FOURTH AMENDMENT TO LOAN AGREEMENT AND OTHER
LOAN DOCUMENTS
This
Fourth Amendment to Loan Agreement and Other Loan Documents (this
“ Amendment ”), dated as of July 1, 2009
(subject to the effectiveness hereof as provided in Paragraph
12 below, the “ Effective Date
”), is entered into by and among (i) B
LUEGREEN
C ORPORATION OF T HE R OCKIES , a Delaware corporation ( “
Bluegreen of the Rockies ” ), (ii)
B LUEGREEN G OLF C LUBS , I NC . , a
Delaware corporation ( “ Bluegreen Golf ”
), (iii) B LUEGREEN P ROPERTIES OF V IRGINIA , I NC . , a
Delaware corporation ( “ Bluegreen Virginia
” ), (iv) B LUEGREEN S OUTHWEST O NE ,
L.P., a Delaware limited
partnership ( “ Bluegreen Southwest ” ),
(v) C ATAWBA F ALLS , LLC , a North Carolina limited liability company (
“ Catawba Falls ” ), (vi) B
LUEGREEN
C OMMUNITIES OF T EXAS , L.P. , a Delaware limited partnership ( “
Bluegreen Texas ” ), (vii) BLUEGREEN C OMMUNITIES OF G EORGIA , LLC , a Georgia limited liability company (
“ Bluegreen Georgia ” )
(collectively, “ Borrower ”), (viii)
B LUEGREEN C ORPORATION , a
Massachusetts corporation ( “ Bluegreen ”
, and collectively with Borrower, the “ Borrower
Parties ” ), and (ix) RFC C
ONSTRUCTION
F UNDING , LLC , a Delaware limited liability company, formerly
known as RFC Construction Funding Corp., a Delaware corporation
(“ RFC ”).
R E C I T A
L S :
A. Residential
Funding Company, LLC, a Delaware limited liability company,
formerly known as Residential Funding Corporation, a Delaware
corporation ( “ Original Lender ” ) made
a loan (the “ Loan ”) to Borrower in the
amount of up to SEVENTY-FIVE MILLION AND NO/100 DOLLARS
($75,000,000.00), governed by that certain Loan Agreement, dated as
of September 25, 2002, entered into by and between Borrower and
Original Lender, as amended by (i) that certain First Amendment to
Loan Agreement, dated as of February 18, 2003; (ii) that certain
Second Amendment to Loan Agreement and Other Loan Documents, dated
as of May 10, 2005; and (iii) that certain Third Amendment to Loan
Agreement and Other Loan Documents, dated as of October 21, 2005
(as the same may have been amended, restated, or modified from time
to time, the “ Loan Agreement ” ),
and evidenced by that certain Revolving Promissory Note, dated as
of September 25, 2002, executed by Borrower, as maker,
payable to Original Lender in the stated principal amount of
$50,000,000.00, and by that certain Revolving Promissory Note,
dated as of May 10, 2005, executed by Borrower, as maker,
payable to Original Lender in the stated principal amount of
$25,000,000.00 (as the same may be amended, restated, or modified
from time to time, collectively, the “
Notes ”) (all such indebtedness being
hereinafter referred to as the “
Indebtedness ”).
B. Original
Lender previously assigned all right, title and interest in and to
the Loan Agreement and all Loan Documents (as defined in the Loan
Agreement, hereinafter collectively, the “ Loan
Documents ” ), but not the funding obligations as
lender thereunder (which obligations were specifically reserved by
Original Lender), to RFC. RFC is the owner of all right, title and
interest in and to the Loan Documents, and Original Lender is
obligated under the Loan Documents for such funding or loan
obligations thereunder, as may be applicable. Unless otherwise
indicated, all capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Loan Agreement, as
applicable.
