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EXHIBIT 10.104
AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
Dated as of October 1, 1999
among
BLUEGREEN RECEIVABLES FINANCE CORPORATION III,
as Seller
BRFC III DEED CORPORATION,
as agent and custodian of certain deeds for the benefit of the Purchaser
▇▇▇▇▇▇ FINANCIAL, INC.,
as the Purchaser
BLUEGREEN CORPORATION,
as the Originator and the Servicer
VACATION TRUST, INC.,
as Club Trustee
and
U.S. BANK NATIONAL ASSOCIATION,
as Cash Administrator
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS.............................................................................................2
Section 1.1 CERTAIN DEFINED TERMS..................................................................2
Section 1.2 OTHER INTERPRETIVE PROVISIONS..........................................................3
ARTICLE II THE PURCHASE FACILITY..................................................................................3
Section 2.1 SALE AND PURCHASE OF ASSETS............................................................3
Section 2.2 PROCEDURES FOR PURCHASES...............................................................4
Section 2.3 ESTABLISHMENT OF ACCOUNTS; RESERVE ACCOUNT.............................................5
Section 2.4 [OMITTED]..............................................................................6
Section 2.5 DEPOSITS TO ACCOUNTS...................................................................6
Section 2.6 NON-LIQUIDATION SETTLEMENT PROCEDURES..................................................6
Section 2.7 LIQUIDATION SETTLEMENT PROCEDURES......................................................8
Section 2.8 INVESTMENT OF ACCOUNTS.................................................................9
Section 2.9 PAYMENTS AND COMPUTATIONS; FUNDING INDEMNITY FOR FAILED PURCHASE.......................9
Section 2.10 [OMITTED].............................................................................10
Section 2.11 ADDITION/SUBSTITUTION OF RECEIVABLES..................................................10
Section 2.12 EXTENSION OF PROGRAM TERMINATION DATE; INCREASE IN COMMITMENT.........................12
Section 2.13 EFFECT OF AMENDMENT AND RESTATEMENT. This Agreement amends and restates in its
entirety the Prior Purchase Agreement and, upon effectiveness of this Agreement, the
terms and provisions of the Prior Purchase Agreement shall, subject to this SECTION
2.13, be superseded hereby. All references to "Asset Purchase Agreement"or
"Agreement" contained in..............................................................12
Section 2.13 the Transaction Documents delivered in connection with the Prior Purchase Agreement
shall be deemed to refer to this Agreement. Notwithstanding the amendment and
restatement of the Prior Purchase Agreement by this Agreement, the obligations and
indemnities outstanding under the Prior Purchase Agreement as of the Closing Date
shall remain outstanding and constitute continuing obligations hereunder. Such
outstanding rights and obligations shall in all respects be continuing, and this
Agreement shall not be deemed to evidence or result in a novation of such rights and
obligations. In furtherance of and without limiting the foregoing, from and after the
Closing Date and except as expressly specified herein, the terms, conditions, and
covenants governing the rights and obligations outstanding under the Prior Purchase
Agreement shall be solely as set forth in this Agreement, which shall supersede the
Prior Purchase Agreement in its entirety..............................................12
ARTICLE III [RESERVED]...........................................................................................13
ARTICLE IV CONDITIONS OF PURCHASES...............................................................................13
Section 4.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE..............................................13
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Section 4.2 CONDITIONS PRECEDENT TO ALL PURCHASES..................................................13
ARTICLE V REPRESENTATIONS AND WARRANTIES..........................................................................15
Section 5.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER...........................................15
Section 5.2 REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO THE AGREEMENT
AND THE RECEIVABLES..................................................................19
Section 5.3 REPRESENTATIONS AND WARRANTIES OF THE CLUB AND THE CLUB TRUSTEE........................22
ARTICLE VI GENERAL COVENANTS......................................................................................24
Section 6.1 GENERAL COVENANTS OF THE SELLER........................................................24
Section 6.1A GENERAL COVENANTS OF THE CLUB TRUST AND CLUB TRUSTEE...................................27
Section 6.2 RELEASE OF INTEREST IN INTERVAL........................................................30
Section 6.3 RETRANSFER OF INELIGIBLE RECEIVABLES...................................................30
ARTICLE VII SPECIAL PROVISION RELATING TO CLUB RECEIVABLES........................................................32
Section 7.1 RIGHTS SUBJECT TO TRUST AGREEMENT. Notwithstanding anything to the contrary set forth
herein or in any other Transaction Documents, all references to the rights of the
Purchaser with respect to Club Receivables shall be subject at all times to the
provisions of the Trust Agreement and the other agreements executed by the
Beneficiaries in connection therewith..................................................32
ARTICLE VIII EVENTS OF TERMINATION................................................................................32
Section 8.1 EVENTS OF TERMINATION..................................................................32
ARTICLE IX........................................................................................................34
Section 9.1 FURTHER ASSURANCES. The Purchaser, Originator and Seller agree that from time to time
the Purchaser will sell the Assets or cash flows therein to various third parties.
Originator and Seller agree to use their best efforts to cooperate with the Purchaser
in connection with the Purchaser's sale of the Assets or the cash flows therein to
such third parties; provided, however, Originator and Seller are not obligated to pay
any of the Purchaser's fees or expenses associated with such sale. In the event
Originator and Seller incur out of pocket expenses associated with the sale of the
Assets or the cash flows therein to a third party (I.E., the creation of new software
to service the Receivables and the related Assets or the cash flows therein, change in
servicing requirements, etc.) Purchaser shall reimburse the Originator or Seller for
such expense...........................................................................34
ARTICLE X [RESERVED]..............................................................................................34
ARTICLE XI ASSIGNMENTS; PARTICIPATIONS; RELEASE OF ASSETS.........................................................34
Section 11.1 ASSIGNMENTS............................................................................34
Section 11.2 PARTICIPATIONS.........................................................................35
Section 11.3 INFORMATION TO ASSIGNEES/PARTICIPANTS; CONFIDENTIALITY.................................35
Section 11.4 SELLER'S REPURCHASE OPTION.............................................................36
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ARTICLE XII MISCELLANEOUS........................................................................................36
Section 12.1 AMENDMENTS AND WAIVERS................................................................36
Section 12.2 NOTICES, ETC..........................................................................36
Section 12.3 [RESERVED]............................................................................38
Section 12.4 NO WAIVER; REMEDIES...................................................................38
Section 12.5 BINDING EFFECT........................................................................38
Section 12.6 TERM OF THIS AGREEMENT................................................................38
Section 12.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE..................38
Section 12.8 WAIVER OF JURY TRIAL..................................................................39
Section 12.9 COSTS, EXPENSES AND TAXES.............................................................39
Section 12.10 NO BANKRUPTCY COVENANT................................................................40
Section 12.11 PROTECTION OF OWNERSHIP INTERESTS OF THE PURCHASER; INTENT OF PARTIES; BACK-UP
SECURITY INTEREST...................................................................40
Section 12.12 EXECUTION IN COUNTERPARTS; SEVERABILITY; INTEGRATION..................................41
Section 12.13 PURCHASER RIGHT OF FIRST REFUSAL......................................................41
Section 12.14 PURCHASE CESSATION EVENTS.............................................................41
Section 12.15 COOPERATION OF PARTIES TO CLUB CONVERSION.............................................42
SCHEDULES
SCHEDULE I Condition Precedent Documents
SCHEDULE II [Reserved]
SCHEDULE III Tradenames, Fictitious Names and "Doing Business As" Names
SCHEDULE IV Cash Administrator Fees
SCHEDULE V Location of Receivables Files
SCHEDULE VI Insurance
EXHIBITS
EXHIBIT A Form of Request Notice For Initial and Incremental
Purchases
EXHIBIT B Form of List of Deliveries for all Advances
EXHIBIT C List of Resorts
EXHIBIT D Form of Monthly Report
EXHIBIT E Trust Agreement
EXHIBIT F Provisions of Seller's Certificate of Incorporation
EXHIBIT G [Reserved]
EXHIBIT H Form of Assignment
EXHIBIT I Form of Subsequent Transfer Agreement
EXHIBIT J Form of Substitute Receivables Transfer Agreement
ANNEXES
Definitions Annex
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
This Amended and Restated Asset Purchase Agreement (this "AGREEMENT")
is made as of October 1, 1999, among:
(1) Bluegreen Receivables Finance Corporation III, a Delaware
corporation ("FUNDING CORP"), as Seller (in such capacity, the
"SELLER");
(2) Bluegreen Corporation, a Massachusetts corporation
("BLUEGREEN"), as originator and owner of the Receivables
prior to their conveyance to Funding Corp under the Sale and
Contribution Agreement (in such capacity, together with its
permitted successors and assigns, the "ORIGINATOR") and in its
separate capacity as Servicer (in such capacity, together with
its permitted successors and assigns, the "SERVICER");
(3) U.S. Bank National Association, as Cash Administrator (the
"CASH ADMINISTRATOR");
(4) BRFC III Deed Corporation, a Delaware corporation ("DEED
CORP"), solely as the agent and custodian for the benefit of
the Purchaser of certain deeds relating to certain Receivables
represented by conditional sales contracts (in such capacity,
the "DEED CUSTODIAN");
(5) ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation ("HFI"), as
Purchaser (in such capacity, together with its successors and
assigns, the "PURCHASER"); and
(6) Vacation Trust, Inc., a Florida corporation, as Club Trustee
under the Trust Agreement (in such capacity, the "CLUB
TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Seller, Deed Corp, Bluegreen, as Servicer and Originator,
the Cash Administrator and the Purchaser are parties to that certain Asset
Purchase Agreement dated as of June 26, 1998 (as heretofore amended, restated,
supplemented or otherwise modified, the "Prior Purchase Agreement");
WHEREAS, the parties hereto desire to amend and restate the Prior
Purchase Agreement for the purpose of accommodating Additional Resorts and the
Club, clarifying the status of the Receivables (including Club Receivables) and
related Intervals with respect thereto and adding the Club Trustee as
signatories hereto, subject to the terms and conditions set forth herein;
WHEREAS, the Seller is a wholly-owned, special-purpose
bankruptcy-remote subsidiary of the Originator;
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WHEREAS, the Seller has been formed for the sole purpose of purchasing
and selling certain Receivables and related Assets originated or otherwise
acquired and owned by the Originator in the ordinary course of the Originator's
business and sold or contributed to the Seller from time to time pursuant to the
Sale and Contribution Agreement by and between the Originator and the Seller;
WHEREAS, the Seller wishes to sell the Receivables and related Assets,
and the Purchaser wishes to purchase the Receivables and the related Assets
pursuant to the terms and conditions contained herein;
WHEREAS, the Deed Custodian is a wholly-owned, special-purpose
subsidiary of the Seller;
WHEREAS, the Deed Custodian has been formed for the sole purpose of
holding certain Deeds relating to Receivables sold pursuant to this Agreement
that are in the form of conditional sales contracts as agent and custodian for
the benefit of the Purchaser;
WHEREAS, the Club Trustee is a limited purpose entity which, on behalf
of the Beneficiaries, holds title to certain Intervals and Deeds relating to
Club Receivables sold pursuant to this Agreement;
WHEREAS, the Cash Administrator has been requested and is willing to
provide certain administrative services on behalf of the Purchaser with respect
to Collections and associated investments, payments and distributions thereof in
accordance with the terms hereof;
WHEREAS, Bluegreen and Deed Corp are willing and have agreed pursuant
hereto and to the Servicing Agreement and the Deed Custodian Agreement,
respectively, executed contemporaneously herewith, to act as Servicer and Deed
Custodian, respectively, for the Assets and the Deeds and to perform the
Servicer's and Deed Custodian's respective obligations and responsibilities
under the Servicing Agreement, the Deed Custodian Agreement and hereunder; and
WHEREAS, it is the intention of the Seller and the Purchaser that the
transactions contemplated by this Agreement constitute a sale and absolute
transfer of ownership of the Assets.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 CERTAIN DEFINED TERMS.
All capitalized terms used and not expressly defined herein, shall have
the meaning specified in the Definitions Annex attached to this Agreement (the
"DEFINITIONS ANNEX").
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Section 1.2 OTHER INTERPRETIVE PROVISIONS.
Except to the extent otherwise specified in the particular term or
provision at issue, this Agreement (including the Definitions Annex hereto)
shall be interpreted and construed in accordance with the Document Conventions.
ARTICLE II
THE PURCHASE FACILITY
Section 2.1 SALE AND PURCHASE OF ASSETS.
