FULL GUARANTY

 

                                                                  Exhibit 10.153

 

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                                  FULL GUARANTY

 

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      THIS GUARANTY   AGREEMENT (this   "Guaranty") is made as of January 10, 2005

(the "Effective   Date") by BLUEGREEN   CORPORATION,   a Massachusetts   corporation

(the   "Guarantor"),   in favor of RESORT   FINANCE   LLC, a   Massachusetts   limited

liability company (the "Lender").

 

                                R E C I T A L S:

 

      A. Lender and Bluegreen Vacations   Unlimited,   Inc., a Florida corporation

("Borrower")   are entering into a Loan Agreement   dated as of even date herewith

(as from time to time amended,   the "Loan Agreement"),   pursuant to which Lender

has   agreed   to   make to   Borrower   a   revolving   acquisition,   development   and

construction loan in the maximum principal amount of $50,000,000   ("Loan").   The

Loan is evidenced by a Revolving   Promissory   Note executed by Borrower in favor

of Lender   dated as of even date   herewith   (as from time to time   amended,   the

"Note").

 

      B. As a condition   to making the Loan,   the Lender has   required   that the

Guarantor execute and deliver this Guaranty guaranteeing the payment of the Loan

and performance of the Borrower's obligations under the Loan Documents.

 

                               A G R E E M E N T:

 

      NOW,   THEREFORE,   in order to induce   the   Lender   to enter   into the Loan

Agreement   and to make the Loan,   and in   consideration   thereof,   the Guarantor

hereby agrees as follows:

 

      Section 1. Guaranty.

 

      a. The Guarantor hereby absolutely and   unconditionally   guarantees to the

Lender the   payment,   as and when the same shall be due and   payable   whether by

lapse of time,   by   acceleration   of   maturity   or   otherwise,   and at all times

thereafter,   of (i) the principal of the Loan, (ii) all interest,   fees,   costs,

expenses, indemnification, indebtedness and other sums of money now or hereafter

due and   owing   by the   Borrower   to the   Lender   in   connection   with   the Loan

Agreement (including, without limitation, those arising pursuant to the terms of

the Note, the Loan Agreement,   and any of the other loan documents corresponding

to the Loan   (collectively,   the "Loan   Documents")),   and   (iii) all   renewals,

extensions,   refinancings,   modifications or amendments of such   indebtedness or

any part thereof   (collectively,   the   "Monetary   Obligations").   This   Guaranty

covers   the   Monetary   Obligations   whether   currently   outstanding   or   arising

subsequent to the date hereof   including   all amounts   advanced by the Lender in

stages or   installments.   The   guaranty   of the   Guarantor   as set forth in this

Section 1.a is a guaranty of payment and not of collection.

 

      b.   The   Guarantor   hereby   further    irrevocably,    unconditionally    and

absolutely   guarantees   to the   Lender   the due and   prompt   performance   by the

Borrower of all duties,   agreements and obligations of the Borrower contained in

the Loan   Documents,   and the due and prompt   payment of all costs and   expenses

incurred, including, without limitation, reasonable attorneys' fees, court costs

 

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and all other litigation   expenses   (including but not limited to expert witness

fees,   exhibit   preparation,   and courier,   postage,   communication and document

copying   expenses),   in   enforcing   the   payment   and   performance   of the   Loan

Documents (the   "Performance   Obligations").   The Monetary   Obligations   and the

Performance   Obligations   are   collectively    hereinafter   referred   to   as   the

"Indebtedness."

 

      c. In addition,   the Guarantor hereby agrees to pay any and all reasonable

costs and expenses (including,   without limitation,   reasonable attorneys' fees,

but without regard to any statutory presumption) incurred by the Lender to third

parties in enforcing any rights or remedies under this Guaranty.

 

      d. All amounts due under this Guaranty shall bear interest,   to the extent

permitted by law,   from the date due until paid at the Default   Rate, as defined

in the Note.

 

      Section 2. Guaranty Absolute.

 

      a. The Guarantor guarantees that the Indebtedness will be paid strictly in

accordance   with   the   terms   of the   Loan   Documents   regardless   of   any   law,

regulation or order now or hereafter in effect in any jurisdiction affecting any

of such terms or the rights of the Lender with respect thereto. The liability of

the Guarantor under this Guaranty shall be a continuing,   absolute,   irrevocable

and unconditional guarantee of payment irrespective of:

 

            i.   any   lack   of   validity   or   enforceability   of any of the   Loan

Documents   or any   renewal,   extension   or   modification   thereof   (or any other

agreement or instrument relating thereto);

 

            ii. any change in the time, manner or place of payment of, or in any

other term of, all or any of the Indebtedness,   or any other amendment or waiver

of or any consent to departure from the Hazardous   Substances,   Remediation   and