C. Borrower’s
obligations to RFC under the Notes and the Loan Documents are
secured by, among other things:
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(i)
the following documents with respect to that certain RC Martin
Marietta (Havenwood) Project located in Comal County, Texas (the
“ Havenwood Project ”):
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(1)
that certain Construction Deed of Trust with Security Agreement and
Fixture Filing with Assignment of Rents, Proceeds and Agreements,
dated as of July 20, 2005 (the “ Havenwood Deed
of Trust ” ), filed for record on July 21, 2005,
under Clerk’s File No. 200506026535 in the Official
Public Records of Comal County, Texas, executed by Bluegreen
Southwest in favor of Robert W. Bramlette, as trustee, for the
benefit of RFC, granting to RFC a first-priority lien on the
Havenwood Project, together with all improvements existing or to be
placed on said land, and all fixtures, equipment and personal
property located
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 1
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Bluegreen
Communities
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on it and various rights in
connection with it, together with all hereditaments and
appurtenances pertaining to said land; and
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(2)
that certain Assignment of Construction Items, dated as of July 20,
2005, executed by Bluegreen Southwest in favor of RFC, granting to
RFCa first-priority security interest in and lien on the personal
property in connection with the Havenwood Project more particularly
described therein;
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(ii)
the following documents with respect to that certain RC Altimore
953 (King Oaks) Project located in Grimes County, Texas (the
“ King Oaks Project ”):
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(1)
that certain Construction Deed of Trust with Security Agreement and
Fixture Filing with Assignment of Rents, Proceeds and Agreements,
dated as of June 27, 2006 (the “ King Oaks Deed
of Trust ” ), filed for record on October 30, 2006,
in Volume 1192, Page 567, in the Official Public Records of Grimes
County, Texas, executed by Bluegreen Southwest in favor of Robert
W. Bramlette, as trustee, for the benefit of RFC, granting to RFC a
first-priority lien on the King Oaks Project, together with all
improvements existing or to be placed on said land, and all
fixtures, equipment and personal property located on it and various
rights in connection with it, together with all hereditaments and
appurtenances pertaining to said land; and
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(2)
that certain Assignment of Construction Items, dated as of June 27,
2006, executed by Bluegreen Southwest in favor of RFC, granting to
RFC a first-priority security interest in and lien on the personal
property in connection with the King Oaks Project more particularly
described therein;
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(iii)
the following documents with respect to that certain RC Martin
Ranch (The Bridges) Project located in Grayson County, Texas (the
“ Bridges Project ”):
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(1)
that certain Construction Deed of Trust with Security Agreement and
Fixture Filing with Assignment of Rents, Proceeds and Agreements,
dated as of March 1, 2006 (the “ Bridges Deed of
Trust ” ), filed for record on March 2, 2006, under
Clerk’s File No. 200600005244 in the Official Public Records
of Grayson County, Texas, executed by Bluegreen Texas in favor of
Robert W. Bramlette, as trustee, for the benefit of RFC, granting
to RFC a first-priority lien on the Bridges Project, together with
all improvements existing or to be placed on said land, and all
fixtures, equipment and personal property located on it and various
rights in connection with it, together with all hereditaments and
appurtenances pertaining to said land; and
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(2)
that certain Assignment of Construction Items, dated as of March 1,
2006, executed by Bluegreen Texas in favor of RFC, granting to RFC
a first-priority security interest in and lien on the personal
property in connection with the Bridges Project more particularly
described therein;
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(iv)
the following documents with respect to that certain Rompel 3316
(Vintage Oaks) Project located in Comal County, Texas (the “
Vintage Oaks Project ”):
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(1)
that certain Construction Deed of Trust with Security Agreement and
Fixture Filing with Assignment of Rents, Proceeds and Agreements,
dated as of April 25, 2006 (the “ Vintage Oaks
Deed of Trust ” ), filed for record on April 26,
2006, under Clerk’s File No. 200606016592 in the Official
Public Records of Comal County, Texas, executed by Bluegreen
Southwest in favor of Robert W. Bramlette, as trustee, for the
benefit of RFC, granting to RFC a first-priority lien on the
Vintage Oaks Project, together with all improvements existing or to
be placed on said land, and all fixtures, equipment and personal
property located on it and various rights in connection with it,
together with all hereditaments and appurtenances pertaining to
said land; and
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(2)
that certain Assignment of Construction Items, dated as of April
25, 2006, executed by Bluegreen Southwest in favor of RFC, granting
to RFC a first-priority security interest in and
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 2
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Bluegreen
Communities
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lien on the personal property in
connection with the Vintage Oaks Project more particularly
described therein; and
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(v)
the following documents with respect to that certain Sanctuary Cove
Project located in Camden County, Georgia (the “
Sanctuary Cove Project ”):
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(1)
that certain Deed to Secure Debt and Security Agreement, dated as
of February 16, 2007 (the “ Sanctuary
Cove Deed to Secure Debt ” ), filed for record on
February 26, 2007, in Book 1223, Page 79 in the Office of the
Georgia Clerk of Superior Court, Camden County, Georgia, executed
by Bluegreen Georgia in favor of RFC, granting to RFC a
first-priority lien on the Sanctuary Project, together with all
improvements existing or to be placed on said land, and all
fixtures, equipment and personal property located on it and various
rights in connection with it, together with all hereditaments and
appurtenances pertaining to said land; and
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(2)
that certain Assignment of Construction Items, dated as of February
16, 2007, executed by Bluegreen Georgia in favor of RFC, granting
to RFC a first-priority security interest in and lien on the
personal property in connection with the Sanctuary Project more
particularly described therein.
