EXHIBIT 10.105
SALE AND CONTRIBUTION AGREEMENT
AMONG
THE PERSONS IDENTIFIED ON THE SIGNATURE PAGES HERETO AS SELLERS
AS SELLERS
AND
BLUEGREEN RECEIVABLES FINANCE CORPORATION VII,
AS THE TRUST DEPOSITOR
DATED AS OF AUGUST 3, 2004
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................. 1
Section 1.1. General................................................................................. 1
Section 1.2. Other Interpretive Provisions........................................................... 1
ARTICLE II AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT.......................................... 2
Section 2.1. Closing of Purchases.................................................................... 2
Section 2.2. Assignment of Rights Under Agreement.................................................... 2
Section 2.3. Conveyance of Substitute Receivables.................................................... 3
ARTICLE III REPRESENTATIONS AND WARRANTIES.......................................................... 3
Section 3.1. Representations and Warranties of Sellers............................................... 4
Section 3.2. Representations and Warranties of Sellers Relating to the Agreement and the
Assets.................................................................................. 11
Section 3.3. Survival; Knowledge of Trust Depositor; Notice of Breach................................ 13
ARTICLE IV SELLERS' AFFIRMATIVE AND NEGATIVE COVENANTS............................................. 13
Section 4.1. Records................................................................................. 13
Section 4.2. Use of Noteholders' Names............................................................... 13
Section 4.3. Other Documents......................................................................... 14
Section 4.4. Sellers' Dues Requirement............................................................... 14
Section 4.5. Consolidation and Merger................................................................ 14
Section 4.6. Receivables............................................................................. 14
Section 4.7. Compliance with Laws; Preservation of Existence; Conduct of Business.................... 14
Section 4.8. Environmental........................................................................... 15
Section 4.9. Notices to Obligors; Collections........................................................ 17
Section 4.10. Notices................................................................................. 17
Section 4.11. Assets.................................................................................. 18
Section 4.12. Compliance with Contracts; Modifications to Contracts, Mortgages and Collection
Policy.................................................................................. 18
Section 4.13. Release and Bonding of Liens............................................................ 18
Section 4.14. Real Estate Taxes....................................................................... 18
Section 4.15. Accounting for Purchases................................................................ 19
Section 4.16. Compliance With Collection Policies..................................................... 19
Section 4.17. Compliance with Agreements and Applicable Laws.......................................... 19
Section 4.18. Security Interests...................................................................... 19
Section 4.19. Name Changes; Location of Sellers, Records; Instruments................................. 19
Section 4.20. ERISA Matters........................................................................... 19
Section 4.21. Restrictions on Transfers............................................................... 20
Section 4.22. Maintenance............................................................................. 20
Section 4.23. Condemnation............................................................................ 20
Section 4.24. Inspections and Audits.................................................................. 20
Section 4.25. Organizational Status................................................................... 21
Section 4.26. Amendment of Time Share Documents....................................................... 21
Section 4.27. Insurance............................................................................... 21
Section 4.28. Operating Contracts..................................................................... 21
Section 4.29. Further Assurances...................................................................... 22
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ARTICLE V PERFECTION OF TRANSFER AND PROTECTION OF BACK-UP SECURITY INTERESTS..................... 22
Section 5.1. Custody of Receivables.................................................................. 22
Section 5.2. Filing.................................................................................. 22
Section 5.3. Costs and Expenses...................................................................... 23
ARTICLE VI REMEDIES UPON MISREPRESENTATION; RIGHT TO SUBSTITUTE; UPGRADES.......................... 23
Section 6.1. Sellers' Option to Substitute or Repurchase............................................. 23
Section 6.2. Repurchases and Substitutions of Receivables for Breach of Representations and
Warranties.............................................................................. 23
Section 6.3. Upgrades................................................................................ 24
Section 6.4. Reassignment of Repurchased or Substituted Receivables.................................. 24
ARTICLE VII INDEMNIFICATION......................................................................... 24
Section 7.1. Sellers Indemnification................................................................. 24
Section 7.2. Liabilities to Obligors................................................................. 25
ARTICLE VIII MISCELLANEOUS........................................................................... 25
Section 8.1. Termination............................................................................. 25
Section 8.2. Assignment or Delegation by the Sellers................................................. 25
Section 8.3. Amendment............................................................................... 26
Section 8.4. Notices................................................................................. 26
Section 8.5. Merger and Integration.................................................................. 26
Section 8.6. Headings................................................................................ 26
Section 8.7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.................... 27
Section 8.8. WAIVER OF JURY TRIAL.................................................................... 27
Section 8.9. No Bankruptcy Petition.................................................................. 27
Section 8.10. Severability of Provisions.............................................................. 27
Section 8.11. No Waiver; Cumulative Remedies.......................................................... 27
Section 8.12. Counterparts............................................................................ 27
Section 8.13. Intended Characterization............................................................... 27
Section 8.14. Sellers................................................................................. 28
SCHEDULES
Schedule I Location of Offices
Schedule 3.1(ff) Insurance
Schedule 3.1(jj) Organizational Structure; Intercompany Debt
EXHIBITS
Exhibit A Form of Sale Assignment
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SALE AND CONTRIBUTION AGREEMENT
This Sale and Contribution Agreement, dated as of August 3, 2004, is made
by and among the Persons identified on the signature pages hereto as Sellers,
(together with their permitted successors and assigns, each a "Seller" and
collectively, the "Sellers") and Bluegreen Receivables Finance Corporation VII,
a Delaware corporation (together with its permitted successors and assigns, the
"Trust Depositor").
WHEREAS, in the regular course of its business, the Sellers originate and
purchase Receivables;
WHEREAS, the Trust Depositor has been established as a bankruptcy-remote
entity for the purpose of acquiring from Sellers from time to time Receivables
and related Assets owned by the Sellers in accordance with the terms of this
Agreement;
WHEREAS, the Sellers and Trust Depositor wish to set forth the terms and
conditions pursuant to which Trust Depositor will acquire such Receivables and
related Assets (including Substitute Assets); and
WHEREAS, Trust Depositor intends concurrently with each transfer of Assets
hereunder to sell, transfer and otherwise absolutely convey all right, title and
interest in and to the Assets to the Trust pursuant to the Sale and Servicing
Agreement dated as of the date hereof by and among Trust Depositor, the Trust,
Bluegreen Corporation, individually and in its capacity as Servicer, Concord
Servicing Corporation, as Back-up Servicer, Vacation Trust, Inc., as Club
Trustee, General Electric Capital Corporation, as Facility Administrator, the
Noteholders and U.S. Bank National Association, as Indenture Trustee and
Custodian (as amended, supplemented or otherwise modified from time to time, the
"Sale and Servicing Agreement"), executed concurrently herewith;
WHEREAS, the Sellers and Trust Depositor wish to set forth the terms and
conditions pursuant to which (i) the Sellers will sell, transfer and otherwise
absolutely convey the Assets to Trust Depositor, and (ii) the Receivables Files,
deeds and other instruments, certificates, books, records and information of any
kind relating to the Assets referred to in the foregoing clause (i) and from
time to time sold and purchased hereunder and under the Sale and Servicing
Agreement and transferred to the Custodian (as custodian and agent for the
Indenture Trustee) under the Custodian Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the Sellers and Trust Depositor agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. General. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) have the
meanings assigned to them in the Definitions Annex to the Sale and Servicing
Agreement.
Section 1.2. Other Interpretive Provisions. Except to the extent otherwise
specified in the particular term or provision at issue, this Agreement shall be
interpreted and construed in accordance with the Document Conventions.
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ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT
Section 2.1. Closing of Purchases. During the Purchase Period, no later
than eleven (11) days prior to each Transfer Date (or such shorter period to
which Trust Depositor shall agree), the Sellers shall notify the Trust Depositor
of the intent to effect a Purchase and the proposed Transfer Date thereof.
During the Purchase Period, no later than two (2) Business Days prior to each
Transfer Date (or such shorter period to which Trust Depositor shall agree), the
Sellers will deliver or cause to be delivered to Trust Depositor a notice
specifying all outstanding Eligible Receivables currently owned by the Sellers
which the Sellers wish to sell, transfer and absolutely assign pursuant to this
Agreement, together with the items set forth on Schedule IB to the Sale and
Servicing Agreement with respect thereto. On or prior to the Transfer Date,
Trust Depositor will notify the Sellers of the Eligible Receivables it will
purchase (the "Purchased Receivables") on such date and the cash purchase price
(the "Sale Price") it will pay for such purchase. To the extent that there is no
Sale Price or the cash portion of the Sale Price for the Purchased Receivables
is less than the fair market value thereof, the difference shall be deemed a
capital contribution by the Sellers to the Trust Depositor. On each Transfer
Date, the applicable Seller shall execute an assignment (the "Sale Assignment"),
dated as of such Transfer Date, substantially in the form of Exhibit A hereto,
Allonges (or other assignment in the case of Aruba Receivables) which have been
stapled to the original notes evidencing, as applicable, the Receivables and
Mortgage Assignments with respect to each of the Receivables and related Assets
being purchased on such Transfer Date by the Trust Depositor. The Sale Price
shall be payable by Trust Depositor in full by wire transfer on the Transfer
Date to an account designated by the applicable Seller to Trust Depositor on or
before the Transfer Date.
Concurrent with the payment of the Sale Price, if any, for Purchased
Receivables and execution and delivery of the Sale Assignment, the Allonges and
the Mortgage Assignments, as applicable, in respect thereof, the Sellers shall
have, and shall be deemed for all purposes to have sold, transferred, assigned,
set over and otherwise conveyed to Trust Depositor, in consideration therefor
without recourse, representation or warranty other than as expressly provided in
the Transaction Documents, all the Sellers' right, title and interest in and to
the Purchased Receivables and related Assets specified on the List of
Receivables and conveyed to the Trust Depositor pursuant to this Agreement.
The foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by
Trust Depositor (or any assignee thereof) of any obligation of the Sellers in
connection with the Receivables and related Assets, or any agreement or
instrument relating thereto, including, without limitation, any obligation to
any Obligor or any other Person, or (i) any taxes, fees, or other charges
imposed by any Governmental Authority and (ii) any insurance premiums which
remain owing with respect to any Receivable at the time such Receivable is sold
hereunder. Upon the consummation of the foregoing sale, transfer, assignment,
set-over and conveyance no Seller shall claim any ownership interest in the
Purchased Receivables and related Assets or take any action inconsistent with
the Trust Depositor's ownership of such Purchased Receivables and related
Assets.