Indemnification   Agreement,   the Note, any deed of trust, the Loan Agreement, or

any of the other Loan Documents,   including, without limitation,   changes in the

terms of disbursement of the Loan proceeds or repayment thereof, modification to

any of the   Plans   and   Specifications   by any of the   Borrower,   modifications,

extensions (including extensions beyond and after the original term) or renewals

of payment   dates,   changes in interest   rate or the   advancement   of additional

funds by the Lender in its discretion;

 

            iii. any exchange,   release or nonperfection   of any collateral,   or

any release or amendment or waiver of, or consent to departure   from,   any other

guaranty, for all or any of the Indebtedness; or

 

            iv.   any   other   circumstances   (INCLUDING   THE   SOLE OR   CONCURRENT

NEGLIGENCE OF LENDER) which might otherwise   constitute a defense   available to,

or a discharge of, any of the entities comprising the Borrower in respect of the

Indebtedness or to the Guarantor in respect of this Guaranty, excepting only the

Lender's   gross   negligence or willful   misconduct in its failure to perform its

obligations   to any of the   entities   comprising   the   Borrower   under   the Loan

Agreement;

 

      b. Notwithstanding any termination of this Guaranty or the cancellation of

the Note or any other agreement evidencing the Indebtedness,   if at any time any

payment   or   performance   of   any of   the   Indebtedness   (from   any   source)   is

rescinded, repaid or must otherwise be returned by the Lender (i) due to or upon

the insolvency,   bankruptcy or   reorganization of the Borrower or the

 

 

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Guarantor,   or (ii) for any other circumstance,   this Guaranty shall continue to

be   effective or be   reinstated,   as the case may be, all as though such payment

had not been made.

 

      Section 3.   Subrogation.   During an Event of Default   or   subsequent   to a

Potential   Default,   the Guarantor shall not accept payment from Borrower by way

of   contribution   on account of any payment   made   hereunder   by Borrower to the

Lender,   and the   Guarantor   will not take any action to exercise or enforce any

rights to such   contribution.   If any amount   shall be paid to the   Guarantor on

account of such subrogation   rights at any time when all the Indebtedness   shall

not have   been   paid or   performed   in full,   during   an   Event   of   Default   or

subsequent   to a Potential   Default   such amount   shall be held in trust for the

benefit of the Lender and shall   forthwith   be paid to the Lender to be credited

and applied upon the Indebtedness,   whether matured or unmatured,   in such order

as the Lender, in its sole and absolute discretion, shall determine. Any lien or

charge on any real or personal property subject to a lien in favor of Lender, or

the revenue and income to be realized   therefrom,   and all rights in and to such

property,   which the   Guarantor   may have or obtain as security for any loans or

advances shall be, and such lien or charge hereby is,   subordinated to the liens

and to the   indebtedness   of the   Borrower to the Lender   under the Note and the

other Loan Documents.

 

      Section 4. Guaranty Independent; Waivers.

 

      a. The Guarantor agrees that (i) the obligations hereunder are independent

of and in addition to the undertakings of the Borrower and the Guarantor, as and

to the extent applicable, pursuant to the Hazardous Substances,   Remediation and

Indemnification   Agreement   and   the   other   Loan   Documents,   any   evidence   of

indebtedness   issued   in   connection   therewith,   any deed of trust or   security

agreement   given to secure the same,   any other   guaranties   given in connection

with the Loan and any other   obligations of the Guarantor to the Lender,   (ii) a

separate   action may be brought to enforce   the   provisions   hereof   whether the

Borrower is a party in any such action or not, (iii) the Lender may at any time,

or from time to time, in its sole   discretion,   without any notice to or consent

from the   Guarantor,   (A)   modify   the   Hazardous   Substances,   Remediation   and

Indemnification   Agreement and the other Loan   Documents to extend or change the

time of payment and/or performance and/or the manner,   place or terms of payment

and/or   performance   of   all   or any of   the   Indebtedness,   and/or   to   include

additional Projects,   Borrowers and/or Project Owners; (B) exchange,   release or

compromise any of the Indebtedness;   (C) exchange,   release and/or surrender all

or any of the collateral security, or any part thereof, by whomsoever deposited,

which is now or may   hereafter be held by the Lender in   connection   with all or

any of the   Indebtedness;   (D) if and as permitted by the Loan   Documents,   sell

and/or   purchase all or any such collateral at public or private sale, or at any

broker's board, in the manner permitted by law and after giving any notice which

may be required,   and after   deducting   all costs and expenses of every kind for

collection,   sale or delivery,   the net proceeds of any such sale may be applied

by the Lender upon all or any of the Indebtedness;   and (E) settle or compromise

with the Borrower,   and/or any other person liable   thereon,   any and all of the