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D. Borrower’s
obligations to RFC under the Notes and the Loan Documents are also
secured by, among other things:
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(1)
with respect to that certain golf course project located in
Brunswick County, North Carolina and commonly known as
“Carolina National” (the “ Carolina
National Golf Course Collateral ” ), that certain
Construction Deed of Trust with Security Agreement and Fixture
Filing with Assignment of Rents, Proceeds and Agreements, dated as
of September 25, 2002 (the “ Carolina National
Golf Course Deed of Trust ” ), filed for record on
September 30, 2002, under Clerk’s File No. 129634, Book 1638,
pg 403 in the Register of Deeds Office of Brunswick County, North
Carolina, executed by Bluegreen Golf in favor of Thomas A.
Macdonnel, Jr. and David H. Peterson, collectively as trustee, for
the benefit of RFC, granting to RFC a first-priority lien on the
Carolina National Golf Course Collateral, together with all
improvements existing or to be placed on said land, and all
fixtures, equipment and personal property located on it and various
rights in connection with it, together with all hereditaments and
appurtenances pertaining to said land; and
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(2)
with respect to that certain golf course project located in Chatham
County, North Carolina and commonly known as “The
Preserve” (the “ Preserve Golf Course
Collateral ” ), that certain Construction Deed of
Trust with Security Agreement and Fixture Filing with Assignment of
Rents, Proceeds and Agreements, dated as of September 25, 2002
(the “ Preserve Golf Course Deed of Trust
” ), filed for record on September 30, 2002, under
Clerk’s File No. 012905, Book 960, Page 902 in the
Register of Deeds Office of Chatham County, North Carolina,
executed by Bluegreen Golf in favor of Thomas A. Macdonnel, Jr. and
David H. Peterson, collectively as trustee, for the benefit of RFC,
granting to RFC a first-priority lien on the Preserve Golf Course
Collateral, together with all improvements existing or to be placed
on said land, and all fixtures, equipment and personal property
located on it and various rights in connection with it, together
with all hereditaments and appurtenances pertaining to said
land;
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The
Carolina National Golf Course Collateral and the Preserve Golf
Course Collateral are collectively referred to herein as the
“ Existing Golf Course Collateral ”
.
E. Borrower’s
obligations to RFC under the Notes and the Loan Documents are also
secured by, among other things, that certain Guaranty Agreement,
dated as of September 25, 2002 (the “ Guaranty
” ), executed by Bluegreen in favor of Original
Lender.
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 3
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Bluegreen
Communities
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F. RFC
and the Borrower Parties hereby desire to modify the Loan Agreement
and the Loan Documents as herein provided, subject to the terms,
conditions, covenants and limitations contained in this
Amendment.
A C K N O W
L E D G M E N
T S :
(a) The
Borrower Parties and RFC hereby acknowledge and agree to the
accuracy of all Recitals included in this Amendment.
(b) The
Borrower Parties acknowledge and agree that (i) as of July 1, 2009,
the outstanding principal amount of the Indebtedness is
$57,607,367.96 (the “ Current Outstanding Loan
Amount ” ), exclusive of costs, fees, and other
expenses payable by Borrower under the Loan Agreement, and (ii) the
Indebtedness is without offset, reduction, or
counterclaim.
A G R E E M
E N T :
NOW,
THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally
bound, agree to the above Recitals, Acknowledgments and as
follows:
1.
Definitions . All capitalized terms used but not
otherwise defined in this Amendment shall have the meanings
ascribed to them in the Loan Agreement. Unless otherwise specified,
all section references herein refer to sections of the Loan
Agreement.
2.
No Further Obligation to Advance . The Borrower
Parties hereby acknowledge and agree that, notwithstanding anything
to the contrary set forth in Section 2.1 of the Loan
Agreement, from and after the Effective Date, Original Lender
(including its predecessors, successors, assigns or affiliates)has
no prior or further obligation whatsoever to advance Loan
disbursements under the Loan Agreement or otherwise.
3.
Funding Costs of Development Work and Interest
Payments . From and after the Effective Date, Borrower
agrees to fund any and all costs of Development Work and interest
payments under the Loan directly out of its own funds.
4.
Revised Base Rate and Default Rate . As of the
Effective Date, the definition of “Base Rate” and
“Default Rate”, as used in the Notes, shall be
redefined as set forth in the Addenda to Notes (as hereinafter
defined).
5.
