-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HgFpogJmfT+zmUbma4o5Ml14IpsGKp/XKNSmG/YguJLFCSkmY2IkHQsBP1QKwO31 Jb2gdaPGlWBF/5FcJB7mfA== 0000315858-02-000002.txt : 20020422 0000315858-02-000002.hdr.sgml : 20020422 ACCESSION NUMBER: 0000315858-02-000002 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20020422 GROUP MEMBERS: BANKATLANTIC BANKCORP, INC. GROUP MEMBERS: LEVITT COMPANIES, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BLUEGREEN CORP CENTRAL INDEX KEY: 0000778946 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 030300793 STATE OF INCORPORATION: MA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-38205 FILM NUMBER: 02617345 BUSINESS ADDRESS: STREET 1: 4960 BLUE LAKE DRIVE CITY: BOCA RATON STATE: FL ZIP: 33431 BUSINESS PHONE: 5619128000 MAIL ADDRESS: STREET 1: 4960 BLUE LAKE DRIVE CITY: BOCA RATON STATE: FL ZIP: 33431 FORMER COMPANY: FORMER CONFORMED NAME: PATTEN CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BANKATLANTIC BANCORP INC CENTRAL INDEX KEY: 0000921768 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 650507804 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 1750 E SUNRISE BLVD CITY: FORT LAUDERDALE STATE: FL ZIP: 33304 BUSINESS PHONE: 9547605000 MAIL ADDRESS: STREET 1: 1750 EAST SUNRISE BOULEVARD CITY: FORT LAUDERVALE STATE: FL ZIP: 33304 SC 13D 1 d50426_sc13d.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. ________)* BLUEGREEN CORPORATION (Name of Issuer) COMMON STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 096231105 (CUSIP Number) JOHN E. ABDO, 1750 EAST SUNRISE BOULEVARD, FT. LAUDERDALE, FL 33304 (954) 491-2191 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 10, 2002 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 1 CUSIP No. 096231105 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) LEVITT COMPANIES, LLC (I.R.S. No. 59-2443818) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X| (b) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC, AF - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION FLORIDA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 -------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 8,317,325 OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 0 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 8,317,325 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,317,325 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 34.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- 2 CUSIP No. 096231105 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) BANKATLANTIC BANCORP, INC. (I.R.S. No. 65-05070804) - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |X| (b) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC, BK - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION FLORIDA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,200,000 -------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 8,317,325 OWNED BY -------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON 1,200,000 WITH -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 8,317,325 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,517,325 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 39.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - -------------------------------------------------------------------------------- 3 Item 1. Security and Issuer This statement relates to the common stock, par value $.01 per share (the "Common Stock"), of Bluegreen Corporation, a Massachusetts corporation (the "Issuer"). The Issuer's principal executive offices are located at 4960 Conference Way North, Suite 100, Boca Raton, Florida 33431. Item 2. Identity and Background This statement is filed by Levitt Companies, LLC, a Florida limited liability company ("Levitt"), and BankAtlantic Bancorp, Inc., a Florida corporation ("BBC"). Levitt is a wholly-owned subsidiary of BBC and is principally engaged in the business of residential construction, real estate development and real estate investment. BBC is a financial services holding company and is principally engaged through its subsidiaries in commercial banking, investment banking and real estate development. The principal executive offices of BBC and Levitt are located at 1750 East Sunrise Boulevard, Fort Lauderdale, Florida 33304. BFC Financial Corporation, a Florida corporation ("BFC"), may be deemed to control BBC by virtue of its ownership of approximately 55% of the voting power of BBC. BFC is a savings bank holding company whose principal asset is its interest in BBC. BFC's principal executive offices are located at 1750 East Sunrise Boulevard, Ft. Lauderdale, Florida 33304. BFC expressly disclaims beneficial ownership of the shares of Common Stock owned by BBC and Levitt. All executive officers and directors of Levitt, BBC and BFC are United States citizens. Information as to the identity and background of the executive officers, directors and control persons of Levitt, BBC and BFC is set forth on Appendix A attached hereto, which is incorporated herein by reference. During the last five years, neither Levitt, BBC, BFC, nor, to the best of their knowledge, any of their executive officers, directors or control persons, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration BBC funded its acquisition of 1,200,000 shares of the Issuer's Common Stock from working capital. Levitt funded its acquisition of 