Section 2.2. Assignment of Rights Under Agreement. Trust Depositor has the
right to assign its interest under this Agreement to the Trust, which shall in
turn assign its interest under this Agreement to the Indenture Trustee for the
benefit of the Noteholders as may be required to effect the purposes of the Sale
and Servicing Agreement and the Indenture, without further notice to, or consent
of, the Sellers, and the Trust and the Indenture Trustee for the benefit of the
Noteholders shall succeed to all of the rights of Trust Depositor hereunder. The
Sellers acknowledge that, pursuant to the Sale and Servicing Agreement, Trust
Depositor will assign all of its right, title and interest in and to the
Receivables and related Assets conveyed hereunder and all other rights of the
Trust Depositor hereunder to the Trust, including but not
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limited to, its right to exercise the remedies created by Section 6.2 hereof for
breaches of representations and warranties of the Sellers contained in Article
III hereof, which shall in turn assign such right, title and interest to the
Indenture Trustee for the benefit of the Noteholders as well as any other
covenants or representations or warranties made by the Sellers hereunder. The
Sellers agree that, upon such assignment to the Trust and the Indenture Trustee
for the benefit of the Noteholders, such remedies, covenants and
representations, including the repurchase obligations of Sellers with respect to
breaches of such representations set forth herein and in Section 2.7 of the Sale
and Servicing Agreement, will run to and be for the benefit of the Trust and the
Indenture Trustee for the benefit of the Noteholders and their respective
assignees and the Trust, the Indenture Trustee or such assignee may enforce the
same directly without joinder of Trust Depositor.
Section 2.3. Conveyance of Substitute Receivables. Subject to the
satisfaction of the conditions set forth in Section 2.7 of the Sale and
Servicing Agreement in respect of Replaced Assets, the Sellers may at their
option (but shall not be obligated to) sell, transfer, assign, set over and
otherwise convey to Trust Depositor, without recourse, representation or
warranty other than as expressly provided in the Transaction Documents (and in
consideration of Trust Depositor's concurrent transfer of property, by exchange
of one or more related Receivables re-transferred by the Trust to Trust
Depositor on the Substitute Asset Transfer Date) all the right, title and
interest of such Seller in and to the Substitute Assets identified in the
related Substitution Notice and specified on the List of Receivables and such
Substitute Assets shall become part of the Assets upon such transfer.
Notwithstanding the foregoing, if such option is not exercised prior to the
expiration of a respective Seller's fiscal quarter, during which the related
Receivable became a Defaulted Receivable, then such Seller's right to exercise
such option with respect to such Defaulted Receivable shall be irrevocably
waived, unless, prior to the expiration of such Seller's fiscal quarter, such
Seller gives notice to the Trust Depositor of its intention to exercise such
option with respect to such Defaulted Receivable and does so prior to the
expiration of such Seller's next succeeding fiscal quarter. If, however, such
Seller fails to exercise such option with respect to such Defaulted Receivable
prior to the expiration of such Seller's next succeeding fiscal quarter, then
such Seller's right to exercise such option with respect to such Defaulted
Receivable shall be irrevocably waived. The waiver described in this Section 2.3
shall have no effect on and shall not constitute a waiver of the Servicer
Purchase Option.
To the extent that the property delivered by Trust Depositor to the
Sellers in exchange for the Substitute Assets being conveyed has a value less
than the fair market value of such Substitute Assets, the difference, shall be
deemed a capital contribution by the Sellers to Trust Depositor in respect of
such Substitute Assets.
Any such sale, transfer, assignment, set-over and conveyance shall not
constitute and is not intended to result in a creation or an assumption by Trust
Depositor (or any assignee thereof) of any obligation of the Sellers in
connection with such Receivables and related Assets, or any agreement or
instrument relating thereto, including, without limitation, any obligation to
any Obligor or any other Person, or (i) any taxes, fees, or other charges
imposed by any Governmental Authority and (ii) any insurance premiums which
remain owing with respect to any such Receivable at the time such Receivable is
conveyed hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Sellers will make, jointly and severally, and upon the transfer of
Substitute Assets will be deemed to remake, the representations and warranties
set forth herein for the benefit of Trust Depositor, the Indenture Trustee and
the Noteholders; provided, however, with respect to the representations and
warranties relating to the Receivables, such representations and warranties
shall be made only on their
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date of purchase or transfer hereunder. It is understood and agreed that the
representations and warranties in this Article III shall survive the conveyance
of the Assets to Trust Depositor, any conveyance of the Assets by Trust
Depositor to the Trust and any conveyance of any interest therein to the
Indenture Trustee for the benefit of the Noteholders and shall continue so long
as any Asset shall remain outstanding. The repurchase (or, in the alternative,
substitution) obligation of the Sellers set forth in Section 6.2 below
constitutes the sole remedy available for a breach of a representation or
warranty of the Sellers in respect of the Assets. The Sellers are not
responsible for and shall have no obligation with respect to the Obligors'
payment obligations under the Receivables, except with respect to Servicer
Advances as and to the extent provided in the Transaction Documents and
obligations under Section 6.2 hereof with respect to breaches of representations
and warranties, when made, relating to the Receivables; provided, however, this
sentence shall not be construed to limit, in any manner, any Seller's other
obligations under the Transaction Documents.
Section 3.1. Representations and Warranties of Sellers. On the Closing
Date, Sellers, jointly and severally, make, and on each Transfer Date, Sellers,
jointly and severally, will be deemed to remake, the following representations
and warranties:
(a) Organization and Good Standing. Each Seller is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has full power (corporate or otherwise),
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. Each 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 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.
(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 each Seller by all necessary corporate action on the part of such Seller.
(d) No Conflict. The execution and delivery of this Agreement and
each other Transaction Document to which such Seller is a party, the performance
of the transactions contemplated hereby and thereby and the fulfillment of the
terms hereof and thereof do not contravene or violate (i) its articles or
certificate of incorporation or by-laws or operating agreement, (ii) any law,
rule or regulation applicable to it, (iii) any restrictions under any indenture,
contract, agreement, mortgage, deed of trust, o other instrument to which it is
a party or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any Lien on the
assets of such Seller, except where any such contravention or violation would
not have a Material Adverse Effect.
(e) No Violation. The execution and delivery by the Sellers 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 the Assets by the Sellers in accordance with the provisions of this
Agreement) will not conflict with or violate any Requirements of Law applicable
to any Seller or to the Assets and do not require the consent or approval of any
Governmental Authority or any other Person, except those which have been duly
obtained, made or complied with prior to the Closing Date and are in full force
and effect.
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(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Sellers, threatened against any Seller
Party, any of its Affiliates or any Time Share Association, before any court,
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 have a Material
Adverse Effect. No Seller nor, to the best knowledge of Sellers, any Time Share
Association has received any notice from any court or Governmental Authority
alleging that such party or any Affiliate thereof, has violated any Requirements
of Law or that the Eligible Resorts or the Facilities are in violation of any
Requirements of Law.
(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 Sellers' 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 Sellers.
(i) Solvency. Both before and after giving effect to the
transactions under this Agreement, each Seller will be Solvent.
(j) Selection Procedures. No selection procedures believed by the
Sellers to be adverse to the interests of Trust Depositor, the Trust or the
Noteholders were utilized by the Sellers in selecting the Receivables
constituting part of the Assets being sold hereunder.
(k) Taxes.
(i) All ad valorem taxes and other taxes and assessments
against the Eligible Resorts and the Assets, and all sales and
rental taxes respecting the sale or rental of any Accommodations or
Intervals, have been paid when due or except as may be reserved
against in accordance with GAAP and Sellers know of no basis for any
additional taxes or assessments against the Eligible Resorts or the
Assets. Sellers shall cause each Time Share Association managed by
the Club Managing Entity and use their best efforts to cause each
other Time Share Association to collect and pay any applicable sales
or rental tax respecting the sale or rental of any Accommodations or
Intervals by such Time Share Association.
(ii) The Sellers have filed or caused to be filed all tax
returns which, to their knowledge, are required to be filed and have
paid all taxes shown to be due and payable on such returns or on any
assessments made against them or any of their or their Subsidiaries'
property and all other taxes, fees or other charges imposed on them
or any of their 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 Sellers); no tax
lien has been filed and, to the Sellers' knowledge, no claim is
being asserted, with respect to any such tax, fee or other
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charge, except for such liens, fees or other charges which,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. Subject to the information
provided by its respective employees, proper and accurate amounts
have been withheld by each Seller from its respective employees for
all periods in full and complete compliance with all applicable
federal, state, local and foreign laws and such withholdings have
been paid when due to the applicable Governmental Authorities. Each
Time Share Association managed by the Club Managing Entity and, to
the best knowledge of Sellers upon due inquiry, each other Time
Share Association, has filed all required tax returns and has paid
all taxes shown to be due and payable on such returns, including
interest and penalties, and all other taxes which are payable by it,
to the extent the same have become due and payable.
(l) Margin Stock. No Seller is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any Margin Stock. No Seller
owns any Margin Stock, and none of the proceeds of any Purchase will be used,
directly or indirectly, for the purpose of purchasing or carrying any Margin
Stock, for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any portion of such proceeds to be a "purpose credit"
within the meaning of Regulations T, U or X of the Federal Reserve Board. No
Seller will take or permit to be taken any action which might cause any
Transaction Document to violate any regulation of the Federal Reserve Board.
Notwithstanding the foregoing, this Agreement shall not limit Bluegreen's
ability to repurchase shares of its common stock so long as it is otherwise done
in compliance with the terms hereof.
(m) Agreements Enforceable. This Agreement and the other Transaction
Documents to which such Seller is a party constitute the legal, valid and
binding obligation of such Seller enforceable against such Seller in accordance
with their respective terms, except as such enforceability may be limited by
applicable Insolvency Laws and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or law).
(n) Title; Prior liens with respect to the Resorts and Additional
Resorts. Sellers and their Subsidiaries have good and marketable title to the
Eligible Resorts (excluding sold Intervals and any equitable rights of Obligors
under applicable state law to the Units under any conditional land sales
contracts which are the subject of any Receivables and related Assets).
(o) Access. Subject to applicable state and/or county jurisdiction,
the Eligible Resorts relating to the Assets, have direct access to a public
road.
(p) Utilities. Electric, gas, sewer, water facilities and other
necessary utilities are lawfully available in sufficient capacity to service the
Units relating to the Intervals in the Eligible Resorts relating to the
Receivables and any easements necessary to the furnishing of such utility
service have been obtained and duly recorded. Sellers or the applicable Time
Share Association managed by the Club Managing Entity have timely paid water
charges and utility taxes relating to the Eligible Resorts.
(q) Amenities. All amenities described in the sales prospectus and
the "Public Reports" for the Eligible Resorts relating to the Receivables are
completed, or will be completed in all material respects, in the time periods
described in the "Public Reports", or a bond insuring their completion has been
posted. Each Obligor has or will have in the time period described in the
applicable "Public Reports" access to and the use of all of the amenities and
public utilities of the Eligible Resorts relating to the Receivables as and to
the extent provided in the Declaration and the "Public Reports".
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Each Obligor has access to and the use of all of the amenities of the Eligible
Resorts as and to the extent provided in the Club Trust Agreement and the Time
Share Documents in respect of the respective Eligible Resorts.
(r) Flood Insurance. With respect to any Eligible Resort that is
managed by the Club Managing Entity and that is located in a flood zone as
defined in the Flood Disaster Protection Act of 1973, as amended, or located
within wetlands, as defined by any Governmental Authority, such Eligible Resort
is covered by flood insurance in form and amounts and with reputable insurers
which are customary for the industry.
