Exhibit 10.183
EXECUTION COPY
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SALE AND SERVICING AGREEMENT
among
BXG RECEIVABLES OWNER TRUST 2006-A,
as Issuer,
BLUEGREEN RECEIVABLES FINANCE CORPORATION XI,
as Trust Depositor,
BLUEGREEN CORPORATION,
individually and as Servicer,
CONCORD SERVICING CORPORATION,
as Back-Up Servicer,
VACATION TRUST, INC.,
as Club Trustee,
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee and Custodian,
GENERAL ELECTRIC CAPITAL CORPORATION,
as Facility Administrator,
and
AND THE PERSONS FROM TIME TO TIME SIGNATORY
HERETO AS NOTEHOLDERS
Dated as of March 13, 2006
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Page
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Table of Contents
ARTICLE I DEFINITIONS...........................................................................2
Section 1.1. Definitions...................................................................2
Section 1.2. Usage of Terms................................................................2
Section 1.3. Section References............................................................2
Section 1.4. Other Interpretive Provisions.................................................2
Section 1.5. Accounting Terms..............................................................2
ARTICLE II TRANSFER OF RECEIVABLES...............................................................2
Section 2.1. Sales.........................................................................2
Section 2.2. Procedures for Purchases......................................................4
Section 2.3. Establishment of Accounts; Reserve Account....................................5
Section 2.4. Deposits to Accounts..........................................................6
Section 2.5. Investment of Accounts........................................................6
Section 2.6. Payments and Computations; Funding Indemnity for Failed Purchase..............6
Section 2.7. Addition/Substitution of Receivables..........................................7
Section 2.8. [Reserved]...................................................................10
Section 2.9. Acceptance by Trust..........................................................10
Section 2.10. Monthly Distributions........................................................10
Section 2.11. Distributions................................................................11
Section 2.12. Servicer Purchase Option.....................................................13
Section 2.13. Upgrades.....................................................................14
Section 2.14. Release of Interest..........................................................14
ARTICLE III SERVICING OF RECEIVABLES.............................................................15
Section 3.1. Responsibility for Receivable Administration.................................15
Section 3.2. Standard of Care.............................................................15
Section 3.3. Filing.......................................................................15
Section 3.4. Records......................................................................16
Section 3.5. Inspection...................................................................16
Section 3.6. Duties and Responsibilities of Servicer......................................16
Section 3.7. Consideration................................................................17
ARTICLE IV CONDITIONS OF PURCHASES AND TRANSFERS................................................18
Section 4.1. Conditions Precedent to Initial Purchase.....................................18
Section 4.2. Conditions Precedent to All Transfers........................................18
ARTICLE V REPRESENTATIONS AND WARRANTIES.......................................................19
Section 5.1. Representations and Warranties of the Trust Depositor........................19
Section 5.2. Representations and Warranties of Trust Depositor Relating to the
Receivables..................................................................23
Section 5.3. Survival; Knowledge; Notice of Breach........................................25
Section 5.4. Representations and Warranties of the Club and the Club Trustee..............25
Section 5.5. Representations and Warranties of the Servicer...............................27
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ARTICLE VI COVENANTS............................................................................29
Section 6.1. Covenants of the Trust Depositor...........................................29
Section 6.2. General Covenants of the Club Trustee......................................33
Section 6.3. General Covenants of the Servicer and Bluegreen............................35
ARTICLE VII SUBJECT TO CLUB TRUST AGREEMENT.....................................................42
Section 7.1. Rights Subject to Club Trust Agreement...............................42
ARTICLE VIII SERVICER TERMINATION EVENTS.........................................................42
Section 8.1. Servicer Termination Events.................................................42
Section 8.2. Service Transfer............................................................44
Section 8.3. Successor Servicer to Act; Appointment of Successor Servicer................45
Section 8.4. Effect of Transfer..........................................................45
Section 8.5. Successor Servicer Indemnification..........................................46
Section 8.6. Responsibilities of the Successor Servicer..................................46
Section 8.7. Waiver of Servicer Termination Event........................................46
ARTICLE IX PERFORMANCE AND DUTIES OF SERVICER.................................................47
Section 9.1. General Requirements of Servicer...........................................47
Section 9.2. Servicer as Independent Contractor.........................................47
Section 9.3. [Omitted]..................................................................47
Section 9.4. Description of Reports.....................................................47
Section 9.5. Officer's Certificate......................................................49
Section 9.6. Annual Report of Accountants...............................................49
Section 9.7. Annual Statement of Compliance from Servicer...............................49
Section 9.8. Sales and Inventory Reports................................................50
Section 9.9. Financial Reports..........................................................50
Section 9.10. Time Share Association Reports; Club Reports...............................50
Section 9.11. Audit Reports..............................................................51
Section 9.12. Other Reports..............................................................51
Section 9.13. SEC Reports................................................................51
ARTICLE X FACILITY ADMINISTRATOR.............................................................51
Section 10.1. Appointment; Nature of Relationship........................................51
Section 10.2. Powers.....................................................................51
Section 10.3. General Immunity...........................................................52
Section 10.4. No Responsibility for Advances, Recitals, etc..............................52
Section 10.5. Action on Instructions of Noteholders......................................52
Section 10.6. Employment of Agents and Counsel...........................................52
Section 10.7. Reliance on Documents; Counsel.............................................52
Section 10.8. Facility Administrator's Reimbursement and Indemnification.................53
Section 10.9. Notice of Default..........................................................53
Section 10.10. Rights as a Noteholder.....................................................53
Section 10.11. Noteholder Credit Decision.................................................53
Section 10.12. Successor Facility Administrator...........................................54
ARTICLE XI ASSIGNMENTS; REPURCHASE OPTION.....................................................55
Section 11.1. Assignments; Participations................................................55
Section 11.2. Trust Depositor's Repurchase Option........................................55
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ARTICLE XII TERMINATION........................................................................55
Section 12.1. Sale of Trust Assets.......................................................55
ARTICLE XIII MISCELLANEOUS......................................................................56
Section 13.1. Amendments and Waivers.....................................................56
Section 13.2. Protection of Title to Trust...............................................57
