Exhibit 10.149
AMENDMENT NUMBER TEN
TO LOAN AND SECURITY AGREEMENT
This
Amendment Number Ten to Loan and Security Agreement
(“Amendment”) is entered into as of June 19, 2008, by
and between BLUEGREEN CORPORATION, f/k/a Patten Corporation,
a Massachusetts corporation (“Borrower”), and WELLS
FARGO FOOTHILL, INC., a California corporation, f/k/a Foothill
Capital Corporation (“Foothill”), in light of the
following:
FACT ONE: Borrower and Foothill have previously entered into
that certain Amended and Restated Loan and Security Agreement,
dated as of September 23, 1997, as amended by that certain
Amendment Number One to Loan and Security Agreement dated as of
December 1, 2000, as further amended by that certain Amendment
Number Two to Loan and Security Agreement dated as of November 9,
2001, that certain Amendment Number Three to Loan and Security
Agreement dated as of August 28, 2002, that certain Amendment
Number Four to Loan and Security Agreement dated as of March 26,
2003, that certain Amendment Number Five to Loan and Security
Agreement dated as of September 1, 2003, that certain Amendment
Number Six to Loan and Security Agreement dated as of April 2,
2004, that certain Amendment Number Seven to Loan and Security
Agreement dated as of September 21, 2004, that certain Amendment
Number Eight to Loan and Security Agreement dated as of October 5,
2004, and that certain Amendment Number Nine to Loan and Security
Agreement dated as of December 23, 2004 (as amended, the
“Agreement”).
FACT TWO: Borrower and Foothill desire to amend the
Agreement as provided for and on the conditions herein.
NOW,
THEREFORE, Borrower and Foothill hereby amend and supplement the
Agreement as follows:
1.
DEFINITIONS . All initially capitalized terms used in
this Amendment shall have the meanings given to them in the
Agreement unless specifically defined herein.
2.
AMENDMENTS .
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(a)
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The following new definitions are
added to Section 1.1 of the Agreement:
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“ Advance ”
means a loan made by Foothill to Borrower pursuant to this
Agreement with respect to the pledge by Borrower to Foothill of
Pledged Notes.
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“ E Line Advances
” has the meaning set forth in Section 2.12
hereof.
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“ E Line Borrowing
Base ” means an amount equal to the sum of ninety percent
(90%) of the unpaid principal balance, at the time of the advance
with respect to Pledged E Notes, discounted to eight and
one-quarter percent (8.25%), at the time of the advance with
respect to fixed rate notes if the weighted average coupon rate of
the entire Pledged E Note pool is less than eight and one-quarter
percent (8.25%).
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“ Pledged E Notes
” means a note or notes which conforms to the standards set
forth in Schedule PN-A attached hereto and incorporated by
reference hereby, and which is pledged to secure advances under the
E Line Advances.
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“ Tenth Amendment
” means that certain Amendment Number Ten to Loan and
Security Agreement dated as of June 19, 2008, executed by Borrower
and Foothill.
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(b) The
definition of “Note Mortgages” in Section 1.1 of the
Agreement is deleted in its entirety and the following substituted
in its place and stead:
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“ Note Mortgages
” means those certain deeds of trust, mortgages or security
interests, including those securing the repayment of the interests
of the note makers of the Pledged A Notes, the Pledged B Notes, the
Pledged C Notes, the Pledged D Notes, the Pledged E Notes and the
Pledged T Notes, encumbering certain real property, or real or
personal property, which serves as collateral for the repayment of
the Pledged A Notes, the Pledged B Notes, the Pledged C Notes, the
Pledged D Notes, the Pledged E Notes and the Pledged T
Notes.
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(c) The
definition of “Pledged Notes” in Section 1.1 of the
Agreement is deleted in its entirety and the following substituted
in its place and stead:
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“ Pledged Notes
” means, collectively, the Pledged A Notes, the Pledged B
Notes, the Pledged C Notes, the Pledged D Notes, the Pledged E
Notes and the Pledged T Notes.
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(d) Section
2.1(a) of the Agreement is amended to provide that A Line Advances
may be borrowed thereunder through and including December 31, 2009,
Section 2.8(a) of the Agreement is amended to provide that T Line
Advances may be borrowed thereunder through and including December
31, 2009, and Section 2.9(a) of the Agreement is amended to provide
that C Line Advances may be borrowed thereunder through and
including December 31, 2009.
(e) Borrower
and Foothill acknowledge that the periods for the borrowing of Land
Inventory Advances under Section 2.2 of the Agreement, B Line
Advances under Section 2.3 of the Agreement, and D Line Advances
under Section 2.11 of the Agreement, have each expired and no
additional Land Inventory Advances, B Line Advances or D Line
Advances may be borrowed under the Agreement.