(s) Time Share Documents. The Time Share Documents are legal, valid,
binding and enforceable against the Sellers or their Affiliates, as applicable,
and, to the knowledge of the Sellers, the applicable Time Share Associations, in
each case in accordance with their respective terms.
(t) Compliance with Time Share Documents. No Seller nor any Time
Share Association managed by the Club Managing Entity or, to the knowledge of
any Seller, any other Time Share Association is in default under the Time Share
Documents and no event has occurred which, with the passage of time or the
giving of notice would become a default by any Seller, any Time Share
Association managed by the Club Managing Entity or, to the knowledge of any
Seller, any other Time Share Association under the Time Share Documents.
(u) Location of Offices. The principal place of business and chief
executive office of each Seller, and the office where each Seller keeps all the
Records, are located at the addresses of such Seller referred to on Schedule I
hereto (or at such other locations as to which the notice and other requirements
specified herein shall have been satisfied). The state of incorporation or
formation and organizational identification number, if any, of each Seller is
set forth on Schedule I hereto. Each Seller's name, as set forth in its
organizational documents, is completely and correctly identified in Schedule I
of this Agreement.
(v) Reports Accurate. No report, exhibit, financial statement,
document, book, record or report furnished or to be furnished by any Seller
pursuant to this Agreement or any other Transaction Document is or will be, when
considered as a whole, inaccurate in any material respect as of the date it is
or shall be dated or (except as otherwise disclosed to the Noteholders 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; provided, however, the
Trust Depositor acknowledges that the Trust Depositor's remedy for a
misrepresentation of matters set forth in Section 3.2 or a breach of a warranty
set forth in Section 3.2 hereof is provided by and limited to Section 6.2
hereof.
(w) Full Disclosure. Since December 31, 2003, no event has occurred,
that alone or together with other events, could reasonably be expected to have a
Material Adverse Effect and there is no fact of which Sellers have knowledge
after due inquiry that could reasonably be expected to have a Material Adverse
Effect. The Sellers know of no fact or condition which could prevent or restrict
the offering or sale of Intervals to Obligors in accordance with applicable
Requirements of Law.
(x) Tradenames. No Seller has any trade names, fictitious names,
assumed names or "doing business as" names or other names under which it has
done or is doing business within the past five (5) years other than "Bluegreen
▇▇▇▇▇▇ Corporation" and "Bluegreen Corporation of Massachusetts".
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(y) Compliance with Collection Policy. Each Seller has complied in
all material respects with the Collection Policy with regard to each Receivable
and the related Contract, and has not made any change to the Collection Policy.
(z) Value Given. Each Seller has received reasonably equivalent
value from the Trust Depositor in consideration for the transfer to the Trust
Depositor of the Receivables and related Assets hereunder, no such transfer
shall have been made for or on account of an antecedent debt owed by any Seller
to the Trust Depositor, and no such transfer is or may be voidable or subject to
avoidance under any section of the Bankruptcy Code.
(aa) Accounting. Each Seller accounts for the transfer from such
Seller of interests in the Assets hereunder 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.
(bb) Separate Entity. Each Seller is operated as an entity with
assets and liabilities distinct from those of the Trust Depositor and each
Seller hereby acknowledges that the Noteholders are entering into the
transactions contemplated by the Sale and Servicing Agreement and the other
Transaction Documents in reliance upon such Seller's identity as a separate
legal entity from the Trust Depositor.
(cc) Investment Company and Public Utility Holding Company. No
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.
(dd) Accuracy of Representations and Warranties. Each representation
or warranty by any Seller contained herein or in any certificate or other
document furnished by any Seller pursuant hereto or in connection herewith is
when furnished true and correct in all material respects; provided, however,
Trust Depositor acknowledges that Trust Depositor's remedy for a
misrepresentation of matters set forth in Section 3.2 or a breach of a warranty
set forth in Section 3.2 hereof is provided by and limited to Section 6.2
hereof.
(ee) Reservation System. Other than with respect to the services
contracted for by the Club Managing Entity or an Affiliate thereof with a third
party which rights under such contracts shall be licensed (on a non-exclusive
basis) to the Indenture Trustee for the benefit of the Noteholders, the
Reservation System is owned by the Club Managing Entity free and clear of any
Liens, but subject to the provisions of the Club Management Agreement and the
Club Trust Agreement, and the Club has the right to utilize such system under
and pursuant to the 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. Bluegreen owns 100% of the equity
capital of the Club Managing Entity.
(ff) Insurance. Each Seller and each Time Share Association managed
by the Club Managing Entity with respect to each Eligible Resort maintain such
insurance coverage as may be required by any applicable Requirement of Law or
pursuant to the Declarations for such Eligible Resort. Schedule 3.1(ff) lists
all insurance policies of any nature maintained, as of the Closing Date, for
current occurrences by each Seller Party and each Time Share Association managed
by the Club Managing Entity.
(gg) Compliance with Law. Subject to specific representations
regarding ERISA, Environmental Laws, Consumer Laws, the Patriot Act, tax and
other laws, each Seller has all material licenses, permits, consents or
approvals from or by, and has made all material filings with, and has given
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all material notices to, all Governmental Authorities having jurisdiction, to
the extent required for the operation and conduct of the Sellers' businesses in
material compliance with all Requirements of Law.
(hh) Financial Statements. The financial statements of each Seller
Party and of each Time Share Association fairly present the respective financial
conditions and (if applicable) results of operations of such party as of the
date or dates thereof and for the periods covered thereby. All such financial
statements, other than those prepared on behalf of a natural person, if any,
were prepared in accordance with GAAP consistently applied throughout the
periods covered (except, with respect to unaudited financial statements, for the
absence of footnotes and normal year-end audit adjustments). Except for any such
changes heretofore expressly disclosed in writing to Facility Administrator,
there has been no change in the respective financial condition of Sellers and
each Time Share Association which is managed by the Club Managing Entity from
the financial condition shown in their respective financial statements that
could reasonably be expected to have a Material Adverse Effect.
(ii) Employee Benefit Plans. Sellers are in compliance with all
applicable provisions of ERISA, the Code and all other Requirements of Law with
respect to all employee benefit plans adopted by Sellers for the benefit of its
employees. No liability has been incurred by Sellers which remains unsatisfied
for any funding obligation, taxes or penalties with respect to any such employee
benefit plan.
(jj) Affiliates.
(i) Attached hereto as Schedule 3.1(jj) is a true and complete
organizational chart disclosing the ownership and relationship of
Sellers and the other Seller Parties, including any Subsidiaries of
Sellers and any Affiliates of Sellers that have any involvement or
interest in any Time Share Association and the Eligible Resorts.
(ii) The intercompany indebtedness described on Schedule
3.1(jj) constitutes all Sellers' debts, liabilities and obligations
to any Affiliates of Sellers as of the date of this Agreement.
Sellers have provided copies of all instruments, agreements and
other writings, if any, evidencing and/or securing any of the
foregoing intercompany debt to the Trust Depositor and the Facility
Administrator.
(kk) Sales, Licenses and Permits.
(i) Sales of Intervals are made in compliance in all material
respects with all applicable Requirements of Law. The Sellers, the
Accommodations with respect to which Intervals are being sold, the
Eligible Resorts, the Time Share Documents, and the Facilities
comply with, conform to and obey, in all material respects, all
Requirements of Law (including the applicable Declarations)
applicable to the Sellers, such Accommodations, the Eligible
Resorts, the Time Share Documents and the Facilities, and, to the
extent applicable, each indenture, order, instrument, agreement or
document to which Sellers are a party or by which it is bound. (ii)
Each Time Share Association managed by the Club Managing Entity
possesses all requisite franchises, certificates of convenience and
necessity, operating rights, licenses, permits, consents,
authorizations, exemptions, orders and approvals as are necessary to
carry on its business as now being conducted including without
limitation to manage, maintain and operate the Eligible Resorts
related to such Time Share Association in material compliance with
all applicable Requirements of Law.
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(ll) Intellectual Property. As of the Closing Date, each Seller owns
or has rights to use all intellectual property necessary to continue to conduct
its business as now or heretofore conducted by it or proposed to be conducted by
it. Each Seller conducts its business and affairs without infringement of or
interference with any intellectual property of any other Person in any material
respect. No Seller is aware of any infringement claim by any other Person with
respect to any Seller's intellectual property.
(mm) Representations as to the Time Share Association. No Seller nor
any Time Share Association which is managed by the Club Managing Entity is in
default in any material respect under any of the Time Share Documents or under
any other document evidencing or securing any indebtedness which is secured,
wholly or in part, by the Accommodations, and no event has occurred which with
the giving of notice, the passage of time or both, would constitute such a
default under any of the applicable Time Share Documents or under any of the
documents evidencing or securing any such indebtedness.
(nn) Brokers. No broker or finder brought about the obtaining,
making or closing of this Agreement or any other Transaction Document or any
transaction contemplated thereby, and no Seller Party or Affiliate thereof has
any obligation to any Person in respect of any finder's or brokerage fees in
connection therewith.
(oo) Environmental Matters.
(i) The operations of each Seller comply in all material
respects with all applicable Environmental Laws.
(ii) There are no claims, investigations, litigation,
administrative proceedings, whether pending or, to such Seller's
best knowledge, threatened, or judgments or orders, relating to any
Hazardous Materials or alleging the violation of any Environmental
Laws (collectively "Environmental Matters") relating in any way to
any operations of such Seller on any real property leased or owned
by such Seller or to the operations of such Seller the result of
which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect.
(iii) No Seller has filed any notice under any international,
federal, state, regional, provincial or local law indicating past or
present treatment, storage or disposal of a Hazardous Material or
reporting a spill or release of a Hazardous Material into the
environment the result of which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(iv) No Seller has any known material liability, contingent or
otherwise, in connection with any release of any Hazardous Material
into the environment.
(v) (i) No Hazardous Material is now or was formerly used,
stored, generated, manufactured, installed, disposed of or otherwise
present at or about the Facilities or, to the best knowledge of any
Seller, any property adjacent to the Facilities, including the
groundwater located thereon except in material compliance with
applicable Environmental Laws and (ii) all material permits,
licenses, approvals and filings required by Environmental Laws in
respect of the Facilities have been obtained, and the use, operation
and condition of the Facilities does not violate any applicable
Environmental Laws in any material
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respect. All water intended to be drinking water originating from
any well located at any Eligible Resort is potable.
(pp) Operating Contracts. Sellers have delivered to Trust Depositor
and Facility Administrator true, correct and complete copies of the Operating
Contracts, including all exhibits, schedules and attachments. Each of the
Operating Contracts is in full force and effect. Sellers are not in any default
in any material respect under any of the Operating Contracts, and Sellers know
of no default on the part of any other party to any of the Operating Contracts.