(a) Subject to the terms and conditions of this Agreement, the
Seller may, at its option, sell and assign to the Purchaser the Assets
from time to time designated and identified for purchase in accordance
with Section 2.2 hereof, and the Purchaser agrees to make such
purchases from time to time (the first such date, the "INITIAL PURCHASE
DATE") during the period from the Closing Date to but not including the
Termination Date or the Program Termination Date (the first such sale
and purchase to be effected hereunder, the "INITIAL PURCHASE"; each
subsequent sale and purchase, an "INCREMENTAL PURCHASE"; and any such
sale and purchase, a "PURCHASE"). Under no circumstances, however,
shall the Purchaser be obligated to make any Purchase if, after giving
effect to the payment of the Cash Purchase Price relating to such
Purchase, either (i) the aggregate Capital Payout hereunder would
exceed the Purchase Limit, or (ii) the aggregate Capital outstanding
would exceed the Capital Limit. Upon the payment of the related Cash
Purchase Price for the Initial Purchase or any Incremental Purchase,
the Seller shall have, and shall be deemed hereunder to have,
irrevocably sold, assigned, transferred and conveyed to the Purchaser,
without recourse, representation or warranty, express or implied,
except as provided in the Transaction Documents, all right, title and
interest of the Seller in and to the Assets relating to such Initial
Purchase or Incremental Purchase, as the case may be.
(b) The purchase price ("PURCHASE PRICE") for the Purchased
Receivables in each Asset Pool Portion shall consist of the Cash
Purchase Price plus the Deferred Payment. The "CASH PURCHASE PRICE"
shall be an amount equal to the product of (i) the Receivable Balance
as of the Cutoff Date of the Eligible Receivables to be purchased,
multiplied by (ii) the Credit Enhancement Factor. Subject to the
satisfaction of the conditions and on the terms set forth herein, the
Purchaser shall pay to the Seller the Cash Purchase Price for the
Purchased Receivable on the related Purchase Date in accordance with
the provisions of Section 2.2(b). The Deferred Payment with respect to
the
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Purchased Receivables shall be determined and paid in accordance with
the provisions of Sections 2.6(xiii) and 2.7(xiii).
(c) Upon payment of the Cash Purchase Price by the Purchaser
in the amount determined in accordance with Section 2.1(b) and Section
2.2(b) with respect to all Assets purchased on a Purchase Date, the
ownership of all such Assets will be solely vested in the Purchaser.
None of the Originator, Servicer, Seller, Club Trustee nor Deed Corp
shall take any action inconsistent with such ownership and shall not
claim any ownership interest in any Purchased Receivable or related
Asset. The Seller, Originator, Servicer, Club Trustee and Deed
Custodian shall each indicate in their respective books and records
that ownership of each Purchased Receivable and related Asset is held
by the Purchaser. In addition, the Seller shall respond to any
inquiries with respect to ownership of the Assets by stating that it is
no longer the owner of the Assets and that ownership of the Assets is
held by the Purchaser. Any documents, including Deeds, (other than
Deeds relating to Club Receivables) relating to the Purchased
Receivables retained by the Seller, the Originator, Club Trustee or the
Deed Custodian shall be held in trust by the Seller, the Originator (in
its capacity as the Servicer), the Club Trustee and the Deed Custodian
(as agent and custodian for the Purchaser), for the benefit of the
Purchaser, and possession of any incident of ownership relating to the
Purchased Receivables so retained is for the sole purpose of
facilitating the servicing of the Purchased Receivables and, in the
case of the Deed Custodian, for administrative ease of transfer of
deeds upon payment in full by the Obligor of the Receivables in the
form of conditional sales contracts, or otherwise at the direction of
the Purchaser. Such retention and possession (other than retention by
the Club Trustee of Deeds relating to Club Receivables as to which the
rights of the Purchaser, as an Interest Holder Beneficiary, shall be as
set forth in the Trust Agreement) is at the will of the Purchaser and
in a custodial capacity for the benefit of the Purchaser and its
assignees only. The Purchaser may direct the Deed Custodian at any time
to transfer any Deed(s) held by the Deed Custodian relating to any
Receivable purchased hereunder to Purchaser or its nominee; PROVIDED
that any such transfer will be made subject to the conditional sales
contract relating thereto, if any. Subject to the rights of the
Beneficiaries and the other provisions of the Trust Agreement, the
Purchaser may direct the Club Trustee at any time to transfer any
Deed(s) relating to any Club Receivable purchased hereunder to
Purchaser or its nominee; PROVIDED that any such transfer will be made
subject to the Purchase Money Mortgage relating thereto, if any.
Section 2.2 PROCEDURES FOR PURCHASES.
(a) No later than 10:00 a.m. (Chicago, Illinois time) on a
date which is at least five (5) Business Days before any intended
Purchase Date, the Seller will deliver or cause to be delivered to the
Purchaser a Request Notice substantially in the form of EXHIBIT A
hereto; provided, however, if the Purchase relates to Receivables and
related Assets which are financed through a source other than the
Warehouse Facility, such Request Notice shall be provided at least ten
(10) Business Days prior to the intended Purchase
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Date. In the event that the Seller does not provide a properly
completed Request Notice (and subject to all other terms and conditions
to such Purchase hereunder), the Purchaser will not be obligated to
purchase Eligible Receivables on such intended Purchase Date until such
time as such terms and conditions are met. Each such Request Notice
shall specify, among other things, (i) the aggregate amount of such
Purchase, which shall be in a minimum amount equal to $10,000,000, or
such lesser amount as may be equal to the then unused portion of the
Purchase Limit, (ii) the intended Purchase Date for such Purchase, and
(iii) the aggregate Capital Payout, Capital outstanding, and the
Capital Limit, both immediately preceding and after giving effect to
such Purchase.
(b) On each Purchase Date, and subject to the satisfaction of
the conditions of Article IV, the Servicer will prepare and deliver an
Assignment to the Seller and Purchaser in the form of EXHIBIT H hereto
with respect to the Purchased Receivables being purchased on such
Purchase Date by the Purchaser. The Seller shall thereupon execute such
Assignment and deliver executed copies thereof to the Servicer who will
in turn cause a fully executed copy of such Assignment to be delivered
to the Purchaser and the Custodian. The Purchaser shall thereupon pay
to the Seller for such Purchased Receivables the Cash Purchase Price,
by wire transfer in same day funds in accordance with the wire transfer
instructions specified in the related Request Notice. The Seller shall
be solely responsible for obtaining ownership of the Purchased
Receivables from the Originator, pursuant to the Sale and Contribution
Agreement, prior to transfer of ownership of such Purchased Receivables
to the Purchaser under this Agreement.
Section 2.3 ESTABLISHMENT OF ACCOUNTS; RESERVE ACCOUNT.
(a) Prior to or simultaneously with the execution and delivery
of this Agreement, the Purchaser and the Servicer shall (i) establish
an Eligible Deposit Account in the name of the Purchaser, titled
"▇▇▇▇▇▇ LOCKBOX ACCOUNT RE BLUEGREEN RECEIVABLES ASSET PURCHASE
AGREEMENT" (the "LOCKBOX ACCOUNT"), and (ii) enter into the Lockbox
Agreement.
(b) Prior to or simultaneously with the execution and delivery
of this Agreement, the Purchaser and the Cash Administrator shall
establish an Eligible Deposit Account in the name of the Purchaser
titled "▇▇▇▇▇▇ FACILITY COLLECTION ACCOUNT RE BLUEGREEN RECEIVABLES
ASSET PURCHASE AGREEMENT" (the "COLLECTION ACCOUNT").
(c) Each of the Originator, Seller and the Servicer shall
deposit all Collections it may receive in respect of Purchased
Receivables into the Lockbox Account no later than the second Business
Day following the date of receipt thereof. Any collections in respect
of Purchased Receivables held by the Originator, Seller or Servicer
pending transfer to the Lockbox Account shall be held in trust for the
benefit of the Purchaser until such amounts are deposited into the
Lockbox Account.
(d) Prior to or simultaneously with the execution and delivery
of this Agreement, the Purchaser and the Cash Administrator shall
establish an Eligible Deposit
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Account in the name of the Purchaser titled "▇▇▇▇▇▇/BLUEGREEN FACILITY
RESERVE ACCOUNT" (the "RESERVE ACCOUNT").
(e) Prior to the Termination Date, on or prior to each Payment
Date (and in anticipation of allocations and distributions to be made
on such Payment Date pursuant to Section 2.6), the Servicer in
consultation with the Purchaser, and based upon information provided in
the Monthly Report delivered by the Servicer to the Purchaser two (2)
Business Days prior to the related Payment Date unless the Receivables
or the cash flows therein shall be sold to a third party in which case
the Servicer shall provide such Monthly Report three (3) Business Days
prior to the related Payment Date, shall determine the extent to which
Available Amounts in the Collection Account (including proceeds of any
Servicer Advance deposited therein in accordance with Section 5.18 of
the Servicing Agreement) are insufficient to pay Cash Administrator
Fees, Lockbox Fees, Back-Up Servicer Fees, Custodian Fees, Unreimbursed
Servicer Advances, Protective Advances, Servicing Fees (to the extent
applicable) as well as the Yield and Capital Payment Amount
distributions required on such Payment Date. To the extent of such
insufficiency, amounts held in the Reserve Account shall be transferred
to the Collection Account, treated as Available Amounts for such
Payment Date and thereafter applied in order for any of such payments
or allocations to be made pursuant to Section 2.6. In addition, to the
extent that after giving effect to the payments and allocations to be
made pursuant to Section 2.6, amounts held in the Reserve Account will
exceed the then-applicable Reserve Account Required Amount, such excess
shall be transferred to the Collection Account and applied and
allocated as Available Amounts on the Payment Date with respect to the
related Collection Period under Section 2.6.
(f) On the Payment Date first occurring on or after the
occurrence of the Termination Date, all amounts held in the Reserve
Account shall be transferred to the Collection Account, treated as
Available Amounts on such Payment Date and applied to payments or
allocations required to be made pursuant to Section 2.7.
Section 2.4 [OMITTED].
Section 2.5 DEPOSITS TO ACCOUNTS.
On each Monday, Wednesday, and Friday (or, if any Monday, Wednesday or
Friday is not a Business Day, then on the next succeeding Business Day) pursuant
to the Lockbox Agreement, all Collections in the Lockbox Account shall be
transferred by automated wire by the Lockbox Bank to the Collection Account. In
addition, the proceeds of Servicer Advances made pursuant to Section 5.18 of the
Servicing Agreement, transfers from the Reserve Account made pursuant to Section
2.3(e) or (f), and payments of any Transfer Deposit Amount received from the
Originator or Seller shall be deposited to the Collection Account.
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Section 2.6 NON-LIQUIDATION SETTLEMENT PROCEDURES.
Prior to the Termination Date, on each Payment Date, the Cash
Administrator shall pay to the following Persons, from the Collection Account,
to the extent of Available Amounts on deposit in the Collection Account with
respect to the related Collection Period (and after giving effect to any
transfers into the Collection Account contemplated in Section 2.3(e)), the
following amounts in the following order of priority:
(i) first, to the Cash Administrator, any accrued and unpaid
Cash Administrator Fees and to the Lockbox Bank, any accrued and unpaid
Lockbox Fees;
(ii) second, to the Back-up Servicer, any accrued and unpaid
Back-up Servicer Fees and to the Custodian, any accrued and unpaid
Custodian Fees;
(iii) third, to the Servicer, any Unreimbursed Servicer
Advances (which reimbursement shall be applicable to any Predecessor
Servicer);
(iv) fourth, to the Deed Custodian to allow the Deed Custodian
to make Protective Advances;
(v) fifth, to any Servicer which is the Servicer by virtue of
a Servicer Transfer, and which Servicer is not Bluegreen or any
Affiliate thereof, to such Servicer, any accrued and unpaid Servicing
Fees;
(vi) sixth, to any Servicer or any subservicer (if applicable)
which is the Servicer by virtue of a Servicer Transfer, and which
Servicer or subservicer is not Bluegreen or any Affiliate thereof, to
such Servicer or subservicer any accrued and unpaid Remarketing Fees;
(vii) seventh, to the Purchaser, an amount equal to the
accrued and unpaid Yield, Yield on Yield and Volume Yield;
(viii) eighth, to the Purchaser, an amount equal to the
Capital Payment Amount;
(ix) ninth, to the Servicer, any accrued and unpaid Servicing
Fees (to the extent not paid under clause (v) above);
(x) tenth, to the Servicer for accrued and unpaid Remarketing
Fees;
(xi) eleventh, to the Cash Administrator, for deposit into the
Reserve Account, an amount up to that required to cause the amounts on
deposit in the Reserve Account to equal the Reserve Account Required
Amount;
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(xii) twelfth, to the Purchaser, any amounts due and owing
under Section 12.9 hereof and not paid by the Seller pursuant to such
Section; and
(xiii) thirteenth, any remaining amounts to the Seller, as a
deferred payment for the Assets in the Asset Pool as of or prior to the
end of the related Collection Period (each such payment, a "DEFERRED
PAYMENT").