Section 13.3. Notices, Etc...............................................................58
Section 13.4. No Waiver; Remedies........................................................60
Section 13.5. Binding Effect.............................................................60
Section 13.6. Term of this Agreement.....................................................60
Section 13.7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.......60
Section 13.8. WAIVER OF JURY TRIAL.......................................................61
Section 13.9. Costs, Expenses and Taxes..................................................61
Section 13.10. No Bankruptcy Covenant.....................................................62
Section 13.11. Protection of Ownership Interests of the Trust; Intent of Parties;
Back-up Security Interest..................................................62
Section 13.12. Back-up Security Interest..................................................63
Section 13.13. Execution in Counterparts; Severability; Integration.......................63
Section 13.14. Further Assurances.........................................................64
Section 13.15. Savings Clause.............................................................64
Section 13.16. Limitation of Liability of Owner Trustee and Indenture Trustee.............64
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SCHEDULES
SCHEDULE IA/IB Condition Precedent Documents/List of Deliveries
SCHEDULE II Servicer Reports
SCHEDULE III Locations and State of Organization
SCHEDULE IV Location of Receivables Files
EXHIBITS
EXHIBIT A Form of Request Notice For Initial and Incremental Purchases
EXHIBIT B Form of Substitution Notice
EXHIBIT C List of Eligible Resorts
EXHIBIT D Form of Notice of Waiver
EXHIBIT E Club Trust Agreement
EXHIBIT F Provisions of the Trust Depositor's Certificate of Incorporation
EXHIBIT G Form of Servicing Officer's Certificate
EXHIBIT H Form of Assignment
EXHIBIT I Form of Mortgage Assignment
EXHIBIT J Collection Policies
EXHIBIT K Reserved
EXHIBIT L-1 Forms of Contracts
EXHIBIT L-2 Forms of Mortgages
EXHIBIT M Form of Allonge
EXHIBIT N Form of Notice (Aruba Receivables)
ANNEXES
Definitions Annex
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SALE AND SERVICING AGREEMENT
SALE AND SERVICING AGREEMENT, dated as of March 13, 2006, among BXG
Receivables Owner Trust 2006-A (together with its successors and assigns, the
"Issuer" or the "Trust"), Bluegreen Receivables Finance Corporation XI (together
with its successor and assigns, the "Trust Depositor"), U.S. Bank National
Association (in its capacity as Indenture Trustee, together with its successors
and assigns, the "Indenture Trustee" and in its capacity as Custodian, together
with its successors and assigns, the "Custodian"), Vacation Trust, Inc., as club
trustee under the Club Trust Agreement (in such capacity, the "Club Trustee");
Concord Servicing Corporation ("Back-Up Servicer"), Bluegreen Corporation
(individually to the extent set forth herein, together with its successor and
assigns, "Bluegreen", as a Seller or, in its capacity as Servicer, together with
its successors and assigns, the "Servicer"), General Electric Capital
Corporation, in its capacity as facility administrator ("Facility
Administrator"), and the Person from time to time signatory hereto as
Noteholders ("Noteholders").
WHEREAS, the Trust desires to purchase from time to time from the Trust
Depositor the Trust Assets including, but not limited to, the Receivables
related to the financing of certain timeshare interests by the Sellers and
subsequently sold by the Sellers to the Trust Depositor;
WHEREAS, the Trust Depositor is willing to sell the Trust Assets to the
Trust pursuant to the terms hereof;
WHEREAS, General Electric Capital Corporation is willing to act as
Facility Administrator under the Transaction Documents;
WHEREAS, Bluegreen is willing to act as owner trust administrator under
the Administration Agreement;
WHEREAS, U.S. Bank National Association is willing to act as Indenture
Trustee under the Indenture and as Custodian under the Custodial Agreement;
WHEREAS, Concord Servicing Corporation is willing to act as Back-Up
Servicer under the Back-Up Servicing Agreement;
WHEREAS, the Club Trustee is a limited purpose entity which, on behalf of
the Beneficiaries, holds title to certain Intervals and Deeds relating to
Receivables sold pursuant to this Agreement;
WHEREAS, Bluegreen is willing and has agreed pursuant hereto to act as
Servicer for the Trust Assets and to service the Receivables pursuant to the
terms hereof;
WHEREAS, the Noteholders have agreed to purchase notes issued by the Trust
to facilitate the Trust's purchase of the Trust Assets;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Definitions Annex.
Section 1.2. Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other gender; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation."
Section 1.3. Section References. All section references, unless otherwise
indicated, shall be to Sections in this Agreement.
Section 1.4. Other Interpretive Provisions. Except to the extent otherwise
specified in the particular term or provision at issue, this Agreement
(including the Definitions Annex hereto) shall be interpreted and construed in
accordance with the Document Conventions.
Section 1.5. Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.1. Sales.
(a) Subject to the terms and conditions of this Agreement, the Trust
Depositor shall sell, transfer, set-over, convey and absolutely assign to
the Trust the Trust Assets from time to time designated and identified for
purchase in accordance with Section 2.2 hereof, and the Trust agrees to
make such purchases from time to time (the first such date, the "Initial
Transfer Date") during the period from the Closing Date to but not
including the Purchase Period Termination Date (the first such sale and
purchase to be effected hereunder, the "Initial Purchase"; each subsequent
sale and purchase, an "Incremental Purchase"; and any such sale and
purchase, a "Purchase"). Under no circumstances, however, shall the Trust
be obligated to make any Purchase if, after giving effect to such
Purchase, the aggregate Outstanding Amount would exceed the lesser of (i)
the Note Purchase Limit or (ii) the Funding Date Overcollateralization.
Upon the payment of the related Cash Purchase Price (as defined below) for
the Initial Purchase or any Incremental Purchase and on each Substitute
Asset Transfer Date, the Trust Depositor shall have, and shall be deemed
hereunder to have, irrevocably and absolutely sold, assigned, transferred,
set-over and conveyed to the Trust, without recourse, representation or
warranty, express or implied, except as provided in the Transaction
Documents, all right, title and interest of the Trust Depositor in and to
the Trust Assets relating to such Initial Purchase or Incremental
Purchase, as the case
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may be. The aggregate amount of all advances made by the Noteholders
during the Purchase Period shall not exceed the Note Purchase Limit.
Although the Trust Depositor and the Trust agree that such transfer
is intended to be a sale of ownership of the Trust Assets, rather than the
granting of a security interest to secure a borrowing, and that the Trust
Assets shall not be property of the Trust Depositor, in the event,
notwithstanding such intent, such transfer is deemed to be a grant of a
security interest to secure a borrowing, the Trust Depositor shall be
deemed to have granted (and hereby grants to) the Trust a perfected first
priority security interest in such Trust Assets (subject to Permitted
Liens) and this Agreement shall constitute a security agreement under
Requirements of Law securing the repayment of the purchase price paid
hereunder and the obligations and/or interests provided for in this
Agreement and the other Transaction Documents and in the order and
priorities, and subject to the other terms and conditions of this
Agreement. Upon the addition or substitution of an Asset pursuant to
Section 2.7, the Trust Depositor shall have, and shall be deemed hereunder
to have, irrevocably and absolutely sold, assigned, transferred, set-over
and conveyed to the Trust, without recourse, representation or warranty,
except as provided in the Transaction Documents, all right, title and
interest of the Trust Depositor in and to the Trust Assets relating to
such addition or substitution, as the case may be.
(b) The purchase price for the Purchased Receivables in each Asset
Pool Portion shall be the applicable Cash Purchase Price. The "Cash
Purchase Price" for any Asset Pool Portion shall be an amount equal to the
product of (i) the Receivable Balance as of the applicable Cutoff Date of
the Eligible Receivables to be purchased, multiplied by (ii) the
applicable Credit Enhancement Factor in effect on such Transfer Date.