8,317,325 shares of the Issuer's Common Stock with funds from working capital and a $30 million loan from BBC. The loan from BBC bears interest at a rate per annum equal to the prime rate minus twenty-five basis points. The loan is junior in right of payment and subordinate to Levitt's outstanding bank debt. Interest is payable monthly, and the principal, plus any accrued interest, is payable on demand. BBC funded the $30 million loan to Levitt by drawing on an existing line of credit with a third party lender. That credit facility contains customary covenants, including financial covenants relating to regulatory capital and maintenance of certain loan loss reserves, and is secured by the common stock of BankAtlantic, a federal savings bank and wholly-owned subsidairy of BBC. Amounts outstanding under BBC's credit facility, which matures on September 1, 2004, accrue interest at a rate per annum equal to the prime rate minus 50 basis points. 4 Item 4. Purpose of Transactions Levitt and BBC acquired the shares primarily for investment purposes with the intent of acquiring a significant equity position in the Issuer. Levitt and BBC intend to review on a regular basis their investment in the Issuer, the Issuer's business affairs and financial position and general economic and industry conditions. Either Levitt or BBC (or both) may from time to time make additional investments in the securities of the Issuer, either in open market or privately negotiated transactions, or sell all or any part of their investment in the Issuer, as they deem appropriate in light of the circumstances existing from time to time. Further, Levitt or BBC may in the future make a proposal to the Issuer involving an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or its subsidiaires. In connection with Levitt's acquisition of 8,317,325 shares of the Issuer's Common Stock, the Sellers (as defined in Item 5) caused their respective representatives on the Board of Directors of the Issuer to resign their positions as directors effective April 10, 2002. On April 11, 2002, the Board of Directors appointed John E. Abdo and Alan B. Levan as directors to fill two of the vacancies created by those resignations; however, the Issuer was not obligated in any way, contractual or otherwise, to appoint Mr. Abdo or Mr. Levan to its Board of Directors. John E. Abdo is President of Levitt and Vice Chairman of the Board of Directors of BBC. Alan B. Levan is Chairman of the Board of Directors of Levitt and Chairman of the Board of Directors, President and Chief Executive Officer of BBC. Except as disclosed herein, neither Levitt, BBC nor BFC, nor, to the best of their knowledge, any of their executive officers, directors or control persons, currently has any plans that would result in any of the occurrences enumerated in (a) through (j) of this Item. Item 5. Interest in the Securities of the Issuer On April 10, 2002, Levitt entered into a purchase agreement (the "Morgan Stanley Purchase Agreement") providing for the purchase by Levitt of 5,882,353 shares of Common Stock for $7.00 per share from a group of sellers consisting of Morgan Stanley Real Estate Fund III, L.P., a Delaware limited partnership, Morgan Stanley Real Estate Investors III, L.P., a Delaware limited partnership, MSP Real Estate Fund, L.P., a Delaware limited partnership, and MSREF III Special Fund, L.P., a Delaware limited partnership (collectively, the "Morgan Stanley Sellers"). Levitt acquired 5,548,416 shares of Common Stock from the Morgan Stanley Sellers upon execution of the Morgan Stanley Purchase Agreement for a purchase price of $38,838,912. Levitt will acquire the remaining balance of 333,937 shares for a purchase price of $2,337,559 upon the Issuer obtaining insurance coverage to replace the coverage provided under the insurance policies which are currently maintained by affiliates of the Morgan Stanley Sellers or June 14, 2002, whichever occurs first. The 333,937 additional shares of Common Stock and the aggregate purchase price for those shares of $2,337,559 will be deposited in escrow pending completion of the transaction. Levitt will have the right to vote the 333,937 shares of Common Stock held in escrow. Also on April 10, 2002, Levitt entered into a purchase agreement (the "Whitmore Purchase Agreement") providing for the purchase by Levitt of 2,434,972 shares of Common Stock for $5.00 per share from Bradford T. Whitmore and Grace Brothers, Ltd. (the "Whitmore Sellers" and, together with the Morgan Stanley Sellers, the "Sellers"). Levitt purchased the 2,434,972 shares of Common Stock under the Whitmore Purchase Agreement on April 10, 2002. In accordance with the terms of each of the Morgan Stanley Purchase Agreement and the Whitmore Purchase Agreement, the Morgan Stanley Sellers and the Whitmore Sellers each caused their respective representatives on the Board of Directors of the Issuer to resign their positions as directors effective on April 10, 2002. 