Section 2.7 LIQUIDATION SETTLEMENT PROCEDURES.
On or after the occurrence of the Termination Date, on each Payment
Date, the Cash Administrator shall pay to the following Persons, from the
Collection Account, to the extent of Available Funds on deposit in the
Collection Account (and after giving effect to the transfers into the Collection
Account contemplated in Section 2.3(f)), the following amounts in the following
order of priority:
(i) first, to the Cash Administrator, any accrued and unpaid
Cash Administrator Fees and to the Lockbox Bank, any accrued and unpaid
Lockbox Fees;
(ii) second, to the Back-up Servicer, any accrued and unpaid
Back-up Servicer Fees and Audit Expenses incurred by the Back-up
Servicer and to the Custodian, any accrued and unpaid Custodian Fees;
(iii) third, to the Servicer, any Unreimbursed Servicer
Advances (which reimbursement shall be applicable to any Predecessor
Servicer);
(iv) fourth, to the Deed Custodian to allow the Deed Custodian
to make Protective Advances;
(v) fifth, to any Servicer which is the Servicer by virtue of
a Servicer Transfer and which Servicer is not Bluegreen or any
Affiliate thereof, to such Servicer, any accrued and unpaid Servicing
Fees;
(vi) sixth, to any Servicer or any subservicer (if applicable)
which is the Servicer by virtue of a Servicer Transfer, and which
Servicer or subservicer is not Bluegreen or any Affiliate thereof, to
such Servicer or subservicer any accrued and unpaid Remarketing Fees;
(vii) seventh, to the Purchaser, an amount equal to the
accrued and unpaid Yield, Yield on Yield and Volume Yield;
(viii) eighth, to the Purchaser, an amount equal to the
Capital Payment Amount;
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(ix) ninth, to the Servicer, any accrued and unpaid Servicing
Fees (to the extent not paid under clause (v) above);
(x) tenth, to the Servicer for accrued and unpaid Remarketing
Fees;
(xi) eleventh, to the Purchaser, any and all remaining
Available Amounts until such time as Capital is reduced to zero (0) as
well as any other amounts outstanding and unpaid hereunder;
(xii) twelfth, to the Purchaser, any amounts due and owing
under Section 12.9 hereof and not paid by the Seller pursuant to such
Section; and
(xiii) thirteenth, any remaining amounts to the Seller as a
final Deferred Payment.
Section 2.8 INVESTMENT OF ACCOUNTS.
Subject to the provisions of this Section 2.8, amounts on deposit in
any Trust Account shall be invested in Permitted Investments. Until the
Termination Date, the Cash Administrator shall invest all such amounts in
Permitted Investments selected by the Purchaser by written notice to the Cash
Administrator, that mature no later than the immediately succeeding Payment
Date. On and after the Termination Date, any investment of such amounts in
Permitted Investments shall be solely at the discretion of the Purchaser. All
Investment Earnings shall be deposited into the Collection Account as and when
received and shall be applied and disbursed in the same manner and priority as
all other amounts in the Collection Account.
Section 2.9 PAYMENTS AND COMPUTATIONS; FUNDING INDEMNITY FOR
FAILED PURCHASE.
(a) All amounts to be paid or deposited by the Originator,
Seller, Servicer or any other applicable payor referred to hereunder
shall be paid or deposited in accordance with the terms hereof no later
than 1:00 p.m. (Chicago, Illinois time) on the day when due in lawful
money of the United States in immediately available funds, and if not
so timely deposited, shall be deemed to have been received on the
following Business Day.
(b) Whenever any payment hereunder shall be stated to be due
on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of Yield, Yield on Yield
or any fee payable hereunder, as the case may be.
(c) If any Purchase requested by the Seller pursuant to
Section 2.2 is not for any reason whatsoever made or effectuated, as
the case may be, on the date specified therefor, the Seller and
Originator, jointly and severally, shall be obligated to indemnify the
Purchaser against any loss, cost or expense incurred by such Purchaser,
including,
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without limitation, any loss, cost or expense incurred by such
Purchaser (as reasonably determined by such Purchaser) as a result of
the liquidation or redeployment of deposits or other funds acquired by
such Purchaser to fund or maintain such Purchase, as the case may be;
PROVIDED, that no such indemnification shall be required if any
Purchase is not made or effectuated as a result of any action or
inaction by the Purchaser, other than a failure by such Purchaser to
make any Purchase due to a failure of any condition precedent to such
purchase set forth herein.
Section 2.10 [OMITTED].
Section 2.11 ADDITION/SUBSTITUTION OF RECEIVABLES.
(a) On any day prior to the Termination Date provided it is
done no more than once each Collection Period, and subject to the terms
and conditions hereof, the Seller may at its option replace a Purchased
Receivable currently in the Asset Pool (a "REPLACED RECEIVABLE") with
one or more Subsequent Receivables; provided, that the aggregate
Receivable Balances of all Replaced Receivables since the Initial
Cutoff Date shall not, at any date of determination, exceed an amount
equal to ten percent (10.00%) of the aggregate Receivable Balance of
all Receivables sold by the Seller to the Purchaser pursuant to this
Agreement as of such date. Subject to the conditions set forth in
paragraph (b) below, the Seller if exercising such option shall sell,
transfer, assign, set over and otherwise convey to the Purchaser,
without recourse other than as expressly provided in the Transaction
Documents, (i) all the Seller's right, title and interest in and to the
Subsequent Receivables listed on the related Subsequent List of
Receivables (including, without limitation, all Collections and rights
to receive Collections with respect thereto on or after the related
Subsequent Cutoff Date, but excluding any collections or rights to
receive payments which were collected pursuant thereto prior to such
Subsequent Cutoff Date), and (ii) all other rights and property
interests consisting of Assets related to such Subsequent Receivables
(the property in clauses (i)-(ii) above, upon such transfer, becoming
part of the Asset Pool).
(b) The Seller may transfer to the Purchaser the Subsequent
Receivables and the other property and rights related thereto described
in paragraph (a) above only upon the satisfaction of each of the
following conditions on or prior to the related Subsequent Transfer
Date (and the delivery of a related Addition Notice by the Seller shall
be deemed a representation and warranty by the Seller, that such
conditions have been or will be, as of the related Subsequent Transfer
Date, satisfied):
(i) The Seller shall have provided the Purchaser with
a timely Addition Notice complying with the definition
thereof;
(ii) the Subsequent Receivable(s) being conveyed to
the Purchaser, satisfy the Subsequent Receivable Qualification
Conditions;
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(iii) after giving effect to such conveyance, the
Subsequent Receivable Transfer Conditions shall remain
satisfied;
(iv) the Seller shall have delivered to the Purchaser
a duly executed written assignment, in substantially the form
of EXHIBIT I hereto (the "SUBSEQUENT TRANSFER AGREEMENT" or,
in the case of Substitute Receivables, substantially in the
form of EXHIBIT J hereto (the "SUBSTITUTE RECEIVABLES TRANSFER
AGREEMENT"), which shall include a Subsequent List of
Receivables listing the Subsequent Receivables;
(v) the Seller shall have deposited or caused to be
deposited in the Collection Account all Collections received
with respect to the Subsequent Receivables on or after the
related Subsequent Cutoff Date;
(vi) as of each Subsequent Transfer Date, both the
Originator and the Seller were Solvent and the conveyance
would not have the effect of rendering either no longer
Solvent;
(vii) no selection procedures believed by the
Originator or the Seller to be adverse to the interests of the
Purchaser shall have been utilized in selecting the Subsequent
Receivables;
(viii) each of the representations and warranties
made by the Originator pursuant to Article III of the Sale and
Contribution Agreement applicable to the Subsequent
Receivables shall be true and correct as of the related
Subsequent Transfer Date, and the Originator shall have
performed all obligations to be performed by it hereunder or
thereunder on or prior to such Subsequent Transfer Date; and
(ix) the Originator shall, at its own expense, on or
prior to the Subsequent Transfer Date, have indicated in its
Computer Disk and Records that the Subsequent Receivables
identified on the Subsequent List of Receivables in the
Subsequent Transfer Agreement have been sold to the Purchaser
through the Seller pursuant to this Agreement and the Sale and
Contribution Agreement.
(c) In connection with any replacement of existing Receivables
in the Asset Pool with Subsequent Receivables effected in accordance
with the terms hereof, the Purchaser shall, automatically and without
further action, be deemed to transfer to the Seller, free and clear of
any Lien created pursuant to this Agreement, all of the right, title
and interest of the Purchaser in, to and under the related Replaced
Receivable (including any Collections received with respect thereto on
or after the related Subsequent Cutoff Date), and the Purchaser shall
be deemed to represent and warrant that it has the corporate authority
and has taken all necessary corporate action to accomplish such
transfer, but without any other recourse, representation or warranty,
express or implied.
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Section 2.12 EXTENSION OF PROGRAM TERMINATION DATE; INCREASE
IN COMMITMENT.
(a) The Seller may, within 180 days, but no later than 120
days, prior to the then applicable Program Termination Date, by written
notice to the Purchaser, make written request for the Purchaser to
extend the Program Termination Date for an additional period of 364
days. The Purchaser shall make a determination, in its sole discretion
and after a full credit review, not less than 90 days prior to the then
applicable Program Termination Date as to whether or not it will agree
to extend the Program Termination Date; PROVIDED, HOWEVER, that the
failure of the Purchaser to make a timely response to the Seller's
request for extension of the Program Termination Date shall be deemed
to constitute a refusal by the Purchaser to extend the Program
Termination Date. The Program Termination Date shall only be extended
upon the written consent of the Purchaser.
(b) At any time after the Closing Date, the Seller may, by
written notice to the Purchaser delivered at least 20 Business Days
prior to a Purchase Date, request an increase in the Purchase Limit;
PROVIDED that any such increase must be in a minimum amount of U.S.
$50,000,000. The Purchaser in its sole discretion may approve such
request for an increase in the Purchase Limit, which increase shall
become effective only upon receipt by the Seller of written
confirmation of the Purchaser's consent to such increase, which
specifies the Purchase Limit as so increased.
Section 2.13 EFFECT OF AMENDMENT AND RESTATEMENT. This Agreement amends
and restates in its entirety the Prior Purchase Agreement and, upon
effectiveness of this Agreement, the terms and provisions of the Prior Purchase
Agreement shall, subject to this SECTION 2.13, be superseded hereby. All
references to "Asset Purchase Agreement" or "Agreement" contained in the
Transaction Documents delivered in connection with the Prior Purchase Agreement
shall be deemed to refer to this Agreement. Notwithstanding the amendment and
restatement of the Prior Purchase Agreement by this Agreement, the obligations
and indemnities outstanding under the Prior Purchase Agreement as of the Closing
Date shall remain outstanding and constitute continuing obligations hereunder.
Such outstanding rights and obligations shall in all respects be continuing, and
this Agreement shall not be deemed to evidence or result in a novation of such
rights and obligations. In furtherance of and without limiting the foregoing,
from and after the Closing Date and except as expressly specified herein, the
terms, conditions, and covenants governing the rights and obligations
outstanding under the Prior Purchase Agreement shall be solely as set forth in
this Agreement, which shall supersede the Prior Purchase Agreement in its
entirety.
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ARTICLE III
[RESERVED]
ARTICLE IV
CONDITIONS OF PURCHASES
Section 4.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE.
The Initial Purchase hereunder is subject to the condition precedent
that the Purchaser shall have received on or before the date of such purchase
the items listed in SCHEDULE I, each (unless otherwise indicated) dated such
date, in form and substance satisfactory to the Purchaser.
Section 4.2 CONDITIONS PRECEDENT TO ALL PURCHASES.