(qq) Litigation. There are no actions, demands, lawsuits,
investigations, proceedings, orders or injunctions (collectively "Litigation")
pending or, to the best of any Seller's knowledge, threatened against or
affecting any Seller or any of its Affiliates, at law or in equity, or before or
by any Governmental Authority which could reasonably be expected to have a
Material Adverse Effect. To the best of any Seller's knowledge, there is no
Litigation pending or threatened against or affecting any Time Share
Association, at law or in equity, or before or by any Governmental Authority
which could reasonably be expected to have a Material Adverse Effect. No Seller
nor, to the knowledge of any Seller, any Time Share Association has received any
notice from any court or Governmental Authority alleging that such party or any
Affiliate thereof, has violated any Requirements of Law or that the Eligible
Resorts or the Facilities are in violation of any Requirements of Law.
Section 3.2. Representations and Warranties of Sellers Relating to the
Agreement and the Assets. Sellers, jointly and severally, hereby represent and
warrant to Trust Depositor that, as of each Transfer Date, with respect to the
Assets transferred to the Trust Depositor on such date:
(a) Valid Sale and Transfer of Ownership. Such Seller: (i) has good
and marketable title to each Asset free and clear of any Lien (other than
Permitted Liens) of any Person; (ii) is the sole owner thereof and has full
right to transfer the Assets to Trust Depositor; and (iii) has validly and
effectively conveyed to Trust Depositor all of such Seller's right, title and
interest in and to the Assets free and clear of any Lien (other than Permitted
Liens). There are no facts, circumstances or conditions known to any Seller that
may result in any Liens upon any Asset (including Liens arising under
Environmental Laws) other than Permitted Liens. No financing statement or other
instrument similar in effect covering all or any part of the Assets is on file
in any recording office, except such as may have been filed in favor of Sellers
(and being assigned to the Trust Depositor) or the Trust Depositor, the Trust or
the Indenture Trustee.
(b) Eligibility of Receivables. Each Receivable relating to each
Asset is an Eligible Receivable.
(c) List of Receivables. As of the related Transfer Date, the List
of Receivables and other reports 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 on such 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.
(d) No Liens. Each Asset shall, immediately prior to its sale
hereunder, be legally and beneficially owned by the applicable Seller free and
clear of any Lien (except Permitted Liens), and upon each Purchase, Trust
Depositor shall acquire ownership of each Asset and in the Collections with
respect thereto, free and clear of any Lien (except Permitted Liens).
(e) Consents. With respect to each Asset, all material consents,
licenses, approvals or authorizations of or registrations or declarations with
any Governmental Authority required to be
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obtained, effected or given by any Seller in connection with the transfer of
such Assets to the Trust Depositor have been duly obtained, effected or given
and are in full force and effect.
(f) Environmental Conditions. To each Seller's knowledge, such
Seller's operations and the Eligible Resorts are in compliance with all
Requirements of Law and none of the Eligible Resorts are the subject of any
governmental investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous wastes or substances into the
environment.
(g) Servicing. The servicing and collection practices used by the
Sellers and their Affiliates have complied in all material respects with all
applicable Requirements of Law and have met customary industry standards for the
servicing of receivables substantially similar to the Receivables.
(h) Consumer Law Matters. The Assets were originated and have been
serviced in compliance with, and do not contravene any applicable Requirements
of Law, including, without limitation, all applicable Consumer Laws and
applicable provisions of the Patriot Act. All applicable federal, state and
local laws and regulations in the marketing and sales of the related Intervals,
including without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, state securities and blue sky laws, the Interstate Land
Sales Full Disclosure Act, the mail fraud statutes, land use, land sales,
timeshare sales and zoning laws, have been complied with.
(i) Patriot Act Matters. Sellers represent, warrant, covenant and
agree, as of the Closing Date and continuing throughout the term of this
Agreement, that:
(i) it is and at all times shall be in compliance with
applicable OFAC sanctions and regulations promulgated under the
authority granted by the Trading with the Enemy Act ("TWEA"), 50
U.S.C. App. Section 1 et seq., and the International Emergency
Economic Powers Act ("IEEPA"), 50 U.S.C. Section 1701 et seq., as
the TWEA and the IEEPA may apply to Sellers' activities;
(ii) it is and at all times shall be in compliance with the
Patriot Act and all rules and regulations promulgated under the
Patriot Act as such act and the rules and regulations promulgated
thereunder may be applicable to Sellers; and
(iii) it (i) is not now, nor has ever been under investigation
by any governmental authority for, nor has been charged with or
convicted for a crime under, 18 U.S.C. Sections 1956 or 1957 or any
predicate offense thereunder, or a violation of the Bank Secrecy
Act; (ii) has never been assessed a civil penalty under any anti
money laundering laws or predicate offenses thereunder; (iii) has
not had any of its funds seized, frozen or forfeited in any action
relating to any anti money laundering laws or predicate offenses
thereunder; (iv) has taken such steps and implemented such policies
as are reasonably necessary to ensure that Sellers are not
promoting, facilitating or otherwise furthering, intentionally or
unintentionally, the transfer, deposit or withdrawal of criminally
derived property, or of money or monetary instruments which are (or
which Sellers suspects or has reason to believe are) the proceeds of
any illegal activity or which are intended to be used to promote or
further any illegal activity; and (v) has taken such steps and
implemented such policies as are reasonably necessary to ensure that
Sellers are in compliance with all laws and regulations applicable
to its business for the prevention of money laundering and with anti
terrorism laws
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Initial and regulations, including with respect to the source of
funds from its operations and that such steps include the
development and implementation of an anti money laundering
compliance program within the meaning of Section 352 of the Patriot
Act, to the extent Sellers are required to develop such a program
under the rules and regulations promulgated pursuant to Section 352
of the Patriot Act.
Nothing in this Section 3.2(i) shall be construed to imply that the
provisions of the laws and regulations set forth herein are, in fact, applicable
to Sellers.
(j) FTC Holder Rule Language. None of the related Receivables
include language from the Federal Trade Commission's trade regulation rule
titled "Preservation of Consumers' Claims and Defenses" (16 C.F.R. Part 433),
including any language similar to the following: "Any holder of this consumer
contract is subject to all claims and defenses which the debtor could assert
against the seller of goods and services obtained [pursuant hereto or] with the
proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid
by the debtor hereunder."
(k) Property. To any Seller's knowledge, as of the date of the
origination of any Receivable, all of the material improvements on the related
Eligible Resort lay wholly within the boundaries and building restriction lines
of such Eligible Resort, except for encroachments that are insured against by
the applicable title policy or that do not materially and adversely affect the
value or marketability of such Interval, and no improvements on adjoining
properties encroached upon such Eligible Resort so as to materially and
adversely affect the value or marketability of such Interval, except those
encroachments that are insured against by such title policy.
Section 3.3. Survival; Knowledge of Trust Depositor; Notice of Breach. The
representations and warranties set forth in this Article III shall survive the
transfer of the Assets to Trust Depositor and termination of the rights and
obligations of the Servicer under the Transaction Documents. Neither the
survival nor the liability of any Seller with respect to such Seller's
representations and warranties set forth in this Article III shall be reduced by
any due diligence or other investigation made by Trust Depositor, the Trust, the
Facility Administrator, the Indenture Trustee or any Noteholder at any time or
by the disclosure of any facts or circumstances to Trust Depositor, the Trust,
the Facility Administrator, the Indenture Trustee or any Noteholder (whether
prior to or after the date of this Agreement). Upon discovery by any Seller or
the Trust Depositor of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other, the Indenture Trustee and the Facility Administrator.
ARTICLE IV
SELLERS' AFFIRMATIVE AND NEGATIVE COVENANTS
Until the date on which this Agreement terminates in accordance with its
terms, Sellers, jointly and severally, hereby covenant and agree that:
Section 4.1. Records. Sellers shall keep adequate records and books of
account reflecting all financial transactions of Sellers relating to the Assets
and (to the extent available to the Sellers) the Time Share Associations,
including sales of Intervals, all in accordance with GAAP.
Section 4.2. Use of Noteholders' Names. Sellers will not, and will not
permit any Affiliate to, without the prior written consent of any Noteholder,
use the name of any Noteholder or the name of any Affiliates of any Noteholder
in connection with any of their respective businesses or activities, except in
connection with internal business matters, administration of the Transaction
Documents and as required in dealing with governmental agencies or any
applicable stock exchange including any reports required to be filed with the
Securities and Exchange Commission.
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Section 4.3. Other Documents. To the extent not maintained by the
Custodian or Servicer, Sellers will maintain accurate and complete files
relating to the Receivables and the related Assets to the satisfaction of Trust
Depositor and the Trust, and such files (to the extent not computerized) will
contain copies of each Receivable and the related assets together with the
purchase agreements, any disclosure or notice required by applicable
Requirements of Law including truth-in-lending statements and the HUD-1
Settlement Statement and the consumer's credit application, all relevant credit
memoranda and all collection information and correspondence relating to such
Receivables.
Section 4.4. Sellers' Dues Requirement. Each Seller shall either (i) pay
the Time Share Association dues relating to Intervals which are owned by such
Seller or one of its Affiliates and do not relate to Receivables or (ii) for as
long as such Seller or one of its Subsidiaries controls the Eligible Resorts,
shall provide such monies as are necessary to maintain services for an Eligible
Resort which are equal to or greater than one hundred percent (100%) of such
Eligible Resorts' total operating expenses, taxes, utilities and associated
reserve fund requirements.
Section 4.5. Consolidation and Merger. No Seller will consolidate with or
merge into any other Person or permit any other Person to consolidate with or
merge into them or convey all or substantially all of their respective assets to
any Person, unless (i) either (x) (a) such Seller shall be the surviving entity
or (b) the successor entity or the Person which is the surviving or successor
entity or which acquires by sale or conveyance substantially all the assets of
such Seller shall be an entity organized under the laws of the United States of
America or any State thereof (including, if applicable, BankAtlantic Bancorp,
Inc., ▇▇▇▇▇▇ Corporation, BFC Financial Corp. or any successor or Affiliate of
any of the foregoing) and (y) shall expressly assume the due and punctual
performance and observance of all of the covenants and conditions of this
Agreement to be performed or observed by such Seller, by an amendment hereto in
form and substance reasonably satisfactory to the Indenture Trustee and the
Facility Administrator, and (ii) such Seller or such successor corporation or
entity, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in breach in the performance of
any such covenant or condition of this Agreement.
Section 4.6. Receivables. The Sellers shall not take any action (nor
permit or consent to the taking of any action) which might reasonably be
anticipated to impair the value of the Receivables or related Assets or any of
the rights of the Trust in the Receivables or related Assets; provided, however,
nothing contained in this Section 4.6 shall be construed as requiring the
Sellers to guarantee or otherwise become liable for the payment of the Obligors'
payments under the Receivables.