5 Levitt is the record and beneficial owner of 8,317,325 shares of Common Stock (including the 333,937 shares of Common Stock held in escrow) and possesses, together with BBC, shared power to vote or direct the vote and shared power to dispose or direct the disposition of those 8,317,325 shares (including the 333,937 shares of Common Stock held in escrow, which it will have power to dispose of upon release from escrow). Through its 100% ownership of Levitt, BBC may be deemed the beneficial owner of the shares of Common Stock owned by Levitt. In addition, BBC is the record and beneficial owner of 1,200,000 shares of Common Stock and possesses sole power to vote or direct the vote and sole power to dispose or direct the disposition of those 1,200,000 shares. Based on the Issuer's Quarterly Report on Form 10-Q for the period ending December 30, 2001, the aggregate percentage of all outstanding shares of Common Stock beneficially owned by Levitt is approximately 34.2%, and the aggregate percentage of all outstanding shares of Common Stock beneficially owned by BBC is approximately 39.2%, comprised of 4.9% of the outstanding shares of Common Stock owned of record and 34.2% beneficially owned through Levitt. Except as set forth above, neither Levitt, BBC, BFC, nor, to the best of their knowledge, any of their executive officers, directors or control persons, has effected any transaction in any Common Stock of the Issuer during the past 60 days. No person except for Levitt and BBC is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock covered by this statement. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer Except as set forth in this Schedule 13D, neither Levitt, BBC, BFC, nor, to the best of their knowledge, any of their executive officers, directors or control persons, has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer. Item 7. Material to be Filed as Exhibits Exhibit 1 Joint Filing Agreement dated April 22, 2002 by and between Levitt Companies, LLC and BankAtlantic Bancorp, Inc. Exhibit 2 Form of Escrow Agreement by and between Levitt Companies, LLC, Morgan Stanley Real Estate Fund III, L.P., Morgan Stanley Real Estate Investors III, L.P., MSP Real Estate Fund, L.P. and MSREF III Special Fund, L.P. and ________________, as Escrow Agent. Exhibit 3 Demand Promissory Note dated April 10, 2002 of Levitt Companies, LLC in favor of BankAtlantic Bancorp, Inc. Exhibit 4 Loan Agreement dated September 17, 2002 by and between BankAtlantic Bancorp, Inc. and Columbus Bank and Trust Company (incorporated by reference to Exhibit 10.15 to the Annual Report on Form 10-K of BankAtlantic Bancorp, Inc. filed with the Securities and Exchange Commission on April 1, 2002). 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. LEVITT COMPANIES, LLC By: /s/ Glen R. Gilbert --------------------------------- Name: Glen R. Gilbert --------------------------------- Title: Vice President --------------------------------- Dated: April 22, 2002 BANKATLANTIC BANCORP, INC. By: /s/ James A. White --------------------------------- Name: James A. White --------------------------------- Title: Executive Vice President --------------------------------- Dated: April 22, 2002 7 APPENDIX A IDENTITY AND BACKGROUND OF DIRECTORS AND EXECUTIVE OFFICERS BANKATLANTIC BANCORP, INC.
Name and Position With BankAtlantic Bancorp, Inc. Employer and Address Position - -------------------------- -------------------- -------- John E. Abdo BankAtlantic Bancorp, Inc. Vice Chairman of the Vice Chairman of the Board of Levitt Companies, LLC Board of BBC, Vice Directors 1750 East Sunrise Boulevard Chairman of the Board Ft. Lauderdale, FL 33304 and President of Levitt Steven M. Coldren Business Information Systems Chairman and President Director 1350 N.E. 56 Street Ft. Lauderdale, FL 33334 Bruno DiGiulian Ruden McClosky Smith Schuster Of Counsel Director & Russell, P.A. c/o BankAtlantic Bancorp Inc. 1750 East Sunrise Boulevard Ft. Lauderdale, FL 33304 Mary E. Ginestra c/o BankAtlantic Bancorp Inc. Private Investor Director 1750 East Sunrise Boulevard Ft. Lauderdale, FL 33304 Alan B. Levan BankAtlantic Bancorp, Inc. Chairman, President and Chairman, President and Chief 1750 East Sunrise Boulevard Chief Executive Officer Executive Officer Ft. Lauderdale, FL 33304 Jarett S. Levan BankAtlantic.com, an internet President Director banking division of BankAtlantic 1750 East Sunrise Boulevard Ft. Lauderdale, FL 33304 Jonathan D. Mariner Major League Baseball Senior Vice President and Director 245 Park Avenue, 30th Floor Chief Financial Officer New York, NY 10167 Ben A. Plotkin Ryan, Beck & Co. Chairman, President and Director 220 S. Orange Avenue Chief Executive Officer Livingston, NJ 07039-5817 Charlie C. Winningham II C.C. Winningham Corporation President Director 1040 N.E. 45 Street Ft. Lauderdale, FL 33308
A-1 James A. White BankAtlantic Bancorp, Inc. Executive Vice President Executive Vice President and Chief 1750 East Sunrise Boulevard and Chief Financial Financial Officer Ft. Lauderdale, FL 33304 Officer Andrea J. Allen BankAtlantic Executive Vice President, 1750 East Sunrise Boulevard Operations Ft. Lauderdale, FL 33304 Lloyd B. DeVaux BankAtlantic Executive Vice President 1750 East Sunrise Boulevard and Chief Information Ft. Lauderdale, FL 33304 Officer Jay R. Fuchs BankAtlantic Executive Vice President, 1750 East Sunrise Boulevard Community Banking Ft. Lauderdale, FL 33304 Division Lewis F. Sarrica BankAtlantic Executive Vice President 1750 East Sunrise Boulevard and Chief Investment Ft. Lauderdale, FL 33304 Officer Marcia K. Snyder BankAtlantic Executive Vice President, 1750 East Sunrise Boulevard Corporate Lending Ft. Lauderdale, FL 33304 Division
LEVITT COMPANIES, LLC