The Initial Purchase and each Incremental Purchase from the Seller by
the Purchaser shall be subject to the further conditions precedent that:
(a) with respect to any such Purchase (other than the Initial
Purchase) prior to the date of such Purchase,
(i) the Servicer shall have delivered to the
Purchaser (A) a completed Asset Report, in form and substance
reasonably satisfactory to the Purchaser, substantially in the
form of the Asset Report referred to in Schedule I with
respect to the Initial Purchase, dated within five (5)
Business Days prior to the date of such Incremental Purchase
and containing such additional information as may be
reasonably requested by the Purchaser, and (B) a Subsequent
List of Receivables relating to such Incremental Purchase, and
(c) executed Assignments (under both the Sale and Contribution
Agreement and this Agreement) relating thereto; and
(ii) the Receivables File with respect to such Asset
Pool Portion being purchased shall have been delivered into
the custody of the Purchaser (or arrangements for custody
thereof otherwise satisfactory to the Purchaser shall have
been implemented); and
(iii) all actions or additional actions necessary, in
the reasonable judgment of the Purchaser, to obtain an
absolute ownership interest in favor of the Purchaser in the
Asset Pool Portion being purchased shall have been taken (and
Purchaser may in its discretion require, as a condition to
such determination, the delivery of an Opinion of Counsel to
such effect);
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(b) on the date of such Purchase the following statements
shall be true and the Seller by accepting the amount of such Purchase
shall be deemed to have certified that:
(i) the representations and warranties contained in
Sections 5.1 and 5.2 are true and correct on and as of such
day as though made on and as of such date,
(ii) no event has occurred and is continuing, or
would result from such Purchase which constitutes an Event of
Termination,
(iii) on and as of such day, after giving effect to
such Purchase, the Capital Payout will not exceed the Purchase
Limit, and the outstanding Capital will not exceed the Capital
Limit, and
(iv) on and as of such day, the Seller and the
Servicer each has performed all of the agreements contained in
this Agreement and the other Transaction Documents to be
performed by such Person at or prior to such day;
(c) no law, rule or regulation shall prohibit, and no order,
judgment or decree of any federal, state or local court or government
body, agency or instrumentality shall prohibit or enjoin any of the
activities of the Purchaser contemplated by this Agreement;
(d) (i) no event has occurred under the Warehouse Facility
that would relieve ▇▇▇▇▇▇ Financial, Inc. from making advances under
the Warehouse Facility and (ii) no Increased Cost Event shall have
occurred and be continuing;
(e) the Deed Custodian shall have received with respect to
Receivables either an original note/instrument and related Allonge or
the original conditional sales contract;
(f) the Deed Custodian shall have received either a Master
Deed or Deeds relating to the Intervals if the related Receivable is a
conditional sales contract;
(g) in the event the condition requiring the application of
the Interest Rate Environment Modifier exists, the Purchaser and Seller
shall have agreed to the Interest Rate Environment Modifier; and
(h) the Purchaser shall have received such other approvals,
opinions or documents as the Purchaser may reasonably request.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller represents and warrants, as of the Closing Date, each
Purchase Date and each Subsequent Transfer Date, as follows:
(a) ORGANIZATION AND GOOD STANDING. The Seller is a
corporation duly organized and validly existing in good standing under
the laws of the State of Delaware, and has full corporate power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement and each other Transaction Document to
which it is a party.
(b) DUE QUALIFICATION. The Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements), and has obtained or will obtain all necessary
licenses and approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material
adverse effect on its ability to perform its obligations hereunder.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party,
and the consummation of the transactions provided for herein and
therein have been duly authorized by the Seller by all necessary
corporate action on the part of the Seller.
(d) NO CONFLICT. The execution and delivery of this Agreement
and each other Transaction Document to which it is a party, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any material indenture, receivable, agreement, mortgage,
deed of trust, or other instrument to which the Seller is a party (or
by which it or any of its property is bound).
(e) NO VIOLATION. The execution and delivery of this Agreement
and each other Transaction Document to which it is a party, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof (including, without
limitation, the sale of Assets by the Seller or remittance of
Collections in accordance with the provisions of this Agreement) will
not conflict with or violate, in any material respect, any Requirements
of Law applicable to the Seller.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Seller, threatened against the
Seller, before any court,
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regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this
Agreement or any other Transaction Document, (ii) seeking to prevent
the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document or (iii) seeking any
determination or ruling that could reasonably be expected to be
adversely determined, and if adversely determined, would materially and
adversely affect the performance by the Seller of its obligations under
this Agreement or any Transaction Document.
(g) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the Seller's execution and
delivery of this Agreement and the other Transaction Documents to which
it is a party, the performance of the transactions contemplated hereby
and thereby, and the fulfillment of the terms hereof and thereof, have
been obtained.
(h) BULK SALES. The execution, delivery and performance of
this Agreement do not require compliance with any "BULK SALES" law by
the Seller.
(i) SOLVENCY. After giving effect to the transactions under
this Agreement, the Seller will be Solvent.
(j) SELECTION PROCEDURES. No selection procedures believed by
the Seller to be materially adverse to the interests of the Purchaser
were utilized by the Seller in selecting the Receivables in the Asset
Pool.
(k) TAXES. The Seller has filed or caused to be filed all tax
returns which, to its knowledge, are required to be filed and has paid
when due all taxes shown to be due and payable on such returns or on
any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any amount of tax due the
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
accordance with generally accepted accounting principles have been
provided on the books of the Seller); no tax lien has been filed and,
to the Seller's knowledge, no claim is being asserted, with respect to
any such tax, fee or other charge.
(l) AGREEMENTS ENFORCEABLE. This Agreement and the other
Transaction Documents to which the Seller is a party constitute the
legal, valid and binding obligation of the Seller enforceable against
the Seller in accordance with their respective terms, except as such
enforceability may be limited by (i) applicable Insolvency Laws and
(ii) general principles of equity (whether considered as a suit at law
or in equity) or implied covenants of good faith and fair dealing.
(m) EXCHANGE ACT COMPLIANCE. No proceeds of any Purchase will
be used by the Seller or the Originator to acquire any security in any
transaction which is subject to Section 13 or 14 of the Securities
Exchange Act of 1934, as amended.
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(n) NO LIENS. Each Asset, together with the Receivable related
thereto, shall, immediately prior to its sale hereunder, be owned by
the Seller free and clear of any Lien (except Permitted Liens), and
upon each Purchase, the Purchaser shall acquire an undivided ownership
interest in each Asset and in the Collections with respect thereto,
free and clear of any Lien (except Permitted Liens). No effective
financing statement or other instrument similar in effect covering any
Asset or the Collections with respect thereto shall at any time be on
file in any recording office except such as may be filed in favor of
the Purchaser relating to this Agreement, or in favor of the Seller as
assignee of the Originator.
(o) PURCHASE LIMIT AND CAPITAL LIMIT. The Capital Payout
(after giving effect to any current Purchase or conveyance of
Receivables) does not exceed the Purchase Limit; and the aggregate
Capital outstanding (after giving effect to any current Purchase or
conveyance of Receivables) does not exceed the Capital Limit.
(p) REPORTS ACCURATE. No Asset Report, exhibit, financial
statement, document, book, record or report furnished or to be
furnished by the Seller to the Purchaser in connection with this
Agreement is or will be inaccurate in any material respect as of the
date it is or shall be dated or (except as otherwise disclosed to the
Purchaser, as the case may be, at such time) as of the date so
furnished, and no such document contains or will contain any material
misstatement of fact or omits or shall omit to state a material fact or
any fact necessary in light of the circumstances under which made, to
make the statements contained therein not misleading.
(q) LOCATION OF OFFICES. The principal place of business and
chief executive office of the Seller and the Originator, and the office
where the Seller and Originator keep all the Records, are located at
the addresses of the Seller and Originator, respectively, referred to
in Section 12.2 hereof (or at such other locations as to which the
notice and other requirements specified herein shall have been
satisfied).
(r) TRADENAMES. Except as described in SCHEDULE III, neither
the Seller nor the Originator has trade names, fictitious names,
assumed names or "DOING BUSINESS AS" names or other names under which
either has done or is doing business.
(s) SALE AND CONTRIBUTION AGREEMENT. The Sale and Contribution
Agreement is the only agreement pursuant to which the Seller acquires
ownership of the Receivables and related Assets.
(t) VALUE GIVEN. The Seller shall have given reasonably
equivalent value to the Originator in consideration for the transfer to
the Seller of the Assets under the Sale and Contribution Agreement, no
such transfer shall have been made for or on account of an antecedent
debt owed by such Originator to the Seller, and no such transfer is or
may be voidable or subject to avoidance under any section of the
Bankruptcy Code.
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(u) SPECIAL PURPOSE ENTITY. The Certificate of Incorporation
of the Seller includes substantially the provisions set forth on
EXHIBIT F hereto, and the Originator has confirmed in writing to the
Seller that, so long as the Seller is not "INSOLVENT" within the
meaning of the Bankruptcy Code, the Originator has covenanted in the
Sale and Contribution Agreement that it will not cause the Seller to
file a voluntary petition under the Bankruptcy Code or any other
bankruptcy or insolvency laws.
(v) ACCOUNTING. The Originator and Seller each account for the
transfer from the Originator of interests in Assets and Collections
under the Sale and Contribution Agreement as sales of such Assets in
its books, records and financial statements, in each case consistent
with GAAP and with the requirements set forth herein.
(w) SEPARATE ENTITY. The Seller is operated as an entity with
assets and liabilities distinct from those of the Originator and any
Affiliates thereof (other than the Seller), and the Seller and
Originator hereby acknowledge that the Purchaser is entering into the
transactions contemplated by this Agreement in reliance upon the
Seller's identity as a separate legal entity from the Originator and
from each such other Affiliate of the Originator.
(x) BACK-UP SECURITY INTEREST. It is the intention of the
Originator and Seller that the transactions contemplated by the Sale
and Contribution Agreement and this Agreement constitute an irrevocable
sale, assignment and transfer of ownership of the Receivables and
related Assets transferred thereunder. Nevertheless, in the event a
court of competent jurisdiction were to ever determine that the
transactions contemplated by the Sale and Contribution Agreement and
the this Agreement were secured financings rather than "TRUE SALES",
the Originator has granted (and hereby grants to) the Seller in the
Sale and Contribution Agreement and the Seller by assignment of its
rights hereunder has granted (and hereby grants to) the Purchaser a
"SECURITY INTEREST" (the term security interest, as used throughout
this Agreement, is used as defined in the UCC) in the Receivables and
related Assets being conveyed hereunder, which is enforceable in
accordance with the UCC upon execution and delivery of this Agreement.
Upon the filing of UCC-1 financing statements naming the Purchaser as
secured party and buyer and the Seller as debtor and seller, the
Purchaser shall have a first priority perfected security interest in
the Assets and Collections. All filings (including, without limitation,
such UCC filings) as are necessary in any jurisdiction to perfect the
interest of the Purchaser in the Assets and Collections have been (or
prior to the applicable Purchase will be) made.
(y) INVESTMENT COMPANY AND PUBLIC UTILITY HOLDING COMPANY.
Neither the Originator nor the Seller is an "INVESTMENT COMPANY" within
the meaning of and subject to regulation under the Investment Company
Act of 1940, as amended, or a "HOLDING COMPANY" or a "SUBSIDIARY
COMPANY" of a "HOLDING COMPANY," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
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(z) ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each
representation or warranty by the Seller contained herein or in any
certificate or other document furnished by the Seller pursuant hereto
or in connection herewith is when furnished true and correct in all
material respects; provided, however, Purchaser acknowledges that with
respect to the condition of a Receivable as an "ELIGIBLE RECEIVABLE" as
of their date of Purchase hereunder, Purchaser's remedy for a breach of
a representation or warranty relating to their status as an Eligible
Receivable is provided by Section 6.3 hereof.
(aa) YEAR 2000. Seller has made an assessment of the microchip
and computer-based systems and the software used in its business and
based upon such assessment believes that it will be "YEAR 2000
COMPLIANT" by January 1, 2000. For purposes of this Section 5.1, "YEAR
2000 COMPLIANT" means that all software, embedded microchips and other
processing capabilities utilized by, and material to the business
operations or financial condition of, the Seller are able to interpret,
store, transmit, receive and manipulate data on and involving all
calendar dates correctly and without causing any abnormal ending
scenarios in relation to dates in and after the year 2000. From time to
time, at the request of the Purchaser, Seller shall provide to
Purchaser such updated information as is requested regarding the status
of its effort to become Year 2000 Compliant.