Section 4.7. Compliance with Laws; Preservation of Existence; Conduct of
Business. Sellers and, to the extent within the control of Bluegreen or an
Affiliate thereof, each of the Units in which Intervals are being sold, shall
comply with, conform to and obey each and every Requirement of Law applicable to
it and each indenture, order, instrument, agreement or document to which it is a
party or by which it is bound except where the failure to comply would not have
a Material Adverse Effect. Except as permitted by Section 4.5, each Seller shall
preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges. Each Seller shall timely respond to or comply
with and for so long as any Time Share Association is managed by the Club
Managing Entity shall cause such Time Share Association to respond to or comply
with, and Sellers shall promptly furnish to the Trust Depositor and the Facility
Administrator and for so long as any Time Share Association is managed by the
Club Managing Entity shall cause such Time Share Association to promptly furnish
to the Trust Depositor and the Facility Administrator true and complete copies
of any notice or claim by any Governmental Authority, or by any other party to
any indenture, order, instrument, agreement or Time Share Document, pertaining
to the Sellers, the Accommodations, the Time Share Associations, the Eligible
Resorts and the Facilities to the extent any adverse determination in respect
thereof could reasonably be expected to have a Material Adverse Effect. Each
Seller shall at all times maintain, preserve and protect all of its assets
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and properties used or useful in the conduct of its business, and keep the same
in good repair, working order and condition in all material respects (taking
into consideration ordinary wear and tear) and from time to time make, or cause
to be made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with such Seller's past practices.
Section 4.8. Environmental.
(a) Sellers shall (A) comply in all material respects with
applicable Environmental Laws; (B) notify Trust Depositor and its assigns and
the Facility Administrator, as the case may be, immediately upon Sellers'
discovery of any spill, discharge, release or presence of any Hazardous Material
in violation of applicable Environmental Laws at, upon, under, within,
contiguous to or otherwise affecting the Facilities which would be material in
respect of any affected Eligible Resort; (C) promptly remove all Hazardous
Materials which violate Environmental Laws and remediate the Eligible Resorts
which are managed by the Club Managing Entity (and use their best efforts to
cause each other Eligible Resort to be so remediated) in full compliance with
applicable Environmental Laws and in accordance with the recommendations and
specifications of an independent environmental consultant reasonably acceptable
to Trust Depositor and its assigns and the Facility Administrator and (D)
promptly forward to Trust Depositor and its assigns and the Facility
Administrator, as the case may be, copies of all Environmental Claims made
against or in respect of any Seller or any of its Affiliates and relating to the
Eligible Resorts or the Sellers, and copies of all orders, notices, permits,
applications or other communications and reports in connection with any spill,
discharge, release or the presence of any Hazardous Material or any other
matters relating to the Environmental Laws or any similar laws or regulations,
as they may affect the Eligible Resorts which would be material in respect of
any affected Eligible Resort. Sellers shall not cause, and shall use prudent,
commercially reasonable efforts to prohibit any other Person within the control
of Sellers from causing any spill, discharge or release, or the use, storage,
generation, manufacture, installation, or disposal, of any Hazardous Materials
at, upon, under, within or about the Eligible Resorts or the transportation of
any Hazardous Materials to or from the Eligible Resorts (except in material
compliance with Environmental Laws).
(b) Sellers shall provide to Trust Depositor and its assigns and the
Facility Administrator, as the case may be, promptly upon the written request of
Trust Depositor or its assigns or the Facility Administrator, as the case may
be, from time to time, a Site Assessment or, if required by Trust Depositor or
its assigns or the Facility Administrator, as the case may be, an update to any
existing Site Assessment, to assess the presence or absence of any Hazardous
Materials and the potential costs in connection with abatement, cleanup or
removal of any Hazardous Materials found on, under, at or within the Eligible
Resorts; provided, however, that Sellers shall not be required to pay for the
cost of any such Site Assessment or update unless (x) the Trust Depositor's or
its assigns' or the Facility Administrator's, as the case may be, request for a
Site Assessment is based on (1) information provided under this Section 4.8, (2)
a reasonable suspicion of Hazardous Materials at (or, to the extent the Facility
Administrator reasonably believes Hazardous Materials may migrate or affect an
Eligible Resort, near) an Eligible Resort, (3) a breach of covenants under this
Section 4.8, or (y) a Termination Event or an Event of Default has occurred and
is continuing, in which case any such Site Assessment or update shall be at
Sellers' expense.
(c) As between Sellers, on the one hand, and Trust Depositor, the
Trust, the Indenture Trustee, the Custodian, the Facility Administrator and the
Noteholders, on the other hand, all risk of loss associated with non-compliance
with Environmental Laws, or with the presence of any Hazardous Material at,
upon, within, contiguous to or otherwise affecting the Eligible Resorts, shall
lie solely with Sellers. Accordingly, Sellers shall bear all risks and costs
associated with any such loss (including any loss in value attributable to
Hazardous Materials), damage or liability therefrom, including
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all costs of removal of Hazardous Materials or other remediation required by
applicable Requirements of Law.
(d) Sellers, jointly and severally, shall indemnify the Trust
Depositor (and its assignees) and agree to hold Trust Depositor (and its
assignees) harmless from and against any and all losses, liabilities, damages,
injuries, costs, expenses and claims of any and every kind whatsoever
(including, without limitation, court costs and reasonable attorneys' fees and
legal expenses) arising out of or associated, in any way, with the
non-compliance with applicable Environmental Laws with respect to any Eligible
Resort, or the existence of Hazardous Materials in, on, or about the Facilities,
or a breach of any representation, warranty or covenant contained in this
Section 4.8, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute or common law, including those
arising from the joint, concurrent, or comparative negligence of the Trust
Depositor, the Trust, the Indenture Trustee, the Facility Administrator or any
Noteholder; provided, further, that this Section 4.8 shall not apply with
respect to any liability, release, violation or other matter that arises solely
from the Trust Depositor's (or its assignees') gross negligence or willful
misconduct or after any Seller loses possession of any property due to
foreclosure or other exercises of remedies by Trust Depositor or its assignees.
To the extent that the undertaking to indemnify, pay and hold harmless set forth
in this Section 4.8 may be unenforceable because it is violative of any law or
public policy, Sellers shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
indemnifications set forth in this Section 4.8. Sellers' obligations under this
Section 4.8 shall arise upon the discovery of the presence of any Hazardous
Material which violates applicable Environmental Law, whether or not any
Governmental Authority has taken or threatened any action in connection with the
presence of any such Hazardous Material, and whether or not the existence of any
such Hazardous Material or potential liability on account thereof is disclosed
in any Site Assessment and shall continue notwithstanding the termination of
this Agreement or any transfer or sale of any right, title and interest in the
Trust Assets (by foreclosure, deed in lieu of foreclosure or otherwise).
(e) Notwithstanding any provision in this Section 4.8 or elsewhere
in any Transaction Document, or any rights or remedies granted by any
Transaction Document, none of the Trust Depositor, the Trust, the Indenture
Trustee, the Facility Administrator or any Noteholder waives and such parties do
expressly reserve all rights and benefits now or hereafter accruing to such
parties under the "security interest" or "secured creditor" exception under
applicable Environmental Laws, as the same may be amended. No action taken by
any such party pursuant to the Transaction Documents shall be deemed or
construed to be a waiver or relinquishment of any such rights or benefits under
the "security interest exception.
(f) Sellers shall within the applicable time periods below remedy
the conditions set forth below and deliver to the Facility Administrator such
evidence of remediation as the Facility Administrator shall reasonably request:
(i) Within 90 days of the date hereof with respect to Grande
Villas at World Golf Village (Florida), Sellers shall clean and
dispose of all black stained soil in the fenced area south of the
operations building at such Eligible Resort;
(ii) Within 90 days of the date hereof with respect to
Orlando's Sunshine Resort, Sellers shall install a secondary
containment system for the above-ground storage tank at the
four-story building located at such Eligible Resort;
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(iii) Within 90 days of the date hereof with respect to La
Cabana Beach & Racquet Club (Aruba), Sellers shall clean and dispose
of all oil staining around the floor drain of the back-up generator
room located in the northeast corner of Building No. 2 at such
Eligible Resort;
(iv) Within 120 days of the date hereof with respect to La
Cabana Beach & Racquet Club (Aruba), Sellers shall repair oil leaks
from the back-up generator and seal all floor drains in the back-up
generator rooms at such Eligible Resort; and
(v) Within 30 days of the date hereof with respect to each of
Lodge Alley Inn (South Carolina) and Solara Surfside (Florida),
Sellers shall prepare an asbestos operations and maintenance plan
for such Eligible Resorts.
Section 4.9. Notices to Obligors; Collections. Each Seller will direct its
related Obligors, and shall instruct all future Obligors, to remit all payments
with respect to such Receivables only (i) by check, money order, phone payment,
or Western Union Quick Collect mailed to, or generated by, an office of the
Servicer, (ii) by check, money order, wire transfer or moneygram to the Lockbox
or Lockbox Account or (iii) by pre-authorized checking or credit card payment
for deposit into the Lockbox Account. In the event such notice has not been
made, each Seller hereby authorizes and instructs the Facility Administrator to
make the corresponding notification to the obligors under each Receivable.
Electronic images of each notification shall be placed in Sellers' files
pertaining to the Receivable. Each Seller shall send to the Lockbox Bank for
deposit into the Lockbox Account all Collections it may receive in respect of
Purchased Receivables no later than the next Business Day following the date of
receipt thereof. Any Collections in respect of Purchased Receivables held by any
Seller pending transfer to the Lockbox Account shall be held in trust for the
benefit of the Indenture Trustee and the Noteholders until such amounts are
deposited into the Lockbox Account as set forth above.
Section 4.10. Notices. Each Seller will notify the Trust Depositor (or its
assigns) and the Facility Administrator in writing of any of the following
promptly upon learning of the occurrence thereof, describing the same and, if
applicable, the steps being taken with respect thereto:
(a) Event of Termination. The occurrence of any Termination Event or
Event of Default by a statement of an authorized officer of such Seller.
(b) Judgment and Proceedings. The entry of any judgment or decree or
the institution of any litigation, arbitration proceeding or governmental
proceeding against any Seller that has had, or would reasonably be expected to
have, a Material Adverse Effect.
(c) Material Adverse Effect. The occurrence of any event or
condition that has had, or would reasonably be expected to have, a Material
Adverse Effect.
(d) Claims. Any claim, action or proceeding adversely affecting in
any material respect any Time Share Association, any Eligible Resort, the
Facilities or the Assets, or any part thereof, or any of the interests conveyed
or granted to the Trust Depositor hereunder, and any action, suit, proceeding,
order or injunction of which Sellers become aware after the date hereof pending
or threatened against or affecting any Seller Party or any Affiliate thereof
which could reasonably be expected to have a Material Adverse Effect.
(e) Notice of Litigation, Potential Defaults, Claims, and Financial
Change. Sellers shall promptly inform the Trust Depositor and the Facility
Administrator of (a) any litigation against
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Sellers or affecting the Facilities, the Time Share Association or the Sellers'
ability to sell Intervals, which, if determined adversely, could reasonably be
expected to have a Material Adverse Effect or could otherwise reasonably be
expected to cause a Termination Event or an Event of Default, (b) any default
under any Indebtedness for borrowed money which could give rise to a Termination
Event or Servicer Termination Event and (c) any material adverse change in the
financial condition of Sellers or any other Seller Party.