Name and Position With Levitt Companies, LLC Employer and Address Position - --------------------- -------------------- -------- Alan B. Levan BankAtlantic Bancorp, Inc. Chairman, President and Chairman of the Board and Vice 1750 East Sunrise Boulevard Chief Executive Officer President Ft. Lauderdale, FL 33304 John E. Abdo BankAtlantic Bancorp, Inc. Vice Chairman of the Vice Chairman of the Board and Levitt Companies, LLC Board of BBC, Vice President 1750 East Sunrise Boulevard Chairman of the Board Ft. Lauderdale, FL 33304 and President of Levitt Glen R. Gilbert BFC Financial Corporation Executive Vice President Executive Vice President and Chief 1750 East Sunrise Boulevard and Chief Financial Financial Officer Ft. Lauderdale, FL 33304 Officer Barry Somerstein Ruden McClosky Smith Schuster Attorney Director & Russell, P.A. 200 East Broward Boulevard Ft. Lauderdale, FL 33301 James Blosser Poole McKinley & Blosser Attorney Director 450 East Las Olas Boulevard Suite 700 Ft. Lauderdale, FL 33301
A-2 William Scherer Conrad & Scherer, P.A. Attorney 633 South Federal Highway Eighth Floor Ft. Lauderdale, FL 33301
BFC FINANCIAL CORPORATION
Name and Position With BFC Financial Corporation Employer and Address Position - ------------------------- -------------------- -------- Alan B. Levan BankAtlantic Bancorp, Inc. Chairman, President and Chairman of the Board and President 1750 East Sunrise Boulevard Chief Executive Officer Ft. Lauderdale, FL 33304 John E. Abdo BankAtlantic Bancorp, Inc. Vice Chairman of the Vice Chairman of the Board Levitt Companies, LLC Board of BBC, Vice 1750 East Sunrise Boulevard Chairman of the Board Ft. Lauderdale, FL 33304 and President of Levitt Glen R. Gilbert BFC Financial Corporation Executive Vice President Executive Vice President and Chief 1750 East Sunrise Boulevard and Chief Financial Financial Officer Ft. Lauderdale, FL 33304 Officer Earl Pertnoy Self-Employed Real Estate Investor and Director c/o BankAtlantic Bancorp, Inc. Developer 1750 East Sunrise Boulevard Ft. Lauderdale, FL 33304
Mr. Alan B. Levan and Mr. John E. Abdo may be deemed to control BFC. A-3 EX-1 3 d50426_ex-1.txt JOINT FILING AGREEMENT Exhibit 1 JOINT FILING AGREEMENT This will confirm the agreement by and between the undersigned that the Schedule 13D filed on or about this date and any amendments thereto with respect to the beneficial ownership by the undersigned of shares of the Common Stock, par value $.01 per share, of Bluegreen Corporation is being filed on behalf of each of the undersigned in accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended. This agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Dated: April 22, 2002 LEVITT COMPANIES, LLC By: /s/ Glen R. Gilbert ------------------------------------- Name: Glen R. Gilbert ----------------------------------- Title: Vice President ---------------------------------- BANKATLANTIC BANCORP, INC. By: /s/ James A. White ------------------------------------- Name: James A. White ----------------------------------- Title: Executive Vice President ---------------------------------- EX-2 4 d50426_ex-2.txt FORM OF ESCROW AGREEMENT Exhibit 2 ESCROW AGREEMENT This ESCROW AGREEMENT (this "Agreement") is made and entered into as of April 22, 2002, by and among _______________ ("Escrow Agent"), MORGAN STANLEY REAL ESTATE FUND III, L.P., a Delaware limited partnership ("MSREF"), MORGAN STANLEY REAL ESTATE INVESTORS III, L.P., a Delaware limited partnership ("MSREI"), MSP REAL ESTATE FUND, L.P., a Delaware limited partnership ("MSP"), and MSREF III SPECIAL FUND, L.P., a Delaware limited partnership ("Special Fund") (collectively, "Sellers") and LEVITT COMPANIES, LLC, a Florida limited liability company ("Purchaser"). RECITALS: A. Purchaser and Sellers have entered into a Stock Purchase Agreement, dated April 10, 2002 (the "Purchase Agreement"), pursuant to which Purchaser will purchase from Sellers 5,882,353 of the issued and outstanding shares (the "Company Shares") of common stock of Bluegreen Corporation, a Massachusetts corporation (the "Company"). B. Section 1.03 of the Purchase Agreement provides that contemporaneous with the execution of this Agreement, Purchaser will deposit with Escrow Agent $2,337,559.00 (the "Remaining Purchase Price"), and Sellers will deposit with Escrow Agent certificates representing 333,937 of the Company Shares (the "Remaining Shares"), with duly executed stock powers endorsed in favor of Purchaser (such certificates and powers being the "Remaining Share Certificates and Powers"), in each case to be held and distributed upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. Certain Definitions. All capitalized terms used and not otherwise defined herein have the respective meanings ascribed thereto in the Purchase Agreement. For purposes of this Agreement, the following terms will have the following meanings: 1.1 Escrowed Funds. The term "Escrowed Funds" means collectively (i) the Remaining Purchase Price Escrowed Funds, and (ii) the Remaining Share Escrowed Funds. 1.2 Escrowed Shares. The term "Escrowed Shares" means the Remaining Shares and any other non-cash property deposited with the Escrow Agent pursuant to Section 4.3. 