(bb) RESERVATION SYSTEM. The Reservation System is owned by
the Club Managing Entity free and clear of any liens or security
interests, but subject to the provisions of the Club Management
Agreement and the Trust Agreement, and the Club has the right to
utilize such system under and pursuant to Club Management Agreement.
The Club Management Agreement is in full force and effect and no
default on the part of the Club Trustee or the Club Managing Entity
exists thereunder. The Servicer owns 100% of the equity capital of the
Club Managing Entity. An assessment of the microchip and computer-based
systems and the software used in the Reservation System has been made
and based upon such assessment, the Servicer and the Managing Entity
believe it will be Year 2000 Compliant by January 1, 2000.
(cc) TRUST AGREEMENT. The Trust Agreement, of which a true and
correct copy is attached hereto as EXHIBIT E, is in full force and
effect.
The representations and warranties set forth in this section shall survive the
transfer of the Assets to the Purchaser, and termination of the rights and
obligations of the Servicer pursuant to the Servicing Agreement. Upon discovery
by the Seller, the Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Section 5.2 REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO THE
AGREEMENT AND THE RECEIVABLES.
The Seller hereby represents and warrants to the Purchaser that, as of
the Closing Date, each Purchase Date and as of each Subsequent Transfer Date:
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(a) Binding Obligation; Valid Sale and Transfer of Ownership;
Precautionary Grant of Security Interest.
(i) This Agreement and each other Transaction Document to
which the Seller is a party constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforceability may be limited by
Insolvency Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity).
(ii) It is the expressed intention of Seller and Purchaser
that this Agreement constitutes an irrevocable true sale and transfer
of ownership from Seller to the Purchaser of all right, title and
interest of Seller in, to and under the Assets, and that such transfer
be free and clear of any Lien of any Person claiming through or under
the Seller or its Affiliates, except for Permitted Liens. Nevertheless,
in the event a court of competent jurisdiction were to determine that
the transactions contemplated by this Agreement constitute a secured
financing rather than a true sale, Seller hereby grants, as a
precautionary measure, a security interest in such Assets to the
Purchaser. Upon the filing of the financing statements described in
Section 5.1(x) and, in the case of Incremental Purchases or Subsequent
Receivables on the applicable Incremental Purchase Date or Subsequent
Transfer Date, as applicable, the Purchaser shall have a first priority
perfected security interest in such property, subject only to Permitted
Liens. Neither the Seller nor any Person claiming through or under
Seller shall have any claim to or interest in the Collection Account,
except to the extent set forth in Sections 2.6 and 2.7, as applicable,
and, if, notwithstanding the expressed intention of the parties hereto,
this Agreement constitutes the grant of a security interest (for
collateral purposes) in such property, except for the interest of
Seller in such property as a debtor for purposes of the UCC.
(b) ELIGIBILITY OF RECEIVABLES. As of the initial Cutoff Date,
(i) the List of Receivables and the Asset Report delivered in
connection therewith is an accurate and complete listing in all
material respects of all the Receivables in and to become part of the
Asset Pool as of the Cutoff Date and the information contained therein
(including with respect to the identity of such Receivables, Obligors
thereon, and the amounts owing thereunder) is true and correct in all
material respects as of the Cutoff Date, and
(ii) each such Receivable is an Eligible Receivable,
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(iii) each such Receivable and the related Assets has been
transferred to the Purchaser free and clear of any Lien of any Person
(other than Permitted Liens) and in compliance, in all material
respects, with all Requirements of Law applicable to the Seller, and
(iv) with respect to each such Receivable, all material
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by Seller in connection with the transfer of such
Receivable and the related Assets to the Purchaser have been duly
obtained, effected or given and are in full force and effect.
On each Incremental Purchase Date or Subsequent Transfer Date, the
Seller shall be deemed to represent and warrant to the Purchaser that
(I) the Subsequent List of Receivables and the Asset
Report delivered in connection therewith is an
accurate and complete listing in all material
respects of all the Receivables then in, and as a
result of such Incremental Purchaser or Subsequent
Transfer to become part of, the Asset Pool as of the
applicable Cutoff Date and the information contained
therein (including with respect to the identity of
such Receivables, Obligors thereon, and the amounts
owing thereunder) is true and correct in all material
respects as of the applicable Cutoff Date,
(II) each Receivable transferred on such day is an
Eligible Receivable,
(III) each such Receivable and the related Assets has been
transferred to the Purchaser free and clear of any
Lien of any Person (other than Permitted Liens) and
in compliance, in all material respects, with all
Requirements of Law applicable to Seller or the
Originator thereof, and
(IV) with respect to each such Receivable and related
Assets, all material consents, licenses, approvals or
authorizations of or registrations or declarations
with any Governmental Authority required to be
obtained, effected or given by the Seller in
connection with the transfer of such Receivable and
related Assets to the Purchaser have been duly
obtained, effected or given and are in full force and
effect.
(c) NOTICE OF BREACH. The representations and warranties set
forth in this Section 5.2 shall survive the transfer of the respective
Receivables and related Assets, or
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interests therein, to the Purchaser. Upon discovery by the Seller, the
Servicer or the Purchaser of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give prompt written notice to the others.
Section 5.3 REPRESENTATIONS AND WARRANTIES OF THE CLUB AND THE
CLUB TRUSTEE.
(a) The Bluegreen Vacation Club Trust is a trust duly
established in accordance with the Trust Agreement under the laws of
the State of Florida for the purpose of holding and preserving certain
property for the benefit of the beneficiaries referred to in the Trust
Agreement. The Club Trustee has all necessary trust and other
authorizations and powers required to carry out its obligations under
the Trust Agreement in the State of Florida and in all other states in
which it owns Resort Interests. The Bluegreen Vacation Club Trust is
not a corporation or business trust under the laws of the State of
Florida. The Bluegreen Vacation Club Trust is not taxable as an
association, corporation or business trust under federal law or the
laws of the State of Florida.
(b) The Club Trustee is a corporation duly formed, validly
existing and in good standing under the laws of the State of Florida.
The Club Trustee is authorized to transact business in no other state.
The Club Trustee is not an affiliate of the Servicer and is in
compliance with the requirements of Chapter 721, Florida Statutes, that
it be independent of the Servicer.
(c) The Club Trustee had all necessary corporate power to
execute and deliver, and has all necessary corporate power to perform
its obligations under this Agreement, the other Transaction Documents
to which it is a party, the Trust Agreement and the Club Management
Agreement. The Club Trustee possesses all requisite franchises,
operating rights, licenses, permits, consents, authorizations,
exemptions and orders as are necessary to discharge its obligations
under the Trust Agreement.
(d) A certified copy of the Trust Agreement has been delivered
to the Purchaser together with all amendments and supplements in
respect thereof.
(e) The Club Trustee holds all right, title and interest in
and to all of the Resort Interests related to the Club Receivables
solely for the benefit of the Beneficiaries referred to in, and subject
in each case to the provisions of, the Trust Agreement and the other
documents and agreements related thereto. Except with respect to the
Purchase Money Mortgages, the Club Trustee has permitted none of such
Resort Interests to be made subject to any lien or encumbrance during
the time it has been a part of the trust estate under the Trust
Agreement.
(f) There are no actions, suits, proceedings, orders or
injunctions pending against the Club Trust or the Club Trustee, at law
or in equity, or before or by any governmental authority.
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(g) Neither the Club Trust nor the Club Trustee has incurred
any indebtedness for borrowed money (directly, by guarantee, or
otherwise).
(h) All ad valorem taxes and other taxes and assessments
against the Bluegreen Vacation Club Trust and/or its trust estate have
been paid and neither the Servicer nor the Club Trustee knows of any
basis for any additional taxes or assessments against any such
property. The Club Trust has filed all required tax returns and has
paid all taxes shown to be due and payable on such returns, including
all taxes in respect of sales of Owner Beneficiary Rights (as defined
in the Trust Agreement) and Vacation Points.
(i) The Club Trust and the Club Trustee are in compliance with
all applicable laws, statutes, rules and governmental regulations
applicable to it and in compliance with each instrument, agreement or
document to which it is a party or by which it is bound, including,
without limitation, the Trust Agreement.
(j) Except as expressly permitted in the Trust Agreement, the
Club Trustee has maintained the One-to-One Beneficiary to Accommodation
Ratio (as such terms are defined in the Trust Agreement).
(k) Except as disclosed to the Purchaser in writing, none of
the Obligors under the Club Receivables has had its rights under the
Club Trust suspended.
(l) Bluegreen Vacation Club, Inc. is a non-stock corporation
duly formed, validly existing and in good standing under the laws of
the State of Florida.
(m) Upon purchase of the Club Receivables and related Assets
hereunder, the Purchaser is an "Interest Holder Beneficiary" under the
Trust Agreement and each of the Club Receivables constitutes "Lien
Debt", "Purchase Money Lien Debt" and "Owner Beneficiary Obligations"
under the Trust Agreement.
(n) Except as disclosed to the Purchaser in writing, each
Purchase Money Mortgage associated with a Club Receivable and granted
by the Club Trustee or the Obligor on the related Club Receivable, as
applicable, has been duly executed, delivered and recorded (or will be
recorded) by or pursuant to the instructions of the Club Trustee under
the Trust Agreement and such Purchase Money Mortgage is valid and
binding and effective to create the lien and security interests it
purports to create. Each of such Purchase Money Mortgages was granted
in connection with the financing of a sale of a Resort Interest.
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ARTICLE VI
GENERAL COVENANTS
Section 6.1 GENERAL COVENANTS OF THE SELLER.
Until the date on which all Aggregate Unpaids following the Termination
Date or Program Termination Date have been indefeasibly paid in full, the Seller
hereby covenants that:
(a) COMPLIANCE WITH LAWS; PRESERVATION OF CORPORATE EXISTENCE.
The Seller will comply in all material respects with all applicable
laws, rules, regulations and orders and preserve and maintain its
corporate existence, rights, franchises, qualifications and privileges.
(b) [OMITTED].
(c) SECURITY INTERESTS. Except for the transfers hereunder,
the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on
any Receivable in the Asset Pool or related Interval, whether now
existing or hereafter transferred hereunder, or any interest therein,
and the Seller will not sell, pledge, assign or suffer to exist any
Lien on its interest, if any, hereunder. The Seller will immediately
notify the Purchaser of the existence of any such Lien on any
Receivable in the Asset Pool or related Interval; and the Seller shall
defend the right, title and interest of the Purchaser in, to and under
the Receivables in the Asset Pool and the related Interval, against all
claims of third parties; PROVIDED, HOWEVER, that nothing in this
Section 6.l (c) shall prevent or be deemed to prohibit the Seller from
suffering to exist Permitted Liens upon any of the Receivables in the
Asset Pool or any related Interval.
(d) COMPLIANCE WITH LAW. The Seller hereby agrees to comply in
all material respects with all Requirements of Law applicable to the
Seller, the Receivables and the Intervals.
(e) ACTIVITIES OF SELLER. The Seller shall not engage in any
business or activity of any kind, or enter into any transaction or
indenture, mortgage, instrument, agreement, receivable, lease or other
undertaking, which is not directly related to the transactions
contemplated and authorized by this Agreement, the other Transaction
Documents and its Certificate of Incorporation.
(f) AGREEMENTS. The Seller shall not become a party to, or
permit any of its properties to be bound by, any indenture, mortgage,
instrument, receivable, agreement, lease or other undertaking, except
this Agreement and the other Transaction Documents, or amend or modify
the provisions of its Certificate of Incorporation, or issue any power
of attorney except to the Purchaser or the Servicer.
(g) SEPARATE CORPORATE EXISTENCE. The Seller shall:
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(i) Maintain its own deposit account or accounts,
separate from those of any Affiliate, with commercial banking
institutions. The funds of the Seller will not be diverted to
any other Person or for other than corporate uses of the
Seller.
(ii) Ensure that, to the extent that it shares the
same officers or other employees as any of its stockholders or
Affiliates, the salaries of and the expenses related to
providing benefits to such officers and other employees shall
be fairly allocated among such entities, and each such entity
shall bear its fair share of the salary and benefit costs
associated with all such common officers and employees.
(iii) Ensure that, to the extent that it and
Originator (together with their respective stockholders or
Affiliates) jointly does business with vendors or service
providers or share overhead expenses, the costs incurred in so
doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the
extent that it and the Originator (together with their
respective stockholders or Affiliates) does business with
vendors or service providers when the goods and services
provided are partially for the benefit of any other Person,
the costs incurred in so doing shall be fairly allocated to or
among such entities for whose benefit the goods and services
are provided, and each such entity shall bear its fair share
of such costs. All material transactions between Seller and
any of its Affiliates shall be only on an arm's length basis.
