIDENTIALITY. Bluegreen, Big Cedar, Bass Pro and Bass Pro Affiliates on behalf of themselves and their respective agents, employees and attorneys each hereby covenant and agree to keep confidential all information regarding this transaction and the advertising, marketing and promotional services to be provided hereunder (provided, however, that they may divulge such information as required and requested by lenders or governmental authorities, including within such releases or announcements as may be required by law, or by the rules or regulations of any securities exchange) and they shall keep confidential all information regarding projections concerning marketing and sale of the Big Cedar Timeshare Project or any Bluegreen Timeshare Facility, development of the Big Cedar Timeshare Project and methods of marketing and sale. All notices to third parties and all publicity or press releases with respect to the transaction contemplated hereof shall be mutually approved by the LLC, Bluegreen, Big Cedar and Bass Pro, Inc. (Big Cedar and Bass Pro to act through John L. Morris or his lawful designate) prior to release or dissemination.
16. GOOD FAITH COOPERATION, NEGOTIATION, OPERATION AND PERFORMANCE. The parties hereby agree to cooperate, negotiate, operate, and perform in good faith to accomplish the intentions and fully effectuate the purposes of this Agreement, including but not limited to, in the creation, execution, and delivery of any document or service contemplated hereunder. Upon reasonable request, from time to time, the parties shall execute and deliver all documents and instruments and do all of the acts as may be reasonably necessary or desirable to give effect to the performance of this Agreement and all the services hereunder to be provided or to exercise by the other parties their respective rights hereunder. Big Cedar, Bass Pro and Bass Pro Affiliates shall, for each license, right or easement specified in this Agreement deliver to Bluegreen appropriate documentation on a form acceptable to Bluegreen to identify such right in specific documentation.
17. APPLICABLE LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, applicable to contacts executed and performed entirely within such State, without reference to any choice of law principles of such State. With respect to any litigation or controversy arising out of this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury. Each party agrees to non-exclusive personal jurisdiction and venue in the United States District Court for the Western District of Missouri, Southern Division (and any Missouri state court within that district and division). Litigation shall mean and include any written claim, action, lawsuit, or proceeding.
18. SEVERABILITY. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, that provision will be enforced to the maximum extent permissible, so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with the enforceable language which as closely as possible reflects such intent. The provisions of this Agreement to the benefit of Bluegreen and Bluegreen Affiliates are severable and distinct from the provision of this Agreement to the benefit of the LLC, and shall be enforceable one independent from the other.
19. WAIVER. The wavier by any party of any instance of any other party's non-compliance with any obligation or responsibility herein shall not be deemed a waiver of other instances or of any party's remedies for such non-compliance.
20. COUNTERPARTS. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts shall have been signed by each party and delivered to each other party.
21. ENTIRE AGREEMENT. The provisions of this Agreement set for the entire Agreement and understanding among the parties as to the subject matter hereof, and supercede all prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof.
22. SURVIVAL OF AGREEMENT. All covenants, agreements, representations and warranties made by any party herein shall be considered as having been relied upon by the other parties, and shall survive and be enforceable regardless of any investigation made by any other parties hereto, or on their behalf.
23. THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties and their permitted assigns, and nothing herein, expressed or implied, shall give or be construed to give any person, other than the parties and such assigns, any legal or equitable rights hereunder, except, that paragraph 10 hereof is intended to be for the benefit of owners and prospects of timeshare interests and the same shall be entitled to the benefits of such Section.
24. CONSTRUCTION. This Agreement has been negotiated by the parties and their respective counsel, and shall be fairly interpreted in accordance within the terms, and without any strict construction in favor of or against any party. In construing this Agreement, the singular sense shall be deemed to include the plural, and the male and neuter gender shall mean and comprehend all genders, whenever such meaning or interpretation is necessary and appropriate. Headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
25. PRIOR DISCUSSIONS AND AMENDMENTS. This Agreement constitutes the entire agreement between the parties hereto as to the subject matter contained herein and supersedes all prior discussions, understandings, and agreements between them as to the subject matter contained herein. This Agreement may not be modified or amended unless such amendment is set forth in writing and signed by each party.
26. CONSIDERATION. Big Cedar, Bass Pro and Bass Pro Affiliates acknowledge that certain promises of Bluegreen and the LLC herein run to the benefit of Big Cedar and certain promises of Bluegreen and the LLC herein run to the benefit of Bass Pro and Bass Pro Affiliates. The promises of Bluegreen and the LLC to the benefit of Bass Pro and Bass Pro Affiliates, include by way of example and not limitation, the LLC and Bluegreen's agreements concerning use of promotional retail certificates, retail merchandise, Tracker Marine boats, extension of executive privileges, and Bluegreen's agreement to restrict its affiliation with those in competition with Bass Pro or Bass Pro Affiliates. Other promises of Bluegreen and the LLC set forth herein and otherwise run to the benefit of Big Cedar In exchange for the foregoing, as well as in exchange for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by Big Cedar, Bass Pro and Bass Pro Affiliates, Big Cedar, Bass Pro and Bass Pro Affiliates agree that they are bound to this Agreement and to the performance of the obligations hereunder to the benefit of Bluegreen and the LLC.
27. NO CONDITION PRECEDENT. The obligations of the parties hereto shall be determined by the terms of this Agreement and shall not be subject to any other, additional or extraneous condition precedent occurring. By way of example and not limitation, the terms of this Agreement shall be binding amongst and between the parties hereto, despite any absence of agreement concerning construction, improvement or development of the Big Cedar Timeshare Project.
28. CONSTRUCTION OF BIG CEDAR TIMESHARE PROJECT. It is the intention of this Agreement that all benefits to be provided hereunder to the LLC and Bluegreen shall be governed by the terms hereof, and shall, from the date of execution and thereafter, be available and any restriction or limitation respecting benefits to be received to the Big Cedar Timeshare Project shall, until the timeshare units therein are available for sales and marketing in accordance with the customary practices of Bluegreen, be made available to Bluegreen and the Bluegreen Timeshare Facilities.
29. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as to the day and year first above set forth.
BLUEGREEN VACATIONS UNLIMITED,
INC., a Florida corporation
By: /s/ Patrick E. Rondeau -------------------------------- Print Name: Patrick E. Rondeau Title: President |
BIG CEDAR, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: Three Johns Company, a Missouri corporation,
its sole member
By: /s/ Toni M. Miller -------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO, INC.,
A DELAWARE CORPORATION
By: /s/ Toni M. Miller -------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BLUEGREEN/BIG CEDAR VACATIONS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY:
By: Bluegreen Vacations Unlimited, Inc.
a Florida corporation, its Managing Member
By: /s/ Patrick E. Rondeau --------------------------------------- Print Name: Patrick E. Rondeau Title: President |
By: BIG CEDAR L.L.C., its Member
By: Three Johns Company, a Missouri corporation, its sole member
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO OUTDOOR WORLD, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO OUTDOORS ONLINE, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO TRADEMARKS, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BPS CATALOG, L.P., A MISSOURI LIMITED
PARTNERSHIP
By: Its General Partner, BPS Catalog
GP, Inc., a Missouri Corporation
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BPS CATALOG GP INC., A MISSOURI CORPORATION
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
WORLD WIDE SPORTSMAN, INC.
A SOUTH CAROLINA CORPORATION
By: /s/ Toni M. Miller --------------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
EXHIBIT 10.201
ADVERTISING ADVANCE LOAN
("Ad Loan")
$9,000,000.00 Greene County, Missouri June 16, 2000
FOR VALUE RECEIVED, the undersigned Big Cedar L.L.C., a Missouri limited liability company, who together with its successors and assigns in interest is herein referred to as Maker, promises to pay to Bluegreen Vacations Unlimited, Inc., a Florida corporation, or order ("Holder"), the principal sum of NINE MILLION DOLLARS ($9,000,000.00),with no interest except as provided hereinbelow. The principal and interest shall be payable at 4960 Blue Lake Drive, Boca Raton, Florida 33431, or such other place as the Holder hereof may designate in writing, in accordance with the terms set forth hereinbelow until the time the entire indebtedness evidenced hereby is fully paid.
The term of this Note shall be seven (7) years from the date of execution hereof, subject to Holder's rights of acceleration as provided for below. The term hereof may be extended by Maker for an additional term of up to three (3) years, if upon the expiration of the initial term hereof, a balance on this Note exists and there remains unsold timeshare interests at the Big Cedar Resort Club, so long as Maker, Bass Pro or Bass Pro Affiliates are not in default of the Marketing and Promotions Agreement or License Agreements as therein defined. No principal unpaid at the time of maturity shall be paid by Maker to Holder, except as otherwise set forth herein.
During the term hereof, the sole source of repayment of this Note by Maker shall be (i) Distributions paid or payable by Maker from the Bluegreen/Big Cedar Vacations LLC, a Delaware limited liability company; and (ii) application of the Generation Commission. The Generation Commission shall be defined as set forth in that certain Marketing and Promotions Agreement made and entered into as of the date hereof, by and between Maker, Bass Pro, Inc., a Delaware corporation, Holder and Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company ("Marketing Agreement").
If the above-named sources of payment of the obligations hereunder by Maker to Holder are insufficient to repay the amounts due hereunder, Maker will not be obligated to repay any insufficiency except as provided herein. If Maker is in default of the Marketing Agreement, Holder may declare the balance of this Note due and payable one (1) year following such default, together with interest at the rate of nine percent (9%) per annum, accruing from and after the date the applicable cure period expires to the date of payment of such balance and Maker shall be fully liable, personally, for the indebtedness hereunder, without limitation to the above named sources of payment, and Holder may proceed to foreclose on its lien against the interest of Maker in the Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company, and foreclose on its deed of trust concerning the Additional Property, which Additional Property is as defined in the Contribution Agreement.
Holder shall be permitted, in its discretion, to receive and accept receivables from timeshare purchasers of timeshare interests in the Big Cedar Resort Club as repayment of this Note, whether the same constitutes a Distribution and thereby a source of repayment as set forth hereinabove, or whether the same constitutes repayment otherwise.
If Holder is in default of the Operating Agreement by committing acts
of fraud in the management of the Bluegreen/Big Cedar Vacations, LLC, in a
manner inconsistent with the terms thereof and such breach causes actual damages
to Maker in an amount equal to or in excess of thirty-five percent (35%) of the
then outstanding principal amount of this Note, and in such event Holder fails
to cure such default within thirty (30) days after receiving written notice of
the specific facts claimed by Maker to constitute such default then, so long as
Maker, Bass Pro or a Bass Pro Affiliate is not in breach or default of the
Marketing Agreement or the License Agreements defined thereunder, nor is Big
Cedar in default of the Operating Agreement of the LLC, then (i) there shall be
no further obligation of Maker whatsoever to repay the outstanding balance of
this Note, and Holder shall execute any and all documents necessary to
acknowledge release of Maker's obligations with respect to this Note and
security therefor; provided any payments previously received by Holder from
Maker respecting payoff of this Note shall remain the property of Holder; and
(ii) the Marketing Agreement and all License Agreements as defined thereunder
shall terminate.
The Holder hereof may exercise the option of acceleration set forth above after a default by the Maker as set forth above, regardless of any prior forbearance. In the event of default by Maker as set forth above, and if this Note is referred to an attorney-at-law for collection or any action at law or in equity is brought with respect hereto, the Maker shall pay the Holder hereof all expenses and costs, including but not limited to reasonable attorney's fees.
Prepayment of the indebtedness hereunder shall be permitted. Any prepayment shall first be applied against any outstanding interest due and payable under this Note and then applied to the outstanding principal balance.
From time to time, without affecting any obligation of the undersigned or the successors or assigns of the undersigned hereunder, and without liability on the part of the Holder hereof, the Holder may, at the option of the Holder hereof, extend the time for payment the indebtedness due hereunder or any part thereof, reduce the payments hereon, release anyone liable on any of said outstanding principal balance, accept the renewal of this Note, join in any extension or subordination agreement, release any security given herefor, accept or release other or additional security, and agree with the undersigned to modify the rate of interest, terms, time of payment or period of amortization of this Note or change the sources of payment hereunder. No one or more of such actions shall constitute a novation.
Presentment, notice of dishonor, and protest are hereby waived by Maker and endorsers hereof. This Note shall be the joint and several obligation of Maker and its respective successors and assigns.
This Note is given in return for value received, the receipt and sufficiency of which is hereby acknowledged. The principal amount due hereunder has been advanced to Maker by Holder in consideration of the services, promises,
and agreements of Maker, Bass Pro and Bass Pro Affiliates as set forth in the Marketing Agreement, the Contribution Agreement, and the Operating Agreement. By execution hereof, Maker acknowledges that Holder would not have advanced the principal amount to Maker hereunder but for the services, promises and agreements of Maker, Bass Pro and Bass Pro Affiliates as set forth in the Marketing Agreement, the Contribution Agreement, and the Operating Agreement; and Maker's acknowledgment that use of the proceeds advanced by Holder hereunder will be to repay Bass Pro indebtedness owed by Maker to Bass Pro.
The indebtedness evidenced by this Note is secured by a first priority security interest in Maker's ownership interest in Bluegreen/Big Cedar Vacations, LLC, and a first priority deed of trust in and to certain property located in Taney County, Missouri. This Note shall be governed by the law of the State of Missouri.
For purpose of this Note, the following words shall have the definitions set forth hereinbelow:
(a) BASS PRO shall mean Bass Pro, Inc., a Delaware corporation;
(b) BASS PRO AFFILIATE shall mean Bass Pro Outdoor World, L.L.C., a Missouri limited liability company, Bass Pro Outdoors Online, L.L.C., a Missouri limited liability company, Bass Pro Trademarks, L.L.C., a Missouri limited liability company, BPS Catalog, L.P., a Missouri limited partnership, BPS Catalog GP, Inc., a Missouri corporation and Worldwide Sportsman, Inc., a South Carolina corporation.
(c) BIG CEDAR OR MAKER shall mean Big Cedar L.L.C., a Missouri limited liability company and its successors and assigns;
(d) BIG CEDAR RESORT CLUB shall mean that certain timeshare development located in Taney County, Missouri, adjacent to the Big Cedar Lodge, which timeshare development is developed or to be developed by Bluegreen/Big Cedar Vacations LLC, a Delaware limited liability company;
(e) BLUEGREEN/BIG CEDAR VACATIONS, LLC OR LLC shall mean that certain Delaware limited liability company of which Holder and Maker are members as of the date of this Note;
(f) BLUEGREEN OR HOLDER shall mean Bluegreen Vacations Unlimited, Inc. a Florida corporation;
(g) CONTRIBUTION AGREEMENT shall mean that certain Contribution Agreement made and entered into as of the date hereof, by and between Holder and Maker.
(h) DISTRIBUTION shall mean any and all cash or other property, including timeshare receivables, of the LLC as may be distributed by such limited liability company to Big Cedar from time to time.
(i) MARKETING AGREEMENT shall mean that certain Marketing and Promotions Agreement made and entered into as of the date hereof, by and between Big Cedar, Bass Pro and Bass Pro Affiliates and Bluegreen and its respective Affiliates;
(j) OPERATING AGREEMENT shall mean the operating agreement of the Bluegreen/Big Cedar Vacations, LLC.
The indebtedness evidenced by this instrument is subordinated to indebtedness due and owing to FINOVA Capital Corporation, a Delaware corporation, to the extent set forth in the Subordination Agreement dated as of June 16, 2000, executed by Holder in favor of FINOVA Capital Corporation.
WITNESS THE HAND AND SEAL OF THE UNDERSIGNED:
MAKER: Big Cedar, L.L.C., a Missouri
limited liability company
By: Three Johns Company, a Missouri
corporation, its sole member [SEAL]
By: /s/ Toni M. Miller
-----------------------------------
Print Name: Toni M. Miller
Title: Vice President Finance
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EXHIBIT 10.202
WEBSITE HYPERLINK LICENSE AGREEMENT
THIS WEBSITE HYPERLINK LICENSE AGREEMENT (the "Agreement') is made and entered into this 16th day of June, 2000, (the "Effective Date"), by and between Bluegreen Vacations Unlimited, Inc., a Florida Corporation ("Bluegreen" or "User") having a principal address of 4960 Blue Lake Drive, Boca Raton, Florida 33431, and Bass Pro, Inc., a Delaware Corporation ("Bass Pro"), having a principal address of 2500 East Kearney, Springfield, Missouri 65898 and Bass Pro Outdoors Online, L.L.C., a Missouri Limited Liability Company ("BP Online"), having a principal address of c/o Bass Pro, Inc., 2500 East Kearney, Springfield, Missouri 65898 (Bass Pro and BP Online are collectively referred to as the "Owner").
W I T N E S S E T H:
WHEREAS, User owns and operates an Internet website which is accessible through URL WWW.BLUEGREENONLINE.COM (the "Bluegreen Site"); and
WHEREAS, User has or will create and develop an Internet website, which shall be designed to advertise, market and promote the Big Cedar Timeshare Project (the "Big Cedar Site); and
WHEREAS, User has or will create and develop an Internet website which shall be designed to advertise, market and promote the Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club (the "Bluegreen Timeshare Site"); and
WHEREAS, Owner owns and operates an Internet website located at WWW.BASSPRO.COM (the "Bass Pro Site"); and
WHEREAS, Pursuant to that certain Marketing and Promotions Agreement by and between Big Cedar, L.L.C., a Missouri limited liability company ("Big Cedar"), Bass Pro, Bluegreen and the Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company ("LLC") dated of even date herewith ("Marketing Agreement"), Owner is obligated to create website hyperlinkages between the Bass Pro Site and the Bluegreen Site, Big Cedar Site and the Bluegreen Timeshare Site and among the foregoing sites, pursuant to and in accordance with the terms and conditions therein contained;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including but not limited to: (i) Bluegreen advancing to Big Cedar Nine Million and No/100 Dollars ($9,000,000), which amount Big Cedar is to use to repay the Bass Pro indebtedness owed by Big Cedar to Bass Pro and which amount Bluegreen would not have advanced, excepting the receipt of this Agreement and the mutual promises contained herein, and (ii) Bluegreen's agreements as set forth in the Marketing Agreement, including Bluegreen's agreement to acquire outdoor retail products from Bass Pro, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Marketing Agreement.
2. TERM. The term of this Agreement shall be for a term the earlier of:
(i) ten (10) years from the date hereof, or (ii) until ninety percent (90%) of
the Big Cedar Timeshare Project timeshares have been sold and conveyed;
provided, however if the Ad Loan is discharged pursuant to paragraph 12(b) of
the Marketing Agreement, this Agreement shall terminate.
3. RESORT ICON. Within one hundred and twenty (120) days from the Effective Date of this Agreement Owner agrees to create and maintain an icon identified as "Resorts" (or such other icon as is mutually acceptable to User and Owner) (hereinafter "Resort Icon").
4. HYPERLINKS. Within one hundred and twenty (120) days from the Effective Date of this Agreement Owner agrees to create and maintain the following linkages:
a. BASS PRO SITE - BIG CEDAR SITE. Upon opening and accessing the Resort Icon (or such other icon as is mutually acceptable to User and Owner) by Internet user(s), an additional icon shall exist to provide direct access to the Big Cedar Site. In addition, if the Bass Pro Site contains a search box feature, now or in the future, Internet user(s) shall by use of the search box feature be given an option to choose the icon for the Big Cedar Site. Upon accessing the icon for the Big Cedar Site, Internet user(s) shall be directly linked to the home pages of the Big Cedar Site.
b. BASS PRO SITE - BLUEGREEN TIMESHARE SITE. Upon opening and accessing the Resort Icon (or such other icon as is mutually acceptable to User and Owner) by Internet user(s), an additional icon shall exist to provide direct access to the Bluegreen Timeshare Site. In addition, if the Bass Pro Site contains a search box feature, now or in the future, Internet user(s) shall by use of the search box feature be given an option to choose the icon for the Bluegreen Timeshare Site. Upon accessing the icon for the Bluegreen Timeshare Site, Internet user(s) shall be directly linked to the home pages of the Bluegreen Timeshare Site.
c. BASS PRO SITE - BLUEGREEN SITE. Upon opening and accessing the Resort Icon (or such other icon as is mutually acceptable to User and Owner) by Internet user(s), an additional icon shall exist to provide direct access to the Bluegreen Site. In addition, if the Bass Pro Site contains a search box feature, now or in the future, Internet user(s) shall by use of the search box feature be given an option to choose the icon for the Bluegreen Site. Upon accessing the icon for the Bluegreen Site, Internet user(s) shall be directly linked to the home pages of the Bluegreen Site.
5. LICENSE. During the term of this Agreement, Owner hereby grants User a worldwide, royalty free, non-exclusive, irrevocable license for the use of the Bass Pro Site and grants User a worldwide, royalty free, non-exclusive, irrevocable license to establish hyperlinks from the Bass Pro Site as provided for herein. By execution hereof, it is acknowledged and agreed that the license and rights contained herein have been paid for in full by User, except as otherwise provided in paragraph 8 of this Agreement, and that by execution hereof, Owner has received good and valuable consideration in exchange therefor.
6. OWNER REPRESENTATIONS AND WARRANTIES. Owner hereby represents and warrants to User as of the date hereof and through the term of this Agreement that: (i) Owner and Bass Pro Affiliates has the power and authority to enter into and perform its obligations under this Agreement; (ii) Owner owns the Bass
Pro Site and all intellectual property rights therein; (iii) the Bass Pro Site does not contain any content, materials, data, work, trade or service mark, trade name, links, advertising or services that actually or potentially violate any applicable law or regulations or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person, and (v) Owner has secured the appropriate rights, under applicable state and federal law to grant the license herein. The Bass Pro Site is not subject to any pledge, lien, possessory interest, collateral instrument or encumbrance; excepting the existing security interests in the Bass Pro Site provided that any such holders of existing security interests shall execute, prior to or simultaneously with this Agreement and to the benefit of the User, the non-disturbance agreement in form and substance reasonably acceptable to Owner.
Owner agrees that Owner will not create, during the term of this Agreement, any additional encumbrance, pledge, lien or possessory interest in and to the Bass Pro Site; excepting further encumbrances of the Bass Pro Site for future financing of Owner arranged in the ordinary course of business for the benefit of the business of Owner unless User is notified in writing of such future financing and such future lender executes a non-disturbance agreement for the benefit of User in a form and substance reasonably acceptable to User.
Owner agrees to indemnify and hold harmless User from any and all damages, losses, claims, causes of action, or injury arising out of a breach of the representations and warranties of this paragraph.
7. EXCLUSIVITY/NON-EXCLUSIVITY OF LICENSE. Except as herein provided, nothing in this Agreement shall prevent Owner from granting any other licenses for the use of the Bass Pro Site or from utilizing the Bass Pro Site or permitting the Bass Pro Site to be utilized by others in any manner whatsoever; provided, however, Owner agrees that it shall not grant any other licenses for use of the Bass Pro Site for the purpose of developing, marketing, promoting or advertising any Competing Resort or Resort Interest Program, except as may otherwise be expressly provided for in accordance with paragraph 4(b) of the Marketing Agreement. Except as otherwise specifically provided herein, the license herein granted shall be non-exclusive to User and Owner reserves the right to use the Bass Pro Site in respect of any product or service.
8. EXPENSES. Creation of the hyperlinks from the Bass Pro Site as provided for herein shall be without further cost or expense to User, excepting that User shall pay the actual expenses reasonably incurred by Owner in the establishment of such hyperlinks, which cost shall be borne by the LLC and Bluegreen, dependent upon whomever the hyperlinks so benefits, which determination shall be made reasonably and in good faith.
9. PROPRIETARY INFORMATION. The graphics, any and all trademarks, servicemarks, tradenames, copyrights, patents or other intellectual property owned by Owner and/or its Affiliates and/or owned by User as of the Effective Date of this Agreement (the "Intellectual Property") will, at all times, remain their respective property. Each party hereto acknowledges and agrees that, at all times, the ownership of the Intellectual Property is vested solely in the owner thereof. Both parties further acknowledge and agree that nothing in this Agreement shall give either party any right, title or interest in the Intellectual property of the other party except as expressly provided herein. Either party's use of the Intellectual Property shall at all times and in every instance be followed by the proper Intellectual Property designation.
10. AFFIRMATION OBLIGATIONS. Both parties agree at all times during the term of this Agreement: (i) the quality of their web sites shall not be less than the quality that exists as of the Effective Date of this Agreement; (ii) and both parties shall maintain a technologically capable web site utilizing
state-of-the-art internet security protocol and encryption technology to secure electronic commerce transactions and to prevent unauthorized interception of transmitted data.
11. GENERAL PROVISIONS. In the event either party commences any legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall be entitled to recover from the other party, reasonable attorney's fees and the court costs. This Agreement may only be amended by a written agreement executed by an authorized representative of each party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, successors and assigns. No waiver by the parties hereto of any default or breach of any term, condition or covenant of this Agreement shall be deemed a waiver of the same or any other term, condition or covenant contained herein unless acknowledged in writing by both parties. This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to principals of conflicts of law. Both parties agree that any claims arising out of this Agreement shall be brought in a state or federal court sitting in the State of Missouri and both parties hereby acknowledge its consent to said jurisdiction and venue.
12. NOTICES. All notices required or permitted under this Agreement shall be given in writing by certified mail, postage prepaid, as follows:
To User:
Bluegreen Vacations Unlimited, Inc.
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Mr. Pat Rondeau
With copy to:
Weinstock & Scavo, P.C.
3405 Piedmont Road, N.E., Suite 300
Atlanta, Georgia 30305
Attn: James J. Scavo, Esq.
To Owner:
Bass Pro Outdoors Online, L.L.C.
2500 East Kearney
Springfield, Missouri 65989
Attn: Ms. Toni Miller
With copy to:
Greene & Curtis, L.L.P.
1340 East Woodhurst Drive
Springfield, Missouri 65804
Attn: Chris Greene, Esq.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and date first written above.