1.3 Remaining Share Escrowed Funds. The term "Remaining Share Escrowed Funds" means any and all cash dividends on and cash distributions with respect to Escrowed Shares deposited with and held by Escrow Agent pursuant to Section 4.2, plus all earnings on, and proceeds of investment of, such funds pending distribution or disbursement thereof in accordance with the provisions of this Agreement, and less any distributions or disbursements made pursuant to Sections 4.2 and 4.3 to satisfy tax obligations. 1.4 Remaining Purchase Price Escrowed Funds. The term "Remaining Purchase Price Escrowed Funds" means the amount of the Remaining Purchase Price, being $2,337,559.00 in cash deposited in escrow as provided in Section 3.1 plus all earnings on, and proceeds of investment of, such escrowed funds pending distribution or disbursement thereof in accordance with the provisions of this Agreement. 2. Appointment of Escrow Agent. Escrow Agent is hereby appointed as escrow agent to hold and disburse the funds and shares deposited hereunder in accordance with the terms of this Agreement. 3. Deposits in Escrow. 3.1 Deposit of Remaining Purchase Price Escrowed Funds. Simultaneously with the execution and delivery of this Agreement, Purchaser has deposited with Escrow Agent the Remaining Purchase Price in cash pursuant to Section 1.03 of the Purchase Agreement, and Escrow Agent hereby acknowledges receipt thereof. 3.2 Deposit of Escrowed Shares. Simultaneously with the execution and delivery of this Agreement, Sellers have deposited with Escrow Agent the Remaining Share Certificates and Powers pursuant to Section 1.03 of the Purchase Agreement, and Escrow Agent hereby acknowledges receipt thereof. 4. Certain Matters Relating to Escrowed Shares. 4.1 Voting. All voting rights with respect to the Escrowed Shares may be exercised by Purchaser. Each Seller hereby grants to and appoints Purchaser as its proxy and attorney-in-fact (with full power of substitution) to vote or act by written consent with respect to the Escrowed Shares owned of record by such Seller. This proxy is coupled with an interest and shall be irrevocable. 4.2 Cash Dividends. All cash dividends and other cash distributions paid or made with respect to or on Escrowed Shares (less a portion thereof necessary to enable Sellers to satisfy any federal or state income tax liabilities of Sellers resulting therefrom) will be deposited by Sellers with Escrow Agent promptly upon receipt thereof and thereafter will be held and applied by Escrow Agent as part of the Remaining Share Escrowed Funds. 4.3 Non-Cash Dividends. All non-cash dividends and all other non-cash distributions paid or made on the Escrowed Shares, including without limitation all shares or other securities or property paid as a dividend on or distributed in respect of the Escrowed Shares, and all shares or other securities into which the Escrowed Shares may be changed or for which they may be exchanged pursuant to corporate action of the Company affecting its common stock generally (in any case, less a portion thereof necessary to enable Sellers to satisfy any federal or state income tax liability of Sellers resulting therefrom) will be deposited by Sellers with Escrow Agent promptly upon receipt thereof and thereafter will be held and applied by Escrow Agent as part of the Escrowed Shares. 5. Investment of Escrowed Funds. 5.1 Investment of Remaining Purchase Price Escrowed Funds. Escrow Agent will invest and reinvest the Remaining Purchase Price Escrowed Funds, as Sellers direct in writing from time to time, in federally insured interest bearing bank accounts, certificates of deposit of 2 federally insured financial institutions, treasury bills or other direct federally guaranteed investments or in mutual funds invested primarily in obligations of the type described above. All earnings on, and proceeds of investment of, the Remaining Purchase Price Escrowed Funds pending distribution or disbursement thereof in accordance with the provisions of this Agreement will be received, held and applied by Escrow Agent as part of the Remaining Purchase Price Escrowed Funds and for tax reporting purposes will be allocable to Sellers in the following proportions: 35.45020% to MSREF; 1.64330% to MSREI; 28.38460% to MSP; and 34.52190% to Special Fund. 5.2 Investment of Remaining Share Escrowed Funds. Escrow Agent will invest and reinvest the Remaining Share Escrowed Funds, as Purchaser directs in writing from time to time, in federally insured interest bearing bank accounts, certificates of deposit of federally insured financial institutions, treasury bills or other direct federally guaranteed investments or in mutual funds invested primarily in obligations of the type described above. All earnings on, and proceeds of investment of, the Remaining Share Escrowed Funds pending distribution or disbursement thereof in accordance with the provisions of this Agreement will be received, held and applied by Escrow Agent as part of the Remaining Share Escrowed Funds and for tax reporting purposes will be allocable to Purchaser. 6. Payment of Taxes. 6.1 Taxes on Remaining Purchase Price Escrowed Funds. Sellers will be liable for, and will from time to time when due and payable, pay and discharge all taxes imposed with respect to the Remaining Purchase Price Escrowed Funds or any income arising therefrom, including without limitation taxes assessed on dividends, distributions or other earnings on, or proceeds of investment of, the Remaining Purchase Price Escrowed Funds, and will, jointly and severally, indemnify Escrow Agent and hold it harmless from and against such taxes. 