(iv) To the extent that Seller and any of its
stockholders or Affiliates have offices the same location,
there shall be a fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its fair
share of such expenses.
(v) Conduct its affairs strictly in accordance with
its Certificate of Incorporation and observe all necessary,
appropriate and customary corporate formalities, including,
but not limited to, holding all regular and special
stockholders' and directors' meetings appropriate to authorize
all corporate action, keeping separate and accurate minutes of
its meetings, passing all resolutions or consents necessary to
authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including,
but not limited to, payroll and intercompany transaction
accounts.
(h) LOCATION OF SELLER, RECORDS; INSTRUMENTS. The Seller (x)
shall not move outside the State of Florida, the location of its chief
executive office, without 30 days' prior written notice to the
Purchaser and (y) shall not move or permit the Servicer to
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move the location of the Receivable Files, other than to the Custodian,
from the locations thereof on the Initial Purchase Date, without 30
days' prior written notice to the Purchaser and (z) will promptly take
all actions required (including, but not limited to, all filings and
other acts necessary or advisable under the UCC of each relevant
jurisdiction in order to evidence the Purchaser's ownership interest
(and back-up grant of a first priority perfected security interest to
the Purchaser) in all Receivables in the Asset Pool. The Seller will
give the Purchaser prompt notice of a change within the State of Florida
of the location of its chief executive office.
(i) ACCOUNTING FOR PURCHASES. The Seller will not account for
or treat (whether in financial statements or otherwise) the
transactions contemplated hereby or by the Sale and Contribution
Agreements in any manner other than the sale of Assets by the Seller to
a Purchaser or the sale or contribution of the Receivables and related
Assets by the Originator to the Seller, as the case may be.
(j) ERISA MATTERS. The Seller will not (a) engage in any
prohibited transaction for which an exemption is not available or has
not previously been obtained from the United States Department of
Labor; (b) permit to exist any accumulated funding deficiency, as
defined in Section 302(a) of ERISA and Section 412(a) of the Code, or
funding deficiency with respect to any Benefit Plan other than a
Multiemployer Plan; (c) fail to make any payments to a Multiemployer
Plan that the Seller may be required to make under the agreement
relating to such Multiemployer Plan or any law pertaining thereto; (d)
terminate any Benefit Plan so as to result in any liability; or (e)
permit to exist any occurrence of any reportable event described in
Title IV of ERISA which represents a material risk of a liability of
the Seller under ERISA or the Code.
(k) NATURE OF BUSINESS. The Seller will engage in no business
other than the purchase of Assets from the Originator, the sale of
Assets to the Purchaser and the other transactions permitted or
contemplated by this Agreement.
(l) ORIGINATOR ASSETS. With respect to each Asset acquired by
the Seller from the Originator, the Seller will (i) acquire such Asset
pursuant to and in accordance with the terms of the Sale and
Contribution Agreement, (ii) take all action necessary to perfect,
protect and more fully evidence the Seller's ownership of such Asset,
including, without limitation, (A) filing and maintaining effective
financing statements (Form UCC-1) against the Originator in all
necessary or appropriate filing offices, and filing continuation
statements, amendments or assignments with respect thereto in such
filing offices, and (B) executing or causing to be executed such other
instruments or notices as may be necessary or appropriate, and (iii)
take all additional action that the Purchaser may reasonably request to
perfect, protect and more fully evidence the respective interests of
the parties to this Agreement in the Assets.
(m) TRANSACTIONS WITH AFFILIATES. The Seller will not enter
into, or be a party to, any transaction with any of its Affiliates,
except (i) the transactions permitted or
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contemplated by this Agreement and the other Transaction Documents, and
(ii) other transactions (including, without limitation, the lease of
office space or computer hardware or software by the Seller to or from
an Affiliate) (A) in the ordinary course of business, (B) pursuant to
the reasonable requirements of the Seller's business, and (C) upon fair
and reasonable terms that are no less favorable to the Seller than could
be obtained in a comparable arms-length transaction with a Person not an
Affiliate of the Seller. It is understood that any compensation
arrangement for officers shall be permitted under clause (ii)(A) through
(C) above if such arrangement has been expressly approved by the board
of directors of the Seller.
(n) INDEBTEDNESS; INVESTMENTS. The Seller will not incur any
Indebtedness other than Indebtedness arising hereunder or under the
other Transaction Documents and (ii) Indebtedness owing to the
Originator evidenced by subordinated promissory notes in form and
substance reasonably satisfactory to the Purchaser. The Seller will
not make any Investments other than Permitted Investments.
(o) CHANGE IN THE SALE AND CONTRIBUTION AGREEMENT. The Seller
will not amend, modify, waive or terminate any terms or conditions of
the Sale and Contribution Agreement.
(p) AMENDMENT TO CERTIFICATE OF INCORPORATION. The Seller will
not amend, modify or otherwise make any change to its Certificate of
Incorporation to delete or otherwise nullify or circumvent the
provisions set forth on EXHIBIT F hereto.
(q) AUTHORIZED SIGNATORY. Any person signing a Request Notice
on behalf of Seller, as provided in EXHIBIT A hereto shall have the
requisite power and authority to sign the same on behalf of the Seller.
(r) RESORTS. Neither the Seller nor the Servicer shall permit
the number of Resorts within the Club to be less than 20; provided that
for purposes of this clause (r), a "Resort" shall include all phases,
subdivisions and/or developments at the same or substantially the same
geographic location.
(s) TERMINATION OF CLUB MANAGING ENTITY. The Servicer shall
not permit the Club Managing Entity to terminate the Club Management
Agreement without the prior written consent of the Purchaser, such
consent not to be unreasonably withheld.
Section 6.1A GENERAL COVENANTS OF THE CLUB TRUST AND CLUB TRUSTEE.
(a) NO CONVEYANCE. The Club Trustee agrees not to convey any
Resort Interest in the Club relating to a Club Receivable which has
been sold and assigned to the Purchaser unless the Purchaser shall have
issued an instruction to the Club Trustee pursuant to Section 8.07(c)
of the Trust Agreement in connection with its exercise of its rights as
an Interest Holder Beneficiary (as defined in the Trust Agreement)
under Section 7.02 of the Trust Agreement.
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(b) SEPARATE CORPORATE EXISTENCE. The Club Trustee shall:
(i) Maintain its own deposit account or accounts,
separate from those of any Affiliate, with commercial banking
institutions. The funds of the Club Trustee will not be
diverted to any other Person or for other than trust or
corporate uses of the Club Trustee, as applicable.
(ii) Ensure that, to the extent that it shares the
same officers or other employees as any of its stockholders,
beneficiaries or Affiliates, the salaries of and the expenses
related to providing benefits to such officers and other
employees shall be fairly allocated among such entities, and
each such entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and
employees.
(iii) Ensure that, to the extent that the Club
Trustee and the Servicer (together with their respective
stockholders or Affiliates) jointly do business with vendors
or service providers or share overhead expenses, the costs
incurred in so doing shall be allocated fairly among such
entities, and each such entity shall bear its fair share of
such costs. To the extent that the Club Trustee and the
Servicer (together with their respective stockholders or
Affiliates) do business with vendors or service providers when
the goods and services provided are partially for the benefit
of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit
the goods and services are provided, and each such entity
shall bear its fair share of such costs. All material
transactions between Seller and any of its Affiliates shall be
only on an arm's length basis.
(iv) To the extent that the Club Trustee and any of
its stockholders, beneficiaries or Affiliates have offices in
the same location, there shall be a fair and appropriate
allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with
the Trust Agreement or Articles of Incorporation, as
applicable, and observe all necessary, appropriate and
customary corporate formalities, including, but not limited
to, holding all regular and special stockholders', trustees'
and directors' meetings appropriate to authorize all trust and
corporate action, keeping separate and accurate minutes of its
meetings, passing all resolutions or consents necessary to
authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including,
but not limited to, payroll and intercompany transaction
accounts.
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(c) MERGER OR CONSOLIDATION. The Club Trustee shall not
consolidate with or merge into any other corporation or convey,
transfer or lease substantially all of its assets as an entirety to any
Person unless the corporation formed by such consolidation or into
which the Club Trustee, as the case may be, has merged or the Person
which acquires by conveyance, transfer or lease substantially all the
assets of the Club Trustee, as the case may be, as an entirety, can
lawfully perform the obligations of the Club Trustee hereunder and
executes and delivers to the Purchaser an agreement in form and
substance reasonably satisfactory to the Purchaser which contains an
assumption by such successor entity of the due and punctual performance
and observance of each covenant and condition to be performed or
observed by the Club Trustee under this Agreement.
(d) CORPORATE MATTERS. Notwithstanding any other provision of
this Section and any provision of law, the Club Trustee shall not do
any of the following:
(i) engage in any business or activity other than as
set forth herein or in or as contemplated by the Trust
Agreement or its Amended and Restated Articles of
Incorporation, as applicable;
(ii) without the affirmative vote of a majority of
the members of the Directors (or Persons performing similar
functions) of the Club Trustee (which must include the
affirmative vote of at least one duly appointed Independent
director), (A) dissolve or liquidate, in whole or in part, or
institute proceedings to be adjudicated bankrupt or insolvent,
(B) consent to the institution of bankruptcy or insolvency
proceedings against it, (C) file a petition seeking or consent
to reorganization or relief under any applicable federal or
state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the corporation or
a substantial part of its property, (E) make a general
assignment for the benefit of creditors, (F) admit in writing
its inability to pay its debts generally as they become due,
(G) terminate the Club Managing Entity as manager under the
Club Management Agreement or (H) take any corporate action in
furtherance of the actions set forth in clauses (A) through
(G) above; PROVIDED, HOWEVER, that no director may be required
by any shareholder or beneficiary of the Club Trustee to
consent to the institution of bankruptcy or insolvency
proceedings against the Club Trustee so long as it is solvent;
(iii) merge or consolidate with any other
corporation, company or entity or sell all or substantially
all of its assets or acquire all or substantially all of the
assets or capital stock or other ownership interest of any
other corporation, company or entity; or
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(iv) with respect to the Club Trustee, amend or
otherwise modify its Articles of Incorporation or any
definitions contained therein without the prior written
consent of the Purchaser.
(e) The Club Trustee shall not incur any Indebtedness other
than (i) trade payables and operating expenses (including taxes)
incurred in the ordinary course of business or (ii) in connection with
servicing Resort Interests included in the Club's trust estate in the
ordinary course of business consistent with past practices; provided,
that in no event shall the Club Trustee incur Indebtedness for borrowed
money.
Section 6.2 RELEASE OF INTEREST IN INTERVAL.
At the same time as (i) any Receivable becomes a Prepaid Receivable and
in connection therewith the Interval related to such Prepaid Receivable is sold,
(ii) any Receivable matures, or (iii) the Seller through the Servicer,
substitutes or replaces any Receivable as contemplated in Section 2.11 hereof,
the Purchaser will release its interest in the Interval (whether Purchaser's
interest in such Interval is in the form of a lien through a Purchase Money
Mortgage or an interest in the Deed through the Deed Custodian) relating to such
Prepaid Receivable or such Replaced Interval, as the case may be; PROVIDED, that
such release will not constitute a release of the respective interests of
Purchaser and Seller in the proceeds of such sale. In connection with any of the
events described in the preceding sentence, the Purchaser will execute and
deliver (at the expense of the Seller) to the Servicer any assignments, bills of
sale, termination statements and any other releases and instruments as the
Servicer may reasonably request in order to effect such release and transfer,
and the Purchaser shall be deemed to have transferred to the Obligor all of the
Purchaser's right, title and interest in such Interval and shall be deemed to
have represented to the Obligor that the Purchaser has the authority to so
transfer, has completed all corporate action required by it to effect such
transfer and has transferred such interest free and clear of any interest
created by the Purchaser hereunder, but without any other recourse,
representation or warranty, express or implied. Nothing in this Section shall
diminish the Servicer's obligations pursuant to Sections 5.1, 5.5 and 5.6 of the
Servicing Agreement with respect to the proceeds of any such sale.
Section 6.3 RETRANSFER OF INELIGIBLE RECEIVABLES.