Subject to the satisfaction of the conditions and on the terms set forth
herein, the Trust shall pay to the Trust Depositor the Cash Purchase Price
for the Purchased Receivable on the related Transfer Date.
(c) Upon payment of the Cash Purchase Price by the Trust in the
amount determined in accordance with Section 2.1(b) with respect to all
Trust Assets purchased on a Transfer Date, the ownership of all such Trust
Assets will be solely vested in the Trust. None of the Sellers, Servicer,
Trust Depositor nor Club Trustee shall take any action inconsistent with
such ownership and shall not claim any ownership interest in any Trust
Asset. The Trust Depositor, the Sellers, Servicer and Club Trustee shall
each indicate in their respective books and records that ownership of each
Purchased Receivable and related Trust Assets is held by the Trust, but
subject to the Lien created under the Indenture. In addition, each of the
Trust Depositor, the Sellers and the Servicer shall respond to any
inquiries with respect to ownership of the Trust Assets by stating that it
is no longer the owner of the Trust Assets and that ownership of the Trust
Assets is held by the Trust. Any documents relating to the Purchased
Receivables or related Trust Assets retained by the Trust Depositor, the
Sellers, the Servicer, or Club Trustee shall be held in trust by the Trust
Depositor, the Sellers, the Servicer and the Club Trustee, for the benefit
of the Trust, and possession of any incident of ownership relating to the
Purchased Receivables so retained is for the sole purpose of facilitating
the servicing of the Purchased Receivables or otherwise at the direction
and in the discretion of the Facility Administrator. Such retention and
possession (other than retention by the Club Trustee of Deeds relating to
Receivables as to which the rights of the Trust, as an Interest Holder
Beneficiary (as defined in the Club Trust Agreement) shall be as set forth
in the Club Trust Agreement) is at the will of the Trust and in a
custodial capacity for the benefit of the Trust and its assignees only.
Subject to the rights of the Beneficiaries and the other provisions of the
Club Trust
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Agreement, the Facility Administrator may direct the Club Trustee at any
time to transfer any Deed(s) relating to any Receivable purchased
hereunder to the Trust or its nominee; provided that any such transfer
will be made subject to the Mortgage relating thereto, if any.
Section 2.2. Procedures for Purchases.
(a) During the Purchase Period, no later than five (5) days prior to
each Transfer Date, the Trust Depositor shall notify the Indenture Trustee
and the Facility Administrator of the intent to effect a Purchase and the
proposed Transfer Date thereof. During the Purchase Period, no later than
10:00 a.m. (Chicago, Illinois time) on a date which is at least two (2)
Business Days before any intended Transfer Date, the Trust Depositor will
deliver or cause to be delivered to the Indenture Trustee and the Facility
Administrator a Request Notice substantially in the form of Exhibit A
hereto. In the event that the Trust Depositor does not provide a properly
completed Request Notice (and subject to all other terms and conditions to
such Purchase hereunder), the Trust will not be obligated to purchase
Eligible Receivables on such intended Transfer Date until such time as
such terms and conditions are met. Each such Request Notice shall specify,
among other things, (i) the aggregate amount of such Purchase, which shall
be in a minimum amount equal to $10,000,000, or such lesser amount as may
be equal to the then unused portion of the Note Purchase Limit, (ii) the
intended Transfer Date for such Purchase, and (iii) the aggregate
Outstanding Amount, Funding Date Overcollateralization and the Note
Purchase Limit, both immediately preceding and after giving effect to such
Purchase. During the Purchase Period, beginning with the quarter ending
June 30, 2006, the aggregate amount of Purchases made in each calendar
quarter shall be in a minimum amount equal to the Quarterly Minimum
Purchase Amount, or such lesser amount as may be equal to the unused
portion of the Note Purchase Limit. In the event that the Quarterly
Minimum Purchase Amount for any calendar quarter is a negative number or
equal to zero, no Purchases are required by this Section 2.2(a) to be made
in such calendar quarter.
(b) On each Transfer Date, and subject to the satisfaction of the
conditions of Article IV hereof and Articles IV and V of the Note Purchase
Agreement, the Servicer will prepare and deliver an Assignment to the
Trust Depositor and the Trust in the form of Exhibit H hereto, Mortgage
Assignments, as applicable, and an Allonge in the form attached hereto as
Exhibit M (an "Allonge"), as applicable, which has been stapled to the
original notes, if any, evidencing each Receivable with respect to each of
the Trust Assets being transferred on such Transfer Date by the Trust. The
Trust Depositor and the Trust shall thereupon execute such Assignment and
deliver executed unrecorded, originals thereof to the Servicer who will in
turn cause executed copies of such Assignment, Allonges and Mortgage
Assignments, as applicable, to be delivered to the Indenture Trustee, the
Custodian and the Facility Administrator, as applicable, and recorded in
accordance with the provisions of this Agreement. Upon the Facility
Administrator's receipt of a certification from the Custodian that it has
received the Receivables Files as set forth in the Custodial Agreement, an
Assignment for the related Trust Assets, an Allonge and a Mortgage
Assignment, as applicable, and for each Receivable listed on the List of
Receivables delivered in connection with the Request Notice, the Trust
shall thereupon pay to the Trust Depositor the Cash Purchase Price for
such Trust Assets, by wire transfer in same day funds in accordance with
the wire transfer instructions specified in the related Request Notice.
The Trust Depositor shall be solely responsible for obtaining ownership of
the Trust Assets (including the perfection of such ownership interest
pursuant to the UCC) from the Sellers pursuant to the Sale and
Contribution
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Agreement or otherwise, prior to transfer of ownership of such Trust
Assets to the Trust under this Agreement.
(c) The Facility Administrator will promptly notify the Noteholders
of the receipt of a Request Notice.
Section 2.3. Establishment of Accounts; Reserve Account.
(a) On or prior to the Closing Date, the Servicer shall (i)
establish a non-interest bearing Eligible Deposit Account in the name of
the Trust, titled "BXG Receivables Owner Trust 2006-A Lockbox Account re
Bluegreen Receivables Sale and Servicing Agreement" (the "Lockbox
Account"), and (ii) enter into the Lockbox Agreement which shall direct
that all monies deposited in the Lockbox Account shall be forwarded in
accordance with Section 2.4. The Trust Depositor and the Servicer shall
send to the Lockbox Bank for deposit into the Lockbox Account all
Collections they 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 the Trust
Depositor or the Servicer 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. The Servicer shall receive evidence of all deposits made to the
Lockbox Account and shall post them, on a daily basis, to the respective
Receivables upon receipt.
(b) On or prior to the Closing Date, the Servicer shall establish an
Eligible Deposit Account with and in the name of the Indenture Trustee for
the benefit of the Noteholders titled "BXG Receivables Owner Trust 2006-A
Collection Account re Bluegreen Receivables Sale and Servicing Agreement"
(the "Collection Account").