Extended Maturity Date . As of the Effective Date,
the definition of “Maturity Date”, as set forth in
Section 1.1 of the Loan Agreement, shall be redefined as
follows:
“Maturity Date”
means the first to occur of (i)
December 31, 2012, or (ii) the date on which the Loan is required
to be repaid pursuant to Section 8.2 .
6.
Immediate Principal Repayment; Extension Fee; Reduction of
Loan Amount . On the Effective Date: (i) Borrower
shall make a principal repayment of the Loan to RFC in the amount
of $10,000,000.00 (the “ Principal Paydown
” ); (ii) an extension fee in the amount of one percent
(1%) of the Current Outstanding Loan Amount, equal to $576,073.68
(the “ Extension Fee ” ); and
(iii) the Loan Amount will be immediately reduced to
$47,607,367.96. Notwithstanding the Principal Paydown, subsequent
principal repayments and other amounts due under the Note and Loan
Documents shall be paid by Borrower as provided for in the Loan
Agreement, as amended hereby.
7.
Addenda to Notes . On the Effective Date, Borrower
shall execute and deliver to RFC the Addenda to the Notes in the
form attached hereto as Schedule 1-A and
1-B (the “ Addenda to Notes
” ).
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 4
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Bluegreen
Communities
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8.
Additional Mandatory Principal Reduction . Effective
as of the Effective Date, a new Section 2.7(6) shall be
inserted into the Loan Agreement, as follows:
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(6) No
later than the dates set forth below, Borrower shall be required to
make the following minimum cumulative principal payments, inclusive
of all principal payments made to RFC (including RFC’s
predecessors, successors, assigns or affiliates) on the Loan since
the Effective Date, inclusive of the Principal Paydown:
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Payment Date
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Minimum Cumulative Principal
Reduction
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1/8/2010
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$
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12,000,000
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4/8/2010
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$
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14,000,000
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7/8/2010
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$
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16,000,000
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10/8/2010
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$
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18,000,000
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1/8/2011
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$
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20,000,000
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4/8/2011
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$
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22,000,000
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7/8/2011
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$
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24,000,000
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10/8/2011
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$
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26,000,000
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1/8/2012
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$
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28,000,000
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4/8/2012
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$
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30,000,000
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7/8/2012
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$
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32,000,000
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10/8/2012
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$
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34,000,000
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12/31/2012
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Remaining Balance Due
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9.
Liens on Additional Collateral .
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(a)
The Golf Club at Brickshire . Contemporaneously with the execution of this
Amendment, Bluegreen Golf shall execute, acknowledge, and deliver
to RFC: (i) the Construction Deed of Trust, Security Agreement and
Fixture Filing with Assignment of Rents, Proceeds and Agreements in
the form attached hereto as Schedule 2-A
(the “ Brickshire Deed of Trust ”
), granting to RFC a first-priority lien and security interest to
secure the Indebtedness in and to that portion of the real property
commonly known as “The Golf Club at Brickshire”,
located in New Kent County, Virginia (the “ Brickshire
Project ” ); (ii) the Assignment of Construction
Agreements and Development Items in the form attached hereto as
Schedule 3-A (the “
Brickshire Assignment ” ), granting to RFC a
first-priority security interest in certain documents, agreements
and other items relevant to the development of the Brickshire
Project; and (iii) the Hazardous Substances Remediation and
Indemnification Agreement in the form attached hereto as
Schedule 4-A (the “
Brickshire HazMat Indemnity ” ), indemnifying RFC
with respect to claims and obligations regarding hazardous
materials on, in, or about the Brickshire Project.
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 5
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Bluegreen
Communities
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(b)
The Golf Club at Chapel Ridge . Contemporaneously
with the execution of this Amendment, Bluegreen Golf execute,
acknowledge, and deliver to RFC: (i) the Construction Deed of
Trust, Security Agreement and Fixture Filing with Assignment of
Rents, Proceeds and Agreements in the form attached hereto as
Schedule 2-B (the “ Chapel
Ridge Deed of Trust ” ), granting to RFC a
first-priority lien and security interest to secure the
Indebtedness in and to that portion of the real property commonly
known as “The Golf Club at Chapel Ridge”, located in
Chatham County, North Carolina (the “ Chapel
Ridge Project ” ); (ii) the Assignment of
Construction Agreements and Development Items in the form attached
hereto as Schedule 3-B (the “
Chapel Ridge Assignment ” ), granting to RFC a
first-priority security interest in certain documents, agreements
and other items relevant to the development of the Chapel Ridge
Project; and (iii) the Hazardous Substances Remediation and
Indemnification Agreement in the form attached hereto as
Schedule 4-B (the “ Chapel
Ridge HazMat Indemnity ” ), indemnifying RFC with
respect to claims and obligations regarding hazardous materials on,
in, or about the Chapel Ridge Project.