Upon discovery by the Servicer, Seller or Purchaser of a breach of a
representation or warranty of the Seller set forth in Section 5.2 with respect
to a Receivable in the Asset Pool which materially adversely affects the
Receivable or with respect to Receivables for which the breach of a
representation or warranty in the aggregate materially adversely affects the
Purchaser (an "INELIGIBLE RECEIVABLE"), the party discovering such breach shall
give prompt written notice to the other parties. Not later than the
Determination Date which is at most thirty (30) days after the earlier to occur
of the discovery of such breach by the Seller or receipt by the Seller of
written notice of such breach given by the Purchaser or the Servicer, the Seller
shall, at its option, either cure the breach within the above described time
period or repurchase and the Purchaser shall convey, free and clear of any Lien
created by pursuant to this Agreement, all of its right, title and interest in
such Ineligible Receivable, and the Purchaser shall, in connection
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with such conveyance and without further action, be deemed to represent and
warrant that it has the corporate authority and has taken all necessary
corporate action to accomplish such conveyance, but without any other recourse,
representation or warranty, express or implied. In any of the foregoing
instances, the Seller shall accept a retransfer of each such Ineligible
Receivable, and there shall be deducted from the Receivable Balance of the Asset
Pool, the Receivable Balance of each such Ineligible Receivable. On and after
the date of such retransfer, each Ineligible Receivable so retransferred shall
not be included in the Asset Pool. In consideration of such retransfer the
Seller shall, on the date of retransfer of such Ineligible Receivable, make or
cause to be made a deposit in the Collection Account (for allocation pursuant to
Section 2.6 or 2.7, as applicable) in immediately available funds in an amount
equal to the Transfer Deposit Amount for such Ineligible Receivable. Upon each
retransfer to the Seller of such Ineligible Receivable in accordance herewith,
the Purchaser shall automatically and without further action be deemed to
transfer, assign and set-over to the Seller, free and clear of any Lien created
pursuant to this Agreement, all the right, title and interest of the Purchaser
in, to and under such Receivable and all monies due or to become due with
respect thereto, the related Interval and all proceeds of such Receivable,
Recoveries and Insurance Proceeds relating thereto, all rights to security for
any such Receivable, the deed relating to any such Receivable and all proceeds
and products of the foregoing, and the Purchaser shall, in connection with such
transfer, assignment and set-over and without further action, be deemed to
represent and warrant that it has the corporate authority and has taken all
necessary corporate action to accomplish such transfer, assignment and set-over,
but without any other recourse, representation or warranty, express or implied.
The Purchaser shall, at the sole expense of the Servicer, execute such documents
and instruments of transfer as may be prepared by the Servicer on behalf of the
Seller and take such other actions as shall reasonably be requested by the
Seller to effect the transfer of such Ineligible Receivable pursuant to this
Section 6.3.
Notwithstanding the foregoing, in lieu of repurchasing an Ineligible
Receivable as described above the Seller may, subject to the conditions and
requirements of Section 2.11 of this Agreement, effect a replacement of such
Receivable with a Substitute Receivable, such replacement to be effected not
later than the date that a repurchase would have been required hereunder. Upon
any such substitution, the Ineligible Receivable (and Deed relating thereto)
will be retransferred to Seller as provided above.
The obligation of the Seller to repurchase and accept retransfer of any
Ineligible Receivable (or in the alternative, effect a valid replacement of such
Receivable as described above) shall constitute the sole remedy respecting any
breach of the representations and warranties set forth in Section 5.2 with
respect to such Receivable available to the Purchaser. Notwithstanding anything
to the contrary contained herein, in the event the Seller, prior to the
applicable Determination Date, remedies the condition which rendered the
Receivable an "INELIGIBLE RECEIVABLE" during the previously described 30 day
period, the Seller is not obligated to repurchase or replace such Receivable. It
is understood and agreed by the parties hereto that the payment obligations of
the Obligors' in respect of the Receivables purchased hereunder shall not be the
obligation of the Originator, the Seller or the Deed Custodian, except with
respect to Servicer Advances and remedies associated with breaches of
representations and warranties.
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ARTICLE VII
SPECIAL PROVISION RELATING TO CLUB RECEIVABLES
Section 7.1 RIGHTS SUBJECT TO TRUST AGREEMENT. Notwithstanding anything to the
contrary set forth herein or in any other Transaction Documents, all references
to the rights of the Purchaser with respect to Club Receivables shall be subject
at all times to the provisions of the Trust Agreement and the other agreements
executed by the Beneficiaries in connection therewith.
ARTICLE VIII
EVENTS OF TERMINATION
Section 8.1 EVENTS OF TERMINATION.
If any of the following events ("EVENTS OF TERMINATION") shall occur:
(a) (i) failure on the part of Originator, the Club Trustee or
the Seller to make or cause to be made any payment or deposit (or in
the alternative, Receivable substitution) required by the terms of this
Agreement or any Transaction Document on the day such payment or
deposit (or substitution) is required to be made by Originator, the
Club Trustee or the Seller (giving effect to any applicable grace
period) or (ii) failure on the part of Originator, the Club Trustee,
the Managing Entity or the Seller to observe or perform any of its
other covenants or agreements set forth in this Agreement or any
Transaction Document, which failure continues unremedied for a period
of 30 days after written notice; PROVIDED, that only a 10 day cure
period shall apply in the case of a failure by Originator or the Seller
to observe its covenant not to grant a security interest or otherwise
intentionally create a Lien on the Receivables;
(b) any representation or warranty made by Originator, the
Club Trustee or the Seller in this Agreement or any Transaction
Document or any information required to be given by Originator, the
Club Trustee or the Seller to the Purchaser to identify the Receivables
pursuant to this Agreement or any Transaction Document, shall prove to
have been incorrect in any material respect when made or when
delivered, which continues to be incorrect in any material respect for
a period of 30 days after written notice; provided, that this clause
(b) shall not apply to any representation and warranty which relates
solely to the condition of a Receivable on the date of Purchase and for
which either a substitution, repurchase or cure right under Section 6.3
hereof applies and for which such remedies are being pursued by the
Seller and Originator consistent with such Section;
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(c) the occurrence of an Insolvency Event relating to
Bluegreen, the Seller, the Servicer, the Club Trustee, the Managing
Entity or the Deed Custodian;
(d) the Seller shall become an "INVESTMENT COMPANY" within the
meaning of the Investment Company Act of 1940, as amended (the "Act")
or the arrangements contemplated by this Agreement shall require
registration as an "INVESTMENT COMPANY" within the meaning of the Act;
(e) as of any Determination Date, the Lifetime Cumulative
Default Rate shall exceed the Lifetime Cumulative Default Threshold;
(f) as of any Determination Date, the Trailing Six Month
Default Rate exceeds 6.00%; provided, however, if such Determination
Date is after the Program Termination Date and the Asset Pool aggregate
Receivable Balance is less than 7.50% of the Capital Payout, such test
shall no longer be applicable.
(g) at the time of any sale of a Resort Interest to a
customer, the Vacation Points related thereto shall be greater than the
Vacation Points required for a customer to utilize the Accommodations
appurtenant to such Vacation Points;
(h) as of any Determination Date, the Trailing Three Month (31
to 59) and (60 to 89) Day Delinquency Rates exceed 6.0% and 4.0%
respectively;
(i) as of any Determination Date, the Weighted Average Spread
is less than 5.50%;
(j) as of the end of any fiscal quarter of the Servicer, the
Fulfillment Rate for the Resorts listed on Exhibit C shall be less than
75.0%;
(k) as of any Determination Date, the Trailing Three Month
Gross Recoveries are less than 85%;
(l) Bluegreen shall cease to own (whether directly or
indirectly) 100% of the issued and outstanding stock of the Seller and
the Managing Entity or the Seller shall cease to own (whether directly
or indirectly) 100% of the issued and outstanding stock of Deed Corp;
(m) a Servicer Termination Event shall occur under the
Servicing Agreement;
then, and in any such event, the Purchaser may, by written notice to the Seller,
declare the Termination Date to have occurred, except that, in the case of any
event described in Section 8.1(c) above, the Termination Date shall be deemed to
have occurred automatically upon the occurrence of such event. Upon any such
declaration or automatic occurrence of the Termination Date, the Purchaser shall
have, to the extent the transaction is recharacterized as a secured loan rather
than a sale of Receivables notwithstanding the parties intent to have the
transaction characterized as a sale of the Receivables and related Assets, in
addition to all other
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rights and remedies under this Agreement or otherwise, all other rights and
remedies provided under the UCC of the applicable jurisdiction and other
applicable laws, which rights shall be cumulative. Notwithstanding anything to
the contrary contained in this Section 8.1, the Events of Termination described
in clauses (e), (h), (i) and (k) may be cured and Purchases may resume hereunder
if such condition shall not exist for three (3) consecutive Collection Periods
after the date the Purchaser ceased making Purchases hereunder; provided,
however, the ability to cure the Event of Termination in clause (k) shall only
be applicable if the trigger level which caused such Event of Termination was
above 80%.
ARTICLE IX
Section 9.1 FURTHER ASSURANCES. The Purchaser, Originator and Seller
agree that from time to time the Purchaser will sell the Assets or cash flows
therein to various third parties. Originator and Seller agree to use their best
efforts to cooperate with the Purchaser in connection with the Purchaser's sale
of the Assets or the cash flows therein to such third parties; provided,
however, Originator and Seller are not obligated to pay any of the Purchaser's
fees or expenses associated with such sale. In the event Originator and Seller
incur out of pocket expenses associated with the sale of the Assets or the cash
flows therein to a third party (I.E., the creation of new software to service
the Receivables and the related Assets or the cash flows therein, change in
servicing requirements, etc.) Purchaser shall reimburse the Originator or Seller
for such expense.
ARTICLE X
[RESERVED]
ARTICLE XI
ASSIGNMENTS; PARTICIPATIONS; RELEASE OF ASSETS
Section 11.1 ASSIGNMENTS.
(a) The Purchaser may at any time assign to one or more
assignees, all, or any ratable part of, its interest in the Asset Pool
as in effect from time to time hereunder, PROVIDED, (i) the Purchaser's
obligations under this Agreement and any other Transaction Document
shall remain unchanged, (ii) the Purchaser shall remain solely
responsible for the performance of such obligations, and (iii) the
Seller, Originator, the Servicer, the Club Trustee and Deed Corp shall
continue to deal solely and directly with the Purchaser in connection
with the rights and obligations under this Agreement and the other
Transaction Documents.
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39
(b) In addition, the Purchaser may both assign and delegate to
one or more assignees, all, or any ratable part of, its interest in the
Asset Pool as in effect from time to time hereunder, its commitment to
purchase Receivables and related Assets, and the other rights and
obligations of the Purchaser hereunder and under the other Transaction
Documents; PROVIDED, HOWEVER, the Seller, Originator, the Club Trustee
and the Servicer shall, at their election, have the right to continue
to deal solely and directly with the Purchaser in connection with the
rights and obligations under this Agreement and the other Transaction
Documents; and PROVIDED, FURTHER, that if any assignee fails to satisfy
its obligations hereunder, HFI shall perform such obligations. The
Seller and Originator agree to cooperate in good faith with the
Purchaser in connection with effecting any such assignments and
delegations, including execution of any amendments or supplements to
this Agreement or any other Transaction Document which the Purchaser
reasonably deems necessary in order to effect such assignment and
delegation.
Section 11.2 PARTICIPATIONS.
The Purchaser may at any time sell to one or more commercial financial
institutions or other Persons not Affiliates of the Originator, participating
interests in its interest in the Asset Pool as in effect from time to time
hereunder, its commitment to purchase Receivables, and the other rights and
obligations of the Purchaser hereunder and under the other Transaction
Documents; PROVIDED, HOWEVER, that (i) the Purchaser's obligations under this
Agreement and any other Transaction Document shall remain unchanged, (ii) the
Purchaser shall remain solely responsible for the performance of such
obligations, and (iii) the Seller, Originator, the Club Trustee and Servicer
shall continue to deal solely and directly with the Purchaser in connection with
the rights and obligations under this Agreement and the other Transaction
Documents.
Section 11.3 INFORMATION TO ASSIGNEES/PARTICIPANTS; CONFIDENTIALITY.