(c) On or prior to the Closing Date, the Trust Depositor and the
Indenture Trustee shall establish an Eligible Deposit Account in the name
of the Indenture Trustee for the benefit of the Noteholders titled "BXG
Receivables Owner Trust 2006-A Bluegreen Facility Reserve Account" (the
"Reserve Account").
(d) Prior to the Facility Termination Date, on or prior to each
Payment Date (and in anticipation of allocations and distributions to be
made on such Payment Date pursuant to Section 2.6), the Servicer, in
consultation with the Facility Administrator and based upon information
provided in the Monthly Report delivered by the Servicer to the Facility
Administrator and the Indenture Trustee two (2) Business Days prior to the
related Payment Date, shall determine the extent to which Available
Amounts in the Collection Account (including proceeds of any Servicer
Advance deposited therein in accordance with Section 2.4) are insufficient
to pay Indenture Trustee Fees, Owner Trustee Fees, Lockbox Fees, Trust
Owner Fees, Protective Advances, Back-Up Servicer Fees, Custodian Fees,
Trust Administrator Fees, Unreimbursed Servicer Advances, Servicing Fees
(if the Servicer is not Bluegreen or an Affiliate of Bluegreen) as well as
the Note Interest Distributable Amount and Note Principal Distributable
Amount required on such Payment Date. To the extent of insufficiencies
with respect to the payments to be made pursuant to Sections 2.11(a)(vii),
(a)(viii) and (a)(ix), on or prior to each Payment Date amounts held in
the Reserve Account shall be transferred to the Collection Account,
treated as Available Amounts for such Payment Date and thereafter applied
to cover such insufficiencies in order for any of such
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payments or allocations to be made. After the occurrence and during the
continuance of an Event of Default or Termination Event all amounts held
in the Reserve Account shall be transferred to the Collection Account and
applied and allocated as Available Amounts on the Payment Date with
respect to the related Collection Period to the extent of insufficiencies
with respect to the payments to be made pursuant to Sections 2.11(b)(vii),
(b)(viii) and (b)(x).
(e) Each Seller Party shall deposit all Collections it may receive
in respect of Receivables into the Lockbox Account upon the earlier to
occur of the second Business Day following any date on which any Seller
Party shall have received such Collections; provided, that if an Event of
Termination has occurred and is continuing, all Collections received by
any Seller Party shall be deposited within one Business Day of receipt
thereof. Each of the Trust Depositor and the Servicer agree that any
Collections in respect of Receivables held by any Seller Party pending
transfer to the Lockbox Account are held in trust for the benefit of the
Trust and the Indenture Trustee until such amounts are deposited into the
Lockbox Account.
(f) The Trust Depositor and the Servicer shall, and the Servicer
shall cause the Sellers to, instruct all Obligors, as applicable, to make
all payments with respect to the Receivables to the Lockbox Account.
Section 2.4. Deposits to Accounts.
On each Business Day, all Collections in the Lockbox Account shall be
transferred by automated wire by the Lockbox Bank to the Collection Account. In
addition, the proceeds of Servicer Advances made pursuant to Section 6.3(s),
transfers from the Reserve Account made pursuant to Section 2.3(d), and payments
of any Transfer Deposit Amount received from the Sellers or Trust Depositor
shall be deposited to the Collection Account.
Section 2.5. Investment of Accounts.
Subject to the provisions of this Section 2.5 and the Indenture, amounts
on deposit in any Trust Account (other than the Lockbox Account) shall be
invested in Permitted Investments. Until the Facility Termination Date, the
Indenture Trustee, at the written direction of the Servicer, shall invest all
such amounts in Permitted Investments selected by the Servicer that mature no
later than the immediately succeeding Payment Date and shall hold such Permitted
Investments until the earlier of (i) such succeeding Payment Date or (ii) the
Facility Termination Date. The Indenture Trustee shall not be permitted to vote
any Permitted Investments unless it has been advised that such vote is for
"protective" (as defined by GAAP) purposes. On and after the Facility
Termination Date, any investment of such amounts in Permitted Investments shall
be solely at the discretion of the Facility Administrator. All Investment
Earnings shall be deposited into the Collection Account or the Reserve Account,
as the case may be, as and when received and shall be applied and disbursed in
the same manner and priority as all other amounts in the Collection Account. The
Servicer acknowledges that to the extent that regulations of the Comptroller of
the Currency or other applicable regulatory agency grant the Servicer the right
to receive brokerage confirmations or security transactions as they occur, the
Servicer specifically waives receipt of such confirmations.
Section 2.6. Payments and Computations; Funding Indemnity for Failed
Purchase.
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(a) All amounts to be paid or deposited by the Sellers, Trust
Depositor, Servicer or any other applicable payor referred to hereunder
shall be paid or deposited in accordance with the terms hereof no later
than 1:00 p.m. (Chicago, Illinois time) on the day when due in lawful
money of the United States in immediately available funds, and if not so
timely deposited, shall be deemed to have been received on the following
Business Day.
(b) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, interest on interest
or any fee payable hereunder, as the case may be.
(c) If any Purchase requested by the Trust Depositor pursuant to
Section 2.2 is not for any reason whatsoever made or effectuated, as the
case may be, on the date specified therefor, the Trust Depositor and
Bluegreen, jointly and severally, shall be obligated to indemnify the
Noteholders against any loss, cost or expense actually incurred by any
Noteholder, including, without limitation, any out-of-pocket loss, cost or
expense incurred by such Noteholder (as reasonably determined by such
Noteholder) as a result of the liquidation or redeployment of deposits or
other funds acquired by such Noteholder to fund or maintain such Purchase,
as the case may be; provided, that no such indemnification shall be
required if any Purchase is not made or effectuated as a result of any
action or inaction by any Noteholder or any provider of liquidity support
for any Noteholder, other than a failure by such Noteholder to make an
advance to allow the Trust to make any Purchase due to a failure of any
condition precedent to such Purchase set forth herein.
(d) Unless otherwise expressly permitted herein, all payments and
remittances to be made hereunder by any Seller, the Trust Depositor or the
Servicer shall be made without set-off, deduction or withholding. If any
Seller, the Trust Depositor or the Servicer is pursuant to Requirements of
Law required to make any deduction or withholding on account of taxes or
otherwise from any payment or remittance to be made by it hereunder, it
shall make such deduction or withholding and forthwith remit such amount
to the appropriate Governmental Authority and thereafter the sum due from
it in respect of such payment or remittance shall be increased to the
extent necessary to ensure that after the making of such deduction or
withholding, the applicable payee receives a net sum equal to the sum that
it would have received had no deduction or withholding been made.
Section 2.7. Addition/Substitution of Receivables.