(f) Section
2.4(c) of the Agreement is deleted in its entirety and the
following substituted in its place and stead:
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(c) The amount of interest
accrued and payable to Foothill on the A Line Advances, B Line
Advances, C Line Advances, D Line Advances, E Line Advances and T
Line Advances shall be no less than fifteen thousand dollars
($15,000) per month; provided, however, that if Borrower seeks to
cause all of the Pledged Notes to be released in accordance with
the provision of Section 4.8 hereof, there shall be no monthly
minimum interest payments as set forth in this sentence for the two
months immediately following such
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release, with a five thousand
dollar ($5,000) per month minimum for the third month following
release, a ten thousand dollar ($10,000) per month minimum for the
fourth month following release, and a fifteen thousand dollar
($15,000) per month minimum for every month thereafter. To the
extent that interest accrued hereunder at the rate set forth herein
(including the minimum interest rate) would yield less than the
foregoing minimum amount, the interest rate chargeable hereunder
for the period in question automatically shall be deemed increased
to that rate that would result in the minimum amount of interest
being accrued and payable hereunder.
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(g)
Section 2.7 of the Agreement is amended by adding the following new
subsection (g).
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(g)
Tenth Amendment Fee . In consideration of Foothill entering
into the Tenth Amendment, Borrower shall pay to Foothill an
amendment fee, on the effective date of the Tenth Amendment, in the
amount of One Hundred Thousand Dollars ($100,000), which sum
Foothill may advance and when so advanced shall become part of the
Obligations.
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(h)
Section 2.7 of the Agreement is amended by adding the following new
subsection (h).
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(h)
Pledged E Note Financing Fee . On each and every Pledged E
Note Advance made pursuant to Section 2.12 hereof, other than the
initial Pledged E Note Advance, Borrower shall pay to Foothill a
fee in an amount equal to one percent (1%) of the total of each
such advance.
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(i)
Borrower acknowledges that, subject to Foothill’s right to
charge interest at the default rate during the continuance of an
Event of Default, all LIBOR Rate Loans, if any, shall bear interest
at a per annum rate equal to the applicable LIBOR Rate plus the
LIBOR Rate Margin.
(j)
There is added a new Section 2.12 to the Agreement as
follows:
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2.12 Advances
Against Pledged E Notes.
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(a)
In addition to the Pledged A Note Advances set forth in Section 2.1
hereof, the Land Inventory Advances set forth in Section 2.2
hereof, the Term Loan and B Line Advances set forth in Section 2.3
hereof, the T Line Advances set forth in Section 2.8 hereof, the C
Line Advances set forth in Section 2.9 hereof, and the D Line
Advances set forth in Section 2.11 hereof, subject to the terms and
conditions of this Agreement, and further for a period through and
including December 31, 2009 only, and further provided Borrower is
not in default hereunder (subject to grace periods, if any),
including, specifically, Section 6.13 hereof, Foothill agrees to
make advances to Borrower upon the pledge to Foothill of the
Pledged E Notes (“E Line Advances”) in an amount not to
exceed the E Line Borrowing Base.
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(b)
Anything to the contrary in subsection (a) above notwithstanding,
Foothill may reduce its advance rates without declaring an event of
default if it determines, in its reasonable discretion, that there
is a material impairment of the prospect of repayment of any or all
or any portion of its Obligations, or a material impairment of the
value or priority of Foothill’s security interests in the
Collateral.
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(c)
Foothill shall have no obligation to make E Line Advances under any
provision of this Section 2.12 to the extent that E Line Advances
exceed the sum of Twenty Five Million Dollars ($25,000,000) and/or
total lending to Borrower would exceed the Maximum
Amount.
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(d)
Borrower agrees to maintain a deposit account for the purpose of
receiving the proceeds of the advances made by Foothill hereunder.
Unless otherwise agreed to in writing by Foothill and Borrower, any
advance requested by Borrower and made by Foothill hereunder shall
be made to such deposit account.
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(e)
E Line Advances made pursuant to this Section 2.12 shall not be
made in amounts less than One Hundred Thousand Dollars ($100,000)
per advance.
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(f)
Borrower may request that Foothill make additional advances against
the then Pledged E Notes in an amount such that the aggregate of
the E Line Advances equals ninety percent (90%) of the outstanding
principal balances of the Pledged E Notes (discounted to eight and
one-quarter percent (8.25%) for fixed rate notes). Foothill will
agree to such request unless it, acting in good faith and
exercising its reasonable judgment, believes that there is a
material risk of the impairment of the prospect of repayment of any
or all of any portion of Borrower’s Obligations. In such an
event, Borrower may terminate this Agreement without the imposition
of an Early Termination Fee.
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(k)
Section 3.4 of the Agreement is deleted in its entirety and the
following substituted in its place and stead:
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3.4
Conditions Precedent to A Line, B Line, C Line, D Line, E Line
and T Line Advances . The following shall be additional
conditions precedent to all A Line, B Line, C Line, D Line, E Line
and T Line Advances hereunder:
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(a)
Foothill shall have received the originals of the Pledged A Notes,
the Pledged B Notes, the Pledged C Notes, the Pledged D Notes, the
Pledged E No
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