The Purchaser may furnish any information concerning the Seller,
Originator, the Club Trustee and Servicer in possession of the Purchaser from
time to time to assignees and participants (including prospective assignees and
participants). Purchaser agrees to take and to cause its Affiliates to take
normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "CONFIDENTIAL" or "SECRET" by
the Seller and provided to it by the Seller, or by the Purchaser on the Seller's
behalf, under this Agreement or any other Transaction Document, and neither it,
the Club Trustee nor any of their Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Transaction Documents or in connection with other business now or hereafter
existing or contemplated with the Seller; except to the extent such information
(i) was or becomes generally available to the public other than as a result of
disclosure by the Purchaser or one of its Affiliates, or (ii) was or becomes
available on a non-confidential basis from a source other than the Seller,
provided that such source is not bound by a confidentiality agreement with the
Seller known to the Purchaser; PROVIDED, HOWEVER, that the Purchaser or any
assignee (including any assignee thereof) may disclose such information (A) at
the request of, or pursuant to any requirement of any Purchaser, or in
connection with, an examination of such Purchaser by any regulatory authority;
(B) pursuant to subpoena or other court process; (C) when required to do so
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40
in accordance with the provisions of any applicable requirement of law; (D) to
the extent reasonably required in connection with any litigation or proceeding
to which the Purchaser or any Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Transaction Document; (F) to the Purchaser's independent
auditors and other professional advisors; (G) to any participant or Eligible
Assignee, actual or potential, provided that such Person agrees in writing to
keep such information confidential to the same extent required of the Purchaser
hereunder; (H) as to the Purchaser or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding confidentiality to
which the Seller is party or is deemed party with the Purchaser as its
Affiliates; (I) to its Affiliates; PROVIDED such Affiliate is bound by the
confidentiality provisions; (J) to any rating agency or regulatory body
overseeing the Purchaser or any assignee and (K) to any party providing
liquidity or credit support to the Purchaser or any assignee.
Section 11.4 SELLER'S REPURCHASE OPTION.
Following Seller's written notice to the Purchaser at least twenty (20)
days prior to a Payment Date, and provided that the Receivable Balance of all
Receivables in the Asset Pool is then less than 5.00% of the aggregate
Receivable Balances of the Receivables purchased hereunder when so purchased,
the Seller may (but is not required to) repurchase from the Purchaser on that
Payment Date all outstanding Receivables and related Assets at a price equal to
the Aggregate Unpaids. Such price is to be deposited in the Collection Account
one Business Day before such Payment Date, against the Purchaser's retransfer
and release of the Receivables, related Assets and the Receivable Files to the
Seller.
ARTICLE XII
MISCELLANEOUS
Section 12.1 AMENDMENTS AND WAIVERS.
No amendment or modification of any provision of this Agreement shall
be effective without the written agreement of the Seller and the Purchaser or
any assignee and no termination or waiver of any provision of this Agreement or
consent to any departure therefrom by the Seller shall be effective without the
written concurrence of the Purchaser. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Section 12.2 NOTICES, ETC.
All notices, demands, certificates, requests and communications
hereunder ("NOTICES") shall be in writing and shall be effective (a) upon
receipt when sent through the U.S. mails, registered or certified mail, return
receipt requested, postage prepaid, with such receipt to be effective the date
of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telefax transmission with a
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41
verbal confirmation of receipt (except that notices and communications pursuant
to Article II shall not be effective until received with respect to any notice
sent by mail or telex), in all cases addressed to the recipient as follows:
If to the Originator/Servicer: Bluegreen Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller: Bluegreen Receivables Finance
Corporation III
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Deed Corp: BRFC III Deed Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: ▇▇▇▇▇▇ Financial, Inc.
30th Floor - HREF/VO
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager, Vacation
Ownership
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ Financial, Inc.
30th Floor - HREF/VO
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Group General Counsel -
Vacation Ownership
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Cash Administrator: U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
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42
If to the Club Trustee: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 12.3 [RESERVED].
Section 12.4 NO WAIVER; REMEDIES.
No failure on the part of the Purchaser to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 12.5 BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 12.6 TERM OF THIS AGREEMENT.
This Agreement, including, without limitation, the Seller's obligation
to observe its covenants set forth in Article VI, shall remain in full force and
effect until there are no Aggregate Unpaids; PROVIDED, HOWEVER, that the
provisions of Section 12.9 and Section 12.10 shall be continuing and shall
survive any termination of this Agreement.
Section 12.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
OBJECTION TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF ILLINOIS. EACH OF THE PURCHASER, THE SELLER, THE CLUB
TRUSTEE AND THE SERVICER HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY
FEDERAL COURT LOCATED WITHIN THE STATE OF ILLINOIS. EACH OF THE PARTIES HERETO
HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO
VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT.
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43
Section 12.8 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PURCHASER, THE
SELLER, THE CLUB TRUSTEE AND THE SERVICER WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 12.9 COSTS, EXPENSES AND TAXES.
(a) The Originator and the Seller agree to pay or cause to be
paid on demand all costs and expenses of the Purchaser incurred in
connection with the preparation, execution, delivery, administration
(including periodic auditing), amendment or modification of, or any
waiver or consent issued in connection with, this Agreement and the
other documents to be delivered hereunder or in connection herewith,
including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Purchaser with respect thereto and with
respect to advising the Purchaser as to its respective rights and
remedies under this Agreement and the other documents to be delivered
hereunder or in connection herewith, and all costs and out-of-pocket
expenses, if any (including reasonable counsel fees and expenses),
incurred by the Purchaser in connection with the enforcement of this
Agreement and the other documents to be delivered hereunder or in
connection herewith; PROVIDED, HOWEVER, Originators and Sellers
obligations under this Section 12.9(a) hereof shall not extend to costs
and expenses associated with the exercise of the Purchaser's rights
under Sections 11.1 and 11.2 hereof.
(b) The Originator and the Seller shall pay or cause to be
paid on demand any and all damages, losses, claims, liabilities, fees
and related costs and expenses, including attorney's fees and expenses,
incurred by or awarded against the Purchaser or any of its respective
Affiliates (each, an "INDEMNIFIED PARTY") arising out of or as a result
of any acts, omissions or alleged acts or omissions of the Originator
or Seller in violation or in contravention of this Agreement or other
Transaction Documents and owed by such Indemnified Party to any other
Person; PROVIDED that the Seller shall not be liable for the payment of
any portion of such damages, losses, claims, liabilities, fees or
related costs or expenses resulting from the gross negligence or
willful misconduct of an Indemnified Party or the breach of a
Requirement of Law by an Indemnified Party; PROVIDED, HOWEVER, that
nothing contained in this paragraph shall be construed to obligate the
Originator or the Seller to indemnify an Indemnified Party with respect
to losses, claims, damages and liabilities incurred as a result of the
payment performance of the Receivables and related Assets.
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44
Section 12.10 NO BANKRUPTCY COVENANT.
The parties hereto (other than the Purchaser) hereby covenant and agree
that they will not institute against, or join any other Person in instituting
against, the Seller, the Club Trustee or Deed Corp any involuntary Insolvency
Proceedings or take any action in contemplation or furtherance thereof.
Section 12.11 PROTECTION OF OWNERSHIP INTERESTS OF THE PURCHASER; INTENT
OF PARTIES; BACK-UP SECURITY INTEREST.
(a) The Seller agrees that from time to time, at its expense,
it will or will cause the Servicer to promptly execute and deliver all
instruments and documents, and take all actions, that may reasonably be
necessary or desirable, or that the Purchaser may reasonably request,
to perfect, protect or more fully evidence its ownership of and
interest in the Assets, or to enable the Purchaser to exercise and
enforce its rights and remedies hereunder.
(b) If the Seller or the Servicer fails to perform any of its
obligations hereunder after ten (10) days' notice from the Purchaser,
the Purchaser may (but shall not be required to) perform, or cause
performance of, such obligation; and the Purchaser's costs and expenses
incurred in connection therewith shall be payable by the Seller (if the
Servicer that fails to so perform is the Seller or an Affiliate
thereof) as provided in Section 12.9, as applicable. The Seller
irrevocably authorizes the Purchaser and appoints the Purchaser as its
attorney-in-fact to act on behalf of the Seller (i) to execute on
behalf of the Seller as debtor and to file financing statements
necessary or desirable in the Purchaser's sole discretion to perfect
and to maintain the perfection and priority of the interest of the
Purchaser in the Assets and (ii) to file a carbon, photographic or
other reproduction of this Agreement or any financing statement with
respect to the Assets as a financing statement in such offices as the
Purchaser in its sole discretion deems necessary or desirable to
perfect and to maintain the perfection and priority of the interests of
the Purchaser in the Assets.
(c) The parties hereto intend that the conveyance of Assets by
the Seller to the Purchaser shall be treated as sales for all purposes.
If, despite such intention, a determination is made that such
transactions shall not be treated as sales, then this Agreement shall
be interpreted to constitute a security agreement and the transactions
effected hereby shall be deemed to constitute secured loans by the
Purchaser to the Seller under applicable law, with recourse of the
Purchaser being limited to the Assets, and as otherwise expressly
contemplated by the provisions of the Transaction Documents. For such
purpose, the Seller hereby transfers, conveys, assigns and grants to
the Purchaser, a continuing security interest in all Assets, all
Collections and the proceeds of the foregoing to secure the repayment
of all Capital, all payments at any time due or accrued in respect of
the Yield and all other payments at any time due (whether accrued or
due) by the
- 40 -
45
Seller hereunder (including without limit any fee owing to the
Purchaser or amount owing under Section 12.9 hereof).
Section 12.12 EXECUTION IN COUNTERPARTS; SEVERABILITY; INTEGRATION.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written understandings.
Section 12.13 PURCHASER RIGHT OF FIRST REFUSAL.
Originator and Seller hereby covenant with Purchaser that, from the
date hereof until the first to occur of (a) the Program Termination Date, (b)
the date on which an event occurs which relieves the Purchaser from making
Purchases hereunder and the Purchaser is not making Purchases hereunder, (c) the
date on which an event occurs which relieves ▇▇▇▇▇▇ Financial, Inc. from making
Advances under the Warehouse Facility and ▇▇▇▇▇▇ Financial, Inc. is not making
Advances thereunder, or (d) an Event of Termination under Section 8.1 of this
Agreement, Purchaser shall have, and Purchaser is hereby granted, the right and
option, subject to the terms set forth below (the "PURCHASE OPTION") to purchase
Receivables and related Assets (which for this purpose shall obligate the
Originator and Seller, as well as any Affiliate thereof, to disclose to
Purchaser all resorts developed by the Originator and Seller or any Affiliate
thereof in order to provide Purchaser the opportunity to make a determination
whether such resort may be an Additional Resort). Purchaser shall notify the
Originator and Seller within forty-five days of its receipt of satisfactory
information with respect to a resort whether such resort qualifies as an
Additional Resort.
The Purchase Option may be exercised or not exercised in Purchaser's
sole discretion. If Purchaser declines to exercise the Purchase Option,
Purchaser shall have no further Purchase Option with respect to the Receivables.
Notwithstanding anything contained herein to the contrary, it is expressly
agreed and understood that any purchase pursuant to the Purchase Option shall be
subject to approval by Purchaser's credit committee in accordance with
Purchaser's standard credit guidelines and it is further expressly understood
and agreed that Purchaser is under no obligation to exercise the Purchase Option
and that nothing in this Section 12.13 shall be deemed or construed to create
any such obligation.
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46
Section 12.14 PURCHASE CESSATION EVENTS.
In the event ▇▇▇▇▇▇ Financial, Inc. is no longer making Advances under
the Warehouse Facility or an Increased Cost Event shall have occurred and is
continuing, Collections shall be applied consistent with Section 2.6 hereof.
Section 12.15 COOPERATION OF PARTIES TO CLUB CONVERSION.
The parties hereto agree that they will cooperate to effectuate the
conversion of the Receivables relating to the Resorts, which are in the form of
conditional sales contracts, into notes and related mortgages in order to
convert the Obligors of such Receivables into the Club as well as preserving the
Purchaser's economic and ownership interest in the Receivables purchased
hereunder.
[signature page follows]
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47
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER: BLUEGREEN RECEIVABLES FINANCE CORPORATION III
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Treasurer
-----------------------------------
THE CUSTODIAN OF BRFC III DEED CORPORATION
CERTAIN DEEDS:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Treasurer
-----------------------------------
THE ORIGINATOR/SERVICER: BLUEGREEN CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Sr. Vice President, Treasurer & CFO
-----------------------------------
THE PURCHASER: ▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
-----------------------------------
THE CASH ADMINISTRATOR: U.S. BANK NATIONAL ASSOCIATION
By:
--------------------------------------
Printed Name:
----------------------------
Title:
-----------------------------------
THE CLUB TRUSTEE: VACATION TRUST, INC., for itself and as Club
Trustee under the Trust Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: Secretary & Treasurer
-----------------------------------