USER:
BLUEGREEN VACATIONS UNLIMITED, INC., a
Florida Corporation
By: /s/ Patrick E. Rondeau ----------------------------------- Print Name: Patrick E. Rondeau Title: President |
OWNER:
BASS PRO, INC., a Delaware Corporation,
By: /s/ Toni M. Miller ----------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO OUTDOORS ONLINE, L.L.C., a
Missouri Limited Liability Company
By: /s/ Toni M. Miller ----------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
EXHIBIT 10.203
WEBSITE HYPERLINK LICENSE AGREEMENT
THIS WEBSITE HYPERLINK LICENSE AGREEMENT (the "Agreement') is made and entered into this 16th day of June 2000, (the "Effective Date"), by and between Bluegreen Vacations Unlimited, Inc., a Florida Corporation ("Bluegreen" or "Owner"), having a principal address of 4960 Blue Lake Drive, Boca Raton, Florida 33431, and Bass Pro, Inc., a Delaware Corporation ("Bass Pro"), having a principal address of 2500 East Kearney, Springfield, Missouri 65898 and Bass Pro Outdoors Online, L.L.C., a Missouri Limited Liability Company" ("BP Online"), having a principal address of c/o Bass Pro, Inc., 2500 East Kearney, Springfield, Missouri 65898 (Bass Pro and BP Online are collectively referred to as the "User").
W I T N E S S E T H:
WHEREAS, Owner owns and operates an Internet website which is accessible through URL WWW.BLUEGREENONLINE.COM (the "Bluegreen Site"); and
WHEREAS, Owner has or will create and develop an Internet website, which shall be designed to advertise, market and promote the Big Cedar Timeshare Project (the "Big Cedar Site); and
WHEREAS, Owner has or will create and develop an Internet website which shall be designed to advertise, market and promote the Bluegreen's Timeshare Facilities, including the Bluegreen Vacation Club (the "Bluegreen Timeshare Site"); and
WHEREAS, User owns and operates an Internet website located at WWW.BASSPRO.COM (the "Bass Pro Site"); and
WHEREAS, Pursuant to that certain Marketing and Promotions Agreement by and between Big Cedar, L.L.C., a Missouri limited liability company ("Big Cedar"), Bass Pro, Bluegreen and the Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company ("LLC") dated of even date herewith ("Marketing Agreement"), Bass Pro is given the option and right to have established a hyperlink between the Bluegreen Site and the Bass Pro Site, pursuant to and in accordance with the terms and conditions therein contained;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including but not limited to: (i) Bluegreen advancing to Big Cedar Nine Million and No/100 Dollars ($9,000,000), which amount Big Cedar is to use to repay the Bass Pro indebtedness owed by Big Cedar to Bass Pro and which amount Bluegreen would not have advanced, excepting the receipt of this Agreement and the mutual promises contained herein, and (ii) Bluegreen's agreements as set forth in the Marketing Agreement, including Bluegreen's agreement to acquire outdoor retail products from Bass Pro, the Parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement shall have meanings ascribed to such terms in the Marketing Agreement.
2. TERM. The term of this Agreement shall be for a term the earlier of:
(i) ten (10) years from the date hereof, or (ii) until ninety percent (90%) of
the Big Cedar Timeshare Project timeshares have been sold and conveyed; provided, however this Agreement shall terminate upon the default by Big Cedar of the terms of the Ad Loan due and payable to Owner.
3. OPTION. Upon execution of this Agreement, Owner hereby grants to User the right and option ("Option") to place on the Bluegreen Site an icon and hyperlink to the Bass Pro Site, which if established shall be for the purpose of accessing to the Bass Pro Site ("Purpose"). In order to exercise the option granted hereunder, User and/or its Affiliates shall notify Owner in writing at least one hundred and twenty (120) days prior to the date the icon and hyperlink is to be established on the Bluegreen Site. During the term of this Agreement, User shall have the right to (i) terminate this Option at anytime or on multiple occasions by delivering written notice to Owner and (ii) exercise the Option at anytime or on multiple occasions by delivering written notice to Owner as provided hereinabove.
4. HYPERLINKS. Within one hundred and twenty (120) days after the exercise of the Option by User or such later date as specified by User in its notice to Owner required hereunder, Owner agrees to create and maintain the following linkages:
a. BLUEGREEN SITE - BASSPRO SITE. On the Bluegreen Site, Owner agrees to create and maintain an icon ("Icon") to identify the Bass Pro Site as is mutually acceptable to User and Owner. In addition, if the Bluegreen Site contains a search box feature, now or in the future, Internet user(s) shall by use of the search box feature be given an option to choose the Icon for the Bass Pro Site. Upon accessing the Icon, Internet user(s) shall be directly linked to the home pages of the Bass Pro Site for the Purpose as set above.
5. LICENSE. Upon exercise of the Option and during the term of this Agreement, Owner hereby grants User a worldwide, royalty free, non-exclusive, irrevocable license for the use of the Bluegreen Site and grants User a worldwide, royalty free, non-exclusive, irrevocable license to establish hyperlinks from the Bluegreen Site as provided for herein. By execution hereof, it is acknowledged and agreed that the license and rights contained herein have been paid for in full by User, except as otherwise provided in paragraph 7 of this Agreement, and that by execution hereof, Owner has received good and valuable consideration in exchange therefor.
6. OWNER REPRESENTATIONS AND WARRANTIES. Owner hereby represents and warrants to User as of the date hereof and through the term of this Agreement that: (i) Owner has the power and authority to enter into and perform its obligations under this Agreement; (ii) Owner owns the Bluegreen Site and all intellectual property rights therein; (iii) the Bluegreen Site does not contain any content, materials, data, work, trade or service mark, trade name, links, advertising or services that actually or potentially violate any applicable law or regulations or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person, and (v) Owner has secured the appropriate rights, under applicable state and federal law to grant the license herein. The Bluegreen Site is not subject to any pledge, lien, possessory interest, collateral instrument or encumbrance; excepting the existing security interests in the Bluegreen Site provided that any such holders of existing security interests shall execute, prior to or simultaneously with this Agreement and to the benefit of the User, the non-disturbance agreement in form and substance reasonably acceptable to Owner.
Upon exercise of the Option, Owner agrees that Owner will not create, during the term of this Agreement, any additional encumbrance, pledge, lien or possessory interest in and to the Bluegreen Site; excepting further encumbrances of the Bluegreen Site for future financing of Owner arranged in the ordinary course of business for the benefit of the business of Owner unless the User is notified in writing of such future financing and such future lender executes a
non- disturbance agreement for the benefit of User in a form and substance reasonably acceptable to User.
Owner agrees to indemnify and hold harmless User from any and all damages, losses, claims, causes of action, or injury arising out of a breach of the representations and warranties of this paragraph.
7. EXPENSES. Creation of the hyperlinks from the Bluegreen Site as provided for herein shall be without further cost or expense to User, excepting that User shall pay the actual expenses reasonably incurred by Owner in the establishment of such hyperlinks.
8. PROPRIETARY INFORMATION. The graphics, any and all trademarks, servicemarks, tradenames, copyrights, patents or other intellectual property owned by Owner and/or owned by User as of the Effective Date of this Agreement (the "Intellectual Property") will, at all times, remain their respective property. Each party hereto acknowledges and agrees that, at all times, the ownership of the Intellectual Property is vested solely in the owner thereof. Both parties further acknowledge and agree that nothing in this Agreement shall give either party any right, title or interest in the Intellectual Property of the other party except as expressly provided herein. Either party's use of the Intellectual Property shall at all times and in every instance be followed by the proper Intellectual Property designation.
9. AFFIRMATION OBLIGATIONS. Both parties agree at all times during the term of this Agreement: (i) the quality of their web sites shall not be less than the quality that exists as of the Effective Date of this Agreement; (ii) and both parties shall maintain a technologically capable web site utilizing state-of-the-art internet security protocol and encryption technology to secure electronic commerce transactions and to prevent unauthorized interception of transmitted data.
10. GENERAL PROVISIONS. In the event either party commences any legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall be entitled to recover from the other party, reasonable attorney's fees and the court costs. This Agreement may only be amended by a written agreement executed by an authorized representative of each party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, successors and assigns. No waiver by the parties hereto of any default or breach of any term, condition or covenant of this Agreement shall be deemed a waiver of the same or any other term, condition or covenant contained herein unless acknowledged in writing by both parties.
This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to principals of conflicts of law. Both parties agree that any claims arising out of this Agreement shall be brought in a state or federal court sitting in the State of Missouri and both parties hereby acknowledge its consent to said jurisdiction and venue.
11. NOTICES. All notices required or permitted under this Agreement shall be given in writing by certified mail, postage prepaid, as follows:
To Owner:
Bluegreen Vacations Unlimited, Inc.
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Mr. Pat Rondeau
With copy to:
Weinstock & Scavo, P.C.
3405 Piedmont Road, N.E., Suite 300
Atlanta, Georgia 30305
Attn: James J. Scavo, Esq.
To User:
Bass Pro Outdoors Online, L.L.C.
2500 East Kearney
Springfield, Missouri 65989
Attn: Ms. Toni Miller
With copy to:
Greene & Curtis, L.L.P.
1340 East Woodhurst Drive
Springfield, Missouri 65804
Attn: Chris Greene, Esq.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and date first written above.
OWNER:
BLUEGREEN VACATIONS UNLIMITED, INC., a
Florida Corporation
By: /s/ Patrick E. Rondeau ----------------------------------- Print Name: Patrick E. Rondeau Title: President |
USER:
BASS PRO, INC., a Delaware Corporation,
By: /s/ Toni M. Miller ----------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
BASS PRO OUTDOORS ONLINE, L.L.C., a
Missouri Limited Liability Company
By: /s/ Toni M. Miller ----------------------------------- Print Name: Toni M. Miller Title: Vice President Finance |
EXHIBIT 10.204
CONTRIBUTION AGREEMENT
Made on 16th day of June, 2000
TABLE OF CONTENTS
PAGE
----
1. Formation and Organization of Limited Liability Company.........................................1
2. Primary Purpose of Limited Liability Company....................................................2
3. Capital Contribution of Property and Improvements by Big Cedar..................................2
4. Additional Property, Army Corp Property.........................................................3
5. Capital Contribution by Bluegreen...............................................................5
6. Advertising Advance Loan to Big Cedar by Bluegreen..............................................5
7. Examination of Title and Title Insurance........................................................5
8. Survey..........................................................................................6
9. Assignment of Contract Rights...................................................................6
10 Earnest Money Deposit...........................................................................7
11. Representations and Warranties of Big Cedar and Bluegreen.......................................7
12. Mutual Conditions to Closing...................................................................11
13. Bluegreen Conditions to Closing................................................................13
14. Big Cedar Conditions to Closing................................................................15
15. Termination/Default/Remedies...................................................................16
16. Notices........................................................................................17
17. Assignment.....................................................................................17
18. Confidentiality................................................................................17
19. Applicable Law.................................................................................18
20. Miscellaneous..................................................................................18
21. Closing........................................................................................18
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PAGE
----
22. No Brokers.....................................................................................18
23. Survival of Provisions.........................................................................19
24. Time is of the Essence.........................................................................19
25. Affiliates.....................................................................................19
EXHIBITS
Exhibit A - Legal Description of the Real Property
Exhibit B - LLC Certificate of Formation
Exhibit C - LLC Operating Agreement
Exhibit D - General Warranty Deed
Exhibit E - Option to Purchase Real Estate; Memorandum of Option
Exhibit F - Army Corp property description
Exhibit G - Contract Rights, Leases, Permits and Approvals Affecting the
Army Corp Property
Exhibit H - Membership Interest Agreement
Exhibit I - Advertising Advance Loan
Exhibit I-1 Collateral Documents Supporting The Advertising Advance Loan
Exhibit J - Marketing and Promotions Agreement
Exhibit K - Amendment to Certain Restrictive Covenants of
Oakmont Community Improvement Association, Inc.
Exhibit L - Sales Center Property Description
Exhibit M - Big Cedar Lodge property description
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT ("Agreement") is made and entered into as of this 16th day of June, 2000 by and between Bluegreen Vacations Unlimited, Inc., a Florida corporation ("Bluegreen") having a principal address of 4960 Blue Lake Drive, Boca Raton, Florida, 33431 and Big Cedar, L.L.C., a Missouri limited liability company ("Big Cedar") having a principal address of 2500 East Kearney Street, Springfield, Missouri 65898.
W I T N E S S E T H
WHEREAS, Bluegreen and Big Cedar propose to form, capitalize and activate a limited liability company (the "LLC") to be governed under the laws of the State of Delaware to design, develop, sell, market and operate a timeshare project contiguous to the current Big Cedar Lodge property, which Big Cedar Lodge property is located at 612 Devils Pool Road, Ridgedale, Missouri 65739 (the "Big Cedar Timeshare Project");
WHEREAS, Big Cedar owns fee simple title to certain real property situated in the City of Ridgedale, County of Taney, State of Missouri, more particularly described in Exhibit "A" attached hereto (the "Property") and Big Cedar shall, subject to the terms and conditions of this Agreement grant the Property to the LLC by warranty deed and receive therefore an allocation of a capital contribution in the LLC in the amount of Seventy Thousand and No/100 Dollars ($70,000.00) multiplied times the number of acres as shown on the Property Survey provided for in paragraph 8 hereinbelow;
WHEREAS, Bluegreen shall, subject to and in accordance with the terms and conditions of this Agreement, make a capital contribution of Seventy Thousand and No/100 Dollars ($70,000.00) multiplied times the number of acres as shown on the Property Survey described in paragraph 8 hereinbelow, in cash to the LLC, (the "Initial Capital Contribution") and Bluegreen shall receive a capital contribution allocation in the LLC in such amount;
WHEREAS, the purpose of this Agreement is to set forth the terms and conditions pursuant to which Bluegreen and Big Cedar shall form and make such capital contributions and other contributions to the LLC;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and the mutual promises contained herein, the parties hereto agree as follows:
1. FORMATION AND ORGANIZATION OF LIMITED LIABILITY COMPANY.
(a) This Agreement sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and supercedes all prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof, including that certain Confidential Term Sheet made and entered into by the parties hereto dated as of October 1, 1999. This Agreement is for the purpose of specifying contributions, conditions, covenants and agreements of the parties in the ultimate formation and organization of a limited liability company. This Agreement may not be modified or amended, unless such amendment is set forth in writing and signed by Bluegreen and Big Cedar.
(b) The parties hereto will form, capitalize and activate a limited liability company (the "LLC") to design, develop, sell, market and operate the Big Cedar Timeshare Project. The Certificate of Formation of the LLC, to be accepted by the parties hereto, and to be filed in accordance with applicable law, shall take the form as attached hereto as Exhibit "B," which is incorporated herein by this reference. Such Certificate of Formation shall be filed on or before the Closing Date (as defined in paragraph 21, hereinbelow) with the proper state filing department. The rights, duties, and obligations of the parties hereto as respects their membership in the LLC will be as set forth in the LLC Operating Agreement which is attached hereto as Exhibit "C" and incorporated herein by this reference. The parties hereto agree to accept and, where appropriate, execute the foregoing Certificate of Formation and Operating Agreement on or before the Closing Date.
(c) The parties' obligations hereunder are subject to the terms, conditions and covenants herein contained.
2. PRIMARY PURPOSE OF LIMITED LIABILITY COMPANY. The primary purpose of the LLC is to operate as the developer of the Big Cedar Timeshare Project. The Big Cedar Timeshare Project is to be a unique outdoor theme timeshare project utilizing lodges and cabins as accommodations, with the current Big Cedar Lodge serving as its prototype for architectural design, subject to the provisions of the Operating Agreement of the LLC. The Big Cedar Timeshare Project shall be developed, constructed, operated and managed on the Property and on any other land or property as may hereafter be owned by the LLC, including other land as may be sold and conveyed to the LLC by Big Cedar (the "Additional Property"). The LLC may lease, sell or otherwise transfer or dispose of the Property (or the Additional Property as may be sold and conveyed to the LLC), any improvements thereon, or any part thereof, including timeshare interests therein, and may accept instruments of indebtedness from the purchasers thereof. The LLC may engage in such other activities as are reasonably incidental to the foregoing with respect to the Big Cedar Timeshare Project, the Property, the Additional Property and any improvements thereon, including, by way of example and not limitation, the entry of loan or purchase facilities by which instruments of indebtedness from purchasers of interests, including timeshare interests, in the Property (or the Additional Property acquired by the LLC) are used as collateral for loans or are sold to acquirers thereof.
3. CAPITAL CONTRIBUTION OF PROPERTY AND IMPROVEMENTS BY BIG CEDAR.
(a) Big Cedar shall, on or before Closing, convey to the LLC, by general warranty deed, fee simple title to the Property, subject to "Permitted Encumbrances" (as defined below). The Property is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. The Property shall consist of that tract of land that is contiguous to the current Big Cedar Lodge property as is identified on Exhibit "A." The Property shall be consistent with the objectives of the Business Plan and Master Land and Development Use Plan referenced in paragraph 13, hereinbelow. The Property shall be suitable to yield four and one-half (4 1/2) timeshare units per acre. Big Cedar shall receive capital credit in the LLC of an amount equal to Seventy Thousand and No/100 Dollars ($70,000.00) multiplied times the number of acres as shown on the Property Survey described in paragraph 8 hereinbelow for grant of the Property (and contribution thereof) to the LLC. Forthrightly following transfer of the Property by Big Cedar to the LLC, Big Cedar shall, at its own cost and expense, remove any and all structures or improvements existing on the Property as are requested to be removed by the LLC.
(b) The general warranty deed Big Cedar executes and delivers to the LLC shall be in the form attached hereto as Exhibit "D." Such warranty deed shall contain full warranties of title against claims of all persons whomsoever, and shall convey marketable fee simple title in the Property to the
LLC, free and clear of all mortgages, security deeds, other security instruments, liens, encumbrances, tenancies, and restrictions (including condemnation proceedings) of any kind and nature other than the then current state, county and city ad valorem taxes not yet due and payable, general utility easements not adversely affecting the Property or its potential for future development, and such other items as the LLC may accept as restrictions or encumbrances upon title (hereinafter "Permitted Encumbrances"). The legal description contained in the general warranty deed shall be based upon the title commitment and the Property Survey defined in paragraph 8 below.
(c) All state, county and municipal ad valorem tax, if any, and all utility charges with respect to the Property for the year in which the transaction is consummated, and all rents, if any, will be pro-rated as of the Closing Date. If the amount of such taxes and utilities is not known at the Closing Date, proration of such taxes and utilities will be made upon the basis of the most recently ascertainable of such billings. Should the actual estimate of such taxes or utilities for the year in which the transaction is consummated be more than One Hundred and No/100 Dollars ($100.00) more or less than the amount used as a basis for such proration, Big Cedar and the LLC will make the proper adjustment promptly upon receipt by either of them of a notice or bill for such taxes or utilities, so that such proration will be accurate, based upon the actual amount of such taxes or utilities. Payment will be promptly made to Big Cedar or the LLC, whichever shall be entitled to such payment by the other party for the purpose of making such adjustment. The LLC, at the LLC's election, in its sole discretion and at its sole expense, shall have the right, in the name of Big Cedar, after the prior written consent of Big Cedar thereto, which consent will not be unreasonably withheld or denied, to contest and appeal any such tax or assessment. Any adjustment or proration to be made pursuant to this paragraph will be based upon the amount of such taxes finally determined upon any such contest or appeal if the LLC shall elect to make such a contest or appeal; provided, however, Big Cedar shall in no event be responsible for payment of a greater amount following any such contest or appeal than Big Cedar would have been required to pay had no such contest or appeal been prosecuted.
(d) It is understood and agreed by the parties that the Property is a series of lots within a parcel of property. The lots are segregated and divided by streets and roads. The title insurance will not insure title to the streets and roads until such time as the streets and roads are vacated. Upon streets and roads being vacated, the title insurance policy will be amended and the property upon which the streets and roads previously existed will be conveyed to the LLC by Big Cedar and insured in the same manner as the Property is insured. It is understood and agreed that the roads may not be vacated until such time as an additional road is constructed over and across the Property. The existing roads on the Property shall constitute a Permitted Encumbrance at the time of Closing. The roads shall be conveyed by Big Cedar to the LLC subsequent to Closing, following vacation of such roads.
4. ADDITIONAL PROPERTY, ARMY CORP PROPERTY.
(a) ADDITIONAL PROPERTY. Big Cedar will, at the Closing Date, grant, bargain and exchange to the LLC a recordable enforceable option to purchase the Additional Property. The option shall be granted for a term of seven (7) years commencing on the Closing Date. Such option shall take the form attached hereto as Exhibit "E," which is incorporated herein by this reference to which the description of the "Additional Property" is attached (the "Option to Purchase Real Estate"). Such option or a memorandum of such option shall be recorded in the appropriate land records at the cost and expense of the LLC. Such Additional Property shall be (i) sufficient to allow, when added to the Property, a total of three hundred (300) timeshare units with a density of four and one half (4 1/2) timeshare units per acre for the entire contemplated timeshare project, and (ii) of a metes and bounds description acceptable to Bluegreen. Use of the Additional Property for a timeshare regime as set forth herein and in the Master Land Use and Development Plan (as referenced in paragraph 12(d), below), shall be authorized by applicable planning authorities or entities otherwise exercising regulatory authority thereover, including but
not limited to authorities having jurisdiction to enforce the Taney County Development Guidance Code for construction of such additional timeshare units. Such Additional Property shall be contiguous to the Property unless otherwise agreed by Bluegreen. Such option on the Additional Property shall be granted to the LLC for exercise during its term one time, or on multiple occasions for portions of such Additional Property, as determined by Bluegreen, and shall provide for acquisition at the amount, per acre, of Seventy Thousand Dollars ($70,000.00) per acre, subject to adjustment equal to the annual rate of inflation as measured by the Consumer Price Index for all Urban Consumers for the immediately preceding twelve (12) month period. The option shall provide that any conveyances of Additional Property shall be by warranty deed and be in accordance with the terms otherwise provided herein as respects contribution of the Property, together with such additional customary and usual terms and specifications in respect to the transfer of real estate.
(b) ARMY CORP OF ENGINEERS' LEASE PROPERTY. If requested by the LLC, Big Cedar shall, by enforceable limited, non-exclusive, quit claim assignment, and at no cost to Bluegreen or the LLC, assign to the LLC, the rights of Big Cedar with respect to the use of the Army Corp of Engineers' lease and easement property (approximately ten (10) acres) as described on Exhibit "F," attached hereto and incorporated herein by this reference (the "Army Corp Property"). Such Army Corp Property is located in the general vicinity of the Property, provided, however, that the transfer of such Army Corp Property shall not be subject to the assumption of any pre-existing liability, indebtedness, or obligations, except obligations set forth in the lease and easements agreements respecting the Army Corp Property, as arise after the date of the assignment to the LLC. Notwithstanding any of the foregoing, the parties hereto recognize and agree that assignment of the Army Corp Property by Big Cedar shall not occur without permission in writing from the District Engineer, Corp of Engineers. Big Cedar agrees to use its best efforts to obtain such permission when requested by the LLC. The parties agree that the obtaining of the Army Corp of Engineers' consent is a condition precedent to Bluegreen's duty to close, subject to waiver by Bluegreen. If waived, Big Cedar agrees to cooperate in all reasonable respects to obtain the Army Corp of Engineer's consent post closing. Assignment by Big Cedar of its rights regarding the Army Corp of Engineers' property shall be by limited, non-exclusive, quit claim assignment, without warranty or representation, but subject to the Army Corp of Engineers' consent.
(c) The parties hereto acknowledge that certain amenities affecting the Big Cedar Lodge, including the marina area, dock area and hiking path, are located on the Army Corp Property. The enjoyment of the rights to the Army Corp Property is limited to those who are in occupancy of the Big Cedar Resort. Big Cedar agrees that, as a condition precedent to Bluegreen's obligation to close this transaction, and in accordance with paragraph 9 hereinbelow (Assignment of Contract Rights), the Army Corp of Engineers and Big Cedar shall agree that the owners and occupants of timeshare interests at the Big Cedar Timeshare Project shall be identified as bona fide overnight guests and occupants of the Big Cedar Resort and from and after the date hereof, inclusive of the dates of all times following Closing, Big Cedar shall assert no contrary position. If this condition has not occurred at the time of Closing and Bluegreen proceeds with the Closing, this condition shall be deemed waived; provided, however, that Big Cedar agrees that following Closing, it shall obtain from the Army Corp of Engineers an agreement that the Owners and occupants of timeshare units at the Big Cedar Timeshare Project shall be identified as bona fide overnight guests and occupants of the Big Cedar Resort and at all times following the Closing Big Cedar shall assert no contrary position.
(i) All leases, easements, permits and approvals and any other rights or agreements with respect to the Army Corp Property are described on Exhibit "G", attached hereto and incorporated herein by this reference.
5. CAPITAL CONTRIBUTION BY BLUEGREEN. Bluegreen shall make the Initial Capital Contribution, in cash, to the LLC in the amount equal to Seventy Thousand and No/100 Dollars ($70,000.00) multiplied times the number of acres as shown on the Property Survey referred to in paragraph 8 hereof, less the Earnest Money set forth herein (which Earnest Money shall be contributed to the LLC on upon execution of this Agreement), or such Earnest Money shall otherwise be distributed as provided for in paragraph 15 hereinbelow or as otherwise provided for in this Agreement. The Certificate of Formation of the LLC (Exhibit "B") and the LLC Operating Agreement (Exhibit "C") shall provide for the foregoing contribution in accordance with the terms of this Contribution Agreement. Such Initial Capital Contribution shall be made pursuant to and in accordance with the cash requirements of the LLC as provided for in the Closing Business Plan referred to in paragraph 12(a) hereof; provided, however, that the total amount of the Initial Capital Contribution described hereinabove shall be contributed by Bluegreen no later than twelve (12) months after the Closing Date.. If such amount is not completely funded to the LLC by such date then, in accordance with the terms and conditions of the Membership Interest Agreement attached hereto as Exhibit "H" and following five (5) days written notice of such failure delivered by Big Cedar to Bluegreen, Bluegreen's interest in the LLC shall decrease and Big Cedar's interest in the LLC shall increase by one (1) percentage point or fraction thereof for every Sixty Three Thousand Three Hundred Twenty Nine and No/100 Dollar ($63,329) increment or portion thereof which Bluegreen has failed to contribute towards the total of the Initial Capital Contribution (the "LLC Member Interest Reallocation"). If as a result of the LLC Member Interest Reallocation of Bluegreen's interest in the Company results in Bluegreen's ownership interest percentage being reduced to fifty percent (50%) Big Cedar's ownership interest percentage being increased to fifty percent (50%) then the LLC Member Interest Allocation shall be adjusted to provide Bluegreen's ownership interest percentage be reduced to forty nine and nine-tenths (49.9%) and Big Cedar's ownership interest percentage be increased to fifty and one-tenth (50.1%) accordingly. Bluegreen agrees to execute documents as necessary to effectuate the Membership Interest Agreement.