Section 4.11. Assets. With respect to each Asset, each Seller will (i)
take all action necessary to perfect, protect and more fully evidence the Trust
Depositor's (and its assignee's) ownership of such Asset, including, without
limitation, (A) filing and maintaining effective financing statements (Form
UCC-1) against each Seller 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 (ii) take all
additional action that the Trust Depositor (or its assigns) may reasonably
request to perfect, protect and more fully evidence the respective interests of
the parties to this Agreement in the Assets. Each Seller hereby authorizes the
Trust Depositor (and its assignees) to file financing statements and
continuation statements and amendments thereto with respect to the Assets
without authentication by any Seller to the extent permitted by law and each
Seller consents to and ratifies all such filings, if any, made by the Trust
Depositor or the Facility Administrator prior to the date hereof.
Section 4.12. Compliance with Contracts; Modifications to Contracts,
Mortgages and Collection Policy. Each Seller will timely and fully perform and
comply in all material respects with all provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables, and (ii) comply in all material respects with the Collection Policy
in regard to each Receivable and the related Contract. Without the prior written
consent of the Servicer and the Noteholders, no Seller will make any change to
the Collection Policy. Except as expressly permitted by the Transaction
Documents, no Seller will extend, amend or otherwise modify the terms of any
Receivable, any Mortgage or any Contract related thereto other than in
accordance with the Collection Policy. No Seller shall take any action (nor
permit or consent to the taking of any action) which could reasonably be
anticipated to impair the value of any Asset or any of the rights of the Trust
Depositor in the Receivables or related Assets.
Section 4.13. Release and Bonding of Liens. In the event any Lien (other
than a Permitted Lien) attaches to any Receivable or related Asset from any
Person claiming from and through Sellers or their Affiliates, Sellers shall,
within the earlier to occur of ten (10) days after such attachment or the
respective lienholders action to foreclose on such Lien, either (a) cause such
Lien to be released of record, or (b) provide the Trust Depositor, or its
assigns, as the case may be, with a bond in accordance with the applicable laws
of the state in which the Receivable or related Asset is located, issued by a
corporate surety acceptable to the Trust Depositor or its assigns, as the case
may be, and the Facility Administrator in an amount and in form reasonably
acceptable to the Trust Depositor or its assigns, as the case may be, and the
Facility Administrator or (c) provide the Trust Depositor or its assigns, as the
case may be, and the Facility Administrator with such other security as the
Trust Depositor or its assigns, as the case may be, and the Facility
Administrator may reasonably require.
Section 4.14. Real Estate Taxes. Each Seller will pay, or cause to be paid
(to the extent funds are available from the Time Share Association), when due
all of such Seller's and its Affiliates' liabilities in respect of real estate
taxes relating to the Eligible Resorts. Each Seller will pay, or caused to be
paid, when due all of such Seller's and its Affiliates' liabilities in respect
of real estate taxes relating to any shortfall pursuant to keepwell arrangements
with the applicable Time Share Association or otherwise in respect of unsold
Intervals. Each Seller shall notify the Trust Depositor and its assignees and
the Facility
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Administrator promptly of the non-payment of real estate taxes relating to the
Eligible Resorts managed by the Club Managing Entity or such other Eligible
Resorts as such Seller may have actual knowledge.
Section 4.15. Accounting for Purchases. Each Seller will account for or
treat (whether in financial statements or otherwise) the transactions
contemplated hereby as a sale of the Receivables and related Assets by such
Seller to the Trust Depositor in accordance with GAAP.
Section 4.16. Compliance With Collection Policies. Each Seller shall
comply in all material respects with the terms of the Purchased Receivables and
its collection policies in effect on the Closing Date; provided that the Sellers
may modify and/or amend the Collection Policy with the prior written consent of
the Noteholders.
Section 4.17. Compliance with Agreements and Applicable Laws. Each Seller
shall perform each of its obligations under this Agreement and the other
Transaction Documents and comply with all applicable Requirements of Law,
including those relating to truth in lending, time share, real estate, retail
installment sales, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA
and labor matters and Environmental Laws, except to the extent that the failure
to so comply, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
Section 4.18. Security Interests. Except for the transfers hereunder, no
Seller will sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien (other than Permitted Liens)
on any Asset, whether now existing or hereafter transferred hereunder, or any
interest therein, and no Seller will sell, pledge, assign or suffer to exist any
Lien (other than Permitted Liens) on its interest, if any, hereunder. Each
Seller will immediately notify the Trust Depositor, the Indenture Trustee and
the Facility Administrator of the existence of any such Lien on any Asset; and
each Seller shall defend the right, title and interest of the Trust Depositor
in, to and under the Receivables in the Asset Pool and the related Interval,
against all claims of third parties.
Section 4.19. Name Changes; Location of Sellers, Records; Instruments. No
Seller shall (x) change its name or state of organization as set forth on
Schedule III to the Sale and Servicing Agreement without 30 days' prior written
notice to the Trust Depositor, the Indenture Trustee and the Facility
Administrator, or (y) move or permit Servicer to move the location of the
Receivable Files, other than to the Custodian, from the locations thereof on the
Closing Date, in either case without 30 days' prior written notice to the Trust
Depositor, the Indenture Trustee and the Facility Administrator. No Seller shall
(a) change its corporate name, (b) change its chief executive office, principal
place of business, corporate offices or the location of its records concerning
the Assets, or (c) take any other action that might make any financing or
continuation statement filed in connection herewith seriously misleading within
the meaning of Section 9-507 of the UCC or any other then applicable provision
of the UCC, in each case without at least 30 days prior written notice to the
Trust Depositor and its assigns, including the Indenture Trustee and the
Facility Administrator and after Facility Administrator's written acknowledgment
that any reasonable action requested by the Indenture Trustee or the Facility
Administrator in connection therewith, including to continue the perfection of
the ownership interests and any Liens, as applicable, in favor of the Trust
Depositor, the Trust and the Indenture Trustee in any Assets, has been completed
or taken, and provided that any such new location shall be in the continental
United States. No Seller shall change its fiscal year without prior written
notice to the Trust Depositor and the Facility Administrator.
Section 4.20. ERISA Matters. No Seller will (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
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Multiemployer Plan; (c) fail to make any payments to a Multiemployer Plan that
such 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 such Seller under ERISA or the Code.
Section 4.21. Restrictions on Transfers. Sellers shall not enter into any
agreement or perform any act which may make difficult or impede the exercise of
the Trust Depositor's, the Trust's or the Indenture Trustee's rights under any
Transaction Document.
Section 4.22. Maintenance. To the extent that the applicable Time Share
Association controls all or any portion of the Eligible Resorts and, further,
such Time Share Association is managed by the Club Managing Entity, Sellers
shall cause such Time Share Association to maintain each portion of the Eligible
Resorts under its responsibility in good repair, working order and condition and
shall make or cause to be made all necessary replacements to such Eligible
Resorts. To the extent that any amenities are provided by a third party pursuant
to an agreement between a Time Share Association which is managed by the Club
Managing Entity and such third party, Sellers shall cause such Time Share
Association to maintain such agreement in full force and effect.
Section 4.23. Condemnation. Notwithstanding anything to the contrary
contained herein, for so long as any condemned portion of the Facilities are to
be replaced by the applicable Time Share Association in accordance with the
applicable Timeshare Declaration, any and all awards and payments arising from
any condemnation or conveyances in lieu thereof relating to such portion of the
Facilities shall be distributed and used in accordance with the provisions of
the applicable Timeshare Declaration.
Section 4.24. Inspections and Audits. Sellers, for so long as any Time
Share Association is managed by the Club Managing Entity, shall use their best
efforts to cause such Time Share Association to, at reasonable times during
normal business hours and with reasonable prior notice and as often as may be
requested, and subject to any applicable Time Share Documents or Requirements of
Law, permit any agents or representatives of the Trust Depositor and its
assigns, and the Facility Administrator, to inspect the Eligible Resorts and the
other Facilities and any of Sellers' (including in its capacity as Servicer)
assets pertaining to such Eligible Resorts and Facilities (including financial
and accounting books and records), to examine and make copies of and abstracts
from such books and records of Sellers (including in its capacity as Servicer),
such related Time Share Association, and any servicer under any servicing
agreement pertaining to the Assets, such Eligible Resorts and the Facilities,
and to discuss any such party's affairs, finances and accounts with any of its
officers, employees or independent public accountants. If a Termination Event or
an Event Default has occurred and is continuing or if access is reasonably
necessary to preserve or protect the Assets as determined by Trust Depositor or
its assigns or the Facility Administrator, Sellers shall use its best efforts to
provide such access at all times and without advance notice, subject to any
applicable Time Share Documents or Requirements of Law. Sellers acknowledge that
Trust Depositor and its assigns, and the Facility Administrator, intend to
conduct such audits on at least an annual basis and inspections on at least a
quarterly basis. Sellers shall make available to Trust Depositor and its
assigns, including Facility Administrator all credit information in Sellers'
possession or under Sellers' control with respect to Obligors as such party may
request. All inspections and audits shall be at Sellers' expense; provided,
however, that the Sellers shall not be required to pay for such inspections and
audits more than one (1) time per calendar year, unless a Termination Event or
Event of Default has occurred and is continuing or unless the Trust Depositor or
its assigns or the Facility Administrator reasonably believes that the quality
or maintenance of an Eligible Resort is or could be impaired.
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Section 4.25. Organizational Status. No Seller shall terminate, modify,
amend or revoke its organizational documents in a manner which would have an
adverse effect on the Trust Depositor and its assignees without the prior
written consent of Facility Administrator.
Section 4.26. Amendment of Time Share Documents. Without the prior written
consent of the Note Majority, Sellers shall not amend, modify or terminate the
Time Share Documents in a manner that would have an adverse effect on the Trust
Depositor and its assigns.
Section 4.27. Insurance.
(a) Generally. The Sellers shall use their best efforts to cause the
respective Time Share Associations which are managed by the Club Managing
Entity, at their sole cost and expense, to maintain the policies of insurance
described on Schedule 3.1(ff) as in effect on the date hereof or otherwise in
substantially similar form and amounts and with insurers having an AM Best
rating of at least A-(IX); provided that if market conditions in the insurance
industry limit the Sellers' ability to obtain such insurance on commercially
reasonably terms, the Facility Administrator and the Sellers shall in good faith
cooperate to select insurers and coverages reasonably acceptable to the Facility
Administrator and the Sellers. All such policies of insurance (or the loss
payable and additional insured endorsements delivered to the Trust Depositor or
its assigns) shall contain provisions pursuant to which the insurer agrees to
provide (or endeavor to provide) at least 10 days prior written notice to Trust
Depositor or its assigns and the Facility Administrator in the event of any
cancellation of any such insurance policy; provided that Sellers agree to use
commercially reasonable efforts to require the applicable insurer to provide 30
days prior written notice of cancellation. If any Seller fails to cause to be
obtained or maintained, any of the policies of insurance required above, Trust
Depositor or its assigns, including Facility Administrator, may at any time or
times thereafter obtain and maintain such policies of insurance and pay such
premiums and take any other action with respect thereto that such party deems
advisable. Such party shall have no obligation to obtain any such insurance or
pay any premiums therefor. By doing so, no Termination Event arising from any
Seller's failure to maintain such insurance or pay any premiums therefor shall
be deemed to have been waived. All sums so disbursed, including Costs related
thereto, shall be payable on demand by Sellers to Trust Depositor or its assigns
or the Facility Administrator, as the case may be. Notwithstanding the
foregoing, required insurance may be maintained by the Time Share Association as
required by the Declaration in respect of the applicable Time Share Association,
provided that in the event any Time Share Association fails to maintain any
insurance required under this Section 4.27 then Sellers shall be required to
obtain and maintain such insurance in respect of any Time Share Association
which is managed by the Club Managing Entity.