(a) On any day prior to the Facility Termination Date provided it is
done no more than once each Collection Period, and subject to the terms
and conditions hereof, the Trust Depositor may at its option replace a
Defaulted Receivable and related Trust Assets currently in the Asset Pool
(a "Replaced Asset") with one or more Substitute Assets; provided,
however, that if such option is not exercised prior to the expiration of
the Trust Depositor's fiscal quarter during which the related Receivable
became a Defaulted Receivable, then the Trust Depositor's right to
exercise such option with respect to such Defaulted Receivable shall be
irrevocably waived, unless, prior to the expiration of such fiscal quarter
of the Trust Depositor, the Trust Depositor gives notice to the Trust and
the Facility Administrator of its intention to exercise such option with
respect to such Defaulted Receivable and does so prior to the expiration
of the Trust Depositor's
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next succeeding fiscal quarter. If, however, the Trust Depositor fails to
exercise such option with respect to such Defaulted Receivable prior to
the expiration of the Trust Depositor's next succeeding fiscal quarter,
then the Trust Depositor's right to exercise such option with respect to
such Defaulted Receivable shall be irrevocably waived. Subject to the
conditions set forth in paragraph (c) below and Section 4.2 hereof, the
Trust Depositor if exercising such substitution option, shall sell,
transfer, assign, set over and otherwise absolutely convey to the Trust,
without recourse, representation or warranty other than as expressly
provided in the Transaction Documents, all the Trust Depositor's right,
title and interest in and to the Substitute Assets related to the
Receivables listed on the List of Substitute Receivables (including,
without limitation, all Collections and rights to receive Collections with
respect thereto 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), such Substitute Assets becoming
Trust Assets and part of the Asset Pool. Within ten Business Days after
the Facility Administrator's receipt of a certification from the Custodian
that it has received all of the Receivables Files, an Assignment for such
Substitute Assets and a Mortgage Assignment, as applicable, (which may be
unrecorded subject to the Servicer's obligation to deliver a recorded
version thereof pursuant to this Agreement) and an Allonge, as applicable,
for each Receivable relating thereto, the Indenture Trustee and the Trust
shall thereupon endorse back and deliver to the Trust Depositor any
necessary releases or assignments relating to the Replaced Assets. Without
limiting the foregoing, all Collections and rights to receive Collections
with respect to any Replaced Asset after the Cutoff Date for the
Substitute Asset that replaces such Replaced Asset, but excluding any
Collections or rights to receive payments which were collected with
respect to such Replaced Asset on or prior to such Cutoff Date, shall be
assigned to the Trust Depositor. Such assignment of the Replaced Assets to
the Trust Depositor shall be without recourse to the Indenture Trustee and
the Trust and free and clear of any Lien created pursuant to this
Agreement, and neither the Indenture Trustee nor the Trust shall be deemed
to make any representation or warranty, express or implied.
(b) Upon discovery by the Servicer, any Seller, the Trust Depositor,
the Trust, the Indenture Trustee or the Facility Administrator (a
"Notifying Party") of (i) a misrepresentation on the related Transfer Date
of any matters, or a breach on the related Transfer Date of a warranty,
set forth in Section 5.2 or Section 3.2 of the Sale and Contribution
Agreement with respect to a Trust Asset, or (ii) if an exception to a
Receivable File is not rectified in accordance with Section 6.3(q) or
(iii) if a Lien (other than a Permitted Lien) exists or arises with
respect to any Interval at any time prior to the time at which the related
Mortgage Assignments are recorded and regardless of when such Lien may be
discovered (any of the foregoing, an "Ineligible Asset"), the party
discovering such breach shall give prompt written notice to the other
parties. Not later than the Determination Date which is at most thirty
(30) days after the earlier to occur of the discovery of such
misrepresentation or breach by the Trust Depositor or receipt by the Trust
Depositor of written notice of such misrepresentation or breach given by a
Notifying Party, the Trust Depositor shall, at its option, either cure the
misrepresentation or breach within the above described time period or
repurchase such Ineligible Asset, unless such Ineligible Asset is replaced
with a Substitute Asset prior to such date; provided, however, if such
misrepresentation or breach relates solely to paragraph (r)(ii) of the
definition of "Eligible Receivable" or the representations or warranties
set forth in Section 5.2(h) of this Agreement or the representations and
warranties set forth in Section 3.2(h) of the Sale and Contribution
Agreement, the Trust Depositor shall not have the option of curing the
breach; provided further that if the Ineligible Asset relates to a
defective Receivable File described in clause (ii) above, no cure period
shall be permitted. Upon the deposit
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by the Trust Depositor of the Transfer Deposit Amount for such Ineligible
Asset in the Collection Account (for allocation pursuant to Section
2.11(a) or (b), as applicable) in immediately available funds, the Trust
Depositor shall be deemed to have repurchased such Ineligible Asset and
there shall be deducted from the Receivable Balance of the Asset Pool, the
Receivable Balance of the Receivable relating to such Ineligible Asset. On
and after the date of such retransfer, each Ineligible Asset so
retransferred shall not be included in the Asset Pool. Without limiting
the foregoing, all Collections and rights to receive Collections with
respect to such Ineligible Asset on or after the date of such retransfer,
but excluding any Collections or rights to receive payments which were
collected with respect to such Ineligible Asset prior to such date of
retransfer shall be assigned to the Trust Depositor. Notwithstanding the
foregoing, in lieu of repurchasing an Ineligible Asset described in clause
(i) of the definition thereof as set forth above, the Trust Depositor may,
subject to the conditions and requirements of Section 2.7(c) (other than
the Substitute Asset Transfer Condition), effect a replacement of such
Asset with a Substitute Asset.
Upon the deposit of the Transfer Deposit Amount in the Collection Account
and the Custodian's receipt of a Request for Release as set forth in the
Custodial Agreement and the Facility Administrator's receipt of a certification
from the Custodian that it has received all of the Receivables Files, an
Assignment for the related Assets and a Mortgage Assignment and an Allonge for
each Receivable relating to a Substitute Asset, as applicable, the Indenture
Trustee and the Trust shall endorse back and deliver to the Trust Depositor any
necessary releases or assignments for the Ineligible Asset relating thereto.
Such release or assignment of the Ineligible Asset shall be without recourse to
the Indenture Trustee and the Trust and free and clear of any Lien created
pursuant to this Agreement, and neither the Indenture Trustee nor the Trust
shall be deemed to make any other representation or warranty, express or
implied, other than that the Trust and Indenture Trustee have the trust or
corporate authority and have taken all necessary trust or corporate action to
accomplish such release or assignment. The Indenture Trustee and the Trust
shall, at the sole expense of the Servicer, execute such documents and
instruments of transfer as may be prepared by the Servicer on behalf of the
Trust Depositor and take such other actions as shall reasonably be requested by
the Trust Depositor to effect the transfer of such Ineligible Asset pursuant to
this Section 2.7(b).
The obligation of the Trust Depositor to repurchase and accept retransfer
of any Ineligible Asset (or in the alternative, effect a valid replacement of
such Asset as described above) shall constitute the sole remedy available to the
Trust respecting any misrepresentation of any matters or any breach of the
warranties set forth in Section 5.2 with respect to such Asset and is not
intended to and does not constitute "credit recourse" to the Trust Depositor.