6. ADVERTISING ADVANCE LOAN TO BIG CEDAR BY BLUEGREEN.
(a) As a condition of Closing to the benefit of Big Cedar, Bluegreen shall make a secured Advertising Advance Loan ("Ad Loan") to Big Cedar, in the form as set forth in Exhibit "I" attached hereto. Such Ad Loan shall be supported by collateral documents in the form attached hereto as Exhibit "I-1."
The Ad Loan shall bear no interest, except as otherwise specifically provided therein;
(i) The sole sources of repayment of the Ad Loan by Big Cedar to Bluegreen would be (i) Distributions; and (ii) the Generation Commission. The Generation Commission shall be defined in the Marketing and Promotions Agreement. The Marketing and Promotions Agreement will be in the form attached hereto as Exhibit "J"
As used herein, "Distribution" shall be as defined in the LLC Operating Agreement and shall mean cash or other property of the LLC as may be distributed by the LLC to Big Cedar from time to time.
7. EXAMINATION OF TITLE AND TITLE INSURANCE.
(a) No later than ten (10) days prior to the Closing Date, Big Cedar shall obtain for and at the cost and expense of the LLC an ALTA Extended Coverage Owner's Title Insurance Commitment insuring fee simple ownership of the LLC in and to the Property and any improvements thereon, subject only to the Permitted Encumbrances. Such title insurance commitment shall be in an amount
sufficient at all time to insure the LLC's full insurable interest in the Property and any improvements, and in no event shall be less than Seventy Thousand and No/100 Dollars ($70,000.00) multiplied times the number of acres as shown on the approved Property Survey, and the same shall be obtained from a title insurer reasonably acceptable to Bluegreen.
(b) Bluegreen and the LLC shall have until five (5) days prior to the date of Closing (and in any event at least five (5) days following delivery to Bluegreen of such title insurance commitment) to determine whether the title insurance commitment provided by Big Cedar respecting the Property is satisfactory. Prior to expiration of such time, Bluegreen shall notify Big Cedar of its acceptance of the title insurance commitment, or of defects shown thereon not acceptable to Bluegreen, and Big Cedar shall, at its expense, cure such defects identified by Bluegreen prior to the Closing Date. Notwithstanding anything otherwise contained herein to the contrary, Bluegreen has identified to Big Cedar its requirement that the Oakmont Community Improvement Association, Inc. execute an amendment to certain restrictive covenants, a copy of which is attached hereto as Exhibit "K" (the "Amendment") and has objected to the title of the Property absent receipt of an executed, recorded copy of the Amendment.
(c) The parties hereto acknowledge that as originally contemplated, the Property was to include Lot 14, Block 15, Lakeside South Subdivision, title to which is vested in Peter H. Rea and/or Darlene Weaver Rea (the "Rea Lot"). Because of potential encumbrances affecting the Rea Lot, the parties hereto agree that the Rea Lot shall be deleted from the Property initially to be conveyed to the LLC until title to the Rea Lot can be conveyed free and clear of Permitted Encumbrances. Notwithstanding such deletion, Big Cedar, agrees to indemnify and hold harmless Bluegreen and the LLC from any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments and awards, costs and expenses (including but not limited to reasonable attorney's fees) incurred by Bluegreen or the LLC, and arising directly and indirectly, in whole or in part, out of the Rea Lot or encumbrances thereon, including any deed of trust related thereto, including by way of example and not limitation, that certain Deed of Trust dated March 3, 1999, filed March 18, 1999 in Book 358, Page 5444, securing a debt in the principal sum of Four Hundred Forty Thousand and No/100 Dollars ($440,000.00).
8. SURVEY. Big Cedar shall, at its own cost and expense, obtain for the benefit of the LLC by no later than five (5) days prior to Closing, a survey of the Property ("Property Survey") and a Survey of the Additional Property (the "Additional Property Survey") certified to the LLC by a Missouri Registered Land Surveyor (collectively, the "Surveys"). The Surveys shall (a) be titled in the name of the LLC, (b) show and locate any and all improvements upon the Property and Additional Property; (c) show and locate all easements affecting the Property and Additional Property; (d) show and locate any portions of the Property and Additional Property lying and being in a flood plain, and (e) indicate to the nearest 1/10,000th of an acre the number of acres comprising the Property and Additional Property (the "Total Acreage"). The Surveys shall contain Total Acreage of developable acres in the Property, acceptable to Bluegreen, with no acreage located in a flood plain. The Surveys, as prepared by Big Cedar and accepted by Bluegreen, shall form the basis for the conveyance/contribution of the Property and Additional Property from Big Cedar to the LLC. Big Cedar shall permit the surveyor and representatives of the surveyor, Bluegreen and the LLC to enter upon the Property and Additional Property for preparation and review of the Surveys and shall otherwise reasonably cooperate with the surveyor, Bluegreen and the LLC in preparation and review of the Surveys.
9. ASSIGNMENT OF CONTRACT RIGHTS. The leases and easements respecting the Army Corp Property as referred to in paragraph 4(b) hereinabove shall, at the time requested by the LLC, be assigned to the LLC in accordance with paragraph 4 above, subject to the consent of the Army Corp of Engineers. In
addition, either prior to Closing or thereafter, as set forth in paragraph 4(c) above, the rights extended to occupants of Big Cedar Lodge pursuant to the Army Corp of Engineers leases and easements shall be extended to include, by definition, those in occupancy of the Big Cedar Timeshare Project. Any other contract rights, leases, permits, approvals and other rights or agreements affecting the Property and held by Big Cedar shall, as in the discretion of the LLC so determined, be assigned by Big Cedar to the LLC from time to time. In respect to such contract right, leases, permits, approvals and other rights or agreements of any nature which are to be assigned to the LLC by Big Cedar, any and all rents, profits and income therefrom accruing shall belong to the LLC.
10. EARNEST MONEY DEPOSIT. At the time of execution of this
Contribution Agreement, Bluegreen shall deposit an earnest money payment in the
amount of ten percent (10%) of the Initial Capital Contribution (the "Earnest
Money"), which deposit shall be in an interest bearing account, opened and
maintained by the Lincoln Land Title Company, Inc., acting as a title agency for
Chicago Title Insurance Company, whose address is 3256 South Freemont,
Springfield, Missouri 65804, telephone number (417) 889-1818, facsimile number
(417) 889-2626, which deposit shall be placed in an interest bearing account
opened and maintained by the title agency, as escrow agent hereunder. Such
Earnest Money shall, except as otherwise provided herein, upon consummation of
the transaction contemplated hereunder (including the occurrence of all
conditions precedent in the absence of a written waiver thereof by the party
benefiting therefrom), be delivered to the LLC as a credit against Bluegreen's
Initial Capital Contribution to the LLC.
11. REPRESENTATIONS AND WARRANTIES OF BIG CEDAR AND BLUEGREEN.
(a) The obligations of Bluegreen and Big Cedar to proceed with the consummation of this transaction on the Closing Date shall be subject to the representations and warranties of set forth in this Section 11(a) being true and correct on the Closing Date. Big Cedar agrees, represents and warrants to Bluegreen and the LLC that:
(i) There are no obligations, agreements or liabilities, whether accrued or contingent with respect to the Property or Additional Property, except as disclosed in this Agreement.
(ii) All permits, approvals, contracts, plans, specifications and drawings relating to the Property and Additional Property are owned by Big Cedar free and clear of any liens, encumbrances, and security interests, and can be conveyed to the LLC without the approval or consent of any third party, except for approval and consent of the County Commission of Taney County, Missouri, with respect to the vacation of roads within the Property and Additional Property, and except for the approval and consent with respect to the Army Corp Property.
(iii) Big Cedar and its Affiliates within the past seven-(7) years have not been the object of any bankruptcy, foreclosure action, or any criminal action.
(iv) Big Cedar is duly organized and validly existing under and is governed by the laws of the State of Missouri; this Agreement and all documents that are to be executed by Big Cedar or its Affiliates and delivered to Bluegreen or the LLC are or will be enforceable in accordance with their terms, duly authorized, executed and delivered by Big Cedar or its Affiliates, and do not and will not violate any provisions of any agreement or judicial order to which Big Cedar or its Affiliates are a party or to which Big Cedar or any of its Affiliates or the Property or Additional Property are subject.
(v) There is no condemnation, zoning, environmental, eminent domain or other land use regulation proceedings or actions pending or threatened against the Property or the Additional Property that would detrimentally affect the use, occupancy, development or operation of the
Property or the Additional Property for their intended purposes or the value of the Property or the Additional Property, nor is there any special assessment proceedings affecting the Property or the Additional Property, excepting, however, special assessments of Oakmont Community Improvement Association, Inc. affecting the Property or Additional Property. To the extent required for the normal and intended use and development of the Property as contemplated hereunder, and all documents otherwise to be executed by Big Cedar or its Affiliates in accordance with the terms hereof, Big Cedar has obtained all licenses, permits, easements and rights-of-way required by all governmental authorities having jurisdiction over the Property or the Additional Property or by private parties for the normal use, occupancy and operation of the Property or the Additional Property and to ensure free and unrestricted vehicle and pedestrian ingress to and egress from the Property and the Additional Property. The parties acknowledge that with respect to the roads located on the Property that are maintained by Taney County, Missouri, Big Cedar shall use its best efforts to obtain consent to vacating such roads following Closing.
(vi) There are no leases on or affecting the Property or the Additional Property, and the Army Corp of Engineers Property is subject only to a validly existing and enforceable lease and easement agreements held by Big Cedar pursuant to which Big Cedar is the lawful lessee or grantee.
(vii) There is no existing or threatened legal action or administrative proceeding of any kind involving the Property or the Additional Property or its development, except administrative proceedings dealing with vacation of roads by the County Commission of Taney County, Missouri, which action will be instituted and diligently proceeded upon by Big Cedar with the objective of vacating of the roads.
(viii) There are no service contracts that are in force or pertain to the Property or the Additional Property.
(ix) Big Cedar has no employees engaged in the operation, maintenance or repair of the Property or the Additional Property who have any agreements which would bind Bluegreen, the LLC or the Property or the Additional Property.
(x) There are no material or physical defects in the Property or the Additional Property which would adversely affect the development, design, construction or operation of the Property and the Additional Property, subject to the provisions otherwise herein contained in its contemplated use as a timeshare resort pursuant to the Master Land Use and Development Plan contemplated in paragraph 12(d) hereof.
(xi) The intended use and operation of the Property or the Additional Property in accordance with the Certificate of Formation, the LLC Operating Agreement and the terms hereof, is in full compliance with all applicable environmental, zoning and land use laws, and other applicable local, state and federal laws and regulations, including without limitation, any such codes, laws or regulations that are adopted but not yet applicable or enforceable.
(xii) There are no facts or circumstances that would prevent the LLC from operating the Property or the Additional Property for their intended purpose as set forth hereinabove or which would adversely affect the value of the Property or the Additional Property.
(xiii) The Property or the Additional Property are not in violation of any federal, state, local or administrative agency, ordinance, law, rule, regulation, order or requirement relating to environmental conditions or Hazardous Material, as such term is defined below ("Environmental
Laws"). Neither Big Cedar, nor to the best of Big Cedar's knowledge, any third party, has used, manufactured, generated, treated, stored, disposed of or released any Hazardous Material on, under, or about the Property and the Additional Property or transported any Hazardous Material over the Property or the Additional Property. Neither Big Cedar nor to the best of Big Cedar's knowledge, any third party, has installed, used or removed any storage tank on, from or in connection with the Property and the Additional Property and there are no storage tanks or wells (whether existing or abandoned) located on, under or about the Property or the Additional Property. The Property or the Additional Property does not contain any building materials that contain Hazardous Material. For purposes hereof "Hazardous Material" shall mean any substance, chemical, waste, or other material which is listed, defined or otherwise identified as "hazardous" or "toxic" under any federal, state, local or administrative agency, ordinance, or law.
(xiv) Big Cedar presently has good and marketable fee simple title to the Property and the Additional Property, free and clear of any encumbrances, including deeds of trust thereon, except for Permitted Encumbrances.
(xv) The Property and the Additional Property will be in substantially the same condition on the Closing Date (or any future closing date as affects the Additional Property) as on the date hereof.
(xvi) There are no pending rezoning ordinances relative to the Property or the Additional Property.
(xvii) No party is in possession of the Property or the Additional Property or any portion thereof, whether as a lessee or tenant at sufferance, other than Big Cedar.
(xviii) No part of the Property or the Additional Property has been used for or as a landfill or toxic waste site.
(xix) There is no option to purchase, right of first refusal to purchase or agreement for the sale and purchase of the Property or the Additional Property or any portion thereof to any person or entity, except as provided in this Agreement.
(xx) No consent or approval of any person or entity is required in order for this Agreement to be legal, valid and binding upon Big Cedar, except the consent and approval of Fleet Retail Finance, Inc., FINOVA Capital Corporation, the Army Corp of Engineers (as respects assignment of the lease and easement agreements pertaining to the Army Corp Property), Oakmont Community Improvement Association, Inc. (as respects rezoning, replatting and the Amendment) and the County Commission of Taney County, Missouri (as respects vacating of the roads) (the obtaining of such foregoing consents except that consent from the County Commission of Taney County, Missouri regarding vacating of the roads, being mutual conditions precedent to the obligations of the parties hereunder to close) (the "Required Consents").
(xxi) The existing sewage system at Big Cedar Lodge has sufficient capacity (and is properly licensed, permitted and operational) to allow the additional hook-up by the LLC of up to one hundred (100) timeshare units (as contemplated pursuant to the Master Land Use and Development Plan) and such sewage system, and all lines and apparatus thereof, together with the property on which such sewer system and lines exist are owned by Big Cedar, and
the same are free and clear of any encumbrances or liens, including any deeds of trust thereon, excepting that certain deed of trust of FINOVA Capital Corporation, which will be subject to a non-disturbance agreement to the benefit of Bluegreen. If such facilities and/or property are subsequently encumbered, such encumbrance shall be subject and subordinate to the rights of the LLC and the Big Cedar Timeshare Project and owners and mortgagees therein.
(xxii) All utility services (including water and utility services) are to be provided to the Big Cedar Timeshare Project over, across or on the Big Cedar Lodge Property and such services are free and clear of any encumbrances or liens, including any deeds of trust thereon, and the same are located on property owned by Big Cedar, free and clear of any encumbrances thereon, including any deeds of trust, excepting that certain deed of trust of FINOVA Capital Corporation (which is to be subject to a non-disturbance agreement satisfactory to Bluegreen). If such facilities and or property are subsequently encumbered, such encumbrance shall be subject and subordinate to the rights of the LLC and the Big Cedar Timeshare Project and owners and mortgagees therein.
(b) Big Cedar agrees to indemnify Bluegreen and the LLC and hold Bluegreen and the LLC harmless from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, but not limited to, reasonable attorney's fees) arising directly or indirectly, in whole or in part, out of any breach by Big Cedar of any of its representations or warranties herein; provided such indemnity shall be limited as provided in paragraph 15 below if Closing does not occur.
(c) The obligation of Big Cedar to proceed with the consummation of this transaction on the Closing Date shall be subject to the representations and warranties set forth in this Section 11(b) being true and correct on the Closing Date. Bluegreen agrees, represents and warrants to Big Cedar and the LLC that:
(i) Bluegreen is duly organized and validly existing as governed by the laws of the State of Florida;
(ii) This Agreement and all documents that are to be executed by Bluegreen and delivered to Big Cedar or the LLC are or will be duly authorized, executed and delivered by Bluegreen and do not and will not violate any provision of any agreement or judicial order to which Bluegreen is a party or to which Bluegreen is subject.
(iii) There is no existing or threatened legal action or administrative proceedings of any kind involving Bluegreen that would impede Bluegreen's ability to perform its obligations under this Agreement;
(iv) No consent or approval of any person or entity is required in order for this Agreement to be legal, valid and binding upon Bluegreen other than the consent and approval of the Bluegreen Board of Directors, which is a condition precedent to this Agreement, as set forth in paragraph 13(a)
(v) Bluegreen and its Affiliates, within the past seven (7) years, have not been the object of any bankruptcy, foreclosure action or criminal action;
(d) Bluegreen agrees to indemnify Big Cedar and the LLC and hold Big Cedar and the LLC harmless from and against any and all claims, demands, losses, damages, liabilities, law suits and other proceedings, judgments and awards, and costs and expenses (including but not limited to reasonable attorney's fees) arising directly or indirectly, in whole or in part,
out of any breach by Bluegreen of any of its representations or warranties herein; provided such indemnity shall be limited as provided in paragraph 15 below if Closing does not occur.
12. MUTUAL CONDITIONS TO CLOSING. Notwithstanding any other provisions contained herein to the contrary, the obligations of Bluegreen and Big Cedar to perform as stated hereunder, or otherwise proceed with the consummation of this transaction on the Closing Date, shall be subject to the occurrence of the following conditions at or before the earlier of the date specified or the Closing Date, which conditions shall be to the mutual benefit of Bluegreen and Big Cedar, and if such conditions do not occur, then either Big Cedar or Bluegreen shall be entitled to terminate this Agreement, and the Earnest Money deposited shall thereafter be returned to Bluegreen.
(a) BUSINESS PLAN. Bluegreen and Big Cedar shall develop a
closing business plan (the "Closing Business Plan"), which shall forecast the
life of the Big Cedar Timeshare Project business which shall be defined as
hereinafter set forth and shall be completed no later than March 31, 2000. It is
agreed that the Closing Business Plan shall be solely a projection, without
representation or warranty, express or implied. The Closing Business Plan shall
be prepared by Bluegreen and shall contain projections and budgets with respect
to revenues, operating expenses, operating cash flows, capital expenses,
financing, market priorities and necessary funding. The Closing Business Plan
shall identify proposed sources for funding. Bluegreen shall submit the Closing
Business Plan as soon as reasonably possible after completion thereof, to Big
Cedar. The parties agree to reasonably cooperate to finalize the Closing
Business Plan and use commercially reasonable efforts to cause the LLC to
conduct its operations in accordance therewith. After Closing, a rolling three
(3) year plan shall be prepared annually by Bluegreen (the "Business Plan"), and
the Business Plan shall not constitute an amendment of this Agreement.
(b) CONSTRUCTION AND MARKETING FINANCE. The LLC, through the efforts of Bluegreen, shall have an executed commitment or term sheet proposal for the use and benefit of the LLC, received from a commercial bank or other lender financier acceptable to Bluegreen, on behalf of the LLC, which commitment or term sheet proposal provides for funding to design, develop, construct and market Phase One of the Big Cedar Timeshare Project (which, for purposes hereof, shall be defined as construction of two hundred two (202) timeshare units being fifty two (52) chalet unit and one hundred fifty (150) villa units, and the infrastructure, including utility services, parking and landscape servicing the same); provided, neither Bluegreen nor Big Cedar shall be required to guarantee the funds to be advanced pursuant to such commitment or term sheet proposal, except as they may mutually agree. Bluegreen, on behalf of the LLC shall be authorized to pledge the assets of the LLC, but not any membership interest of Big Cedar or Bluegreen therein, to secure the funds to be advanced pursuant to such commitment or term sheet proposal. The parties agree to subordinate their distributions from the LLC to the lender financing described herein.
(c) FORM OF DOCUMENTS. All agreements, instruments and documents referenced or mentioned in this Agreement as are incident to any contemplated transaction hereunder shall be satisfactory in form and substance to Bluegreen, Bluegreen's counsel, Big Cedar and Big Cedar's counsel and the same shall be executed and delivered on or before the Closing Date. Such documents shall include by way of example and not limitation, the Operating Agreement, the Marketing and Promotions Agreement, the Operational Services and Integration Agreement, the Servicing Agreement, the Project Administration Agreement, the Member Interest Agreement, the Certificate of Formation, the Ad Loan Agreement, the Option to Purchase Property, the Amendment, License and Concession Agreement, Mailing List Agreements, Trademark License Agreements, Advertising Space Receipt and Confirmation Agreement, Website Hyperlink License Agreements, Commercial Leases, Utilities, Sewer and Water Service Easement Agreement and Hotel Facilities Use Easements/Agreements.
(d) MASTER LAND USE AND DEVELOPMENT PLAN. Big Cedar and
Bluegreen shall agree on a Master Land Use and Development Plan for the Big
Cedar Timeshare Project, the Property, the Additional Property and the Army Corp
Property, as subject to the option referred to in paragraph 4(a), hereinabove,
and the Army Corp Property, as referred to in paragraph 4(b) hereinabove. The
Master Land Use and Development Plan shall be initially prepared by Bluegreen,
at the expense of the LLC, and shall identify (1) the systems necessary to
provide and furnish utilities to the Big Cedar Timeshare Project and the
identities of the utility providers; (2) the architectural design and product
quality of the Big Cedar Timeshare Project which shall be consistent with and
complimentary to the architectural and product quality of the Big Cedar Lodge
facilities (and approval of the Master Land Use and Development Plan by Big
Cedar and Bluegreen shall be deemed approval of the architectural design and
product quality, as designed, although not as built); and (3) development on the
Property in accordance with the following:
(i) The acreage attached as Exhibit "A" and to be shown on the Property Survey to be indicated as the Property contributed by Big Cedar;
(ii) The Additional Property subject to the Option to Purchase Real Estate agreement as further provided for in paragraph 4(a);
(iii) The Army Corp Property as may be assigned by Big Cedar to the LLC as identified in paragraph 4(b);
(iv) At least three hundred (300) timeshare units with a density no greater than 4.5 units per acre for the entire contemplated Big Cedar Timeshare Project on the Property and Additional Property. The Master Land Use and Development Plan shall either be authorized by applicable planning authorities or entities otherwise exercising regulatory authority in respect to the Property and the Additional Property, including but not limited to authorities having jurisdiction to enforce the Taney County Development Guidance Code for construction prior to the Closing Date, or the same shall have been submitted to the applicable planning authorities or entities, as aforesaid, and Bluegreen and Big Cedar shall be satisfied that a resulting approval is foreseeable.
(v) Free and unrestricted vehicular and pedestrian ingress to and egress from the Property to public roads and thoroughfares.
(vi) The Sales Center Property as described on Exhibit "L" (the "Sales Center Property") (referred to in paragraph 13(i)) and the Cabin Fever House Facility (the "Cabin Fever House Facility) (referred to in paragraph 13(i)) is leased to the LLC and Bluegreen for the purpose of sales and marketing of the Big Cedar Timeshare Project and the Bluegreen Timeshare Facilities, in accordance with the lease specified in paragraph 13(i) below and Big Cedar grants by easement uninterrupted access thereto to the benefit of the LLC, Bluegreen, and their respective agents, employees and representatives and timeshare prospects (provided that such Sales Center Property, the Cabin Fever House Facility and sales and marketing therefrom are not to be used for the purposes of sales and marketing of any Bluegreen Timeshare Facilities located within one hundred (100) miles of the Big Cedar Timeshare Project.
(e) LOAN TO BIG CEDAR (SENIOR DEBT). At Closing, a loan in the principal amount of approximately Forty Million and No/100 Dollars ($40,000,00.00) will be made to Big Cedar by FINOVA Capital Corporation, the key terms for such loan being:
(i) Forty Million and No/100 Dollars ($40,000,000.00) shall be the principal amount of the loan;
(ii) Such loan shall be a secured, recourse senior debt ("Senior Debt");
(iii) Such loan shall be secured by first priority lien on Big Cedar Lodge land (a copy of which property description is attached hereto as Exhibit "M," incorporated herein by this reference), lodge improvements, and (i) fixtures, equipment, furnishings, (ii) property as may be subject to a UCC financing lien; and (iii) related service and management contracts.
(iv) Such loan shall be evidenced by a negotiable promissory note. Such Senior Debt, if requested by Bluegreen, shall contain a right of Bluegreen to receive notice of default of such Senior Debt at any time notice of default is delivered to Big Cedar thereunder.
(v) The Senior Debt, and the documents evidencing such Senior Debt, shall include therein an agreement of the lender and Big Cedar not to disturb the rights of the LLC and Bluegreen under and pursuant to the Marketing and Promotions Agreement, and rights to use and enjoy the sewer treatment facilities or related utilities, recreational amenities and facilities, or other utility services such that the LLC and Bluegreen, despite ownership of the Big Cedar Lodge by Big Cedar or any foreclosure, deed in lieu of foreclosure or other action taken pursuant to the terms of the Senior Debt by which the lender thereunder comes into possession of the Big Cedar Lodge, shall continue to enjoy and be entitled to the rights and privileges as provided for in such Marketing and Promotions Agreement, and shall continue to have rights to use and enjoy, for the benefit of the Big Cedar Timeshare Project, the sewer, water, utility, recreational amenities and facilities, and necessary services as well as the benefits provided under the Marketing and Promotions Agreement. Such non-disturbance agreement shall be acceptable to Bluegreen, the LLC, and the lender of the Senior Debt, and the documentation respecting such Senior Debt shall, if requested by the LLC or Bluegreen, provide for subordination of such Senior Debt to the rights and privileges of Bluegreen and the LLC hereinabove referenced, including access rights over, across and upon the Big Cedar Lodge to provide for such rights and privileges. Such non-disturbance and subordination shall be agreed to and granted by Big Cedar at Closing. The foregoing rights of use and enjoyment shall be established by an easement or non-disturbance agreement acceptable to Bluegreen, Big Cedar, the LLC and the lender of the Senior Debt.
(f) The consent and approval of Fleet Retail Finance, Inc., FINOVA Capital Corporation, the Army Corp of Engineers (as respects assignment of the lease and easement agreements pertaining to the Army Corp Property) and Oakmont Community Improvement Association, Inc. (as respects rezoning, replatting and the Amendment) (the "Required Consents").
13. BLUEGREEN CONDITIONS TO CLOSING. In addition to the mutual conditions set forth hereinabove, the consummation of this transaction on the Closing Date shall be subject to the occurrence of the following conditions at or before the Closing Date, which conditions shall be to the benefit of Bluegreen:
(a) Consent of the Bluegreen Board of Directors which shall be obtained at or prior to the Closing Date.
