EXHIBIT 10.175
SECURED PROMISSORY NOTE
(Acquisition / Construction Loan Component)
$11,800,000.00
December 22, 2003
Hartford, Connecticut
FOR VALUE
RECEIVED and pursuant to the terms of this Secured Promissory
Note ("Note"), the undersigned, BLUEGREEN
VACATIONS UNLIMITED, INC., a Florida
corporation, and BLUEGREEN CORPORATION, a
Massachusetts corporation (singly and
collectively the "Borrower"), promises to
pay to the order of TEXTRON FINANCIAL
CORPORATION, a Delaware corporation (the
"Agent"), on its behalf and on behalf
of each Lender (the Agent and all
subsequent holders of this Note being
hereinafter referred to as the "Holder"),
as provided in the Acquisition,
Construction and Receivable Loan, Security
and Agency Agreement by and among the
Borrower, the Agent and the other parties
thereto, dated as of December 22, 2003
(as may be amended from time to time
hereafter, the "Loan Agreement"), the
principal sum of ELEVEN MILLION EIGHT
HUNDRED THOUSAND AND 00/100 DOLLARS
($11,800,000.00), or so much thereof as may
be advanced from time to time under
the Loan Agreement, together with interest
(computed on the basis of the number
of days elapsed over a 360-day year and
twelve 30-day months) on the unpaid
principal amount from time to time
outstanding under this Note at a rate equal
to the Acquisition/Construction Loan
Component Interest Rate (as defined in the
Loan Agreement).
The
principal amount of this Note, together with interest thereon and
all
other sums due pursuant to this Note or any
of the Loan Documents, shall be due
and payable on the dates and in the manner
as provided in the Loan Agreement.
All principal, interest and any other
amounts due under this Note shall be
payable in lawful money of the United
States of America as provided in the Loan
Agreement.
The
Borrower may prepay the principal sum outstanding from time to
time
hereunder only as provided in the Loan
Agreement.
This Note
is one of the two "Notes" described in, and issued pursuant to,
the Loan Agreement. This Note evidences the
Acquisition/Construction Loan
Component of the Loan and is secured by the
Collateral. All of the terms,
covenants and conditions of the Loan
Agreement (including all exhibits and
schedules to it) and all other instruments
evidencing or securing the
Obligations are hereby made a part of this
Note and are deemed incorporated
herein in full. In the event of any
conflict between the terms and conditions of
this Note and the terms and conditions of
the Loan Agreement, the terms and
conditions of the Loan Agreement shall
control. All terms used herein and not
otherwise defined herein shall have the
meanings provided therefor in the Loan
Agreement.
This Note
also evidences Borrower's obligation to repay with interest all
additional moneys advanced or expended from
time to time by any Holder to or for
the account of Borrower or
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otherwise to be added to the principal
balance hereof or as provided in any of
the Loan Documents, whether or not the
principal amount hereof shall thereby
exceed the principal amount above
stated.
Borrower
shall pay the cost of all revenue, tax or other stamps now or
hereafter required by law at any time to be
affixed to this Note or to any of
the Loan Documents; and if any tax is now
or hereafter imposed with respect to
notes of the nature of this Note or debts
of the nature of the debt evidenced by
this Note, Borrower agrees to pay to the
Holder hereof upon demand the amount of
such tax, and hereby waives any contrary
provision of any law or rule of court
now or hereafter in effect.
Upon the
occurrence of any Event of Default by the Borrower under the
Loan
Agreement or under any other Loan Document,
the Holder may, at its option and in
accordance with the terms of the Loan
Agreement and the other Loan Documents, in
addition to any other remedies to which it
may be entitled, declare to be
immediately due and payable the total
unpaid principal balance of the Loan,
together with all accrued but unpaid
interest thereon, any applicable prepayment
premium and all other Obligations owing
hereunder, under the Loan Agreement or
under any other Loan Document.
All
agreements between the Borrower and the Holder are expressly
limited
so that in no contingency or event
whatsoever, whether by reason of advancement
of the proceeds hereof, acceleration of
maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid
or agreed to be paid to the Holder
for the use, forbearance or detention of
the money to be advanced hereunder
exceed the highest lawful rate permissible
under applicable usury laws. If, from
any circumstances whatsoever, fulfillment
of any provision hereof, of the Loan
Agreement or any other Loan Documents shall
involve transcending the limit of
validity prescribed by any law which a
court of competent jurisdiction may deem
applicable hereto, then, ipso facto, the
obligation to be fulfilled shall be
reduced to the limit of such validity, and,
if from any circumstance the Holder
shall ever receive as interest an amount
which would exceed the highest lawful
rate, such amount which would be excessive
interest shall be applied to the
reduction of the unpaid principal balance
due hereunder and not to the payment
of interest. This provision shall control
every other provision of all
agreements between the Borrower and the
Holder.
Time is of
the essence for the performance and observance of each
agreement and obligation of Borrower under
this Note and under the Loan
Documents.
The
Borrower and all sureties, endorsers, guarantors and all other
parties
now or hereafter liable for the payment of
this Note, in whole or in part,
hereby severally waive, for themselves and
their legal representatives, heirs,
successors and assigns (i) presentment,
demand and protest and notice of
presentment, dishonor, notice of intent to
accelerate, notice of acceleration,
protest, default, nonpayment, maturity,
release, compromise, settlement,
extension, waiver or renewal of any or all
of the Loan Documents, and all other
notices in connection with the delivery,
acceptance, performance, default or
enforcement