6.2 Taxes on Remaining Share Escrowed Funds or Escrowed Shares. Purchaser will be liable for, and will from time to time when due and payable, pay and discharge all taxes imposed with respect to the Escrowed Shares or the Remaining Share Escrowed Funds or any income arising therefrom, including without limitation taxes assessed on dividends, distributions or other earnings on, or proceeds of investment of, the Escrowed Shares or the Remaining Share Escrowed Funds, and will indemnify Escrow Agent and hold it harmless from and against such taxes. Purchaser will be deemed to have satisfied any federal or state income tax liabilities with respect to dividends or distributions deposited pursuant to Section 4.2 or 4.3 to the extent Sellers deducted a portion of such dividends or distributions from such deposit to satisfy any federal or state income tax liability resulting therefrom. 7. No Liens or Encumbrances on Escrowed Shares or Escrowed Funds. Neither Sellers nor Purchaser will grant or otherwise permit to exist any lien with respect to the Escrowed Funds or Escrowed Shares, or its claims thereto. 8. Distributions. Promptly following the earlier of (a) Escrow Agent's receipt of a certificate from Sellers to the effect that the condition in Exhibit C to the Purchase Agreement has been satisfied, and (b) 10:00 a.m. Dallas, Texas time on June 14, 2002, Escrow Agent will distribute to (i) Sellers the Remaining Purchase Price Escrowed Funds then held in escrow by 3 wire transfer of immediately available funds to the accounts specified on Exhibit A in the following proportions: 35.45020% to MSREF; 1.64330% to MSREI; 28.38460% to MSP; and 34.52190% to Special Fund, and (ii) Purchaser the Escrowed Shares, including without limitation the Remaining Share Certificates and Powers, and the Remaining Share Escrowed Funds by wire transfer of immediately available funds to the account specified on Exhibit B. Sellers will deliver a copy of the certificate contemplated by this Section 8 to Purchaser at the same time and in the same manner that it is delivered to Escrow Agent. 9. Escrow Agent. 9.1 General. Purchaser and Sellers acknowledge and agree that Escrow Agent (i) will not be responsible for any of the agreements referred to herein but will be obligated only for the performance of such duties as are specifically set forth in this Agreement; (ii) will not be obligated to take any legal or other action hereunder which might in its judgment involve expense or liability unless it shall have been furnished with indemnity acceptable to it; (iii) may rely on and will be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, request or document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and will have no responsibility for determining the accuracy thereof; and (iv) may consult counsel satisfactory to it, including house counsel, and the advice or opinion of such counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel. 9.2 Liability. Neither Escrow Agent nor any of its directors, officers or employees will be liable to anyone for any action taken or omitted to be taken by it or any of its directors, officers or employees hereunder except in the case of gross negligence, bad faith or willful misconduct. Purchaser and Sellers will, jointly and severally, indemnify Escrow Agent and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by Escrow Agent arising out of or in connection with this Agreement or with the administration of its duties hereunder, including, but not limited to, legal fees and expenses and other costs and expenses of defending or preparing to defend against any claim of liability in the premises, unless such loss, liability or expense is caused by Escrow Agent's gross negligence, bad faith or willful misconduct. In no event will Escrow Agent be liable for indirect, punitive, special or consequential damages. 9.3 Compensation. Purchaser and Sellers hereby have each paid one-half of Escrow Agent's compensation for its services hereunder in the amount of $_____________. Escrow Agent will be entitled to reimbursement on demand for all expenses incurred in connection with the administration of the escrow created hereby which are in excess of its compensation for normal services hereunder, including without limitation payment of any legal fees and expenses incurred by Escrow Agent in connection with the resolution of any claim by any party hereunder. 9.4 Resignation. Escrow Agent may at any time resign as Escrow Agent hereunder by giving 30 days' prior written notice of resignation to the other parties hereto. Prior to the effective date of the resignation as specified in such notice, Sellers will issue to Escrow Agent a written instruction authorizing redelivery of the Escrow Funds to a successor escrow agent that it selects subject to the reasonable consent of Purchaser. Such successor escrow agent will be a 4 bank or trust company, organized and existing under the laws of the United States or any state thereof, subject to examination by state or federal authorities, and have capital and surplus in excess of $100,000,000. If, however, Sellers fail to name a successor escrow agent within 20 days after the notice of resignation from Escrow Agent, Purchaser will be entitled to name such successor escrow agent. If no successor escrow agent is named by Purchaser or by Sellers, Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor escrow agent. The provisions of Section 9.2 will survive the resignation or removal of Escrow Agent or the termination of this Agreement. 