Indebtedness,   and/or   subordinate the payment of same, or any part thereof,   to

the payment of any other debts or claims,   which may at any time be due or owing

to the Lender and/or any other person or corporation,   and (iv) the Lender shall

be under no   obligation   to marshal any assets in favor of the   Guarantor   or in

payment of the   Indebtedness.   The Guarantor   agrees that the Lender may without

notice to the   Guarantor   sell,   assign,   or transfer   all or any portion of the

indebtedness,   obligations, and liabilities of the Borrower, and, in that event,

each and every successive assignee,   transferee, or holder of all or any part of

said indebtedness,   obligations,   or liabilities shall have the right to enforce

this Guaranty by suit or other remedy as fully as if such assignee,   transferee,

or holder   were   herein by name   specifically   given such   rights,   powers,   and

benefits;   provided,   however, that the Lender

 

 

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shall   have   an   unimpaired   right   to   enforce   this   Guaranty   for   any of its

liabilities that it has not sold, assigned, or transferred.

 

      b. Except as otherwise   provided in the Loan Documents,   Guarantor   hereby

waives (i) presentment,   demand,   acceleration,   intent to accelerate,   protest,

notice of acceptance, notice of dishonor, notice of nonperformance and any other

notice with   respect to any of the   Indebtedness   and this   Guaranty   (except as

otherwise expressly provided herein),   and promptness in commencing suit against

any party   thereto or liable   thereon,   and/or in giving any notice to or making

any claim or demand hereunder upon the Guarantor,   (ii) any right to require the

Lender to (A) proceed   against the Borrower,   (B) proceed against or exhaust any

security held from the Borrower,   or (C) pursue any remedy in the Lender's power

whatsoever;   (iii) any   defense   arising   by reason of any   disability   or other

defense of the Borrower or by reason of the cessation from any cause   whatsoever

of the liability of the Borrower   other than full payment or   performance of the

Indebtedness; (iv) any defense it may acquire by reason of the Lender's election

of any remedy against it or the Borrower or both, including, without limitation,

election by the Lender to exercise   its rights under the power of sale set forth

in any deed of trust,   even though   rights of   subrogation   of the Guarantor may

thereby   be   impaired   or   extinguished;   (v) any and all   suretyship   defenses,

including   any   defense   based   on   lack   of   due   diligence   by the   Lender   in

collection,   protection or realization   upon any collateral   (vi) to the fullest

extent   permitted   by law,   (A) any defense   arising as a result of the Lender's

election,   in any   proceeding   instituted   under   the   Bankruptcy   Code,   of the

application of Section   1111(b)(2) of the   Bankruptcy   Code, and (B) any defense

based on any borrowing or grant of a security   interest under Section 364 of the

Bankruptcy   Code; and (vii) the benefit of any statute of limitations   affecting

the liability of the Guarantor hereunder or the enforcement thereof.

 

      Section   5.   Does Not   Supersede   Other   Guaranties.   The   individual   and

collective   obligations of the Guarantor   hereunder   shall be in addition to any

obligations   of the Guarantor   under any other   guaranties   of the   Indebtedness

and/or   any   obligations   of the   Borrower   or any   other   persons   or   entities

heretofore given or hereafter to be given to the Lender, and this Guaranty shall

not   affect or   invalidate   any such   other   guaranties.   The   liability   of the

Guarantor   to the   Lender   shall at all   times   be   deemed   to be the   aggregate

liability   of the   Guarantor   under the terms of this   Guaranty and of any other

guaranties heretofore or hereafter given by the Guarantor to the Lender or to an

Affiliate,   successor   or assign of the Lender in   connection   with the Loan and

Loan Documents.

 

      Section 6. Representations and Warranties.   The Guarantor hereby makes the

following representations and warranties:

 

      a. Benefit.   The Guarantor may reasonably   expect to benefit,   directly or

indirectly,   from the making of this   Guaranty and from each and every   renewal,

extension,   modification,   alteration,   refinancing, and rearrangement of all or

any part of the Indebtedness,   the release of collateral or other relinquishment

of legal   rights   made or   granted or to be made or granted by the Lender to the

Borrower and the amendment or   modification   of the terms and   conditions of the

Indebtedness.

 

      b. Power and Authority.

 

            i. The Guarantor   has the   requisite   power and authority to own and

manage its   properties,   to carry on its business as now being   conducted and to

perform its obligations hereunder.

 

 

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            ii. The   Guarantor is in   compliance   with all   corporate   and other

applicable   laws,   regulations,   ordinances   and   orders of   public   authorities

applicable to it.

 

      c. Validity of Guaranty.

 

            i. The execution,   delivery and pe