(b) No notice shall be given that any proceeding by any governmental authority or other agency having powers of condemnation concerning the Property, the Additional Property or the Army Corp Property or any portion thereof has been filed or commenced;
(c) The Property, Additional Property or Army Corp Property or any portion thereof shall not be substantially damaged or destroyed by earthquake, erosion, flooding, or by force of nature or act of God after the date hereof;
(d) Big Cedar shall deliver to the LLC on the Closing Date the general warranty deed for the Property and the Option to Purchase Real Estate agreement as to the Additional Property and has otherwise delivered the documents agreed to be delivered hereunder by the dates provided therefor;
(e) A reputable title company, as selected by Bluegreen, shall issue a title insurance binder or commitment to the LLC insuring fee simple title to the Property in favor of the LLC without exception, subject to Permitted Encumbrances;
(f) Big Cedar shall deliver to Bluegreen on the Closing Date an affidavit stating there are no outstanding indebtedness, security agreements, financing statements, or title retention contracts concerning any improvements, equipment, appliances, or other fixtures attached to the Property and Additional Property; that there are no unpaid or unsatisfied mortgages, security deeds, liens or other encumbrances, except for liens or encumbrances that may arise upon failure to pay special assessments due to the Oakmont Community Improvement Association, Inc. and that there are no disputes concerning the location or the lines and corners of the Property and Additional Property; that there are no pending suits, proceedings, judgments, bankruptcies, liens or executions against or affecting Big Cedar in either the county in which the Property and Additional Property is located or any other county in the State of Missouri which would materially affect insurability of title to the Property and the Additional Property; that there are no outstanding bills incurred for labor and materials used in making any improvements or repairs to the Property and Additional Property or for the services of architects, surveyors or engineers incurred in connection therewith which have not been paid or otherwise provided for in a manner satisfactory to Bluegreen.
(g) Consent by the holder of any mortgage or a deed of trust encumbering the Big Cedar Lodge to a subordination of the rights therein to easement rights to the benefit of the LLC and Bluegreen for sewer, water, necessary services and privileges over, through and across the Big Cedar Lodge Property, which consent shall be obtained from any mortgagee or holder of a deed of trust therein, including FINOVA Capital Corporation.
(h) The sewer facilities, water facilities and property on
which the same may be located, shall be free and clear of any encumbrances,
including deeds of trust, excepting that deed of trust referenced in
Subparagraph (g), above, and Big Cedar shall grant, for the benefit of the LLC
and the Big Cedar Timeshare Project, including the owners and mortgagees
therein, an easement over, across and in the Big Cedar Lodge Property to allow
for the uninterrupted use by the Big Cedar Timeshare Project and the owners,
mortgagees and occupants therein of sewage and water service (and the same shall
be subject to the subordination and easement rights provided for in subparagraph
(g) above.
(i) The Sales Center Property and the Cabin Fever House Facility shall be available for use by the LLC and Bluegreen, pursuant to an enforceable lease thereof from Big Cedar to the LLC and Bluegreen, for sales and marketing of the Big Cedar Timeshare Project and Bluegreen Timeshare Facilities. The Sales Center Property and the Cabin Fever House Facility shall be leased by Big Cedar to the LLC and Bluegreen at a rental rate of One and No/100 Dollars ($1.00) per year for a term of the lesser of ten (10) years or until such time as ninety percent (90%) of the timeshare interest of the Big Cedar Timeshare Project have been conveyed to purchasers thereof (inclusive of all phases). The terms of the lease shall otherwise be acceptable to Bluegreen. The Sales Center Property shall be erected at the expense of the LLC and shall be consistent with the architectural design existing at the Big Cedar Lodge. The lease for the Sales Center Property shall provide that upon termination thereof, the sales center facility erected thereon shall revert to and belong to Big Cedar. The lease shall provide for uninterrupted use during the term thereof of such property by the LLC and Bluegreen,
(j) The Property shall be properly rezoned and platted to allow for construction of the improvements in accordance with the Master Land Use and Development Plan, and all required governmental approvals and approvals of the Board of Directors of the Oakmont Community Improvement Association shall be obtained to allow for construction of improvements in accordance with the Master Land Use and Development Plan, except for approvals of the County Commissioner of Taney County, Missouri for vacating of roads located within the Property, which approval shall be sought by Big Cedar following Closing, and which approval shall be diligently sought by Big Cedar;
(k) Bluegreen shall have found title to the Property and Additional Property acceptable, or Big Cedar shall have cured any defects in title as set forth in paragraph 7(a);
(l) No circumstances or facts shall exist or occur prior to the Closing Date which materially and adversely affect Big Cedar, Bass Pro or their Affiliates.
(m) Big Cedar shall grant for the benefit of the LLC, the Big Cedar Timeshare Project (including the owners, mortgagees and occupants thereof) an easement over all roadways and paved areas existing on the property of the Big Cedar Lodge for the purposes of ingress, egress, and travel thereupon, for purposes of sales, marketing, access from and to the sales office facility, and the amenities and services existing and for the purposes of the use and enjoyment of the pool, tennis courts, miniature golf, fitness center and marina facilities existing on the Big Cedar Lodge property (on the same basis as Big Cedar Lodge occupants use such facilities, except as respects Frequent Guests Club and Reward Club members) and any deeds of trust on the Big Cedar Lodge property shall be subordinate to such easements;
(n) Big Cedar shall grant for the benefit of the LLC, and the Big Cedar Timeshare Project an easement over, across and upon the property of the Big Cedar Lodge for the location, placement and maintenance of directional identification signs and markers relating to the Big Cedar Timeshare Project, and any deed of trust on the Big Cedar Lodge shall be subordinate to such easement;
(o) An opinion of counsel on behalf of Big Cedar and Bass Pro, Inc. for the benefit of Bluegreen regarding the enforceability and binding nature as against Big Cedar and Bass Pro of the agreements, easements, assignments, leases, licenses and related documents herein provided for as executed by Big Cedar and Bass Pro, including an opinion of counsel for Big Cedar that, to the best of counsel's knowledge, the Property may be used and developed in accordance with the Master Land Use and Development Plan; and
(p) Big Cedar shall perform all agreements in all material respects to the extent that such agreements are required to be performed by Big Cedar as of the Closing Date.
14. BIG CEDAR CONDITIONS TO CLOSING. In addition to the mutual conditions set forth hereinabove, the consummation of this transaction on the Closing Date shall be subject to the occurrence of the following condition at or before the Closing Date, which conditions shall be to the benefit of Big Cedar:
(a) No circumstances of fact exist or occur prior to the Closing Date which materially and adversely affect Bluegreen or its Affiliates.
(b) At Closing, Bluegreen shall make the Ad Loan to Big Cedar, the key terms of which are as provided for in paragraph 6 hereinabove.
(c) At Closing, Bluegreen will deliver the Membership Interest Agreement, attached hereto as Exhibit "H".
(d) An opinion of counsel on behalf of Bluegreen and Bluegreen Corporation for the benefit of Big Cedar regarding the enforceability and binding nature of the agreements executed by Bluegreen.
(e) Bluegreen shall perform all agreements in all material respects to the extent that such agreements are required to be performed by Bluegreen as of the Closing Date.
15. TERMINATION/DEFAULT/REMEDIES.
(a) In the event that the Closing does not occur on the Closing Date as a result of the failure of the mutual conditions set forth in paragraph 12, and such failure of mutual conditions are not waived in writing by both Big Cedar and Bluegreen, then, in that event, the Earnest Money shall be immediately distributed to Bluegreen, and neither Big Cedar nor Bluegreen shall have any further obligations whatsoever with respect to this Agreement or any related agreements or the transaction contemplated hereby and this Agreement shall be deemed terminated.
(b) In the event that Closing does not occur on the Closing Date as a result of failure of any condition to Closing set forth in paragraphs 13 and 14, and the failure of any such conditions to Closing are not waived in writing by the party that would benefit from such conditions to Closing, then, in that event, the Earnest Money shall be immediately distributed to Bluegreen, and neither Big Cedar nor Bluegreen shall have any further obligation whatsoever with respect to this Agreement or any related agreements or the transactions contemplated hereby. Notwithstanding the foregoing, if Closing does not occur because of a breach of a representation and warranty that is also a condition then, the provisions of paragraphs 15(c) and 15(d) shall apply.
(c) In the event that Closing does not occur on the Closing Date as a result of a breach of the representations and warranties contained in paragraph 11(c) hereof by Bluegreen, then the Earnest Money shall be payable to Big Cedar as fixed and full liquidated damages. Bluegreen shall not have any further liability hereunder for Closing not occurring as a result of breach of its representations and warranties. Big Cedar shall have no further rights or remedies hereunder either at law or in equity, if Closing does not occur as a result of Bluegreen's breach of its representations or warranties. Big Cedar hereby specifically and expressly waives any right of specific performance against the LLC or Bluegreen. Big Cedar, LLC and Bluegreen acknowledge and agree that Big Cedar's actual damage for breach hereof by the LLC or by Bluegreen, as above stated, would be impossible to accurately estimate or calculate, but that the sum herein stipulated is a reasonable amount and, as a result thereof, any retention of liquidated damages hereunder shall not constitute nor be deemed to constitute a penalty.
(d) In the event the Closing does not occur on the Closing Date as a result of a breach of the representations and warranties contained in paragraph 11(a) hereof by Big Cedar, then the Earnest Money shall be payable to Bluegreen and Big Cedar shall additionally be liable to and pay Bluegreen Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00) as fixed and full liquidated damages. Big Cedar shall not have further liability in the event the Closing does not occur on the Closing Date as a result of its breach of the representations and warranties contained in paragraph 11(a). Bluegreen shall have no further rights and remedies hereunder at law or in equity if Closing
does not occur as a result of Big Cedar's breach of its representations or warranties. Bluegreen hereby specifically and expressly waives any right of specific performance against the LLC or Big Cedar. Big Cedar, the LLC and Bluegreen acknowledge and agree that Bluegreen's actual damages for breach hereof by Big Cedar will be impossible to accurately estimate or calculate, but that the sum herein stipulated is a reasonable amount, and as a result thereof, any payment of liquidated damages hereunder shall not constitute and be deemed to constitute a penalty.
16. NOTICES. All notices required or permitted by the terms hereof shall be given by hand delivery or by sent and paid Federal Express or other overnight delivery, at the following addresses or at such other addresses as either party hereto shall, in writing, advise the other:
If to Bluegreen: 4960 Blue Lake Drive
Boca Raton, Florida 33431
Attention: Pat Rondeau
With a copy to: James J. Scavo, Esq.
Weinstock & Scavo, P.C.
3405 Piedmont Road, N.E., Suite 300
Atlanta, Georgia 30305
e-mail address: JSCAVO@WSLAW.NET
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(Delivery hereto, however, shall not be deemed notice to Bluegreen).
If to Big Cedar: 2500 East Kearney Street
Springfield, Missouri 65898
Attn: Toni Miller
With a copy to: J. Christopher Greene, Esq.
Greene & Curtis, L.L.P.,
1340 East Woodhurst, Springfield,
Missouri 65804
e-mail address: GANDCLAW@AOL.COM
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(Delivery hereto, however, shall not be deemed notice to Big Cedar).
All notices shall be deemed given at the time of hand delivery or the time such is deposited with Federal Express or other reputable overnight delivery for transmittal as aforesaid; provided, however, that the time at which response or action in response to any notice must be given or taken shall run from the time of actual receipt of such notice.
17. ASSIGNMENT. This Agreement shall be binding upon the parties and their respective successors and assigns. Neither party shall have the power and right to assign or sell any rights or interests in this Agreement without the prior written consent of the other (provided the restriction of this paragraph shall not prohibit any assignment authorized in the Operating Agreement of the LLC).
18. CONFIDENTIALITY. Big Cedar and Bluegreen both agree to maintain, at all times, from and after the date hereof, as confidential information and terms hereof, including by way of example, the amounts and nature of the capital contributions hereunder, the terms of the LLC agreement and the existence and contents of the negotiations between them, as well as all information regarding projections concerning marketing and sale of the Property, development of the Property and the methods of marketing and sale, regardless of where the Closing shall occur, except that both parties may (a) inform advisors, counselors, consultants and senior executives of their respective firms who have a need to know such information that each party determines is necessary; and (b) make
appropriate disclosures required by applicable law, including but not limited to applicable securities law. All notices to third parties and all publicity or press releases with respect to the transaction contemplated herein, shall be mutually approved by Bluegreen and Big Cedar prior to release or dissemination.
19. APPLICABLE LAW. This Agreement shall be governed by and construed according to the laws of the State of Missouri, County of Greene, which shall be deemed the proper venue for all purposes.
20. MISCELLANEOUS. If any part of this Agreement shall be deemed invalid under applicable Missouri or United States federal law, the remaining parts of this Agreement shall be in full force and effect as though any unenforceable part or parts were not written into this Agreement. In construing this Agreement, the singular tense shall be deemed to include the plural and the male or neuter gender shall mean and comprehend all genders, whenever such meaning or interpretation is necessary and appropriate. Headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be binding upon the parties hereto, their legal representatives, successors and assigns, and the parties hereto do hereby covenant and agree that they, their legal representatives, successors and assigns will execute any and all papers and documents that may be required in accordance with this Agreement. Should a provision of this Agreement require judicial interpretation, it is agreed that the judicial body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be more strictly construed against the party which itself or through its agents prepared the same, it being agreed that the agents of all parties have participated or had the opportunity to participate in the preparation of this Agreement. This Agreement may be executed in multiple counterparts, each of which will constitute an original and all of which will constitute one (1) Agreement.
21. CLOSING. The Closing will be held at 10:00 a.m. Central Time, on or before June 14, 2000 (except in the event that the date thereof is extended pursuant to the written agreement of Bluegreen and Big Cedar) in the offices of Greene & Curtis, LLP, 1340 East Woodhurst, Springfield, Missouri 65804, or upon such other day and time as may be mutually be agreed upon by Bluegreen and Big Cedar, or the Closing may take place by mail and escrow delivery to be cleared from escrow by the date aforesaid (the Closing Date). At or before Closing, the parties will execute and deliver the instruments and documents referred to herein and all other documents necessary to consummate the transactions contemplated pursuant to the terms of this Agreement. Big Cedar, at the Closing, will pay all amounts required for transfer taxes arising from the conveyance of the Property and all amounts required for the execution, delivery or recording of the instruments of conveyance of the Property. Big Cedar will pay all amounts required for the execution, delivery or recording of any deed of trust contemplated under this Agreement. Big Cedar shall, additionally, pay any and all amounts required for the recording of any further documents contemplated hereunder, including by way of example and not limitation, the Option to Purchase Real Estate agreement or memorandum of said option, and shall be responsible for payment of any and all intangible taxes, document stamps or taxes or similar charges or levies due upon indebtedness evidenced by the deed of trust and/or the warranty deed to be delivered. Each party shall be responsible for its own attorney's fees. At Closing, expenses of the LLC specified hereunder shall be payable out of funds of the LLC, including the Initial Capital Contribution.
22. NO BROKERS. Big Cedar covenants and agrees that should any claim be asserted for a broker's commission by or through or on the account of the acts of Big Cedar or its representatives, Big Cedar shall indemnify and hold harmless Bluegreen from any and all liabilities and expenses incurred in connection therewith, including without limitation, reasonable attorney's fees and court costs. Bluegreen covenants and agrees that should any claim be asserted for broker's commission by, through or on the account of the acts of Bluegreen or its representatives, Bluegreen shall indemnify and hold harmless Big Cedar from any and all liabilities and expenses incurred in connection therewith, including without limitation, reasonable attorney's fees and court costs. In the event
that Hodges Ward Elliott, Real Estate Brokers, are entitled to any commission as a result of the transactions contemplated hereunder, then the same shall be payable by Big Cedar and the same shall be included within the indemnity obligation hereinabove set forth.
23. SURVIVAL OF PROVISIONS. All covenants, warranties, representations and agreements set forth in this Agreement will survive the Closing of the transaction contemplated hereof, and will survive the execution of all deeds and other documents at any time executed and delivered, under, pursuant to or by reason of this Agreement.
24. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
25. AFFILIATES. For purposes of this Agreement, Affiliate shall mean,
as respects Big Cedar, Bass Pro and/or Bluegreen the following: (1) any officer,
director, employee, member, shareholder, partner, trustee or relative within the
third degree of kindred of Big Cedar, Bass Pro and/or Bluegreen or of a Person
which is a partner, member, shareholder, trustee or beneficiary of Big Cedar,
Bass Pro and/or Bluegreen (and specifically, in the case of Big Cedar, to
include John Morris); (2) any Person controlled by or under common control with
Big Cedar, Bass Pro and/or Bluegreen or a partner, member, shareholder, trustee,
or beneficiary of Big Cedar. Bass Pro and/or Bluegreen or any such relative of
Big Cedar, Bass Pro and/or Bluegreen, or partner, member, shareholder, trustee,
or beneficiary of Big Cedar, Bass Pro and/or Bluegreen; (3) any officer,
director, trustee, partner or employee of any entity described in (2) above; and
(4) any trust for the benefit of any officer, director, trustee, partner,
member, or employee of Big Cedar, Bass Pro and/or Bluegreen or Person described
in (1) above, or any beneficiary of a trust which is a member, shareholder, or
partner described in (1) above. "Affiliate" shall, as respects Big Cedar, not
include Gaylord Entertainment Company or J.W. C. Equity Funding, Inc., a
Delaware corporation, J.W. Childs Associates, L.P., a Delaware limited
partnership, or Tracker Marine, L.L.C., a Missouri limited liability company.
IN WITNESS WHEREOF, the parties have executed this Agreement as to the day and year first above set forth
BLUEGREEN VACATIONS UNLIMITED, INC., a
Florida corporation
Date Signed: 6/14/00 By: /s/ Patrick E. Rondeau
-----------------------------------
Print Name: Patrick E. Rondeau
Its: President
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BIG CEDAR, L.L.C., a Missouri limited liability company
By: Three Johns Company, a Missouri corporation, its Sole Member
Date Signed: 6/30/00 By: /s/ Toni M. Miller
-----------------------------------
Print Name: Toni M. Miller
Its: Vice President Finance
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BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
By: Bluegreen Vacations Unlimited, Inc.,
a Florida corporation
Date Signed: 6/14/00 By: /s/ Patrick E. Rondeau
-----------------------------------
Print Name: Patrick E. Rondeau
Its: President
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EXHIBIT 10.205
OPERATING AGREEMENT OF
BLUEGREEN/BIG CEDAR VACATIONS, LLC.
TABLE OF CONTENTS
PAGE NO
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RECITALS 1
ARTICLE 1. ORGANIZATION.................................................................................1
Section 1.1 Formation of the Company..........................................................1
Section 1.2 Name..............................................................................2
Section 1.3 Term..............................................................................2
Section 1.4 Character of Business; Powers.....................................................2
Section 1.5 Principal Place of Business.......................................................2
Section 1.6 Domestic Registered Agent and Registered Office...................................2
Section 1.7 Foreign Agents and Registered Office..............................................2
Section 1.8 Certain Definitions...............................................................3
Section 1.9 Additional Definitions............................................................5
ARTICLE 2. CAPITAL CONTRIBUTIONS........................................................................5
Section 2.1 Initial Capital Contributions.....................................................5
Section 2.2 Additional Capital Contributions..................................................6
Section 2.3 Member Loans......................................................................7
Section 2.4 No Additional Capital Contributions...............................................7
Section 2.5 Repayment of Member Loans.........................................................7
ARTICLE 3. DISTRIBUTIONS................................................................................7
Section 3.1 Distributions of Operating Proceeds................................................7
Section 3.2 Distributions to be Made in Cash or Receivables....................................8
Section 3.3 Withholding of Distributions.......................................................8
Section 3.4 Distributions of Capital; No Interest on Capital Contributions;
Limitation on Contributions.................................................8
ARTICLE 4. ALLOCATION OF PROFITS AND LOSSES.............................................................9
Section 4.1 Profits and Losses.................................................................9
Section 4.2 Allocation with Respect to Tax Matters.............................................9
Section 4.3 Nonrecourse Deductions and Minimum Gain Chargebacks...............................10
ARTICLE 5. ACCOUNTING..................................................................................10
Section 5.1 Accounting Methods; Company Records...............................................10
Section 5.2 Fiscal Year.......................................................................11
Section 5.3 Bank Accounts; Title to Business Property.........................................11
Section 5.4 Capital Accounts..................................................................11
Section 5.5 754 Election......................................................................11
Section 5.6 Tax Status........................................................................11
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PAGE NO
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ARTICLE 6. POWERS, RIGHTS AND DUTIES OF MEMBERS........................................................12
Section 6.1 Management Authority and Duties of Members........................................12
Section 6.2 Specific Authority of Management Committee and General
Manager....................................................................13
Section 6.3 Restrictions on Authority of the Management Committee and the
General Manager; Major Decisions..........................................17
Section 6.4 Meetings and Voting by Members....................................................18
Section 6.5 Conflicts of Interest.............................................................19
Section 6.6 Transactions with Members and Affiliates..........................................19
Section 6.7 Liability and Indemnification of the Management Committee,
General Manager, Members and Affiliates...................................20
Section 6.8 Compensation and Reimbursement of the Members.....................................20
Section 6.9 Liability for Company Debts and Obligations.......................................21
Section 6.10 Non-Competition...................................................................21
Section 6.11 Rights to Participate.............................................................22
ARTICLE 7. TRANSFERS OF INTERESTS......................................................................24
Section 7.1 Restrictions......................................................................24
Section 7.2 Effect of Assignment; Documents...................................................24
ARTICLE 8. DISSOLUTION OF THE COMPANY..................................................................25
Section 8.1 Liquidation Events................................................................25
Section 8.2 Right to Continue Business and Affairs of Company.................................26
Section 8.3 Distribution of Proceeds on Dissolution; Winding Up; Reserves.....................26
Section 8.4 No Liability......................................................................27
ARTICLE 9. GENERAL.....................................................................................28
Section 9.1 Notices/Approvals to be in Writing................................................28
Section 9.2 Amendments........................................................................28
Section 9.3 Miscellaneous.....................................................................28
Section 9.4 Remedies..........................................................................29
Section 9.5 Representations and Warranties....................................................30
Section 9.6 Power of Attorney.................................................................30
Section 9.7 Financial Reporting...............................................................31
ARTICLE 10. PUBLIC OFFERING............................................................................31
ARTICLE 11. TRANSFER OF PROPERTY/CLUB ARRANGEMENT......................................................32
EXHIBITS
Exhibit "A" Names, Addresses, Contributions and Distribution
Percentages of Members
Exhibit "B" Membership Interest Agreement
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OPERATING AGREEMENT OF
BLUEGREEN/BIG CEDAR VACATIONS, LLC
a Delaware Limited Liability Company
THIS AGREEMENT is made and entered into as of the 16th day of June, 2000 (the "Effective Date"), by and among those Persons identified on Exhibit A attached hereto (the "Members").
RECITALS
A. The parties hereto have agreed to organize a limited liability company to design, develop, sell and market a timeshare project (the "Big Cedar Timeshare Project") consisting of approximately three hundred (300) units contiguous to the Big Cedar Lodge at Ridgedale, Taney County, Missouri ("Big Cedar Lodge"), such Big Cedar Timeshare Project to be named The Big Cedar Resort Club.
B. This Agreement sets forth the understandings and agreements of the parties hereto with respect to the organization and operation of the limited liability company and the scope and conduct of its business.
NOW, THEREFORE, in consideration of mutual covenants and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1. ORGANIZATION
SECTION 1.1. FORMATION OF THE COMPANY.
(A) The Members hereby associate themselves as members in the Company, pursuant to the provisions of the Delaware Limited Liability Company Act (the "Act"), for the limited purposes set forth in this Agreement. The Management Committee (as herein defined) has caused to be filed in the appropriate governmental office "Articles of Organization" which conform to the requirements of the Act in order to constitute the Company as a valid Delaware limited liability company under the Act, effective as of the Effective Date.
(B) The Members hereby ratify, approve and confirm all documents executed, acknowledged and/or delivered and all acts, agreements, purchases, and other actions by or at the direction of the Management Committee prior to the Effective Date, including those done for or in connection with the filing of the Articles of Organization.
(C) The Management Committee is hereby authorized and directed to do or cause to be done on behalf of the Company all such actions (including the payment of fees and expenses) and to make, execute, and/or deliver or cause to be made, executed and/or delivered all such contracts, instruments, documents, agreements, writings, or communications as the Management Committee, in their discretion, deem necessary, advisable or appropriate for the Company to
(1) design, develop, sell and market timeshare units of the Big Cedar Timeshare Project and all matters related thereto; (2) negotiate and enter into employment and service contracts for; and (3) obtain financing for such purposes, including negotiating and entering into a loan commitment, promissory note, mortgage, and such other loan documents to evidence and secure such financing.
SECTION 1.2. NAME. The Business of the Company shall be conducted solely under the name of "Bluegreen/Big Cedar Vacations, LLC" and such name shall be used at all times in connection therewith. The Management Committee is authorized to file such fictitious names as the Management Committee, in its discretion, may determine.
SECTION 1.3 TERM. The term of the Company shall commence as of the Effective Date and shall continue until the winding up and liquidation of the Company following a Liquidation Event, as provided in Article VIII.
SECTION 1.4. CHARACTER OF BUSINESS; POWERS.
(A) The business of the Company (the "Business") is to (1)
acquire, design, develop, own, operate, market and sell the Big Cedar Timeshare
Project; (2) lease, finance, hold, manage, sell, exchange or otherwise dispose
of all or any part of the timeshare units of the Business and the receivables
arising from the sale of timeshare interests; (3) borrow money in furtherance of
the Business; and (4) exercise all rights and powers and engage in all
activities related or ancillary to the foregoing, as determined by the
Management Committee, which a limited liability company may legally exercise
pursuant to the Act.
(B) The Company shall not engage in any activity other than the described Business and no Member shall have any authority to hold himself or herself out as an agent of the Company in any activity other than such described Business and then only in conformity with the provisions of this Agreement.
SECTION 1.5. PRINCIPAL PLACE OF BUSINESS. The principal place of business of the Company shall be at Boca Raton, Florida, or such other location as may be hereafter determined by the Management Committee.
SECTION 1.6. DOMESTIC REGISTERED AGENT AND REGISTERED OFFICE. The name of the Company's registered agent for service of process in Delaware and its registered office in Delaware shall be The Corporation Trust Company, at 1209 Orange Street, Wilmington, DE 19801, on whose records shall be shown that notice to the Company is to be sent to (i) Joe Greene, Greene, & Curtis, L.L.P. at 1340 East Woodhurst, Springfield, Missouri; and (ii) Pat Rondeau, Bluegreen Corp., at 4960 Blue Lake Drive, Boca Raton, Florida 33431; PROVIDED, HOWEVER, that the Management Committee may change such registered agent and/or registered office, at any time, by making all appropriate filings.