9.5 Additional Escrowed Funds. Escrow Agent need not inquire into or verify whether additional cash, shares or other securities or property are required to be delivered to Escrow Agent pursuant to Sections 4.2 and 4.3 or inquire into or verify the tax calculations of any party hereto contemplated by such Section and may assume, instead, that its duties are only to hold the Remaining Shares and Remaining Purchase Price deposited on the date hereof and such additional property as is delivered to it in accordance with this Agreement. 10. Miscellaneous Provisions. 10.1 Notice. Any notice, consent, waiver or demand pursuant to or in connection with this Agreement must be in writing and will be deemed to be delivered when personally delivered or when actually received by facsimile transmission, overnight courier of national reputation or United States mail, at the address or facsimile number stated below (or at such other address or facsimile number as such party may designate by written notice to all other parties), with copies sent to the persons indicated: SELLERS: c/o Morgan Stanley Real Estate Fund III, L.P. 37th Floor 1585 Broadway New York, New York 10036-8293 Attention: Michael J. Franco Facsimile No.: (212) 761-0165 Copy to: Jones, Day, Reavis & Pogue 2727 North Harwood Street Dallas, Texas 75201 Attention: David J. Lowery Facsimile No.: (214) 969-5100 PURCHASER: Levitt Companies, LLC 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Attention: John E. Abdo, President Facsimile No.: (954) 768-0520 5 Copies to: BankAtlantic Bancorp, Inc. 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Attention: Alan B. Levan, Chairman Facsimile No.: (954) 768-0520 Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Suite 2200 150 West Flagler Street Miami, FL 33130 Attention: Alison W. Miller Facsimile No.: (305) 789-3395 ESCROW AGENT: __________________________________ __________________________________ __________________________________ Attention: _______________________ Facsimile No.: ___________________ Copy to: __________________________________ __________________________________ __________________________________ Attention: _______________________ Facsimile No.: ___________________ 10.2 Entire Agreement. This Agreement, the Purchase Agreement and the agreements and documents delivered hereunder and thereunder constitute the entire agreement among the parties hereto with respect to the subject matters hereof and thereof and there are no understandings, representations, warranties or agreements relative hereto and thereto which are not fully expressed herein and therein. No change, waiver or discharge of this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is sought to be enforced. 10.3 Assignment. This Agreement will apply to, inure to the benefit of, and be binding upon and enforceable against the parties to this Agreement and their respective legal representatives, successors and permitted assigns. 6 10.4 Exculpation. Notwithstanding any provision herein to the contrary, the liability of each Seller shall be limited to the assets of such Seller and no partner, shareholder, officer, director, employee or agent of any Seller shall have any personal liability hereunder. 10.5 Governing Law. This Agreement, and the rights and obligations of the parties hereto, will be governed by the substantive laws of the State of New York without giving effect to the principles of conflict of laws of that state. Each of Sellers and Purchaser irrevocably submits to the exclusive jurisdiction of the federal or state courts located in New York County, New York for purposes of any action, suit or other proceeding arising out of this Agreement or any transaction contemplated under this Agreement, and irrevocably waives any objection which it may now or hereafter have to the venue of any suit, action or proceeding brought in such courts and any claim that such suit, action or proceeding brought in such courts has been brought in an inconvenient forum and lack of jurisdiction. 10.6 Captions. Any captions, headings and arrangements used in this agreement are for convenience and do not in any way effect, limit or amplify the terms and provisions of this Agreement. 10.7 Expenses. Subject to Section 9.3, Sellers will be responsible for their own expenses (including without limitation, legal and accounting fees) and Purchaser will be responsible for its own expenses (including, without limitation, legal and accounting fees) incurred in connection with the transactions contemplated under this Agreement, whether or not such transactions are consummated. 10.8 Counterparts. This Agreement may be executed in any number of separate counterparts, each of which will be deemed to be an original, but which together will constitute one and the same instrument. 