(b) Changes in Circumstances. If requested by Trust Depositor or
Facility Administrator, Sellers shall deliver to such requesting party from time
to time a report of a reputable insurance broker, satisfactory to such party,
with respect to its insurance policies. Such party's review and acceptance of
the Sellers' and/or Time Share Associations' program and policies of insurance
shall in no event be deemed an approval or statement of the adequacy of the
same.
(c) Proofs of Claim Regarding Any Facilities. In case of loss or
damage or other casualty to any of the Facilities in excess of $500,000, Sellers
shall give prompt written notice thereof to the insurance carrier(s) and to
Trust Depositor and its assigns and the Facility Administrator.
Section 4.28. Operating Contracts. Sellers or their respective Affiliates,
at their sole cost and expense, shall perform and discharge their respective
obligations, covenants and agreements contained in the Operating Contracts and
give prompt notice to Trust Depositor and the Facility Administrator of any
notice of default or termination (whether oral or written) either given or
received by Sellers or their respective Affiliates, as the case may be, with
respect thereto, together with a complete copy of all written
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notices if such default or termination could reasonably be expected to have a
Material Adverse Effect or, in the case of a default, result in a termination of
such Operating Contract. Sellers will not (i) amend or modify any of the
Operating Contracts or surrender or cancel any such contract to the extent such
amendment or modification could reasonably be expected to have a Material
Adverse Effect, (ii) further encumber any Seller's or its Affiliate's rights
under such contract without the prior written consent of Facility Administrator;
or (iii) consent to any assignment thereof by the other contract parties.
Section 4.29. Further Assurances. Sellers agree that they shall and shall
cause each other Seller Party to, at Sellers' expense and upon request of Trust
Depositor or the Facility Administrator, duly execute and deliver, or cause to
be duly executed and delivered, to such party such further instruments and do
and cause to be done such further acts as may be necessary or proper in the
reasonable opinion of such party to carry out more effectively the provisions
and purposes of this Agreement or any other Transaction Document. From time to
time as may be reasonably requested by such party (which request will not be
made more frequently than once each year absent the occurrence and continuance
of a Termination Event or an Event of Default), the Sellers shall supplement
each disclosure schedule hereto, or any representation herein or in any other
Transaction Document, with respect to any matter hereafter arising that, if
existing or occurring at the date of this Agreement, would have been required to
be set forth or described in such disclosure schedule or as an exception to such
representation or that is necessary to correct any information in such
disclosure schedule or representation which has been rendered inaccurate thereby
(and, in the case of any supplements to any disclosure schedule, such disclosure
schedule shall be appropriately marked to show the changes made therein);
provided that (i) no such supplement to any such disclosure schedule or
representation shall amend, supplement or otherwise modify any disclosure
schedule or representation, or be deemed a waiver of any Termination Event or
Event of Default resulting from the matters disclosed therein, except as
consented to by Trust Depositor and the Noteholders in writing; and (ii) no
supplement shall be required as to representations and warranties that relate
solely to the Closing Date or the applicable Transfer Date for a Receivable.
ARTICLE V
PERFECTION OF TRANSFER AND PROTECTION
OF BACK-UP SECURITY INTERESTS
Section 5.1. Custody of Receivables. Subject to the terms and conditions
of this Section 5.1, and except as provided in the Custodial Agreement. the
contents of each Receivable File shall be held in the custody of Bluegreen in
its capacity as Servicer under the Sale and Servicing Agreement for the benefit
of the owner thereof. The Sellers agree to cooperate with the Servicer in its
efforts to comply with their obligations under the Sale and Servicing Agreement
in respect of the Assets, and acknowledges and consents to the transactions
contemplated therein.
Section 5.2. Filing.
(a) The Sellers shall take and cause to be taken such actions and
execute such documents as are necessary or desirable or as Trust Depositor may
reasonably request to perfect and protect the Trust Depositor's, the Trust's and
the Indenture Trustee's interests in the Assets against all other persons,
including, without limitation, the filing of financing statements, amendments
thereto and continuation statements, the execution of transfer instruments and
the making of notations on or taking possession of all records or documents of
title.
(b) In accordance with the Sale and Servicing Agreement, the Sellers
will deliver or cause to be delivered to the Custodian the Receivables File
relating to the Assets transferred on any Transfer Date.
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Section 5.3. Costs and Expenses. The Sellers jointly and severally agree
to pay all reasonable costs and disbursements in connection with the perfection
and the maintenance of perfection, as against all third parties, of Trust
Depositor's, the Trust's and the Indenture Trustee's right, title and interest
in and to the Assets (including, without limitation, the interest in the
Interval related thereto).
ARTICLE VI
REMEDIES UPON MISREPRESENTATION; RIGHT TO SUBSTITUTE; UPGRADES
Section 6.1. Sellers' Option to Substitute. Subject to the satisfaction of
the terms and conditions and the limitations set forth in Section 2.7 of the
Sale and Servicing Agreement, any Seller may at its option replace an Asset that
is an Ineligible Asset with a Substitute Asset by selling, transferring,
assigning, setting over and otherwise conveying to the Trust Depositor, without
recourse other than as expressly provided in the Transaction Documents, all such
Seller's right, title and interest in and to the Substitute Assets listed on the
related List of Substitute Assets (including, without limitation, all
Collections and rights to receive Collections with respect to the related
Receivables after the related Cutoff Date, but excluding any collections or
rights to receive payments which were collected pursuant thereto on or prior to
such Cutoff Date). In connection with any replacement of existing Assets in the
Asset Pool with Substitute Assets effected in accordance with the terms hereof,
the Trust Depositor shall, automatically and without further action, be deemed
to transfer to such Seller, without recourse to the Trust Depositor and free and
clear of any Lien created pursuant to this Agreement, all of the right, title
and interest of the Trust Depositor in, to and under the related Replaced Asset
(including any Collections received with respect thereto after the Cutoff Date
for the related Receivable(s)), and the Trust Depositor 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 the Trust Depositor
shall not be deemed to make any other representation or warranty, express or
implied.
Section 6.2. Repurchases and Substitutions of Receivables for Breach of
Representations and Warranties. In accordance with and subject to Section 2.7 of
the Sale and Servicing Agreement, the Sellers hereby jointly and severally
agree, for the benefit of Trust Depositor and its assignees including the Trust,
the Indenture Trustee and the Noteholders, that they shall repurchase any
Purchased Receivable that was an Ineligible Asset on the Transfer Date thereof
or if an exception to a Receivable File is not rectified in accordance with
Section 6.3(q) of the Sale and Servicing Agreement at a repurchase price equal
to the Transfer Deposit Amount, not later than the next Determination Date which
is at most thirty (30) days after the earliest to occur of the discovery of such
breach by such Seller or receipt by such Seller of written notice from the
Indenture Trustee, the Facility Administrator, the Servicer or Trust Depositor
of the related breach or inaccuracy of the representation or warranty. If any
Seller is able to effect a substitution for any such Ineligible Asset in
compliance with Section 2.3, such Seller may, in lieu of repurchasing such
Receivable and subject to the terms, conditions and limitations of the Sale and
Servicing Agreement, effect a substitution for such Ineligible Asset with a
Substitute Asset not later than the date a repurchase of such Ineligible Asset
would be required hereunder; provided further, in the event such Seller can or
is permitted to cure, and in fact cures, the condition which created the
"Ineligible Asset" in the above described 30 day period, such Seller shall not
be obligated to substitute or repurchase such Receivable; provided that if the
Ineligible Asset relates to a defective Receivable File described in clause (ii)
of the definition of Ineligible Asset, no cure period shall be permitted. 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 Sellers or the Trust Depositor, except with respect to
Servicer Advances as and to the extent provided in the Sale and Servicing
Agreement and remedies associated with breaches of representations and
warranties set forth above. The Issuer and the Noteholders shall bear the
economic risk of the Obligors' failure to make payments on the Receivables.
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Section 6.3. Upgrades. In connection with an Upgrade, each Seller may at
its option, subject to the provisions of Section 2.13 of the Sale and Servicing
Agreement, transfer to the Trust Depositor an Upgrade Receivable (together with,
if necessary, one or more other Upgrade Receivables) having a Receivable Balance
(or Receivable Balances) approximately equal to the Receivable Balance of the
Pre-Upgrade Receivable corresponding to such Upgrade Receivable (and upon such
transfer the Pre-Upgrade Receivable shall no longer be an Eligible Receivable or
included in any report delivered by the Servicer and shall be re-transferred to
the applicable Seller). To the extent the Receivable Balance (or Receivable
Balances) of the Upgrade Receivable(s) is less than the Receivable Balance of
the Pre-Upgrade Receivable, the Sellers shall deposit cash into the Collection
Account in the amount of such deficiency. Any excess of the Receivable Balance
(or Receivable Balances) of the Upgrade Receivable over the Receivable Balance
of the corresponding Pre-Upgrade Receivable, if any, shall be deemed to be a
capital contribution by such Seller to the Trust Depositor.
Section 6.4. Reassignment of Repurchased or Substituted Receivables. Upon
deposit in the Collection Account of the repurchase price as described in
Section 6.2, on the Substitute Asset Transfer Date related to a Substitute Asset
described in Section 6.1 or in connection with an Upgrade described in Section
6.3, the Trust Depositor shall assign to the applicable Seller all of Trust
Depositor's right, title and interest in the repurchased or Ineligible Asset or
Pre-Upgrade Receivable, as the case may be, in each case received by release
from the Trust in accordance with Section 2.7 or 2.13 of the Sale and Servicing
Agreement, without recourse, representation or warranty.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Sellers Indemnification.
(a) Sellers, jointly and severally, agree to pay all costs and
out-of-pocket expenses, if any (including reasonable counsel fees and expenses)
incurred by the Trust Depositor (and its assigns, including, without limitation,
the Noteholders) in connection with the enforcement by the Trust Depositor (and
its assigns, including, without limitation, the Noteholders) of its rights and
remedies under this Agreement and the other Transaction Documents to be
delivered hereunder or in connection herewith.