SECTION 1.7. FOREIGN AGENTS AND REGISTERED OFFICE. The Management Committee shall (A) take or cause to be taken all action necessary to register the Company as a foreign limited liability company authorized to transact
business in other states (collectively, the "Foreign States") if any, as the conduct of the Company's business so requires; and (B) select and cause the Company to maintain resident or registered agents and offices in each of the Foreign States where the maintenance of the same is required by applicable law, and may change such agents and/or offices, at any time by making all appropriate filings.
SECTION 1.8. CERTAIN DEFINITIONS. As used herein, the following terms have the following meanings:
(A) "ACT" shall mean and refer to the Delaware Limited Liability Company Act, 6 DEL.Css.18-101, ET Seq, as the same may heretofore be supplemented, amended or modified.
(B) "AD LOAN" shall be that certain secured, advertising advance loan as described in the Contribution Agreement made and entered into by and between Member BCLLC and Member Bluegreen as of the Effective Date.
(C) "AFFILIATE OF A MEMBER" means (1) any officer, director, employee, member, shareholder, partner, trustee, or relative within the third degree of kindred of a Member or of a Person which is a partner, member, shareholder, trustee or beneficiary of a Member, specifically to include John Morris; (2) any Person controlled by or under common control with such Member or a partner, member, shareholder, trustee or beneficiary of a Member or any such relative of such Member or partner, member, shareholder, trustee or beneficiary of a Member; (3) any officer, director, trustee, partner, or employee of any entity described in (2) above; and (4) any trust for the benefit of any officer, director, trustee, partner, member or employee of any Member or Person described in (1) above, or any beneficiary of a trust which is a member, shareholder or partner described in (1) above. "Affiliate of a Member" shall not include Gaylord Entertainment Company, J.W.C. Equity Funding, Inc., a Delaware corporation; J.W. Childs Associates, L.P., a Delaware limited partnership; or Tracker Marine, LLC, a Missouri limited liability company.
(D) "AGREEMENT" means this Agreement, as amended from time to time as herein provided.
(E) "APPLICABLE RATE" means the lesser of (1) a per annum rate which is one percent (1%) higher than the corporate base interest rate announced by Bank of America, N.A. or its successor during the period the indebtedness in question is outstanding, as such corporate base interest rate changes from time to time; or (2) the maximum interest that may be charged on such indebtedness under the applicable usury law, if any.
(F) "BCLLC" means Big Cedar, L.L.C.
(G) "BLUEGREEN" means Bluegreen Vacations Unlimited, Inc.
(H) "BUSINESS PROPERTY" means all property, assets and interests (whether real or personal, tangible or intangible) owned or held from time to time by the Company, including the land upon which the Big Cedar Timeshare Project is to be built (the "Property").
(I) "CODE" means the Internal Revenue Code of 1986, as amended from time to time.
(J) "COMPANY" means this limited liability company.
(K) "DISTRIBUTION" shall mean any and all payments, including cash or receivables, distributed by the Company to its Members.
(L) "DISTRIBUTION PERCENTAGE" means, for each Member, the percentage set forth opposite such Member's name on Exhibit A attached hereto.
(M) "FRACTIONAL INTEREST DEVELOPMENT" shall mean a program in which one-quarter (1/4) interests of an accommodation is offered and conveyed to a consumer in such respective accommodation, which one-quarter (1/4) interest provides for three (3) months (i.e. one-quarter interest) of use by such respective purchaser.
(N) "GENERAL MANAGER" means such person and his or her successor(s) designated by the Management Committee in accordance with Section 6.1(C).
(O) "MAJOR DECISION APPROVAL" means a vote of the Members holding a majority of the Distribution Percentage.
(P) A MEMBER'S "INTEREST" in the Company means all rights to Distributions to which such Member is entitled as provided in Articles III and VIII of this Agreement, together with the duties and obligations of such Member to comply with this Agreement.
(Q) "MEMBERS" means the Persons set forth in Exhibit A and their respective permitted successors as members hereunder.
(R) "OPERATING PROCEEDS" for the applicable period means all
gross cash receipts from operations of the Company during such period (excluding
Dissolution Proceeds as herein defined), less the following costs and expenses
(to the extent as determined by the Management Committee not paid from reserves)
and other items paid during such period: (1) operational cash disbursements and
cash operating expenses; (2) interest, principal and debt service paid on any
indebtedness of the Company; (3) cash expenditures for capital improvements and
other capital items; and (4) a reasonable allowance for reserves, contingencies
and anticipated obligations as determined by Member Bluegreen; provided
Operating Proceeds shall not include any cash arising from refinancing of debt.
(S) "PERSON" means an individual, partnership, corporation, limited liability company, trust or other association.
(T) "RESORT INTEREST PROGRAM" shall mean any form of timeshare, interval interest, timeshare exchange, undivided interest program, timeshare club membership, points-based program, or occupancy program, other than as may be offered by the Company in respect to the Big Cedar Timeshare Project, or as may be offered by Member Bluegreen or its Affiliates, or any Fractional Interest Development offered by Member BCLLC or its Affiliates, whereby the use, occupancy or possession of real property or real property improvements has been made subject to a conveyance, use or occupancy or possession right, which circulates among purchasers according to a first come, first serve reservation system, or a floating or fixed time schedule on a periodic, re-occurring basis, over any period of time in excess of one (1) year in duration.
(U) "TREASURY REGULATIONS" means the income tax regulations promulgated under the Code, as such regulations may be amended from time to time, and, in the case of any temporary regulations referred to herein, if any, includes the corresponding provisions of pertinent final regulations.
SECTION 1.9. ADDITIONAL DEFINITIONS. The definitions in Section 1.8 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun used herein shall include the corresponding masculine, feminine, and neuter forms. The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The words "herein," "hereof," "hereunder," and similar terms shall refer to this Agreement, unless the context otherwise requires.
ARTICLE 2. CAPITAL CONTRIBUTIONS
SECTION 2.1. INITIAL CAPITAL CONTRIBUTIONS. The Members shall initially contribute to the capital of the Company the respective amounts shown opposite their names on Exhibit A attached hereto (the "Initial Capital Contributions"). Member BCLLC is contributing acreage, being an unimproved parcel of land (the "Property") which is identified on that certain Survey which is to depict the real property upon which Phase 1 of the Big Cedar Timeshare Project is to be located, and which Survey of Phase 1 shall be agreed to by the Members prior to the execution of this Operating Agreement. The Members agree that the Property has a fair market value of Seventy Thousand and No/100 Dollars ($70,000.00) per acre. All Members agree that the capital account of Member BCLLC in the Company shall be credited an amount equal to the number of acres depicted on the Survey multiplied by Seventy Thousand and No/100 Dollars notwithstanding the basis of Member BCLLC in the Property. Member Bluegreen is contributing an amount in cash equal to Seventy Thousand and No/100 Dollars ($70,000) multiplied by the number of acres depicted on the foregoing Survey, which amount shall be contributed in accordance with the following: (i) Ten Percent (10%) of such amount shall be contributed upon execution of this Agreement, with the balance of such amount being contributed, from time to time over the period of twelve (12) months from and after the date of execution of this Agreement pursuant to and in accordance with the cash requirements of the Company as provided for in the Closing Business Plan (as defined in Section 2.2 hereinbelow); provided, however, that
the total amount of the capital contribution from Member Bluegreen shall be contributed by Member Bluegreen to the Company no later than twelve (12) months after the date of execution of this Agreement. If such amount is not completely funded to the Company by such date then, in accordance with the terms and conditions of the Membership Interest Agreement attached hereto as Exhibit "B" and following five (5) days written notice of such failure delivered by Member BCLLC to Member Bluegreen, Member Bluegreen's interest in the Company shall decrease and Member BCLLC's interest in the Company shall increase by one (1) percentage point or fraction thereof for each Sixty Three Thousand Three Hundred Twenty Nine Dollars ($63,329.00) increment or portion thereof which Member Bluegreen has failed to contribute towards the total amount of its Initial Capital Contribution (the "LLC Member Interest Reallocation"). If as a result of the LLC Member Interest Reallocation of Member Bluegreen's interest in the Company results in Member Bluegreen's ownership interest percentage being reduced to fifty percent (50%) and Member BCLLC's ownership interest percentage being increased to fifty percent (50%) then the LLC Member Interest Reallocation shall be adjusted to provide Member Bluegreen's ownership interest percentage be reduced to forty nine and nine-tenths (49.9%) and Member BCLLC's ownership interest percentage be increased to fifty and one-tenth percent (50.10%) accordingly, then in that event the Articles of Organization of the LLC and the Operating Agreement shall be amended accordingly and pursuant to the amended terms thereof, Member BCLLC shall be entitled to appoint two (2) representatives of the Management Committee and Member Bluegreen shall be entitled to appoint one (1) representative of the Management Committee. Member Bluegreen agrees to execute such additional documents as necessary to effectuate Member Bluegreen's obligations pursuant to the Membership Interest Agreement.
SECTION 2.2. ADDITIONAL CAPITAL CONTRIBUTIONS.
(A) Attached hereto, and incorporated herein by this
reference, is a business plan, having upon execution hereof, been agreed to by
the Members, which forecasts the life of the Big Cedar Timeshare Project (the
"Closing Business Plan"). It is agreed that this Closing Business Plan is solely
a projection, without representation or warranty, express or implied. After
operations are commenced and contributions made, Member Bluegreen shall
formulate and deliver to all Members on an annual basis a rolling three (3) year
business plan (the "Business Plan") containing projections and budgets with
respect to revenues, expenses, operating cash flows, capital expenditures,
financing, market priorities and funding required in each case for the following
fiscal year or such longer period with respect to certain matters as may be set
out in the Business Plan. The Business Plan will estimate all funding and
identify proposed funding sources. The Business Plan may propose the Members
make additional capital contributions (the "Additional Capital Contributions")
in such amounts and at such times as shall be set forth in the relevant Business
Plan; provided, however, the Company shall first (i) exhaust opportunities to
secure funds from commercial banks or other lenders and, in each case, the
Members shall, to the extent required by such lender, provide pro-rata
guarantees as may be requested by such lenders, subject to the limitations of
this Section; and (ii) attempt to secure funds from the Members. In all events
such contributions or guarantees shall be allocated on the basis of the
Distribution Percentage and shall not, unless otherwise agreed by a respective
Member, exceed an additional amount contributed or guaranteed of more than Four
Hundred Ninety Thousand Dollars ($490,000.00) by Member BCLLC and Five Hundred
Ten Thousand Dollars ($510,000.00) by Member Bluegreen. If the Members loan
money to the Company in accordance with the foregoing, or if additional funding
is agreed by the Members as an Additional Capital Contribution, then Member
BCLLC shall have the right to elect to borrow such loan or equity contribution
from Member Bluegreen, who agrees to loan the same, which loan proceeds will be
contributed by Member BCLLC to the Company. Such loans by Member Bluegreen to
Member BCLLC (the "Call Loan") shall bear interest at the Applicable Rate of the
note or the rate of twelve percent (12%) per annum, whichever is greater, with a
term of two (2) years and such loan rate shall contain a default interest rate
of three percent (3%) per annum over the annual interest rate. Member BCLLC
shall grant to Member Bluegreen a first priority security interest on any
additional equity interest in the Company as may be distributed to Member BCLLC
in return for the Additional Capital Contribution call payment. In addition, in
the event Member Bluegreen makes the Call Loan, then the principal amount of
such loan and all interest thereon shall be repaid in its entirety to Member
Bluegreen by Member BCLLC from BCLLC's first Distributions from the Company. In
the event of default in the payment by BCLLC to Member Bluegreen of amounts due
on the Call Loan, then Member Bluegreen shall have the right to, at its option,
(i) purchase BCLLC's interest in the Company at a price equal to eighty percent
(80%) of the fair market value of such interest as liquidated damages (the
Members agreeing that damages resulting from such default are impossible to
ascertain and the Members agreeing that the reduction in the purchase price
constitutes the best estimate of damage and is not a penalty); (ii) diminish
Member BCLLC's ownership as follows: BCLLC's ownership interest shall be
recalculated to be equal to a fraction, the numerator of which will be equal to
all capital contributions, loans and credits of Member BCLLC and the denominator
of which shall be the aggregate of all capital contributions, loans and credits
of all Members (including contribution of the proceeds of the Call Loan) and
Bluegreen's ownership will be reciprocally increased in an amount equal to the
decrease in BCLLC's ownership interest in the Company. If the loan is obtained
by the Company from any Member (or if the Call Loan is made by Member Bluegreen
to Member BCLLC), the repayment of such shall be made before any Distributions
or repayments are made to any Member who does not advance such loan to the
Company or who is not owed the Call Loan.
SECTION 2.3. MEMBER LOANS. Any Member or Successor may voluntarily make loans to the Company for any Company purpose if the Management Committee determines, in their sole discretion, that the use of such borrowed funds is needed and would benefit the Company and if such loans ("Member Loans") are made in accordance with the following terms and conditions:
(A) If a Member or Successor offers to lend funds to the Company and the Management Committee proposes to accept the offer of such Member or Successor, the Management Committee shall notify the other Members and Successors of the amount of the funds the Company needs to borrow and the nature of the Company's need for the same (the "Proposed Loan Notice"). Each Member and Successor shall have the right, but not the obligation, to participate in the making of such Member Loan by giving notice of his or her election to do so to the Management Committee within five (5) days of receiving the Proposed Loan Notice. If one or more Members or Successors in addition to the originally offering Member or Successor desire(s) to participate in the making of such Member Loan, unless otherwise agreed by all of the Members and Successors so electing to participate in the making of such Member Loan, each such electing Member and Successor shall lend to the Company, no later than fifteen (15) days after the giving of the Proposed Loan Notice, the amount determined by (1) dividing its Distribution Percentage by the aggregate of the Distribution Percentages of all of the Members and Successors so electing; and (2) multiplying the resulting fraction against the amount to be provided to the Company by means of such Member Loan at such time. The Management Committee shall notify each electing Member and Successor of the amount of his or her share of the Member Loan within the fifteen (15) day period and collect the amounts to be loaned by each electing Member and Successor.
(B) All Members and Successors making Member Loans shall be entitled to interest thereon, compounded annually, at the Applicable Rate. Member Loans (and the interest thereon) shall be "cash-flow" loans payable (principal and interest) as rapidly as possible, in the order in which such Member Loans were made, but solely out of Operating Proceeds (before distributions to Members and Successors under Article III) or out of dissolution proceeds ("Dissolution Proceeds") (as provided in Section 8.4), and no Member or Successor shall be personally liable for the repayment thereof. For purposes of determining the amount and priority of debt service payments on Member Loans, all Member Loans made within fifteen (15) days after the giving of the Proposed Loan Notice shall be treated as having been made at the same time on the last day of such fifteen (15) day period. Member Loans repayable to Member BCLLC shall, in all cases, be only repaid after any Call Loan is repaid. A Member Loan shall not exceed in interest or priority any unpaid Call Loan.
SECTION 2.4. NO ADDITIONAL CAPITAL CONTRIBUTIONS. Except as provided in the foregoing provisions of this Article II, no Member or Successor shall be required to make any Additional Capital Contributions or loans to the Company.
SECTION 2.5. REPAYMENT OF MEMBER LOANS. Repayment of Member Loans may be from Operating Proceeds, reserves, or any other cash or receivables on hand available to the Company. Member Loans shall be repaid on a first in-first out basis and if Member Loans are received with equal priority then payment shall be on a pro-rata basis.
ARTICLE 3. DISTRIBUTIONS
SECTION 3.1. DISTRIBUTIONS OF OPERATING PROCEEDS. Outstanding Loans, whether Call Loans, Member Loans, the Ad Loans or any other loans, owed to any Member, may be payable by cash or receivables of the Company. Until such time as the Ad Loan is repaid, any Distributions to Member BCLLC from the LLC shall be used to reduce the balance due and payable on the Ad Loan. Subject to the right of Member Bluegreen to receive repayment of the Ad Loan from Member BCLLC's Distributions, the Company's Operating Proceeds shall be applied first to satisfy principal and interest payments in respect to outstanding Call Loans or Member Loans (in that order), if any, and the balance distributed to the Members and Successors in proportion to their respective Distribution Percentages, at such times as the Management Committee shall determine (but not less frequently than annually). In the event that Operating Proceeds are available for distribution in accordance with the previous sentence and prior to the maturity date of the Ad Loan, then such Operating Proceeds shall be distributed and Member BCLLC's Distribution shall be used to reduce the balance due and payable on the Ad Loan). Notwithstanding the foregoing, the Management Committee will cause the Company to distribute to each Member cash that equals one-half (1/2) of their respective income tax liability on Company income allocated to each
respective Member with respect to each tax year of the Company; provided, however, that such amount shall not be in excess of twenty percent (20%) of the total income allocated to such respective Member with respect to each tax year of the Company. In calculating the tax liability of each Member on Company income allocated with respect to each tax year, the Company shall take into account (a) any loss the Company may have previously allocated to such Member that is available to offset such income; and (b) the applicable marginal federal income tax rate and the marginal income tax rate of the state of the Member's principal residence and of the Company, if the two are different. Such amount shall be reduced, but not below zero (0) by the amount of any other cash distributed to such Member (other than the income tax distribution) after the first day of the previous tax year. Such amount shall be distributed quarterly, with a final reconciliation settlement distributed no later than the first day of May of the following year. The income tax distribution shall be distributable only if the Company has sufficient cash available for distribution. For purposes of the preceding sentence, cash available shall mean cash on hand available from operations and not needed by the Company to pay current expenses and debt service. Any income tax distributions shall be an offset against further pro-rata Distributions as may be distributed to the Members by the Company.
SECTION 3.2. DISTRIBUTIONS TO BE MADE IN CASH OR RECEIVABLES. Unless otherwise unanimously determined by the Members, all Distributions to the Members and Successors shall be made in cash or timeshare receivables. In no event shall any Member or Successor be compelled or permitted to accept a Distribution of any property other than cash from or receivables of the Company unless all Members and Successors consent and receive undivided ownership interests therein that are in the same proportions as they would have shared in a cash distribution equal to the value of such property at the time of such Distribution.
SECTION 3.3. WITHHOLDING OF DISTRIBUTIONS. Any Member or Successor may,
at its election and upon notice to the affected Member or Successor (the "Debtor
Party") and the Management Committee, withhold or cause to be withheld from any
payment or distribution provided to be made under this Agreement by the Company
to the Debtor Party any sum or amount that the Debtor Party owes the Company or
such Member or Successor under or by virtue of this Agreement which have been
called for but which the Debtor Party has theretofore failed to make, and the
amount so withheld shall be paid or contributed, as the case may be, on behalf
of the Debtor Party, over to the Person or party (i.e., the Member, Successor or
Company) entitled thereto. For purposes of all computations, distributions, and
the allocations hereunder, any amount so withheld and paid over to another party
or Person shall nevertheless be deemed to have been contributed by or paid or
distributed to the Debtor Party. The rights and remedies provided in this
Section are in addition to, and not in limitation of, any other rights and
remedies provided under this Agreement or under applicable law.
SECTION 3.4. DISTRIBUTIONS OF CAPITAL; NO INTEREST ON CAPITAL CONTRIBUTIONS; LIMITATION ON CONTRIBUTIONS. Except as provided in the Act and in this Article III or in Article VII, (A), no Member or Successor shall be entitled to withdraw or to receive Distributions of or against his/her/its capital contributions; (B) no Member or Successor shall be paid interest on any capital contribution; and (C) no Member or Successor shall have any priority over other Members and Successors as to contributions or as to compensation by way of income.
ARTICLE 4. ALLOCATION OF PROFITS AND LOSSES
SECTION 4.1. PROFITS AND LOSSES. Subject to Sections 4.2 and 4.3, the Company's income, gains, losses, deductions and credits (and items thereof) for each fiscal year of the Company, shall be allocated among the Members and Successors (for both book and tax purposes) in proportion to their respective Distribution Percentages.
SECTION 4.2. ALLOCATIONS WITH RESPECT TO TAX MATTERS.
(A) Solely for tax purposes, income, gain, loss and deduction with respect to property contributed to the Company by any Member or Successor shall be allocated in accordance with Section 704(c) of the Code, Treasury Regulations issued thereunder, and Treasury Regulations Section 1.704-1(b)(2)(iv)(g), so as to take account of any variation between the basis of Member BCLLC in the Property to the Company and its fair market value at the time of contribution. The Members have agreed that the fair market value of the Property is Seventy Thousand Dollars ($70,000.00) per acre (as such acreage is depicted on the Survey above referred to), regardless of the basis of Member BCLLC in the Property.
(B) For purposes of determining shares of nonrecourse liabilities of the Company under Treasury Regulations Section 1.752-3(a)(3), it is hereby specified (in accordance with such Treasury Regulations) that the percentage interest in Company profits of each Member or Successor is the same as his or her Distribution Percentage.
(C) If the Company "revalues" its property under the provisions of Treasury Regulations Section 1.704-1-(b)(2)(iv)(f), the capital accounts ("Capital Accounts") shall be adjusted in accordance with Treasury Regulations Section 1.704-(b)(2)(iv)(g) for allocations of depreciation, depletion, amortization, and gain or loss, as computed for book purposes, with respect to so much of the Company's property as has been subject to such "revaluation" as that term is used in Treasury Regulations Section 1.704-1(b)(2)(iv)(f) (the "Revalued Property"). The distributive shares of the Members and Successors of depreciation, depletion, amortization and gain or loss with respect to Revalued Property, as computed for tax purposes, shall be determined so as to take account of the variation between the adjusted tax basis and book value of such Revalued Property in the same manner as under Section 704(c) of the Code.
(D) If during any taxable year of the Company there is a change in the Interest of any Member or Successor in the Company, then the Management Committee shall cause the allocations of the Company's income, gains, losses, deductions and credits (and items thereof) to be made in a manner which takes into account the varying interests of the Members and Successors in the Company during such taxable year in accordance with Code Section 706(d) and the Treasury Regulations thereunder.
(E) The Management Committee is hereby authorized and directed to specially allocate items of income, gain, loss and deduction among the Members during any fiscal year of the Company and/or upon the Company's liquidation and termination (in any reasonable manner which they determine appropriate) so as to cause the Members' Capital Accounts to be consistent with the manner in which they agreed to share partnership distributions under the
Prior Agreement and distributions hereunder (as reflected in Article III and
Section 8.4). Each Member agrees that he or she will not (1) file any federal,
state, or local income tax return which would be inconsistent or at variance
herewith; or (2) challenge or contest the validity of proprietary of the
allocations made under the authority of this Section by the Management
Committee.
SECTION 4.3. NONRECOURSE DEDUCTIONS AND MINIMUM GAIN CHARGEBACKS.
(A) The Company's Nonrecourse Deductions, if any, for each fiscal year of the Company shall, subject to Section 4.2 (relating to, among other things, allocations to take into account book/tax disparities), be allocated to the Members, for both book and tax purposes, in accordance with their relative Distribution Percentages during such period. The Company's Partner Nonrecourse Deductions, if any, shall be allocated among the Members in accordance with Treasury Regulations Section 1.704-2(i).
(B) If there is a net decrease in Partnership Minimum Gain and/or Partner Nonrecourse Minimum Gain during a fiscal year of the Company, then prior to making the other allocations provided for in this Article IV for such fiscal year, the Members shall be allocated items of income and gain for such year in the manner and relative amounts, if any, required by the applicable provisions of Treasury Regulations Section 1.704-2 regarding minimum gain chargebacks and/or the chargebacks of partner nonrecourse debt minimum gain as applicable.
(C) For purposes of this Section, the terms "Nonrecourse Deductions," "Partner Nonrecourse Deductions," "Partnership Minimum Gain" and "Partner Nonrecourse Debt Minimum Gain" shall have the same meaning ascribed to such phrases in Treasury Regulations Section 1.704-2.
(D) The allocations set forth in the foregoing provisions of this Section 4.3 shall be made after taking into account all distributions under Articles III or VIII through the end of the period in question.
ARTICLE 5. ACCOUNTING
SECTION 5.1. ACCOUNTING METHODS; COMPANY RECORDS.
(A) The Company's books and records shall be prepared in
accordance with generally accepted accounting principles, consistently applied,
except that the Capital Accounts of the Members and Successors shall be
maintained as provided in this Agreement. An annual audit shall be conducted,
which audit shall be completed at the cost of the Company, no later than ninety
(90) days after the Company's fiscal year. The Company shall be on the accrual
basis for both tax and accounting purposes. All federal, state and local tax
returns of the Company shall be prepared by a firm of certified public
accountants selected by the Management Committee. Member Bluegreen is hereby
designated as the "Tax Matters Partner" (as such term is defined in Section
6231(a)(7) of the Code) or the equivalent representative for the Company. The
Tax Matters Partner shall make any and all tax elections to be made by the Company and may, to the extent determined by the Tax Matters Partner from time to time, elect, in the best interests of the Company, to deviate from Section 4.2 and Section 4.3.
(B) The Management Committee shall cause the Company to comply with all record keeping requirements imposed by the Act, and shall provide each Member with the opportunity to inspect and copy such records (at such Member's expense), at reasonable intervals, during ordinary business hours. Neither the Management Committee nor any Member shall have any obligation to provide to any other Member a copy of the Articles of Organization or any other document filed with the Delaware Secretary of State or other governmental authority on behalf of the Company.
SECTION 5.2. FISCAL YEAR. The fiscal year of the Company shall be the calendar year or as may be determined by the Management Committee.
SECTION 5.3. BANK ACCOUNTS; TITLE TO BUSINESS PROPERTY. The funds of the Company shall be deposited in such bank accounts, or invested in such interest-bearing or non-interest-bearing investments in the Company's name, as shall be determined by the Management Committee. The funds of the Company shall not be commingled with the funds of any other Person and the Management Committee shall not employ, or permit or cause any other Person to employ such finds in any manner except for the benefit of the Company. Title to the Business Property shall be held, and conveyances thereof shall be made, in the name of the Company. Each bank account shall have provided thereon signatures of Member Bluegreen or such parties as designated by Member Bluegreen.
SECTION 5.4. CAPITAL ACCOUNTS. A Capital Account shall be maintained for each Member and Successor, consistent with the provisions of Section 5.6, and adjusted in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv) and in accordance with the provisions of this Agreement.
SECTION 5.5. 754 ELECTION. In the case of a transfer of an Interest
which is permitted by this Agreement and which is made in the manner provided in
Section 743 of the Code, then upon the request of the transferee of such
Interest, the Company shall file an election under Section 754 of the Code
pursuant to the Treasury Regulations applicable thereto.