Notwithstanding anything to the contrary contained herein, in the event the
Trust Depositor, prior to the applicable Determination Date, remedies the
condition which rendered the Asset an "Ineligible Asset" (other than clause (ii)
of the definition thereof) during the previously described 30 day period, the
Trust Depositor is not obligated to repurchase or replace such Asset. It is
understood and agreed by the parties hereto that the payment obligations of the
Obligors' in respect of the Receivables transferred hereunder shall not be the
obligation of any Seller, the Trust Depositor or the Servicer, except with
respect to Servicer Advances and remedies associated with misrepresentations and
breaches of warranties.
(c) The Trust Depositor may transfer to the Trust the Substitute
Assets and the other property and rights related thereto described in
Section 2.7(a) or (b) only upon timely delivery of a Substitution Notice
to the Indenture Trustee, the Custodian and the Facility Administrator
complying with the definition thereof and the satisfaction of each of the
following conditions on or
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prior to the related Substitute Asset Transfer Date (and the delivery of a
related Substitution Notice by the Trust Depositor shall be deemed a
representation and warranty by the Trust Depositor that such conditions
have been or will be, as of the related Substitute Transfer Date,
satisfied):
(i) the Substitute Assets being conveyed to the Trust satisfy the
Substitute Asset Qualification Conditions and the related Receivables are
Eligible Receivables;
(ii) in the case of Section 2.7(a) and after giving effect to any
conveyance pursuant thereto, the Substitute Asset Transfer Condition shall
remain satisfied;
(iii) the Trust Depositor shall have delivered to the Facility
Administrator and the Indenture Trustee a duly executed written
assignment, substantially in the form of Exhibit H hereto, which shall
include a List of Substitute Receivables listing the Receivables relating
to the Substitute Assets;
(iv) the Trust Depositor shall have deposited or caused to be
deposited in the Collection Account all Collections received with respect
to the Substitute Assets after the related Cutoff Date;
(v) as of each Substitute Asset Transfer Date, both the Sellers and
the Trust Depositor were Solvent and the conveyance would not have the
effect of rendering either no longer Solvent;
(vi) with respect to Receivables transferred on such Substitute
Asset Transfer Date, no selection procedures believed by the Sellers or
the Trust Depositor to be adverse to the interests of the Trust shall have
been utilized in selecting the Substitute Assets;
(vii) each of the representations and warranties made by the Sellers
pursuant to Article III of the Sale and Contribution Agreement applicable
to the Substitute Assets shall be true and correct as of the related
Substitute Asset Transfer Date, and the Sellers shall have performed in
all material respects all obligations to be performed by them hereunder or
thereunder on or prior to such Substitute Asset Transfer Date;
(viii) the Sellers shall, at their own expense, on the Substitute
Asset Transfer Date, have indicated in their Computer Disk and Records
that the Receivables identified on the List of Substitute Receivables in
the related Substitution Notice have been sold to the Trust through the
Trust Depositor pursuant to this Agreement and the Sale and Contribution
Agreement.
Section 2.8. [Reserved].
Section 2.9. Acceptance by Trust. On the Closing Date, if the conditions
set forth in Article IV have been satisfied, the Trust shall execute and issue,
and the Indenture Trustee shall authenticate and deliver to, or upon the order
of, the Trust Depositor, the Notes secured by the Collateral.
Section 2.10. Monthly Distributions. Each Noteholder as of the related
Record Date shall be paid on the next succeeding Payment Date by check mailed to
such Noteholder at the address for such
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Noteholder appearing on the Note Register or by wire transfer if such Noteholder
provides written instructions to the Paying Agent at least ten days prior to
such Payment Date.
Section 2.11. Distributions.
(a) On each Payment Date (other than after the occurrence and during
the continuance of an Event of Default or a Termination Event, or after
the Note Final Scheduled Maturity Date, in which event Section 2.11(b)
shall apply), the Servicer will allocate Available Amounts and instruct
the Indenture Trustee to make payments from the Collection Account in the
following order of priority:
(i) pro rata, to the extent of Available Amounts, to the Indenture
Trustee, the Indenture Trustee Fee including any unpaid Indenture Trustee
Fees with respect to one or more prior Collection Periods and any
extraordinary out-of-pocket costs and expenses of the Indenture Trustee
not in excess of $2,500 per Payment Date; to the Custodian, the Custodian
Fee including any unpaid Custodian Fees with respect to one or more prior
Collection Periods; to the Lockbox Bank, the Lockbox Bank Fee including
any unpaid Lockbox Bank Fees with respect to one or more prior Collection
Periods; to the Owner Trustee, the Owner Trustee Fee including any unpaid
Owner Trustee Fees with respect to one or more prior Collection Periods;
to the Sellers and/or the Servicer, any Credit Card Fees and Audit Fees
including any unpaid Credit Card Fees and Audit Fees with respect to one
or more prior Collection Periods; to the Owner, the Trust Owner Fee
including any unpaid Trust Owner Fees with respect to one or more prior
Collection Periods; to the Trust Administrator, the Trust Administrator
Fee including any unpaid Trust Administrator Fees with respect to one or
more prior Collection Periods;
(ii) to the Back-Up Servicer, the Back-Up Servicing Fee, including
any unpaid Back-Up Servicing Fees with respect to one or more prior
Collection Periods;
(iii) to the Servicer, if the Servicer is not Bluegreen or an
Affiliate of Bluegreen, the Servicing Fee, including any unpaid Servicing
Fee with respect to one or more prior Collection Periods;
(iv) to Bluegreen or an Affiliate thereof, but only to the extent
the Servicer Purchase Option has been declined by the Servicer, any
accrued and unpaid Remarketing Fees;
(v) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Unreimbursed Servicer Advances (which reimbursement
shall be applicable to any Unreimbursed Servicer Advances previously made
by any Predecessor Servicer);
(vi) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Protective Advances to the extent not previously
reimbursed;
(vii) to the Noteholders, the Note Interest Distributable Amount;
(viii) to the Noteholders, the Note Principal Distributable Amount;
(ix) to any Affected Party, costs relating to an Increased Costs
Event in respect of such Affected Party;
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(x) to the Servicer, if the Servicer is Bluegreen or an Affiliate of
Bluegreen, the Servicing Fee, including any unpaid Servicing Fee with
respect to one or more prior Collection Periods;
(xi) to the Reserve Account, the amount necessary to increase the
amount in the Reserve Account to the Reserve Account Required Amount;
(xii) to the Indenture Trustee, any extraordinary out-of-pocket
costs and expenses of the Indenture Trustee not paid due to the
limitations contained in clause (i) above; and
(xiii) any remaining amounts to the Trust Depositor.