(b) Sellers, jointly and severally, agree to indemnify and hold the
Trust Depositor (and its assignees, including, without limitation, the
Noteholders) and each of its Affiliates, officers, directors, agents and
employees (each an "Indemnified Party") harmless against any and all damages,
claims, costs, losses, penalties, fines, liabilities, fees, forfeitures, amounts
paid in settlement, judgments, reasonable attorneys' fees and related litigation
costs, fees and expenses (collectively, "Losses") which relate to or result from
this Agreement and the other Transaction Documents including, without
limitation: (a) any action taken by or on behalf of such Seller relating to any
Receivable or related Asset which is not permitted by or pursuant to the terms
of this Agreement or any other Transaction Document or the use, ownership or
operation of any Interval by any Seller or the Servicer, to the extent the
Servicer is Bluegreen or any Affiliate thereof, or any Affiliates of the
foregoing, (b) any illegal act or omission by such Seller or any Affiliate,
officer, director, agent or employee thereof, (c) any act or omission
constituting negligence or willful misconduct, or breach of fiduciary duty by
such Seller or any officer, director, agent or employee thereof in connection
with such Seller's performance under this Agreement or the other Transaction
Documents, or any breach by such Seller of any of its obligations under this
Agreement or the other Transaction Documents, (d) any claim by any Person with
respect to the Assets, (e) sales of Assets having been made, suspended or
terminated under this Agreement and the other Transaction Documents, and in
connection with or arising out of the transactions contemplated hereunder and
thereunder and any actions or failures to act in connection therewith, including
any and all
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Environmental Liabilities and legal costs and expenses arising out of or
incurred in connection with disputes between or among any Indemnified Party and
any parties to any of the Transaction Documents, (f) subject to the preamble to
Article III and to Section 6.2 of this Agreement, any representation or warranty
made by such Seller under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered by or on
behalf of such Seller pursuant hereto or thereto, which shall have been false or
incorrect when made or deemed made, (g) any failure of any Seller or any
officer, director, agent or employee thereof to comply with any applicable
Requirement of Law (including, without limitation, the Environmental Laws,
Consumer Laws, Interstate Land Sales Act, the Patriot Act or any applicable
timeshare laws and regulations), with respect to any Receivable or Contract
related thereto or the nonconformity of any Receivable or Contract with any such
Requirement of Law or any failure of any such Seller to keep or perform any of
its obligations with respect to any Contract, (h) the commingling by the
Servicer or any of its Affiliates of Collections of Receivables at any time with
other funds of the Servicer or any of its Affiliates, (i) any investigation,
litigation or proceeding arising out of or relating to this Agreement, the other
Transaction Documents and the transactions contemplated hereby or thereby or (j)
any environmental or products liability or similar claim arising out of or in
connection with the rights or services that are the subject of any Receivable,
the related Assets or any Contract; provided that such Seller shall not be
required to so indemnify any such Indemnified Person for any Losses resulting
from the gross negligence or willful misconduct of an Indemnified Party or in
respect of Excluded Claims; provided, however, that nothing contained in this
Article VII or otherwise shall be construed to obligate such Seller to indemnify
an Indemnified Party with respect to any Losses incurred as a result of credit
problems of the Obligors or the payment performance of the Receivables and
related Assets. Notwithstanding any other provision of this Agreement, the
obligations of the Sellers under this Section 7.1 shall not terminate upon a
Service Transfer pursuant to Section 8.2 of the Sale and Servicing Agreement and
shall survive any termination of the Sale and Servicing Agreement or this
Agreement. Upon receiving knowledge of any suit, claim or demand asserted by a
third party that such Indemnified Party believes is covered by this indemnity,
such Indemnified Party shall give Sellers prompt notice of the matter and an
opportunity to defend it, at Sellers' sole cost and expense. Notwithstanding any
defense by Sellers of any such suit, claim or demand, such Indemnified Party
shall have the right to participate in any material decision affecting the
conduct or settlement of any dispute or proceeding for which indemnification may
be claimed. NO INDEMNIFIED PARTY SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER
PARTY TO ANY TRANSACTION DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY
BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY
THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
WHICH MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER OR
UNDER ANY OTHER TRANSACTION DOCUMENT.
Section 7.2. Liabilities to Obligors. No obligation or liability to any
Obligor under any of the Receivables is intended to be assumed by the Trust
Depositor, the Indenture Trustee, the Noteholders or the Trust under or as a
result of this Agreement and the transactions contemplated hereby.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Termination. This Agreement shall terminate on the date on
which the Sale and Servicing Agreement terminates; provided, that the provisions
of Sections 7.1, 8.7, 8.8 and 8.9 hereof shall survive the termination hereof.
Section 8.2. Assignment or Delegation by the Sellers. Except as
specifically authorized hereunder, no Seller may convey and assign or delegate
any of its rights or obligations hereunder absent
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the prior written consent of the Trust Depositor, Facility Administrator and the
Noteholders, and any attempt to do so without such consent shall be void. The
Trust Depositor will assign all of its rights (but not its obligations) under
this Agreement to the Trust (which will be further assigned to the Indenture
Trustee for the benefit of the Noteholders) and each Seller consents thereto and
expressly acknowledges that all representations, warranties, covenants,
indemnities and other provisions hereunder (including, without limitation, the
right to enforce remedies) are for the express benefit of the Trust, as assignee
of the Trust Depositor, and the Indenture Trustee for the benefit of the
Noteholders.
Section 8.3. Amendment. This Agreement may not be amended by the parties
hereto without the prior written consent of the Note Majority. Any such
amendment shall be in writing and executed by the parties hereto (including in
counterparts). Upon the execution of any amendment in compliance with this
Section 8.3, this Agreement shall be modified in accordance therewith, and such
amendment shall form a part of this Agreement for all purposes.
Section 8.4. Notices. 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 (which shall
be a Business Day) transmitted by legible telefax transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
If to any Seller: c/o Bluegreen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Trust Depositor: Bluegreen Receivables Finance
Corporation VII ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust, the Indenture
Trustee or the Facility Administrator: At the address for such Person
set forth in the Sale and
Servicing Agreement
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 8.5. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 8.6. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
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Section 8.7. 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 PARTY HERETO HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF ANY ILLINOIS STATE OR FEDERAL COURT LOCATED IN THE
CITY OF CHICAGO. 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.
Section 8.8. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO 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 8.9. No Bankruptcy Petition. Each Seller covenants and agrees
that, prior to the date that is one year and one day after the payment in full
of all Aggregate Outstandings, it will not institute against Trust Depositor, or
join any other Person in instituting against the Trust Depositor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of the United States or any state of
the United States, or take any action in contemplation or furtherance of any of
the foregoing. This Section 8.9 will survive the termination of this Agreement.
Section 8.10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreement, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 8.11. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trust Depositor (or any assignee
thereof) or the Sellers, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
To the extent permitted by law, the rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive (except to the extent
specifically provided herein) of any other rights, remedies, powers or
privileges provided by law.
Section 8.12. Counterparts. This Agreement may be executed in two or more
counterparts including by telefax transmission thereof (and by different parties
on separate counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 8.13. Intended Characterization. The Sellers and the Trust
Depositor agree that any conveyance hereunder or under the Sale and Servicing
Agreement is intended to be a sale and absolute conveyance of ownership of the
Assets, rather than the mere granting of a security interest to secure a
borrowing. If, notwithstanding such expressed interest, any such transfer is
deemed to be of a mere security interest to secure indebtedness, each Seller
shall be deemed to have granted (and hereby grants to) the Trust Depositor and
the Custodian, as agent for the Trust Depositor, a perfected first priority
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security interest in such Assets and this Agreement shall constitute a security
agreement under applicable law, securing the repayment of the purchase price
paid hereunder and the obligations and/or interests provided for in this
Agreement and in the order and priorities, and subject to the other terms and
conditions of, the Sale and Servicing Agreement, together with such other
obligations or interests as may arise hereunder and thereunder in favor of the
parties hereto and thereto. If such transfer is deemed to be the mere granting
of a security interest to secure a borrowing, Trust Depositor may, to secure
Trust Depositor's own obtainment of funds under the Sale and Servicing Agreement
(to the extent that the conveyance of the Assets thereunder is deemed to be a
mere granting of a security interest to secure a borrowing) repledge and
reassign (i) all or a portion of the Assets pledged to Trust Depositor and not
released from the security interest of this Agreement at the time of such pledge
and assignment, and (ii) all proceeds thereof. Such repledge and reassignment
may be made by Trust Depositor with or without a repledge and reassignment by
Trust Depositor of its rights under this Agreement, and without further notice
to or acknowledgment from any Seller. Each Seller waives, to the extent
permitted by applicable law, all claims, causes of action and remedies, whether
legal or equitable (including any right of setoff), against Trust Depositor or
any assignee of Trust Depositor relating to such action by Trust Depositor in
connection with the transactions contemplated by the Sale and Servicing
Agreement.
Section 8.14. Sellers. Notwithstanding anything contained in this
Agreement or any other Transaction Document to the contrary, as of the Closing
Date, Bluegreen Corporation is the only "Seller" hereunder.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION VII
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BLUEGREEN CORPORATION
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
Signature Page to Sale and Contribution Agreement
SCHEDULE I
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
State of Incorporation: Massachusetts
Organizational I.D. #: 030300793
EXHIBIT A
FORM OF SALE ASSIGNMENT
In accordance with the Sale and Contribution Agreement (the "Agreement")
dated as of August __, 2004 made by and between the undersigned and Bluegreen
Receivables Finance Corporation VII, a Delaware corporation ("Trust Depositor"),
the undersigned does hereby sell, transfer, assign, set over and otherwise
absolutely convey to Trust Depositor all its right, title and interest in and
to:
(i) all Receivables specified on the List of Receivables delivered to the
Facility Administrator and the Custodian, and all payments of interest and
principal, other Collections thereon and monies received, due or to become
due in payment of such Receivables after the related Cutoff Date;
(ii) the Mortgages and any other instruments, documents and rights
securing such Receivables, including, without limitation, all "Owner
Beneficiary Rights" under the Club Trust Agreement in respect of such
Receivables and all of the undersigned's rights or interest in all other
property (personal or other), if any, the sale of which gave rise to the
Receivables;
(iii) the Receivables Files with respect to such Receivables;
(iv) all payments made or to be made after the Cutoff Date with respect to
such Receivables or the Obligor thereunder under any guarantee or similar
credit enhancement with respect to such Receivables whether pursuant to
the Contract related to such Receivable or otherwise made or to be made in
respect of such Receivables after the related Cutoff Date;
(v) all Insurance Proceeds with respect to any such Receivables, if
applicable;
(vi) the Trust Accounts and all Trust Account Property; and
(viii) all income from and proceeds of the foregoing.
This Assignment is made pursuant to and in reliance upon the
representations and warranties on the part of the undersigned specified in
Article III of the Agreement without recourse, representation or warranty except
as provided in the Agreement. Capitalized terms used in this Assignment and not
defined shall have the same meanings as such terms would have if used in the
Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ____ day of ___________, 2004.
BLUEGREEN CORPORATION
By:_____________________________________
Printed Name:_____________________
Title:____________________________
Accepted:
BLUEGREEN RECEIVABLES FINANCE
CORPORATION VII
By:_____________________________________
Printed Name:_____________________
Title:____________________________