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ESCROW AGENT By: --------------------------------- Name: --------------------------------- Title: --------------------------------- [Sellers' and Purchaser's signatures begin on following page.] 8 SELLERS: MORGAN STANLEY REAL ESTATE FUND III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: --------------------------------- Name: --------------------------------- Title: --------------------------------- MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: --------------------------------- Name: --------------------------------- Title: --------------------------------- MSP REAL ESTATE FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: --------------------------------- Name: --------------------------------- Title: --------------------------------- 9 MSREF III SPECIAL FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: --------------------------------- Name: --------------------------------- Title: --------------------------------- PURCHASER: LEVITT COMPANIES, LLC By: --------------------------------- Name: --------------------------------- Title: --------------------------------- 10 Exhibit A Sellers' Wire Transfer Instructions Seller Account Amount ------ ------- ------ Exhibit B Purchaser's Wire Transfer Instructions EX-3 5 d50426_ex-3.txt DEMAND PROMISSORY NOTE Exhibit 3 DEMAND PROMISSORY NOTE $30,000,000 April 10, 2002 FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, the undersigned, LEVITT COMPANIES, LLC, a Florida limited liability company (the "Maker"), promises to pay to the order of BANKATLANTIC BANCORP, INC., a Florida corporation, or its registered assigns (the "Holder"), the principal sum of Thirty Million and No/100 Dollars ($30,000,000) (the "Principal"), plus interest (the "Interest") on the Principal from time to time remaining unpaid, calculated at the Prime Rate minus twenty-five (25) basis points, and payable as hereinafter set forth. Any change in the interest rate resulting from a change in the Prime Rate shall become effective as of the opening of business on the day on which such change in the Prime Rate shall become effective. Interest shall be calculated on the basis of a year of three hundred sixty (360) days for the actual number of days elapsed. For purposes of this Note, "Prime Rate" means the rate of interest announced by Columbus Bank and Trust Company, a Georgia banking corporation, from time to time as its prime commercial lending rate. Interest shall be paid in immediately available funds from time to time. The Maker shall pay to the Holder the entire unpaid Principal and any and all accrued and unpaid Interest thereon upon written demand therefor by the Holder. Payments to the Holder under this Note shall be made to the Holder at 1750 East Sunrise Boulevard, Fort Lauderdale, Florida 33304, or at such other place as the Holder may from time to time designate to the Maker in writing. All payments hereunder shall be made in lawful money of the United States of America. This Note may be prepaid in whole or in part without penalty. Prepayments shall first be applied against accrued and unpaid Interest hereunder and shall then be applied to the Principal hereunder. If payment of Principal or Interest on this Note becomes due on a Saturday, Sunday or other legal holiday on which banks in the State of Florida are closed, then the due date shall be extended to the next succeeding business day. This Note shall be subordinate and junior in right of payment in all respects to amounts outstanding under that certain Loan Agreement, dated September 15, 2000, by and among Levitt Corporation and Ohio Savings Bank, and the Holder acknowledges that no Interest or Principal shall be paid hereunder if an event of default has occurred and is continuing under the terms of such Loan Agreement. The Maker waives demand, presentment, protest, dishonor and notice of maturity, non-payment or protest and all other requirements to hold the Maker liable. Time is of the essence with respect to this Note. If any provision or portion of this Note is declared or found by a court of competent jurisdiction to be unenforceable or null and void, such provision or portion thereof shall be deemed stricken and severed from this Note, and the remaining provisions and portions thereof shall continue in full force and effect. This Note may not be amended, extended, renewed or modified nor shall any waiver of any provision hereof be effective, except by an instrument in writing executed by an the Holder or his authorized representative. This Note shall be construed, interpreted, enforced and governed by and in accordance with the laws of the State of Florida (excluding the principles thereof governing conflicts of law), with exclusive jurisdiction and venue in the federal and state courts of Broward County, Florida. A delay by the Holder in exercising a right or remedy shall not constitute a waiver thereof. No waiver by the Holder of any default hereunder shall be deemed to constitute a waiver of any subsequent default. No exercise of any right or remedy hereunder shall preclude the exercise of any other right or remedy which the Holder may have in law or in equity to enforce the paying of this Note or the collection thereof. The Maker expressly agrees that the maturity of this Note, or any payment hereunder, may be extended by the Holder from time to time without in any way affecting the liability of the Maker. THE MAKER: LEVITT COMPANIES, LLC By: /s/ Glen R. Gilbert --------------------------------- Name: Glen R. Gilbert --------------------------------- Title: Vice President --------------------------------- -2- -----END PRIVACY-ENHANCED MESSAGE-----