(b) On each Payment Date after the occurrence and during the
continuance of an Event of Default or a Termination Event, or after the
Note Final Scheduled Maturity Date, the Servicer will allocate Available
Amounts and instruct the Indenture Trustee to make payments from the
Collection Account in the following order of priority:
(i) pro rata, to the extent of Available Amounts, to the Indenture
Trustee, the Indenture Trustee Fee including any unpaid Indenture Trustee
Fees with respect to one or more prior Collection Periods and any
extraordinary out-of-pocket costs and expenses of the Indenture Trustee
not in excess of $2,500 per Payment Date; to the Custodian, the Custodian
Fee including any unpaid Custodian Fees with respect to one or more prior
Collection Periods; to the Lockbox Bank, the Lockbox Bank Fee including
any unpaid Lockbox Bank Fees with respect to one or more prior Collection
Periods; to the Owner Trustee, the Owner Trustee Fee including any unpaid
Owner Trustee Fees with respect to one or more prior Collection Periods;
to the Sellers and/or the Servicer, any Credit Card Fees and Audit Fees
including any unpaid Credit Card Fees and Audit Fees with respect to one
or more prior Collection Periods; to the Owner, the Trust Owner Fee
including any unpaid Trust Owner Fees with respect to one or more prior
Collection Periods; to the Trust Administrator, the Trust Administrator
Fee including any unpaid Trust Administrator Fees with respect to one or
more prior Collection Periods;
(ii) to the Back-Up Servicer, the Back-Up Servicing Fee, including
any unpaid Back-Up Servicing Fee with respect to one or more prior
Collection Periods;
(iii) to the Servicer, if the Servicer is not Bluegreen or an
Affiliate of Bluegreen, the Servicing Fee, including any unpaid Servicing
Fee with respect to one or more prior Collection Periods;
(iv) to Bluegreen or an Affiliate thereof, but only to the extent
the Servicer Purchase Option has been declined by the Servicer, any
accrued and unpaid Remarketing Fees;
(v) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Unreimbursed Servicer Advances (which reimbursement
shall be applicable to any Unreimbursed Servicer Advances previously made
by any Predecessor Servicer);
(vi) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Protective Advances to the extent not previously
reimbursed;
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(vii) to the Noteholders, the Note Interest Distributable Amount;
(viii) to the Noteholders, the Note Principal Distributable Amount
(determined in accordance with clause (i) of the definition thereof);
(ix) to the Servicer, if the Servicer is Bluegreen or an Affiliate
of Bluegreen, the Servicing Fee, including any unpaid Servicing Fee with
respect to one or more prior Collection Periods;
(x) to the Noteholders, any remaining amounts until such time as the
Notes are paid in full (including amounts owing to any Affected Party in
respect of an Increased Costs Event);
(xi) to the Indenture Trustee, any extraordinary out-of-pocket costs
and expenses of the Indenture Trustee not paid due to the limitations
contained in clause (i) above; and
(xii) any remaining amounts to the Trust Depositor.
No recourse may be had to Bluegreen, the Issuer, Trust Depositor,
Indenture Trustee, Club Trustee, Servicer, Back-Up Servicer or any of their
respective Affiliates in the event that amounts distributed under this Section
2.11 are insufficient for payment of any amounts due under Section 2.11 except
to the extent such insufficiency results from a breach by any such party of its
obligations under any Transaction Document.
Section 2.12. Servicer Purchase Option. Upon written notice to the
Indenture Trustee and the Facility Administrator delivered at least five (5)
days before the date of purchase, the Servicer (so long as the Servicer is
Bluegreen or an Affiliate thereof) shall have the right (but not the obligation)
to purchase from the Trust a Defaulted Receivable and related Assets for an
amount (which amount shall be deposited into the Collection Account) equal to
24% of the Obligor's initial purchase price for the Interval in respect of such
Defaulted Receivable (the "Servicer Purchase Option"). The transfer of title to
such Defaulted Receivable to the Servicer shall be without recourse to the Trust
or the Indenture Trustee and free and clear of any Lien created pursuant to this
Agreement, and neither the Trust nor the Indenture Trustee shall be deemed to
make any representation or warranty, express or implied. In order to perfect,
protect and more fully evidence the Servicer's ownership of the Defaulted
Receivable and related Assets purchased pursuant to the exercise of the Servicer
Purchase Option, the Indenture Trustee and the Trust shall execute or cause to
be executed such instruments, releases or notices as may be necessary or
appropriate, to perfect, protect and more fully evidence the respective
interests of the parties to this Agreement in such Trust Assets. The Servicer
Purchase Option is exercisable with respect to a Defaulted Receivable only
before the expiration of the 60 day period following the date on which the
related Receivable became a Defaulted Receivable unless the Servicer gives
written notice of its irrevocable waiver of the Servicer Purchase Option with
respect to such Defaulted Receivable to the Indenture Trustee and the Facility
Administrator prior to the expiration of such 60 day period in the form attached
hereto as Exhibit D. Notwithstanding the foregoing, the Servicer may only
exercise the Servicer Purchase Option to the extent that, after giving effect to
such purchase, the Receivable Balance of Receivables previously purchased
pursuant to the Servicer Purchase Option does not exceed 20% of the Receivable
Balance of all Eligible Receivables (determined as of the applicable Cutoff Date
therefor) theretofore purchased by the Trust.
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The right of the Trust Depositor to replace a Replaced Asset in
accordance with Section 2.7 or the right of the Servicer to exercise the
Servicer Purchase Option shall be subject and subordinate to the rights of the
Indenture Trustee to sell, dispose or otherwise liquidate the applicable
Receivable and related Trust Assets following the occurrence of a Termination
Event or an Event of Default. Such rights of the Trust Depositor or the Servicer
shall not apply to any Trust Asset or Interval which the Indenture Trustee has
sold or caused to be sold, nor shall such rights apply to any Trust Asset or
Interval as to which the Indenture Trustee has provided at least five (5)
Business Days prior notice to the Servicer of its intention so to sell (unless,
prior to the expiration of such five (5) Business Days, the Trust Depositor has
irrevocably committed to replace such Replaced Asset or the Servicer has
irrevocably committed to exercise the Servicer Purchase Option, as the case may
be, in each case during the next succeeding Collection Period).