SECTION 5.6. TAX STATUS. Any provision of this Agreement to the contrary notwithstanding, solely for federal and state income tax purposes, each party hereto recognizes and acknowledges that it is the Members' intention that the Company will be a limited liability company classified as a partnership for federal income tax purposes and subject to all provisions of Subchapter K of Chapter 1 of Subtitle A of the Code; PROVIDED, HOWEVER, the filing of federal and state income tax returns shall not be construed to extend the purposes or expand the obligations or liabilities of the Company, nor shall it be construed to create a partnership (other than for tax purposes) or any other agency relationship between the Members.
ARTICLE 6. POWERS, RIGHTS AND DUTIES OF THE MEMBERS
SECTION 6.1. MANAGEMENT AUTHORITY AND DUTIES OF MEMBERS.
(A) Subject to Section 6.3 and the other rights specifically
granted to the Members under the terms of this Agreement, the business and
affairs of the Company shall be managed under the direction and control of a
management committee (the "Management Committee") which shall consist of three
(3) individuals, who need not be Members. John L. Morris, George Donovan and
Patrick Rondeau shall be the initial members of the Management Committee. At all
times and for all purposes, Member Bluegreen or its successor shall have the
irrevocable power, authority and right to appoint two (2) members of the
Management Committee and Member BCLLC shall have the irrevocable power and
authority to appoint one (1) member of the Management Committee. Those Members
so empowered may remove and replace their designee(s) to the Management
Committee on written notice to all Members. The Management Committee shall have
the exclusive right, power, authority and responsibility to manage and operate
the business and affairs of the Company and to make all decisions with respect
thereto and enter into transactions on behalf of the Company for carrying on the
Business. The Management Committee (1) may designate one or more of the members
thereof to act alone in respect of any Company matter or determination; or (2)
delegate to one or more Persons, who may or may not be Members, ministerial
authority to conduct the day-to-day operations of the Company. Unless otherwise
so delegated by the Management Committee, no Member shall have any right or
power to act for or on behalf of the Company or make decisions with respect
thereto. Decisions of the Management Committee within its scope of authority
shall be binding upon the Company and each Member. Any act or decision by the
Management Committee shall require the approval of two (2) members of the
Management Committee whose determination shall be binding on all of the members
thereof and the Members of the Company.
(B) Unless otherwise expressly provided in a written notice of
a meeting, meetings of the Management Committee shall be held at the principal
place of business of the Company or at any other place that a majority of the
members of the Management Committee determine. In the alternative, meetings may
be held by conference telephone in which each member of the Management Committee
can participate. The presence of at least a majority (by number) of the members
of the Management Committee shall constitute a quorum for the transaction of
business. Meetings shall be held as (i) determined by the Management Committee,
or (ii) as requested by any member of the Management Committee. Meetings shall
be at least twice per fiscal year; however any meetings of the Management
Committee requested by any member of the Management Committee shall not be in
excess of (i) four (4) times a year during the Construction Period (which
Construction Period, for purposes of this Agreement, shall be defined as the
term of three (3) years commencing upon the execution date hereof); or (ii) two
(2) times a year after the termination of the Construction Period. Any meetings
of the Management Committee shall be held upon at least ten (10) business days'
prior written notice delivered by the Management Committee to the members of the
Management Committee. Such notice shall specify the time and place of such
meeting and the purpose for such meeting. The Management Committee may make
decisions, without holding a meeting, by written consent of a majority of the members of the Management Committee. Minutes of each meeting and a record of each decision shall be kept by the designee of the Management Committee and shall be given to the Members promptly after the meeting.
(C) The Management Committee shall, as soon as practicable, unanimously agree upon and appoint an individual as manager (the manager, or any successor thereto, being hereinafter collectively referred to as the "General Manager") to supervise the day-to-day operations of the Company. The General Manager shall be subject to the general supervision and control of the Management Committee and shall carry out the policy decisions made by the Management Committee. At each regular meeting of the Management Committee (and, when requested by any member thereof, at any special meeting of the Management Committee), the General Manager shall be present and shall report to the Management Committee on the operations of the Company or any other matters as any member of the Management Committee may request. The General Manager may be removed and replaced at any time and for any reason (or no reason) by the Management Committee.
(D) Member BCLLC shall have the right to approve schematic floor plans, building elevation plans and interior design concepts as the same relate to the Big Cedar Timeshare Project; provided Member Bluegreen shall have the ultimate discretion to determine the same.
(E) Each Member shall have the right to review and approve the annual operating budget, inclusive of the annual advertising budget, to be established from time to time by the Management Committee. The Management Committee shall seek input from each Member concerning the adoption of the annual operating budget and the annual advertising budget.
(F) Notwithstanding any other provision contained herein to the contrary, the Big Cedar Timeshare Project shall be designed and constructed so that (a) the overall product cost which is to consist of the costs of land, fixtures, furnishing and equipment, central facilities building and amenities, and all soft costs (including by way of example, fees for architectural design, interior design, civil engineering, land planning, soil permitting, reimbursable expenses, costs to date, site improvements, contingencies, and capital interests) will not exceed twenty five percent (25%) of the net average sales price of each timeshare unit; and (b) provided each timeshare cabin unit (as opposed to villa units) shall be designed and constructed at a minimum of product cost equal to One Hundred Eighty Five Thousand and No/100 Dollars ($185,000.00); and provided further that it is anticipated by the Members that in respect to cabin units (as opposed to villa units) that real stone for fireplaces and real logs in cabin construction would be utilized, subject, however, to the right of Member Bluegreen to determine that construction will deviate from use of real stone and real logs, if use of the same would exceed the product cost based upon the above formula.
SECTION 6.2. SPECIFIC AUTHORITY OF MANAGEMENT COMMITTEE AND GENERAL MANAGER.
(A) Subject to the provisions of Section 6.2 and the other rights expressly granted to the Members hereunder, the Management Committee or, at the discretion of the Management Committee, the General Manager, by majority
vote if the General Manager is expressly so empowered, is hereby specifically authorized for, and in the name of and on behalf of the Company:
(1) To manage and supervise the operations of the Business Property, including supervision of the acquisition, storage and processing of inventory, oversight of staffing and employment matters and establishing policies for the conduct of the Business;
(2) To execute and deliver all instruments necessary or convenient in connection with the management, maintenance and operation of the Business Property;
(3) To execute and deliver, in furtherance of any or all of the Purposes of the Company, any deed, lease, mortgage, promissory note, bill of sale, contract or other instrument effecting the conveyance, exchange or encumbrance of all or any part of the Business Property, or any interest therein, either to or from the Company, for the Purpose of carrying on the Business and to authorize others so to do, particularly by way of example and not limitation, to authorize others to convey and transfer timeshare interests in the Big Cedar Timeshare Project, and otherwise to appoint third parties for purposes of carrying out receivable financing transactions, including endorsement of consumer notes, assignment of consumer mortgages or deeds of trust, and related documentation, to effectuate receivable financing as relates to timeshare interest sales;
(4) To borrow money and issue evidences of indebtedness, and assume existing indebtedness necessary, convenient or incidental to the accomplishment of the Business;
(5) To prepay in whole or in part, refinance, recast, increase, modify or extend any mortgage or other indebtedness relating to the Company or the Business Property;
(6) To engage in business with any Person who provides any services to, lends money to, sells property to or purchases property from, the Company;
(7) To retain or employ and coordinate the services of employees, supervisors, accountants, attorneys, and other Persons necessary or appropriate to carry out the Business (provided that the Management Committee must unanimously agree on the identity of auditors, unless the auditors is a firm of certified public accountants commonly referred to as one of the big five);
(8) To establish and fund, out of the Company's gross receipts or otherwise, such reserves for anticipated or contingent liabilities and working capital as the Management Committee reasonably deems appropriate and to reverse any such reserves not required;
(9) To engage in any kind of activity and to perform and carry out such contracts of any kind necessary to, or in connection with, or incidental to the accomplishment of, the Business;
(10) To handle all matters in connection with the construction of improvements to be constructed on the Business Property;
(11) To perform all other duties and functions provided herein to be performed by the Management Committee, as in the discretion of the Management Committee so determined,
(12) To accept instruments of indebtedness from consumer purchasers of timeshare interests and to sell or hypothecate such timeshare interests under any arrangements as may be established by the Management Committee on behalf of the Company, on such terms as may, from time to time, be acceptable to the Management Committee and to further pledge or sell collateral related to such timeshare interests to such third party financier as may be determined from time to time by the Management Committee;
(13) To establish sales prices for timeshare interests and to sell or hypothecate timeshare receivables under any arrangements as may be established by the Management Committee on behalf of the Company, on such terms as may, from time to time, be acceptable to the Management Committee and to further pledge or sell collateral related to such timeshare interests to such third party financier as may be determined from time to time by the Management Committee;
(14) To engage any and all personnel who, from time to time, may be determined by the Management Committee necessary or desirable to advance the Company or the Business of the Company; and
(15) To purchase insurance to protect the interests of the Company. Such insurance purchased shall include, but not be limited to the following:
(a) Workers' Compensation, providing Statutory Limits for Coverage A and limits of at least One Million and No/100 Dollars ($1,000,000.00) for coverage B (employers' liability);
(b) Commercial or Comprehensive General Liability providing limits of at least One Million and No/100 Dollars ($1,000,000.00) on an occurrence form, including personal injury liability;
(c) Business Auto, including owned, hired and non-owned coverage, with limits of at least One Million and No/100 Dollars ($1,000,000.00);
(d) All Risks Builders Risk/Property coverage for construction projects, including interests of Company, contractors, and financial parties as their interests may appear;
(e) Crime coverage, including the management and salespersons of the Company; and
(f) Umbrella/Excess Liability, in the name of the Company, with limits of not less than Twenty Five Million and No/100 Dollars ($25,000,000.00).
The Management Committee and General Manager shall also be authorized to review periodically the need for additional coverage.
(16) To require the following insurance to be in place for any independent contractors having any activity dealing with constructing "The Big Cedar Timeshare Project."
(a) A Certificate of Insurance must indicate minimum limits of One Million and No/100 Dollars ($1,000,000.00) per occurrence for Commercial or Comprehensive General Liability (including contractual and completed operations liability coverages) and that coverage is on an Occurrence Form;
(b) A Certificate indicating Statutory Workers' Compensation coverage and One Million and No/100 Dollars ($1,000,000.00) minimum of employers' liability coverage;
(c) A Certificate indicating a minimum of One Million and No/100 Dollars ($1,000,000.00) per occurrence for Business Auto Liability (including owned, hired and non-owned coverage).
(d) A Certificate indicating builders all risk coverage (including items in transit), contractors equipment coverage (including coverage for owned, leased or rented equipment), and an Installation floater. All such coverages shall insure full or replacement value of materials and equipment at risk.
(e) A Certificate must show Company and Owner have been endorsed on the policy as additional insureds under the General Liability and on any Umbrella/Excess coverage carried and that all policies contain a full waiver of subrogation against Owner and Company. A copy of policy endorsement showing additional insured status, waiver of subrogation, and any other special policy provisions which may exclude or limit our additional insured position must be attached to the Certificate.
(f) All insurance required of Independent Contractor shall be primary and non-contributory with respect to any other insurance available to Company and Owner. Any and all deductibles and/or self-insured retentions shall be assumed by and be for the account of and at the sole risk of the Independent Contractor.
(g) All insurance costs are for the account of the Independent Contractor and shall not be passed onto Company or Owner.
(h) Higher limits and/or lower deductibles or self-insured retentions may be required for certain contractors or on certain projects as determined by Company's or Owner's Risk Management departments.
(i) The Certificate must indicate a firm thirty (30) day notice of cancellation or change.
(j) Certified copies of all policies shall be furnished to Company's or Owner's Risk Management Departments, upon request.
(k) All Certificates must be mailed to: Risk Management Department, 2500 E. Kearney, Springfield, MO 65898 at the time of execution of this contract, annually upon policy renewal, and at any other time requested by Company or Owner.
(B) Any Person dealing with the Company or the Management Committee may rely upon a certificate signed by a majority of the Management Committee as to (i) the identity and authority of the General Manager; (ii) authorization to conduct any business on behalf of the Company; (iii) the identity and authority of any representative or agent of the Company for purposes of carrying on the business and affairs of the Company, including but not limited to, sales and marketing of timeshare interests and the hypothecation, sale and endorsement of evidences of indebtedness as respects the sale of timeshare interests and collateral related thereto; or (iv) any matter upon which the Management Committee may set forth on such certificate, including any matter in respect to which the Management Committee may take action regarding sales and marketing of timeshare interests and involvement of third parties for financing respecting such timeshare interests, whether by hypothecation or sale.
SECTION 6.3. RESTRICTIONS ON AUTHORITY OF THE MANAGEMENT COMMITTEE AND THE GENERAL MANAGER; MAJOR DECISIONS.
(A) In addition to the limitations set forth elsewhere herein, neither the Management Committee nor the General Manager shall undertake or cause the Company to undertake any of the following without the consent of all of the Members:
(1) Do any act in contravention of this Agreement;
(2) Possess Company property, or assign the Company's rights in specific Company property in trust for creditors, or in the assignee's promise to pay the debts of the Company, or for other than a purpose of the Company;
(3) Admit additional or substitute Members to the Company except as otherwise provided herein;
(4) Change or reorganize the Company into any other legal form;
(5) Cause the Company to engage in any business other than the Business or extend the scope of the Business, by implication or otherwise;
(6) The acquisition by the Company of any other real estate or any interest therein, property or assets not related to the Business Property;
(7) Effect the sale or transfer of all or substantially all of the Business Property;
(8) Make any expenditure which will be considered "capital" in nature under generally acceptable accounting principles, if such expenditure would be a departure from the annual operating budget;
(9) Make any Distribution of the Business Property to Members other than cash or receivables or make any Distribution by the Company other than in accordance with Articles 3 or 8;
(10) Appointment of the General Manager as described in Section 6.1(C); or
(11) Enter into any agreement with a Member or any Affiliate of a Member, other than in the ordinary course of business of the Company.
SECTION 6.4. MEETINGS AND VOTING BY MEMBERS.
(A) Meetings of Members shall be held at the Company's principal place of business or such other place as designated by the Management Committee. Not less than ten (10) nor more than twenty (20) days before each meeting, the Person calling the meeting shall give written notice of the meeting to each Member entitled to vote at the meeting. The notice shall state the time, place and purpose of the meeting.
(B) Notwithstanding the foregoing provisions, each Member who is entitled to notice waives notice if before or after the meeting the Member signs a waiver of the notice which is filed with the records of Members' meetings, or is present at the meeting in person or by proxy. The presence in person or by proxy of a majority of the Distribution Percentage and a majority of the Management Committee shall constitute a quorum. A Member may vote either in person or by written proxy signed by the Member or by the Member's duly authorized attorney-in-fact.
(C) A determination by those Members owning a majority or more of the Distribution Percentages shall be effective whether or not all Members are in attendance at any meeting in which such determination is made, or whether such determination is made by formal or informal, oral or written instructions of such Members, and such determination so made by the Members who may actually vote the proposed determination. Notwithstanding any provision in this Agreement to the contrary, in no event shall a Member who is in default under this Agreement at the time a vote is taken or a decision is made be entitled to vote (or give or withhold consent or approval) in respect of any act, determination, major decision or other decision of the Company.
SECTION 6.5. CONFLICTS OF INTEREST.
(A) Neither the members of the Management Committee nor the General Manager shall be required to devote full time to their duties hereunder but shall devote reasonable time and effort thereto.
(B) Subject to Section 6.10 and the other provisions of this Agreement, any Member or Affiliate of a Member may engage independently or with others in other business ventures of every nature and description. Neither the Company nor any Member shall have any right by virtue of this Agreement or the relationship created hereby in or to any other ventures or activities in which any Member or Affiliate of a Member is involved or to the income or proceeds derived therefrom, subject to the terms of this Agreement The pursuit of other ventures and activities by Members or Affiliates of a Member, even if directly competitive with the Business, is hereby consented to by the Members and shall not be deemed wrongful or improper, subject to the terms of this Agreement. No Member or Affiliate of a Member shall be obligated to present any particular business or investment opportunity to the Company even if such opportunity is of a character which, if presented to the Company, could be taken by the Company, and any Member or Affiliate of a Member shall have the right to take for his/her/its own account (individually or as a member or fiduciary), or to recommend to others, any such particular opportunity. Notwithstanding the foregoing, the relationship of the Members as respects conflicts of interest in competing businesses shall also be subject to the Marketing and Promotions Agreement.
(C) No Member or any of its Affiliates, nor any officer, director, employee or former employee of any Member or its Affiliates, shall be deemed to be in breach hereof or have any obligation, or be liable, to any Member or the Company for exercising any of the rights of such Member or such Affiliate under this Agreement, or for exercising or failing to exercise its rights hereunder, or for breach of any other duty to any Member or the Company by reason of such conduct, other than an act which constitutes fraud or bad faith.
SECTION 6.6. TRANSACTIONS WITH MEMBERS AND AFFILIATES. The Company may enter into agreements with one or more Members or Affiliates of a Member to provide leasing, management, legal, accounting, architectural, brokerage, development or other services or to buy, sell or lease assets to or from the Company, provided that any such transactions shall be unanimously approved by the Management Committee and shall be at rates at least as favorable to the Company as those available from unaffiliated parties. The validity of any transaction, agreement or payment involving the Company and any Member or Affiliate of a Member otherwise permitted hereunder shall not be affected by reason of the relationship between such Person and the Company or any of its Members. Despite the above, the Members agree that the Management Committee has unanimously approved and accepted those agreements entitled the Administrative Services Agreement by and between Bluegreen/Big Cedar Vacations, LLC and Bluegreen Vacations Unlimited, Inc.; the Marketing and Promotions Agreement by and between Bass Pro, Inc., Member BCLLC, Bluegreen Vacations Unlimited, Inc and
the Company; the Operational Services and Integration Agreement by and between the Company, Big Cedar Resort Club Owners Association, Inc. ("Owners Association") and Member BCLLC; the Contribution Agreement by and between Member Bluegreen and Member BCLLC; and the Servicing Agreement by and between Bluegreen Corporation and the Company, together with those certain agreements as may exist by and between Member Bluegreen or Affiliates of Member Bluegreen to provide management services to the Owners' Association at the Big Cedar Timeshare Project, title services, including title insurance, and exchange and/or reservation services respecting use of the Big Cedar Timeshare Project (to be at the expense of the timeshare user or participant) ("Approved Agreements").
SECTION 6.7. LIABILITY AND INDEMNIFICATION OF THE MANAGEMENT COMMITTEE, GENERAL MANAGER, MEMBERS AND AFFILIATES.
(A) Neither any member of the Management Committee nor the General Manager, a Member, or an Affiliate of a Member shall be liable, responsible, or accountable in damages or otherwise to the Company or to the Members for any action taken or failure to act on behalf of the Company unless such action or omission constitutes fraud or bad faith.
(B) The Company shall, to the fullest extent permitted under the Act, indemnify and hold harmless the members of the Management Committee, the General Manager, the Members and their Affiliates from any loss, damage, liability, or expense incurred or sustained by them by reason of any act performed or any omission for or on behalf of the Company, including any judgment, award, settlement, reasonable attorneys' fees, and other costs and expenses (which may be advanced by the Company) incurred in connection with the defense of any actual or threatened action, proceeding or claim.
(C) The members of the Management Committee, the General Manger and each Member hereby agrees to indemnify and hold the Company wholly and completely harmless from any liability, cost or damage that any such indemnified party may incur (including reasonable legal and other expenses incurred in defending against such liability, cost or damage) as a result of such indemnifying party's fraud or bad faith. No amount paid hereunder shall be treated as a capital contribution or a loan by the party making such payment.
SECTION 6.8. COMPENSATION AND REIMBURSEMENT OF THE MEMBERS.
(A) The Company shall not pay the Members any salary or other compensation for acting as Members hereunder; provided, however that the Company may pay a Member for goods received or services provided by that Member to the Company pursuant to any authorized agreement by and between the Company and any Member, including, but not limited to the Approved Agreements. The General Manager shall receive a salary for serving in such capacity in such amounts and on such terms as may be approved by the Management Committee.
(B) Except as set forth in this subsection (B), or otherwise
provided pursuant to any agreement entered into by and between the Company and a
Member (specifically to include those agreements referenced hereinabove in
Section 6.8(A), each Member shall be responsible for paying all expenses
necessary to permit such Member to carry out such Member's duties and
obligations hereunder and such expenses shall not be reimbursed by the Company
or treated as a contribution to the capital of the Company by such Member. The Company shall reimburse the members of the Management Committee and the General Manager for all reasonable out-of-pocket expenses incurred by them in connection with the discharge of their obligations under this Agreement in such capacity or otherwise incurred by them on behalf of the Company.
(C) The rights to reimbursement under this Section shall not be effected by the disallowance for tax purposes, in whole or in part, any amounts reimbursed under the foregoing provisions of this Section.
SECTION 6.9. LIABILITY FOR COMPANY DEBTS AND OBLIGATIONS. No Member shall be personally liable for any of the expenses, liabilities or obligations of the Company except to the extent expressly provided in Sections 2.2, 6.8(C) or 7.1(C), or in an agreement executed by such Member evidencing his or her agreement to be personally liable for such expense, liability or obligation.
SECTION 6.10. NON-COMPETITION.
(A) Notwithstanding any other provision of this Section 6.10 or other provision of this Operating Agreement, the Members agree as follows:
(1) For the benefit of Member BCLLC and its Affiliates, Member Bluegreen, on behalf of itself and its Affiliates, agrees that neither it nor any of its Affiliates shall affiliate with, sell or offer for sale outdoor recreational products or services of any entity which sells such outdoor recreational products or services and which directly competes with the outdoor recreational products and services of Bass Pro, Inc. or Tracker Marine, LLC (Affiliates of Member BCLLC). The restrictions contained in this subparagraph shall terminate in the event that Member BCLLC, Bass Pro, Inc. or Tracker Marine, LLC file or have filed against them a bankruptcy proceeding.
(2) For the benefit of Member Bluegreen and its Affiliates, Member BCLLC on behalf of itself and its Affiliates, agrees that neither it nor any of its Affiliates shall sell, market, advertise or promote any Resort Interest Program, excepting, however, the Big Cedar Timeshare Project, the Bluegreen Vacation Club, or any Bluegreen Timeshare Facility as offered by Member Bluegreen. Neither Member BCLLC nor its Affiliates shall develop any Resort Interest Program, except (i) in accordance with Member BCLLC's right to participate provided in Section 6.11, below; or (ii) in regard to Fractional Interest Developments as provided herein. Neither Member BCLLC nor any of its Affiliates shall affiliate with any entity for purpose of developing, marketing, promoting or advertising any other Resort Interest Program, excepting with Member Bluegreen and as excepting Fractional Interest Developments as provided for in this Agreement. Member BCLLC may sell, develop, market, advertise or promote a Fractional Interest Development if developed by Member BCLLC or its Affiliates, so long as such Fractional Interest Development contains no more than twenty-five (25) accommodations in the respective Fractional Interest Development. Such Fractional Interest Developments may, by way of example and not limitation, include projects owned or controlled by Member BCLLC and its Affiliates, existing at Valhalla Island, Florida; Floridian
Sports Club; Welaka, Florida; and Frying Pan River Ranch, Colorado. The restrictions contained in this subparagraph shall terminate in the event Member Bluegreen files or has filed against it a bankruptcy proceeding.
SECTION 6.11. RIGHTS TO PARTICIPATE. The Members agree as follows:
(A) MEMBER BCLLC'S RIGHT TO PARTICIPATE. It is acknowledged by the Members that Member Bluegreen is in the business of developing, marketing and selling timeshare projects. It is further acknowledged by the parties that there may arise the occasion where a timeshare project developed by Member Bluegreen may consider replicating the Big Cedar Timeshare Projects at other locations. Member Bluegreen agrees that so long as Member BCLLC is not the subject of a bankruptcy proceeding filed by or against it, Member BCLLC shall have the exclusive, irrevocable and absolute right to "Participate" (as herein defined) with Member Bluegreen in the development of future timeshare projects founded upon replication of the Big Cedar Timeshare Project. A timeshare project shall be deemed to be founded upon replication of the Big Cedar Timeshare Project if it is founded upon an outdoor/wilderness/rustic theme, utilizing lodges and cabins, irrespective of the selling price or the materials used to construct the project, provided that such timeshare project is determined to be architecturally substantially similar to the Big Cedar Timeshare Project with use of the same materials as used in such project. The right to Participate of Member BCLLC and the Company hereunder shall terminate in the event that Member BCLLC files or has filed against it a bankruptcy proceeding and shall be subject to the following:
(1) The right to Participate shall only apply to
future timeshare projects developed by Member Bluegreen as are located within
the United States and as are developed within ten (10) years from the date of
execution of this Operating Agreement, extended for any periods of time during
which the Marketing and Promotions Agreement made and entered into by and
between Member Bluegreen and Member BCLLC and its Affiliate, Bass Pro, Inc., may
be extended; provided that the right to Participate shall only apply so long as
(a) the identity of the partners, general and limited, within Member BCLLC and
their respective owners are the same at the time of election to Participate as
they are upon execution of this Agreement, or (b) if not the same, so long as
John L. Morris, his heirs or estate planning trustees have a material
involvement with any substitute partner and, in all events, so long as such
partners are not in competition with Member Bluegreen, nor are any competitors
of Member Bluegreen otherwise involved nor participating therein.
(2) The Right to Participate shall mean the right to co-develop and/or provide marketing and promotional services as such co-development or providing of services may be mutually agreed to by Member BCLLC and Bass Pro, Inc. on the one hand, and Bluegreen Vacations Unlimited, Inc. on the other.
(3) Any election by Member BCLLC to participate shall be effective only if Member BCLLC, Member Bluegreen and Bass Pro, Inc. and its respective Affiliates execute a letter of understanding documenting their mutual agreement as to co-development and marketing and promotional services as relate to the proposed future timeshare project within sixty (60) days after Member BCLLC receives written notice from Member Bluegreen of its intent to develop an additional timeshare project meeting the requirements set forth hereinabove. Such notice by Member Bluegreen shall include a reasonable description of the
timeshare project. Such information as included in the notice shall be maintained by Member BCLLC as confidential information which may be disclosed by Member BCLLC only to inform Bass Pro, Inc. and their respective advisors, legal counsel, consultants and senior executives who have a need to know such information, and otherwise be disclosed only as required by applicable law. If Member BCLLC elects not to Participate or fails to perform as aforesaid, then Member Bluegreen may proceed with any additional timeshare projects without Participation or involvement of Member BCLLC. The right of Member BCLLC in this paragraph shall terminate if Member BCLLC files or has filed against it a bankruptcy proceeding.