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(c)
The Golf Club at Sanctuary Cove . Contemporaneously
with the execution of this Amendment, Bluegreen Golf shall execute,
acknowledge, and deliver to RFC: (i) the Deed to Secure Debt and
Security Agreement in the form attached hereto as Schedule
2-C (the “ Sanctuary Cove Deed to
Secure Debt ” ), granting to RFC a first-priority
lien and security interest to secure the Indebtedness in and to
that portion of the real property commonly known as “The Golf
Club at Sanctuary Cove”, located in Camden County, Georgia
(the “ Sanctuary Cove Project ” ); (ii)
the Assignment of Construction Agreements and Development Items in
the form attached hereto as Schedule 3-C
(the “ Sanctuary Cove Assignment ”
), granting to RFC a first-priority security interest in certain
documents, agreements and other items relevant to the development
of the Sanctuary Cove Project; and (iii) the Hazardous Substances
Remediation and Indemnification Agreement in the form attached
hereto as Schedule 4-C (the “
Sanctuary Cove HazMat Indemnity ” ), indemnifying
RFC with respect to claims and obligations regarding hazardous
materials on, in, or about the Sanctuary Cove Project.
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The
Brickshire Project, the Chapel Ridge Project, and the Sanctuary
Cove Project are collectively referred to herein as the “
Additional Golf Course Collateral ” , and together
with the Existing Golf Course Collateral, the “ Golf
Course Collateral ” . Borrower shall be responsible
for the payment of all title premiums for the issuance of
lender’s policies of title insurance in favor of RFC for each
of the Brickshire Deed of Trust, the Chapel Ridge Deed of Trust,
and the Sanctuary Cove Deed to Secure Debt, in an amount
satisfactory to RFC, as well as all taxes, recording fees, or other
assessments payable on account of each of the Brickshire Deed of
Trust, the Chapel Ridge Deed of Trust, and the Sanctuary Cove Deed
to Secure Debt. RFC’s counsel will hold the Brickshire Deed
of Trust, the Chapel Ridge Deed of Trust, and the Sanctuary Cove
Deed to Secure Debt in escrow until such time as the title
commitments for each of the Brickshire Project, the Chapel Ridge
Project, and the Sanctuary Cove Project are reasonably acceptable
to RFC, at which time it shall record such documents in the
appropriate real property records (subject to Borrower’s
obligation set forth above to pay any and all taxes, recording
fees, or other assessments payable on account of such
recording).
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10.
Sale of Additional Collateral . Effective as of the
Effective Date, Section 2.7(2) shall be amended and
restated in its entirety, as follows:
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(2) Upon
the closing of the sale of any of the Golf Course Collateral,
whether in whole or in part, RFC shall receive, at the closing of
such sale or sales, seventy-five percent (75%) of the net sale
proceeds shown on the closing statement therefor. RFC shall have
the right to approve any such closing statements and the amount of
such net sale proceeds as a condition to Borrower’s ability
to sell any such Golf Course Collateral. The remittance of such
portion of the net sale proceeds from all or any part of the Golf
Course Collateral shall not be applied toward the minimum mandatory
prepayments provided for in Section 2.7(6) of the Loan
Agreement, as herein revised. RFC hereby approves the sale of the
Brickshire Project and the Chapel Ridge Project based on the gross
sales price set forth on Schedule 5 attached
hereto.
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F OURTH A MENDMENT TO L
OAN A GREEMENT AND O THER L OAN D OCUMENTS
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P AGE 6
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Bluegreen
Communities
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11.
Deferred Cash Fee Payment . Effective as of the
Effective Date, a new Section 2.7(7) shall be inserted
into the Loan Agreement, as follows:
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(7) On
the Maturity Date and in addition to the repayment of any
outstanding Loan Amount, together with interest accruing thereon
and all other costs and expenses due from Borrower under the Loan
Documents, Borrower shall make a deferred cash fee payment to RFC
in the amount of $2,000,000.00 (the “ Deferred Cash Fee
Payment ” ), which Deferred Cash Fee Payment shall be
in addition to the amount then due and payable under the Loan;
provided however, in the event that the total outstanding Loan
Amount, together with interest accruing thereon and all other costs
and expenses due from Borrower under the Loan Documents, is paid in
full in cash to RFC on or before December 31, 2010, the Deferred
Cash Fee Payment shall be waived by RFC.
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12.
Revised Definition of “Net Worth” .
Effective as of the Effective Date, the definition of “Net
Worth” in Section 1.1 of the Loan Agreement shall be
amended and restated in its entirety, as follows:
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