(B) MEMBER BLUEGREEN'S RIGHT TO PARTICIPATE.
(1) If Member BCLLC or its Affiliates develop a
respective Fractional Interest Development as above referred to (or develop any
resort interest program as otherwise may be interpreted as permitted under this
Agreement), and determine that the same is to be developed through the
participation of an additional investor, whether by joint venture, limited
liability company, or otherwise, then Member BCLLC and its Affiliates agree that
so long as Member Bluegreen is not the subject of a bankruptcy proceeding filed
by or against it, the first option and right to so participate is hereby granted
and shall be made available to Member Bluegreen and its Affiliates. Prior to
offering any participation to any other party in any such Fractional Interest
Development (or any other permitted resort interest development as may be
interpreted as acceptable under the terms of this Agreement), Member BCLLC and
its Affiliates shall provide the Right to Participate to Member Bluegreen. The
right of Member Bluegreen to participate as herein provided shall be for ten
(10) years from the date of execution of this Operating Agreement, extended for
any period of time during which the Marketing and Promotions Agreement may be
extended.
(2) Any election by Member Bluegreen to participate shall be effective only if Member Bluegreen and Member BCLLC execute a letter of understanding documenting their mutual agreement as to Member Bluegreen's right to participate as relates to the Fractional Interest Development or other permitted Resort Interest development within sixty (60) days after Member Bluegreen receives written notice from Member BCLLC of its intent to develop a Fractional Interest Development or other permitted Resort Interest development. Such notice by Member BCLLC shall include a reasonable description of the proposed development. Such information as included in the notice shall be maintained by Member Bluegreen as confidential information which may be disclosed by Member Bluegreen only to inform their respective advisors, legal counsel, consultants and senior executives of Member Bluegreen who have a need to know such information otherwise be disclosed only as required by applicable law. If Member Bluegreen elects not to participate or fails to perform as aforesaid, then Member BCLLC may proceed with such respective Fractional Interest Development without participation or involvement of Member Bluegreen. The Right to Participate contained in this paragraph shall terminate in the event that Member Bluegreen files or has filed against a bankruptcy proceeding. If Member Bluegreen elects not to Participate, or fails to perform as aforesaid, then Member BCLLC may proceed without Participation or involvement of Member Bluegreen.
ARTICLE 7. TRANSFERS OF INTERESTS
SECTION 7.1. RESTRICTIONS.
(A) Except as provided in this Section 7.1and each sub-part hereof, no Member (or Successor) may, without the prior consent of all of the Members not then in default hereunder, effect a Transfer of all or any part of his or her Interest. "Transfer" means any voluntary or involuntary transfer, sale, assignment, exchange, encumbrance, charging order or hypothecation or other disposition.
(B) Voluntary Transfers in violation of the provisions hereof shall be void and of no effect for any purpose. Members who have effected Transfers of all of their Interests shall have no further right, authority, and/or responsibility to participate in the management of the business and affairs of the Company.
(C) Each party hereto acknowledges the reasonableness of the restrictions on Transfer imposed by this Agreement in view of the Company purposes and the relationship of the Members. Accordingly, the restrictions on Transfer contained herein shall be specifically enforceable. Each party hereto hereby further agrees to hold the Company and each Member (and such Member's Successors) wholly and completely harmless from any cost, liability, or damage (including reasonable attorneys' fees, liabilities for income taxes, and the cost of enforcing this indemnity) incurred by any of such indemnified Persons as a result of a Transfer or an attempted Transfer by such party in violation of this Agreement.
(D) Notwithstanding any provisions contained hereinabove, the Members agree that John L. Morris and his heirs and estate planning trustees may transfer their interests in Member BCLLC from and after the date hereof to an entity which is controlled by John L. Morris, provided, however, that (i) neither the LLC nor Member Bluegreen, nor any Affiliate of Member Bluegreen shall be subject to any liability, expense, cost or obligation arising or resulting from such assignment; (ii) John L. Morris and Member BCLLC shall indemnify the LLC, Member Bluegreen and any Affiliate of Member Bluegreen from any costs expenses, liabilities or obligations as might arise or result from such assignment; and (iii) legal counsel to Member BCLLC and John L. Morris shall provide an opinion to the LLC. Member Bluegreen and any Affiliate of Member Bluegreen that, to the best of their knowledge, information and belief, after due inquiry and investigation, such assignment is valid, enforceable and in compliance with applicable law.
SECTION 7.2. EFFECT OF ASSIGNMENT; DOCUMENTS.
(A) All whole or partial Interests Transferred pursuant to the provisions of this Article VII shall be subject to the restrictions and obligations set forth in this Agreement and no Transfer of a whole or partial Interest otherwise permitted hereunder (except for a pledge or collateral assignment to another Person) shall be effective for any purpose unless and until the party to whom such Interest is being Transferred has executed this
Agreement (as amended) and agreed to be bound by all of its terms and provisions. Unless otherwise expressly agreed by the Members or expressly provided herein, no Transfer permitted hereunder shall relieve the assignor from any of its obligations under this Agreement accruing prior to such Transfer.
(B) In the event ownership of any whole or partial Interest is transferred to any other Person in accordance with the provisions set forth in this Article VII, the successor to such Interest (a "Successor") shall succeed to such Interest as an assignee only under the Delaware Act and shall have no right, except as provided in (C) below, to become a substitute Member or to participate in the management of the business and affairs of the Company and shall not be considered a "Member" under this Agreement or be a "member" as that term is used in the Act with respect to such Interest; PROVIDED, HOWEVER, that such Successor shall, in addition to the other rights and obligations of a Successor herein expressly set forth, 1) be liable for the obligations of his or her assignor under this Agreement attributable to such Interest; (2) be subject to the continuing obligations attributable to such Interest under this Agreement; and (3) be entitled to receive the distributions attributable to such Interest under Articles III and VIII and allocations of profits and losses (and items) under Article IV.
ARTICLE 8. DISSOLUTION OF THE COMPANY
SECTION 8.1. LIQUIDATION EVENTS.
(A) No act, thing, occurrence, event, or circumstance shall cause or result in the dissolution of the Company except that the earliest to occur of any of the following events (a "Liquidation Event") shall work an immediate dissolution of the Company:
(1) December 31, 2050;
(2) The sale or other disposition of all or substantially all of the Business Property;
(3) A decision to do so approved by all Members; or
(4) Subject to Section 8.2 below, any event (each a "Dissociation Event") described in Section 18-801 of the Act occurring with respect to a Member; PROVIDED, HOWEVER, that the Members hereby agree that, upon the occurrence of (a) a permitted Transfer in accordance with the provisions of Article VII; or (b) a voluntary withdrawal of a Member in violation of the terms of this Agreement, the business and affairs of the Company shall be automatically continued by the Company and such event shall not constitute a Dissociation Event for purposes of this Agreement.
(B) Notwithstanding any provision of the Act, each Member hereby covenants and agrees that the Members have entered into this Agreement based on their mutual expectation that all Members will continue as Members and carry out the duties and obligations undertaken by them hereunder and that, except as otherwise expressly required or permitted hereby, each Member covenants and agrees not to (1) take any action to dissolve the Company; (2)
take any action that would cause a bankruptcy of such Member; (3) voluntarily withdraw or attempt to withdraw from the Company; (4) exercise any power under the Act to dissolve the Company; or (5) petition for judicial dissolution of the Company, without the unanimous consent of the Members not then in default hereunder.
SECTION 8.2. RIGHT TO CONTINUE BUSINESS AND AFFAIRS OF COMPANY.
(A) Upon the occurrence of a Dissociation Event with respect to a Member (the "Dissociation Member"), the Dissociating Member shall give notice thereof to the other Members and such remaining Member(s) may, within the ninety (90) day period following such occurrence, elect, by agreement of Members collectively holding more than fifty percent (50%) of the Distribution Percentages then held by Members, to continue the business and affairs of the Company for the balance of the term hereof (it being understood that if such an agreement is not executed within such ninety (90) day period, the Dissociation Event shall constitute a Liquidation Event). In the event any Member acquires knowledge of a Dissociation Event, that Member shall promptly give notice thereof, specifying the nature of the Dissociation Event and the identity of the Dissociating Member, to the Company and all of the other Members (including the Dissociating Member) and such notice shall be deemed to be notice from the Dissociating Member for purposes of this Section.
(B) If the remaining Member(s) so elect to continue the business and affairs of the Company:
(1) The Company shall not dissolve and its business and affairs shall be carried on without interruption, and without the necessity of the execution of any confirmatory agreement, under the same name and under the same terms and provisions as are set forth in this Agreement (as the same may be amended by the remaining Members); and
(2) The Management Committee shall take such steps and make such filings as may be required to reflect such Dissociation Event and the continuation of the business and affairs of the Company.
SECTION 8.3. DISTRIBUTION OF PROCEEDS ON DISSOLUTION; WINDING UP; RESERVES.
(A) Upon the Occurrence of a Liquidation Event, the Company shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying the claims of its creditors and Members and neither the Management Committee nor any General Manager or Member shall take any action that is inconsistent with, or not necessary to or appropriate for, winding up the Company's business and affairs. To the extent not inconsistent with the foregoing, all covenants and obligations in this Agreement shall continue in full force and effect until such time as Dissolution Proceeds have been distributed pursuant to this Section 8.4 and the Company has filed articles of termination.
(B) The General Manager or, if there is no General Manager, a Member appointed by the Management Committee (in either case, the "Winding-Up Member") shall be responsible for overseeing the winding up and liquidation of the Company. As soon as reasonably practical after the occurrence of a Liquidation Event, the Winding-Up Member shall file a notice of winding up and take such other actions as are required under the Act to dispose or make provision for the known and unknown claims against the Company. After filing the
notice of winding up, the Winding-Up Member shall take full account of the Company's liabilities and the Business Property, cause the Business Property to be liquidated as promptly as is consistent with obtaining the fair value thereof, and shall cause the proceeds therefrom and any other assets and funds of the Company (collectively, the "Dissolution Proceeds") to the extent sufficient therefor, to be applied and distributed in the following order:
(1) First, to the payment of all unpaid secured indebtedness of the Company to the extent of the lesser of the value of the secured property or the amount of the secured indebtedness;
(2) Second, to the payment of the Company's remaining indebtedness, including any outstanding indebtedness under the Ad Loan, any Call Loan and any Member Loans (but excluding any other Distributions to Members or Successors), but if the amount available therefor shall be insufficient, then pro-rata on account thereof; and
(3) Third, the balance, if any, less such reserves ("Dissolution Reserves") as the Winding-Up Member reasonably determines are necessary or appropriate for anticipated or contingent expenses of the Company, shall be distributed to the Members and Successors pro-rata in accordance with their positive Capital Account balances.
(C) To the extent the Winding-Up Member subsequently determines Dissolution Reserves (or any part thereof) to be unnecessary for Company expenses, he or she shall cause such amounts to be distributed or paid to the Members, Successors, or other Persons who would have received the proceeds comprising such Dissolution Reserves under this Section 8.3 as if such proceeds had not been used to fund Dissolution Reserves.
(D) When all of the remaining property and assets of the Company have been applied and distributed as provided in this Section 8.4, the Winding-Up Member shall file articles of termination as provided in the Act and take such other actions as may be necessary to cause the Company to withdraw from all jurisdictions where the Company is then authorized to transact business.
SECTION 8.4 NO LIABILITY. Each Member and Successor shall look solely to the assets of the Company for all distributions with respect to the Company and his or her capital contributions thereto and share of profits or losses thereof, and shall have no recourse therefor against any Member or Successor; PROVIDED, HOWEVER, that nothing herein contained shall relieve any Member or Successor of his or her obligation to make the required capital contributions herein provided or to pay any liability or indebtedness or perform any indemnity owing the Company or any other Member or Successor by such Member or successor by reason of this Agreement, and the Company and the other Members and Successors shall be entitled at all times to enforce such obligations of such Member or Successor.
ARTICLE 9. GENERAL
SECTION 9.1 NOTICES/APPROVALS TO BE IN WRITING. Any notice, request, approval, consent, demand or other communication required or permitted hereunder shall be given in writing by (A) personal delivery; or (B) expedited delivery service with proof of delivery; or (C) United States Mail, postage prepaid, registered or certified mail, return receipt requested; or (D) prepaid telegram, facsimile, or telex, sent to the Company at the address set forth in Section 1.5 and/or the party to whom the communication is directed at the address set forth on Exhibit A, or to such different address as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given and received either at the time of personal delivery or, in the case of delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or in the case of such a confirmed telegram, facsimile, or telex, upon receipt.
SECTION 9.2 AMENDMENTS. Except as otherwise provided in Section 9.6, this Agreement may be amended only by agreement executed by all the Members.
SECTION 9.3 MISCELLANEOUS. Time is of the essence with respect to this Agreement. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware. Except as herein otherwise specifically provided, this Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, successors and assigns. Captions contained in this Agreement in no way define, limit or extend the scope or intent of this Agreement. If any provision of this Agreement, or the application of any such provision to any Person or circumstance shall be held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, the remainder of this Agreement, or the application of such provision to any other Persons or circumstances, shall not be affected thereby and shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof. In lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part hereof a provision as similar in terms to such illegal, invalid or unenforceable provision, as may be possible and be legal, valid and enforceable. Every exhibit, schedule and other appendix attached to this Agreement and referred to herein is incorporated in this Agreement by reference. All capitalized terms are defined herein and are used as so defined. This Agreement may be executed in several counterparts and all so executed shall constitute one Operating Agreement, binding on all the parties hereto, notwithstanding that all the parties are not signatories to the original or same counterpart. Should a provision of this Agreement require judicial interpretation, it is agreed that the judicial body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be more strictly construed against the party which itself, or through its agent, prepared the same, it being agreed that the agents of all parties have participated or had the opportunity to participate in the preparation of this Agreement.
SECTION 9.4 REMEDIES.
(A) If the Company or any party obtains a judgment against any other party by reason of breach of this Agreement, a reasonable attorneys' fee as fixed by the court shall be included in such judgment. Any Member shall be entitled to maintain, on its own behalf or on behalf of the Company, any action or proceeding against any other Member, Successor, or the Company (including, any action for damages, specific performance, or declaratory relief) for or by reason of breach by such party of this Agreement, notwithstanding the fact that any or all of the parties to such proceeding may then be Members in the Company, and without dissolving the Company as a limited liability company; provided, however, that liability of any Member, successor or the Company for or by reason of breach by such party of this Agreement, shall be limited as set forth herein.
(B) The remedies conferred upon the Company or any Member or Successor in this Agreement are intended to be exclusive of any other remedy herein or by law provided or permitted. No failure or delay on the part of a Member or the Company to exercise any right it may have in the event of an act or omission giving rise to a claim hereunder in accordance with the terms of this Agreement by a Member shall prevent the exercise of such right by such Member or the Company at any time such Member defaulting as provided for in this Agreement, may continue to be so in default, and no such failure or delay shall operate as a waiver of any default. Notwithstanding the limitations of liability as provided for in this Agreement, each party to this Agreement agrees that the Members would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to the remedies to which the nonbreaching Members may be entitled in accordance with the terms hereof the nonbreaching Members shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and specifically to enforce the terms and provisions hereof in any action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof.
(C) No waiver by a Member or the Company of any breach of this Agreement shall be deemed to be a waiver of any other breach of any kind or nature and no acceptance of payment or performance by a Member or the Company after any such breach shall be deemed to be a waiver of any breach of this Agreement whether or not such Member or the company knows of such breach at the time it accepts such payment or performance.
(D) The Members intend for the purpose and objectives of the Company to be reached and to that extent, they shall not unreasonably withhold their consent or approval.
(E) In the event of any dispute or disagreement between the
Members, such party shall give written notification of such dispute or
disagreement to, if such party is BCLLC or any their Affiliates, George Donovan,
or the person then performing the duties at Bluegreen currently performed by
George Donovan ("BXG, CEO") and if such party is Bluegreen, acting as Bluegreen,
Bluegreen Affiliates or the LLC, to John L. Morris, or the person performing the
duties at BCLLC currently performed by John L. Morris ("Marketer, CEO"); and
(iii) the CEOs shall communicate with each other promptly with a view to
resolving such dispute or disagreement within ninety (90) days of commencing any negotiations (or such extended period as the CEOs agree is appropriate in any such case). The foregoing shall be a condition precedent to applicability of the Remedies section, as provided in this paragraph 9.4. During any period of such communications, all services prior to any claimed default shall continue without any alteration or modification, except as acceptable to the party receiving such services.
SECTION 9.5 REPRESENTATIONS AND WARRANTIES. Each Member warrants, represents, agrees and acknowledges: (1) that he or she has adequate means of providing for his or her current needs and foreseeable future contingencies, and anticipates no need now or in the foreseeable future to sell his or her Interest; (2) that he or she is acquiring his or her Interest for his or her own account as a long-term investment and without a present view to make any distribution, resale or fractionalization thereof; (3) that he/she and his/her independent counselors have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the investment involved in his or her acquisition of his or her Interest and they have evaluated the same; (4) that he or she is able to bear the economic risks of such investment; (5) that he/she and his/her independent counselors have made such investigation of the Company (including its business prospects and financial condition) and the Members have had access to all information regarding the Company and the Members, and have had an opportunity to ask all of the questions regarding the Company and the Members as they deem necessary to fully evaluate his or her investment therein; (6) that in connection with his or her acquisition of an Interest, he or she has been fully informed by his or her independent counsel as to the applicability of the requirements of the Securities Act of 1933 and all applicable state securities or "blue-sky" laws to his or her Interest; (7) that he or she understands that (a) his or her Interest is not registered under the Securities Act or any state securities law; (b) there is no market for his or her Interest and that he or she will be unable to transfer his or her Interest unless such is so registered or unless the transfer complies with an exemption from such registration (evidence of which must be satisfactory to counsel for the Company); (c) such Interest cannot be expected to be readily transferred or liquidated; and (d) his or her acquisition of an Interest in the Company involves a high degree of risk; and (e) that no representations are or have been made to him or her by the Management Committee, any Member, or their respective representatives as to any tax advantages which may inure to his or her benefit or as to the Company's status for tax purposes, and that he or she has relied upon his or her independent counsel with respect to such matters.
SECTION 9.6 POWER OF ATTORNEY.
(A) Each Member and Successor hereby irrevocably makes, constitutes, and appoints the members of the Management Committee as his or her true and lawful attorneys-in-fact to make, execute, sign, acknowledge and file with respect to this or any successor Company;
(1) Such amendments to or restatements of the Company's Articles of Organization as may be required or appropriate pursuant to the provisions of this Agreement, or otherwise under the Act;
(2) Any and all amendments or changes to this Agreement and the instruments described in subsection (1), as now or hereafter amended, which the Management Committee may deem necessary or appropriate to (a) effect a change or modification of the Company approved in accordance with the
terms of this Agreement, as amended, or (b) reflect (i) the exercise by the Management Committee of any power granted to them under this Agreement; (ii) any amendments adopted by the Members in accordance with the terms of this Agreement; (iii) the appointment of a successor member of the Management Committee or General Manager under Section 6.1; (iv) the admission of any substituted Member in accordance with Section 7.4; (v) the disposition by any Member of its Interest in compliance herewith; and (vi) the occurrence of any Dissociation Event or other event described in Section 347.123 of the Act if the Company is not dissolved and the Business is continued;
(3) Any notice of winding up, articles of termination, cancellation of foreign registration, or other documents or instruments which may be deemed necessary or desirable by the Management Committee to effect the dissolution and liquidation of the Company after its termination as provided herein;
(4) All such other instruments, documents and certificates which may from time to time be required by the laws of the State of Delaware, the United States of America, or any political subdivision or agency thereof, to effectuate, implement, continue and defend the valid and subsisting existence of the Company and any other instruments, documents, or certificates required to qualify the Company to do business in any other state where it is required to so qualify;
(B) The parties hereto hereby agree that the grant of the foregoing power of attorney is coupled with an interest and shall survive (1) the death, disability, legal incapacity, bankruptcy, insolvency, dissolution or cessation of existence of a Member or Successor; and (2) the delivery of an assignment by any Member or Successor of the whole or any part of his or her Interest in the Company, except that where an assignee of such Interest has been admitted as a substitute Member, as provided in Section 7.2, then the foregoing power of attorney of the assignor Member shall survive the delivery of such assignment for the sole purpose of enabling the Management Committee to execute, acknowledge and file any and all instruments necessary to effectuate such substitution.
SECTION 9.7 FINANCIAL REPORTING. In addition to the requirements set forth in Section 5.1(A), the Management Committee, at respective meetings thereat, shall periodically, and at no time less than quarterly, establish financial reporting in respect to the Company, which financial reporting shall be delivered to Member BCLLC and Member Bluegreen, and which financial reporting shall be a compilation of sales of timeshare interests, income arising therefrom, and expenses of the Company, inclusive of marketing, sales and operating expenses. Such financial reporting shall include an income statement, balance sheet, financial statement or other information as may be reasonably required.
ARTICLE 10. PUBLIC OFFERING
Section 10.1 Upon agreement of all Members, the Company may conduct a public offering of all or part of its ownership Interests on such terms as they may agree. If all the Members so agree, they may effect a conversion of
ownership Interests from those of a limited liability company to ownership in a corporation.
Section 10.2 This Section is severable from the balance of this Agreement and shall be disregarded in construction of this Agreement.
ARTICLE 11. TRANSFER OF PROPERTY/CLUB ARRANGEMENT
(A) Notwithstanding any other provisions contained herein to the contrary, Member Bluegreen, acting by and through any of its authorized representatives, is expressly authorized to transfer and convey timeshare interests as may exist in the Big Cedar Timeshare Project to purchasers thereof and accept therefor instruments of indebtedness relating to the sale and transfer of such timeshare interests, and is further authorized to sell or pledge such instruments of indebtedness, including promissory notes, mortgages or deeds of trust received from consumer purchasers of timeshare interests, which sales or pledges may be to such third party entities as in the discretion, from time to time, determined by Member Bluegreen. In furtherance thereof, Member Bluegreen may transfer, whether by sale, pledge or otherwise, any and all collateral related to the sale of such timeshare interests as such third party may request, including but not limited to consumer transaction documents relating to the sale of timeshare interests which accompany the deed of trust and promissory note related thereto. In addition, Member Bluegreen, acting by and through any of its authorized representatives, is expressly authorized to arrange and implement the involvement or inclusion of the Big Cedar Timeshare Project in the Bluegreen Vacation Club, and to provide for registration, marketing and sale of the timeshare interests in the Big Cedar Timeshare Project as a part of or otherwise affiliated with the Bluegreen Vacation Club.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
BLUEGREEN VACATIONS UNLIMITED, INC. A
FLORIDA CORPORATION
By: /s/ Patrick E. Rondeau
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Please Print Name: Patrick E. Rondeau
Its: President
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BIG CEDAR, L.L.C., a Missouri Limited Liability Company
By: Three Johns Company, a Missouri corporation, its Sole Member
By: /s/ Toni M. Miller
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Please Print Name:: Toni M Miller
Its: Vice President Finance
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EXHIBIT A
NAMES, ADDRESS, CONTRIBUTIONS AND DISTRIBUTION
PERCENTAGES OF MEMBERS
Member Name and
Address Contribution Distribution Percentage
Bluegreen Vacations Cash in the amount of $70,000.00 51%
Unlimited, Inc. multiplied by acreage shown on the
4960 Blue Lake Drive Survey referred to herein,
Boca Raton, Florida 33431 being $3,229,800.00
Big Cedar, L.L.C. The Property having an agreed capital 49%
2500 East Kearney Street contribution value of $70,000.00 multiplied
Springfield, MO 65898 by acreage shown on the Survey referred to
herein, being a value of $3,229,800.00
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EXHIBIT 10.206
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") dated as of the 16th day of June, 2000, is made by and among Bluegreen/Big Cedar Vacations, LLC, a Delaware limited liability company ("BC") and Bluegreen Vacations Unlimited, Inc., a Florida corporation ("BGV").
R E C I T A L S:
WHEREAS, BC is in the business of developing, marketing and selling a vacation timeshare resort located in Taney County, Missouri, commonly referred to as Big Cedar Resort Club;
WHEREAS, BC and BGV wish to enter into this Agreement for the providing of certain services by BGV to BC;
NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties, covenants and agreements set forth in this Agreement, the parties hereto agree as follows:
1. PARTIES. BC and BGV are each referred to herein as Party, and collectively as Parties.
2. SERVICES TO BE PROVIDED. In consideration of the fee set forth in paragraph 5 hereinbelow, BGV agrees to perform the following services for the benefit of BC:
(a) Hiring, firing and setting compensation for the BC's employees and managers in accordance with the approved budget, excepting the General Manager, who shall be employed in accordance with the Operating Agreement of BC.
(b) Performing business functions of BC as respects the use of internal accounting, management information and human resources.
(c) Supervising marketing and sales closings.
(d) Providing and/or coordinating for the centralized accounting, financing, legal, human resource, management information services, budget preparation and management.
3. EXCEPTION FROM SERVICES. BGV shall not be responsible for providing, and the Fee, as set forth hereinbelow, shall not be deemed to be compensation, for any services provided by BGV for collecting or servicing purchaser notes, which is the subject of an alternative agreement.
4. OUTSIDE SERVICES. Any outside services, as opposed to in-house services necessary to provide the foregoing services, including by way of example and not limitation, legal, accounting, technological and similar services, as may be provided from time to time by BGV to the benefit of BC, shall be at the full cost and expense of BC. Available in-house staff will be used when reasonably appropriate.
5. FEE. For the performance of the services hereunder, BC shall pay to BGV or Bluegreen Corporation (as BGV may determine in its sole discretion), a fee ("Fee") equal to three percent (3%) of the Annual Sales Volume of BC, determined quarterly. "Annual Sales Volume," for purposes of this Agreement shall mean the annual gross sales, less purchaser cancellation and defaults, determined quarterly. The foregoing amount shall be paid on a quarter-annual basis. The Fee shall be due and payable in arrears on the last day of each fiscal quarter, and BC shall make such payment in full no later than twenty (20) days after such date. At such time, in addition to payment of the Fee, BC shall reimburse BGV within thirty (30) days of BC's receipt of an invoice, for BGV's expenses incurred in connection with services performed on behalf of BC for use of outside services, as set forth hereinabove, or outside and reimbursable expenses as set forth hereinbelow.
6. EXPENSES. Except as provided by paragraph 8 of this Agreement, expenses incurred by BGV representatives for travel to the BC timeshare project in Missouri for the purpose of providing services for this Agreement, shall be separately reimbursed to BGV at its cost in accordance with the annual budget of BC. Additionally, BC shall reimburse BGV for allocated costs of and expenses to BGV for overhead for employees and their benefits related to the Bass Pro Stores primary to the LLC after such time as such Bass Pro Stores are activated for the benefit of the LLC.
7. BREACH. In the event of breach of this Agreement by either Party, each Party shall be entitled to all remedies at law or in equity available, including remedies for collection of amounts due, or for equitable relief, including any decree of specific performance of the terms of this Agreement.
8. DISPUTE RESOLUTION PROCEDURE. In the event of any dispute or disagreement between BC and BGV hereunder, either party may give written notification of such dispute or disagreement to the other. If such party giving notice is BC, then the notice shall be given to George Donovan or the person then performing the duties at BGV currently performed by George Donovan ("BGV CEO"), and if such party giving notice is BGV, then notice shall be given to John L. Morris or the person performing the duties at BC currently performed by John L. Morris ("BC CEO") (collectively, the BGV CEO and the BC CEO being referred to herein as the "CEOs"). The CEOs shall communicate with each other promptly upon any notice, with a view to resolving this dispute or disagreement within ninety (90) days of commencing any negotiations (or such extended periods as the CEOs agree is appropriate in any such case). The foregoing shall be a condition precedent to the applicability of the breach section as provided in paragraph 7, hereinabove. During any period of such communications, all services prior to any claimed breach shall continue without any alteration or modification, except as acceptable to the party receiving such services.
9. NOTICES. Any notice or other document to be given hereunder by any party hereto to any other party hereto shall be in writing and delivered by courier or by telecopy transmission or sent by any express mail service, postage or fees prepaid:
If to BGV: Bluegreen Corporation
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Mr. Pat Rondeau
With a copy to: Weinstock & Scavo, P.C.
3405 Piedmont Road, N.E.
Suite 300
Atlanta, Georgia 30305
Attn: James J Scavo, Esq.
If to BC: Big Cedar, L.L.C.
2500 East Kearney Street
Springfield, Missouri 65898
Tel: (417) 339-5100
Fax: (417) 334-3956
Attn: Ms. Toni Miller
With a copy to: Greene & Curtis
1340 East Woodhurst
Springfield, Missouri 65804
Tel: (417) 883-7678
Fax: (417) 864-7206
Attn: J. Christopher Greene, Esq.
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Or at such other address or number for a party as shall be specified by like notice. Any notice which is delivered in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party or its agent.
10. PARTIES BOUND BY AGREEMENT. The terms, conditions and obligations of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Without the prior written consent of the other party, no party hereto may assign such party's rights, duties or obligations hereunder or any part thereof to any other person or entity.
11. NUMBER; GENDER. Whenever the context so requires, the singular number shall include the plural and the plural shall include the singular, and the gender of any pronoun shall include the other genders.
12. HEADINGS. The headings of this Articles and Sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction hereof.
13. MODIFICATION AND WAIVER. Any of the terms or conditions of this Agreement may be waived in writing at any time by the party which is entitled to the benefits thereof. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof.
14. CONSTRUCTION. This Agreement shall be construed in accordance with and governed by the laws of the State of Missouri, exclusive of conflicts of laws principles. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority or by any board of arbitrators by reason of such party or its counsel having or being deemed to have structured or drafted such provision. Unless otherwise expressly provided herein, all references in this Agreement to Section(s) shall refer to the Section(s) of this Agreement. Time is of the essence of this Agreement.
15. NO LIMITATION. The Parties agree that the rights and remedies of any Party under this Agreement shall not operate to limit any other rights and remedies otherwise available to any Party under the Marketing Agreement or otherwise.
16. SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by law, the Parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.
17. TERM. This Agreement shall be for a term of ten (10) years from the date set forth hereinabove.
[SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first above written.
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability Company
By: Bluegreen Vacations Unlimited, Inc.,
a Florida Corporation
By: /s/ Patrick E. Rondeau
-----------------------------------
Print Name: Patrick E. Rondeau
Title: President
|
By: Big Cedar, L.L.C., a Missouri limited liability Company
By: Three Johns Company, a Missouri corporation
By: /s/ Toni M. Miller
-----------------------------------
Print Name: Toni M. Miller
Title: Vice President Finance
|
BLUEGREEN VACATIONS UNLIMITED, INC. a
Florida Corporation
By: /s/ Patrick E. Rondeau
-----------------------------------
Print Name: Patrick E. Rondeau
Title: President
|
EXHIBIT 10.207
SERVICING AGREEMENT
THIS SERVICING AGREEMENT ("Agreement") is effective as of the 16th day of June, of the year 2000, and is made and entered into by and among BLUEGREEN CORPORATION, a Massachusetts corporation (hereafter "Servicer"), BLUEGREEN/BIG CEDAR VACATIONS, LLC, a Delaware limited liability company (hereafter "Company") and Big Cedar, L.L.C., a Missouri limited liability company (hereafter "Big Cedar").
WITNESSETH
WHEREAS, Servicer is experienced in the servicing of timeshare receivables, inclusive of promissory notes and related deeds of trust;
WHEREAS, The Company is in the business of owning and operating a timeshare resort known as the Big Cedar Timeshare Project (hereinafter the "Project"), in which timeshare interests are marketed and sold, and in respect thereto the Company may receive promissory notes and deeds of trust from purchasers thereof;
WHEREAS, It is desirable that the parties hereto enter into an agreement respecting the servicing of promissory notes, purchase documents and deeds of trust received by the Company from certain purchasers of timeshare interests at the Project (such promissory notes, purchase documents and/or deeds of trust collectively referred to herein as the "Contracts").
NOW, THEREFORE, in consideration of the above recitals, and of the representations, warranties and covenants hereafter contained and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Servicer and Company agree as follows:
1. APPLICATION. This Agreement shall apply to all Contracts received from purchasers of timeshare interests at the Project.
2. APPOINTMENT OF SERVICER AS AN INDEPENDENT CONTRACTOR. The Company hereby appoints Servicer as an independent contractor to collect, for the account of Company, all periodic and other payments under the Contracts. Servicer hereby accepts such appointment and agrees to act in accordance with the terms hereof. Servicer shall have only the authority which is expressly conferred upon it by this Agreement.
3. PAYMENTS.
(a) COLLECTION OF PAYMENTS. With respect to all Contracts serviced under this Agreement, Servicer covenants and agrees that during the entire term of this Agreement, Servicer will seek, at its sole cost and expense, to collect promptly all payments due under the Contracts.
(b) AUTHORIZATION TO ACCEPT PAYMENTS. Servicer is only authorized to accept payments as provided in the Contracts or as required by law.
(c) DEFAULT UNDER CONTRACT. Subject to any reinstatement of the defaulted Contracts as may take place, Servicer shall, in case of default of any of the Contracts, forfeit or cancel the rights of the obligor(s) under such Contracts, or institute or assist in instituting, possessory, forfeiture, foreclosure or other proceedings to acquire or terminate the rights of the obligor(s) in and to the timeshare interest; the Servicer in so proceeding at the total cost and expense of the Company.
(d) POST OFFICE BOX. Servicer agrees that it shall establish through the lockbox bank (hereinafter referred to as "Lockbox Bank") a post office box depository to which payments by obligors under the Contracts may be made. Such post office box shall be opened in the name of Company/Servicer (or if required by hypothecation lender to Company, then Servicer may open the lockbox in the name determined by such hypothecation lender). Each obligor, as applicable, will be, as soon as possible after the date of this Agreement, and thereafter periodically as determined by Servicer, instructed to mail their remittances under the Contracts to the above described post office box. Company agrees to take all steps necessary or, in Servicer's opinion, desirable to cause the obligors under the Contracts to mail their remittances to the post office box.
(e) RECEIPT OF PAYMENTS. On the day received, the Lockbox Bank will open all mail addressed to the post office box referred to hereinabove and remove and inspect enclosures. All Checks and other collection remittances and all return items will be processed by the Lockbox Bank according to the terms of the Lockbox Agreement.
(f) PAC ARRANGEMENTS. If payors of Contracts are offered the opportunity to pay such Contracts by electronic funds transfer, PAC arrangements or credit card payments, then such payments shall be processed through the appropriate accounts as opposed to processing by check collection. Such payments shall, otherwise, be subject to the terms hereof.
4. BLUEGREEN/BIG CEDAR VACATIONS, LLC CONTRACTS ACCOUNT.
(a) DEPOSIT OF PAYMENTS. All money orders, checks, drafts and other orders of payment ("Checks") respecting payment on Contracts, and all money and other funds ("Monies") (including electronic fund transfer, PACs, credit card payments or similar arrangements) respecting payment on Contracts received by Servicer or the Lockbox Bank, in accordance with its usual and customary procedures, will be deposited by Servicer or the Lockbox Bank into an account at the bank maintained in the name of Bluegreen/Big Cedar Vacations, LLC (hereinafter the "Account"). In addition to Servicer's or Lockbox Bank's deposit of all Checks and Monies received by it or in the post office box, respectively, to the Account, Company agrees that it will make or cause the obligors under the respective Contracts who are unable or unwilling to remit payments due to the post office box or by electronic fund transfer, PAC arrangements or credit card payments, to instead pay Company directly or by way of transfers to an account of Company and to make deposits into the Account of all such payments. Charges respecting the Account or the post office box and any
other charges, costs or fees incurred pursuant to this Agreement will be billed to and paid directly by Company, and Servicer will not be liable for any such charges, costs or fees. Servicer may deduct from the foregoing payments its fees pursuant to the preceding sentence or to paragraph 5 hereinbelow. The Account shall be opened as an interest-bearing account, if possible, and all such interest shall accrue to the benefit of the Company. If an interest-bearing account is not possible, Servicer shall seek to have a periodic sweep to an interest-bearing account or sweep directly to an account as directed by any hypothecation lender.
(b) MONIES TO BE HELD IN TRUST. All Checks and Monies received by Servicer are to be held in trust for Company until deposited. All Checks and Monies deposited into the Account will become the property of Company upon deposit, and Servicer will have no interest in or control over the Checks and Monies, excepting for its rights of setoff set forth in paragraph 4(a) hereinabove, as applicable.
(c) WITHDRAWALS. Withdrawals from the Account are restricted, and
may be made only by way of draft, wire transfer or electronic
funds transfer payable to Company or pursuant to paragraph
4(a). To the extent that a hypothecation lender does not
otherwise direct, Servicer will arrange to wire transfer to
Company all collected funds received in the Account each
Wednesday to the Company's account number __________ at
_______________, bank transit number ___________, reference
______________, or as may otherwise be specifically directed
by Company. Company and Servicer understand and agree that
Servicer has exclusive control over transfers from the
account. The Servicer shall seek to set up an automated
repetitive wire agreement in respect to the foregoing
transfers.
(d) ACCEPTABLE PAYEE. Servicer or Lockbox Bank will deposit into the Account all Checks on which the payee or endorsee is Company or a reasonable variation of Company ("Acceptable Payee"). Servicer or Lockbox Bank has the right, in its sole discretion, to determine what is a reasonable variation of Acceptable Payee. If the payee is not an Acceptable Payee, Servicer or Lockbox Bank will not deposit the Check in the aforereferenced account. Company agrees to indemnify and hold Servicer or Lockbox Bank harmless from and against all losses, costs, attorney's fees, claims or suits suffered by Servicer or Lockbox Bank arising out of, or in connection with, its depositing Checks payable to or endorsed in favor of Acceptable Payees, except to the extent such damages and losses are as a result of Servicer's or Lockbox Bank's gross negligence or willful acts or omissions.
(e) PAYMENTS RECEIVED BY COMPANY. Company shall cause all payments on Contracts to be made to the Account, and any payment on Contracts which are received by Company shall be delivered by Company to Servicer within two (2) business days after receipt thereof.
(f) ACCOUNTING. Within fifteen (15) days after the end of each fiscal month of the Servicer during the term of this Agreement, Servicer shall deliver to Company a statement showing the then-current balance of the Account and all deposits into and withdrawals from the Account during the immediately preceding calendar month. After the end of each fiscal month, during the term of this Agreement, Servicer shall deliver to Company (a) a trial balance on each of the Contracts including the payments received if any, delinquency status, and a complete breakdown of the payment record as to principal and interest and the outstanding principal balance of each contract; (b) an aging report on each of the Contracts; (c) a collection report on each of the Contracts; and (d) a report on the status of the Contracts, including new sales, forfeitures, foreclosures and cancellations. On or before the fifteenth (15th) day of each fiscal month, Servicer shall deliver to Company a true, correct and complete list of all Contracts which Servicer received in the immediately preceding month.
(g) CHECK DEPOSIT REQUIREMENTS. Subject to any lockbox agreement and legal requirements, Servicer and Lockbox Bank will agree to abide by the following requirements and limitations when depositing Checks in the Account:
(i) In the absence of a Check date, Lockbox Bank will
insert the current date with the date stamp and
process the check as provided in this Agreement.
Lockbox Bank will not deposit Checks postdated three
(3) or more days, or Checks with dates six (6) months
or older.
(ii) If a Check's written and numerical amounts differ, Lockbox Bank will credit the account respecting such Contract for the written amount.
(iii) If the drawer's signature is missing or the Check contains no indication of drawer, Lockbox Bank will not deposit the Check. Otherwise, Servicer will deposit the Check and affix a stamp impression requesting the drawee bank to contact drawer for authority to pay.
(iv) Lockbox Bank will attempt to identify and segregate altered Checks and Checks bearing restrictive notations, such as "payment in full," "balance on account," or "final settlement." All Checks so identified will not be deposited. However, Lockbox Bank will have no liability to any person, including Company, should it process and deposit an altered Check or a Check bearing any such restrictive notation.
(v) Checks drawn in foreign currency will be referred to Servicer.
(vi) Prior to deposit, Lockbox Bank will endorse Checks "Credited to the Account of Within Named Payee, Absence of Endorsement Guaranteed."
(vii) Checks deposited in the account which are returned unpaid because of "insufficient funds," "uncollected funds," or similar reasons, will be redeposited once by Lockbox Bank. If redeposit is not warranted for reasons such as "account closed," or "payment
stopped" or if a Check is returned a second time or there are any other charges or debits resulting from returned or otherwise dishonored Checks, such amounts will be debited from the account.
(viii) All deposited Checks must be microfilmed by Lockbox Bank. Lockbox Bank will retain such microfilmed records for four (4) years as provided hereinabove.
(ix) No services concerning the Account will be provided on any bank holiday prescribed by the Federal Reserve district in which the account is located.
5. SERVICING FEE. Company shall be liable for the payment of a monthly servicing fee to Servicer in the amount of one-twelfth (1/12) of two percent (2%) of the outstanding principal balance at the beginning of the servicing period (the Servicer's fiscal month) of the Contracts. Except as provided in paragraphs 3(c) and 4(a), Company shall have no responsibility or liability for any payment of fees or expenses other than that aforesaid. Servicer shall be entitled to deduct from funds of Company in its possession any of the aforesaid fees which become due from time to time under or pursuant to this Agreement. Servicer shall have all rights, whether statutory, common law or contractual, to set off any indebtedness of Company to Servicer against any of the funds of Company it may have in its possession from time to time.
6. OBLIGATION TO PROVIDE NOTICE.
(a) NOTICE UPON SALE, TRANSFER OR ASSIGNMENT. Servicer will notify Company of any information received by Servicer of the sale, transfer or assignment of any timeshare interest, together with the date of the instrument or order transferring title to the timeshare interest respecting any Contract serviced by Servicer.
(b) NOTICE UPON CONDEMNATION OR EMINENT DOMAIN PROCEEDINGS. Servicer will promptly report and forward to Company any notices or pleadings received in connection with any condemnation or eminent domain proceeding affecting any timeshare interest. Servicer shall also advise Company as to the extent of taking and its effect on such property and shall give its recommendation as to action with respect to such proceedings.
7. UNAUTHORIZED ACTS OF SERVICER. Except as otherwise provided herein, Servicer is not authorized or empowered to waive or vary the terms of any of the Contracts in any material way, and will not at any time waive or consent to the postponement of strict compliance on the part of any obligor with respect to any material term, provision or covenant of any Contract, nor grant, in any other manner, indulgence with respect to any such material term, provision or covenant, without the express written approval of the Company, or an authorized representative of the Company.
8. SERVICER AS MEMBER OF COMPANY. It is recognized and agreed that Servicer is a member of the Company and that to the extent Servicer, in its capacity as a member of the Company, acts as a member, then
Servicer, in its capacity as Servicer, may accept such action as that of the Company. The rights of the Servicer hereunder shall be independent from the rights of Servicer, as a member of the Company, and in no way shall the terms of this Agreement be deemed to limit or restrict the rights of Servicer as a member of the Company.
9. INDEMNIFICATION. The Company, by execution hereof, waives any conflict of interest as may exist between Servicer, in its capacity as Servicer, and Servicer acting as a member of the Company, and agrees to save and hold harmless, to defend and to indemnify, Servicer against all actions, proceedings, claims, demands, losses, outlays, damages or expenses, including legal fees, of any nature and character as may arise or be made against Servicer as a result of Servicer acting in accordance with this Agreement, or which it may in any way incur in defending or prosecuting, settling or discontinuing any such proceeding, action, claim, damage, expense or outlay arising out of any act or omission of Servicer, including any claim arising from Servicer acting as Servicer while being a member of the Company. Company agrees to indemnify and hold Servicer harmless from any loss of any checks or other payments in its possession from whatever cause, except those losses resulting from acts or omissions not within reasonably prudent, common collection practices. Servicer, by execution hereof, agrees to save and hold harmless, Company and to indemnify Company against all actions, proceedings, claims, demands, losses, outlays, damages or expenses, including legal fees of any nature and character as may arise or be made against Company as a result of Servicer's gross negligence or willful acts or omissions in performance of its responsibilities hereunder.
10. AUDIT OF SERVICER'S BOOKS AND RECORDS. Servicer agrees that, during and subsequent to the term of this Agreement, representatives or agents of the Company may, at any time during ordinary business hours, but not more than twice in any one calendar year, and without unreasonable interference with the day-to-day operations of Servicer, examine, audit and make copies of all books, records and documents maintained by Servicer relating to the Contracts. Servicer agrees to maintain all such books, records and documents, including computer tapes, disks and hard copies of all such computer data, in readable form necessary to access and process such data, where they are maintained at the inception of the terms hereof, for a period of four (4) years following termination of this Agreement.
11. TERM. The term of this Agreement shall commence on the date it is executed and delivered by the parties, and shall continue until all Contracts are fully paid, provided, however, that this Agreement may be terminated at any time by Big Cedar, L.L.C. in the event of provable fraud or bad faith of Servicer or by mutual agreement by both Company and Servicer In the event Company and Servicer mutually agree to the termination of this Agreement, Company shall have the right to appoint a successor servicer which shall execute an agreement substantially similar to this Agreement. Fees, costs and expenses charged by any successor servicer shall be payable by Company. Servicer shall deliver to Company (or any subsequent servicer) all existing books, records and documents, including computer readable memory as may be maintained by
Servicer for the continued servicing of the Contracts after any termination of this Agreement. Servicer agrees that such books and records relating to any Contracts shall, following termination of this Agreement, be delivered to Company, provided, however, Company agrees that Servicer shall have the right to maintain copies of such books and records for its own account.
12. CUSTODY OF CONTRACTS AND RELATED DOCUMENTS. Custody of the originals of all Contracts and executed instruments related thereto shall be delivered into the custody of Servicer to hold for and on behalf of the Company in accordance with the terms hereof; provided, however, that the same may be delivered to an acquiror or pledgee thereof, pursuant to the terms of any applicable sale, hypothecation or loan agreement or documents related thereto, including but not limited to any applicable custodial agreement. Servicer agrees to hold such instruments delivered to Servicer subject to the terms hereof, or otherwise subject to the terms of the aforereferenced documents.
13. DUTY OF CARE. Servicer will exercise the same degree of care, and will give the same attention of performance of the obligations pursuant to this Agreement in a manner consistent with the level of skill and care as reasonably may be required in performance of services to be provided hereunder. Servicer shall not be liable for consequential or incidental damages resulting from the inaccuracy of any information furnished to Company or any errors or mistakes in reports prepared by Servicer, except for those caused by the gross negligence or willful misconduct of Servicer, its employees or independent contractors.
14. SECURITY INTEREST. Company acknowledges that so long as any amounts are due by Company to Servicer, or any affiliate of Servicer, Servicer will have a security interest covering the Account and all proceeds thereof to the extent of such indebtedness.
15. ASSIGNMENT. Servicer may assign its rights and delegate the performance of its duties under this Agreement, in part or in full, to any transferee of any of the Contracts, or to any other corporation or entity controlled by, controlling by or under the common control of Servicer, so long as such assignee is able to perform in the same manner as Servicer. The respective rights and duties of Company under this Agreement may not be assigned nor delegated.
16. MODIFICATION. This Agreement represents the entire agreement with respect to the servicing of Contracts and supersedes all prior agreements related thereto. This Agreement may not be changed or terminated orally and no modification, termination or attempted waiver shall be valid unless in writing and signed by all parties or in the case of waiver, signed by the party against whom the same is sought to be enforced.
17. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one agreement.
18. ATTORNEY'S FEES. If any attorney is engaged (a) to collect any sums due or enforce any obligations of Servicer under this Agreement, whether or not legal proceedings thereafter have been instituted; (b) to represent
Servicer in any bankruptcy, reorganization, receivership or other proceeding affecting creditor's rights and involving a claim under this Agreement or any Contract, except in the event of Servicer's bankruptcy, reorganization or receivership; or (c) to represent Servicer in any other proceedings whatsoever in connection with this Agreement, including post-judgment proceedings, to enforce any judgment related to this Agreement; or (d) in connection with seeking an out-of-court workout or settlement of any of the foregoing, then Company shall pay to Servicer all costs, reasonable attorneys fees and expenses in connection therewith, in addition to all other amounts due hereunder; provided, however, that the Company shall not be responsible for payment as aforesaid if the attorney's fees, costs and expenses are incurred as a result of Servicer's gross negligence or willful acts or omissions.
19. EXECUTION OF ADDITIONAL DOCUMENTS. Company and Servicer agree to execute and deliver to each other, from time to time, any additional instruments and documents necessary or desirable to effectuate, finalize, record or perfect the transactions contemplated under this Agreement.
20. PERFORMANCE BY LOCKBOX BANK. Any performances by Servicer hereunder may be performed by the Lockbox Bank.
21. NOTICES. Any notice or communication required or permitted to be given
hereunder shall be in writing, addressed to the respective party as set
forth below, or such different address as any party may, from time to
time, give notice of, in accordance with the provisions of this
section, and may be personally served, telecopied or sent by overnight
courier or U.S. mail, 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. Boca Raton, Florida time (any notice received after
such time shall be deemed received on the next business day), provided
that a hard copy of such notice is also sent pursuant to clause (c) or
(d); (c) if by overnight courier, on the first business day after
delivery by the courier; or (d) if by U.S. mail, on the fourth day
after deposit in the mail, postage prepaid, certified mail, return
receipt requested.
If to Servicer: Bluegreen Corp.
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Mr. Patrick Rondeau
If to Company: Bluegreen/Big Cedar Vacations, LLC
C/o Bluegreen Corp.
4960 Blue Lake Drive
Boca Raton, Florida 33431
With copy to: Big Cedar, L.L.C.
2500 East Kearney Street
Ridgedale, Missouri 65898
Attn: Toni Miller
|
22. BENEFIT. This Agreement shall bind and inure to the benefit of Servicer and Company, and to their respective successors and permitted assignees.
23. INTERPRETATION. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the State of Missouri.
24. FORCE MAJEURE. Servicer shall not be liable to Company nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of the Agreement, provided such failure or delay is caused by or results from a Force Majeure. As used herein, "Force Majeure" shall mean any event that is beyond the reasonable control of and not the fault of Servicer, including without limitation, acts of God or nature, acts of public enemy, civil or military conflicts, labor disturbances, communications line failure and acts or inactions of a governmental authority or a third party. Notwithstanding the foregoing, this paragraph does not limit a party's right to terminate this Agreement under paragraph 11 hereinabove.
IN WITNESS WHEREOF the parties hereto have executed and delivered this Agreement as of the date first written above.
SERVICER:
BLUEGREEN CORPORATION, a Massachusetts
corporation
By: /s/ George F. Donovan ------------------------------------ Print Name: George F. Donovan Title: President / CEO |
COMPANY:
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
By: /s/ Patrick E. Rondeau ------------------------------------ Print Name: Patrick E. Rondeau Title: President |
BIG CEDAR, L.L.C., a Missouri limited liability company
By: Three Johns Company, its sole member
By: /s/ Toni M. Miller ------------------------------------ Print Name: Toni M. Miller Title: Vice President Finance |
| ARTICLE 5 |
| MULTIPLIER: 1,000 |
| PERIOD TYPE | 3 MOS |
| FISCAL YEAR END | APR 01 2001 |
| PERIOD START | APR 03 2000 |
| PERIOD END | JUL 02 2000 |
| CASH | 34,660 |
| SECURITIES | 14,935 |
| RECEIVABLES | 104,770 |
| ALLOWANCES | 3,493 |
| INVENTORY | 195,576 |
| CURRENT ASSETS | 0 1 |
| PP&E | 46,618 |
| DEPRECIATION | 9,519 |
| TOTAL ASSETS | 418,318 |
| CURRENT LIABILITIES | 0 1 |
| BONDS | 225,670 |
| PREFERRED MANDATORY | 0 |
| PREFERRED | 0 |
| COMMON | 269 |
| OTHER SE | 136,524 |
| TOTAL LIABILITY AND EQUITY | 418,318 |
| SALES | 62,207 |
| TOTAL REVENUES | 74,542 |
| CGS | 21,883 |
| TOTAL COSTS | 28,477 |
| OTHER EXPENSES | 0 |
| LOSS PROVISION | 1,035 |
| INTEREST EXPENSE | 3,641 |
| INCOME PRETAX | 4,462 |
| INCOME TAX | 1,718 |
| INCOME CONTINUING | 3,012 |
| DISCONTINUED | 0 |
| EXTRAORDINARY | 0 |
| CHANGES | 0 |
| NET INCOME | 3,012 |
| EPS BASIC | 0.12 |
| EPS DILUTED | 0.12 |
| 1 | THE COMPANY HAS AN UNCLASSIFIED BALANCE SHEET. |