Section 2.13. Upgrades. Receivables which are the subject of an Upgrade
shall become part of the Asset Pool in accordance with the terms and conditions
of this Section 2.13, subject to timely delivery of a Substitution Notice to the
Indenture Trustee and the Facility Administrator and satisfying the conditions
set forth in Section 2.7(c) (other than (c)(ii) and with respect to Upgrade
Receivables in respect of the same Obligor, other than paragraphs (b), (d), and
(f) of the definition of Substitute Asset Qualification Conditions). In
connection with an Upgrade by an Obligor, the Trust Depositor shall acquire from
the applicable Seller pursuant to the Sale and Contribution Agreement, a new
Eligible Receivable arising in connection with such Upgrade or otherwise
(together with, if necessary, one or more other Eligible Receivables which were
the subject of an Upgrade or otherwise) (an "Upgrade Receivable") having a
Receivable Balance (or Receivable Balances) approximately equal to the
Receivable Balance of the Pre-Upgrade Receivable (as defined below). Subject to
the definition of Eligible Receivable, the Trust Depositor shall use its best
efforts to cause a Pre-Upgrade Receivable to be replaced with an Upgrade
Receivable in respect of the same Obligor and then, to the extent not possible,
to be replaced with another Upgrade Receivable. 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 Trust Depositor shall
deposit cash into the Collection Account in the amount of such deficiency. To
the extent the aggregate Receivable Balance of the Upgrade Receivable(s) on such
date is greater than the aggregate Receivable Balance of the Pre-Upgrade
Receivable(s) on such date, the aggregate Receivable Balance of the Upgrade
Receivable(s) on such date shall be deemed to be equal to the aggregate
Receivable Balance of the Pre-Upgrade Receivable(s) on such date. Upon such
acquisition by the Trust Depositor and compliance by the Trust Depositor with
Section 2.2 including delivery to the Indenture Trustee and the Facility
Administrator of a Substitution Notice indicating such Upgrade and identifying
the existing Receivable subject to the Upgrade (each, a "Pre-Upgrade
Receivable"), the related Upgrade Receivable(s) and related Trust Assets
(including, but not limited to, any Collections thereon after the Cutoff Date)
shall be deemed to be Substitute Assets for all purposes of this Agreement
purchased by the Trust on the Transfer Date of the related Pre-Upgrade
Receivable and shall be deemed to be part of the Asset Pool. In connection
therewith, the Indenture Trustee and the Trust shall release or re-convey, as
applicable, to the Trust Depositor all of its interests in the related
Pre-Upgrade Receivable in accordance with Section 2.14. In no event shall the
Trust Depositor be permitted to repurchase for cash any Pre-Upgrade Receivable.
Upon each conveyance of Upgrade Receivables hereunder, the Trust Depositor shall
be deemed to have represented and warranted that the conditions set forth in
Section 4.2 have been satisfied.
Section 2.14. Release of Interest.
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At the same time as (i) any Receivable becomes a Prepaid Receivable, (ii)
any Receivable matures, (iii) any Receivable is the subject of an Upgrade and
the conditions set forth in Section 2.13 have been satisfied, (iv) the Trust
Depositor through the Servicer, substitutes or replaces any Receivable as
contemplated in Section 2.7 hereof, or (v) the Servicer exercises the Servicer
Purchase Option, the Indenture Trustee and the Trust will release their interest
in the Interval relating to such Receivable and related Trust Assets; provided,
that such release will not constitute a release of the respective interests of
the Indenture Trustee and the Trust in the proceeds of Trust Assets except with
respect to any proceeds received by the Servicer with respect to a Receivable
and related Trust Assets which were subject to the Servicer Purchase Option. In
connection with any of the events described in the preceding sentence, the
Indenture Trustee and the Trust will execute and deliver (at the expense of the
Trust Depositor) to the Servicer any assignments, bills of sale, termination
statements and any other releases and instruments as the Servicer may reasonably
request in order to effect such release and transfer, and the Indenture Trustee
and the Trust shall be deemed to have transferred to the Trust Depositor or the
Servicer, as the case may be, all of the Indenture Trustee's and the Trust's
right, title and interest in such Trust Assets in respect of such Receivable
free and clear of any interest created by the Indenture Trustee or the Trust
hereunder and under the other Transaction Documents, but without any recourse or
other representation or warranty, express or implied. Nothing in this Section
shall diminish the Servicer's obligations pursuant to Section 2.11 of this
Agreement with respect to the proceeds of any sale of such Trust Assets.
ARTICLE III
SERVICING OF RECEIVABLES
Section 3.1. Responsibility for Receivable Administration. The Servicer is
hereby appointed the servicer hereunder until such time as any Service Transfer
may be effected under Section 8.2. The Servicer will have the sole right and
obligation to manage, administer, service and make collections on the
Receivables and the Trust Assets and perform or cause to be performed all
contractual and customary undertakings of the holder of the Receivables to the
Obligor.
Section 3.2. Standard of Care. In managing, administering, servicing and
making collections on the Receivables and the related Trust Assets pursuant to
this Agreement, the Servicer will exercise that degree of skill and care
consistent with the skill and care that the Servicer exercises with respect to
similar contracts serviced by the Servicer, and, in any event no less degree of
skill and care than would be exercised by a prudent servicer of timeshare
receivables. The Servicer shall at all times act in good faith and in the best
interests of the Trust, with respect to the Trust Assets and the proceeds
thereof, and use commercially reasonable efforts and exercise sound business
judgment in performing its duties under this Agreement.
Section 3.3. Filing. On or prior to the date of the first Purchase
hereunder, the Servicer shall cause the UCC financing statement(s) to be filed
and from time to time the Servicer shall take and cause to be taken such actions
and execute such documents as are necessary or desirable or as the Owner Trustee
or Indenture Trustee may reasonably request to perfect and protect the Trust's
and the Indenture Trustee's interests in the Trust Assets (subject to Permitted
Liens) 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.
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Section 3.4. Records. The Servicer shall, during the period it is servicer
hereunder, maintain such books of account and other records as will enable the
Owner Trustee and the Indenture Trustee to determine the payment status of each
Receivable.
Section 3.5. Inspection.
(a) At all times during the term hereof, the Servicer shall afford
the Facility Administrator and the Indenture Trustee and their respective
authorized agents reasonable access during normal business hours to the
Servicer's records relating to the Trust Assets and will cause its
personnel to assist in any examination of such records by the Facility
Administrator or the Indenture Trustee, or such authorized agents and
allow copies of the same to be made. The examination referred to in this
Section will be conducted in a manner which does not unreasonably
interfere with the Servicer's normal operations or customer or employee
relations. Without otherwise limiting the scope of the examination the
Facility Administrator or the Indenture Trustee or their respective
authorized agents may, using generally accepted audit procedures, verify
the status of each Receivable and review the Computer Disk and records
relating thereto for conformity to Monthly Reports prepared pursuant to
Section 9.4 and compliance with the standards represented to exist as to
each Receivable in this Agreement.
(b) At all times during the term hereof, the Servicer shall keep
available a copy of the List of Receivables at its principal executive
office for inspection by the Facility Administrator and the Noteholders.
Section 3.6. Duties and Responsibilities of Servicer.
(a) In addition to any other customary services which the Servicer
may perform or may be required to perform hereunder, the Servicer shall
perform or cause to be performed through sub-servicers, as applicable, the
following servicing and collection activities in accordance with the terms
of this Agreement:
(i) perform standard accounting services and general record keeping
services with respect to the Receivables;
(ii) respond to telephone or written inquiries of Obligors
concerning the Receivables;
(iii) keep Obligors informed of the proper place and method for
making payment with respect to the Receivables;
(iv) contact Obligors to effect collections and to discourage
delinquencies in the payment of amounts owed under the Receivables and
doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the
extent required by Requirements of Law;
(vi) take such other action as may be necessary or appropriate in
the discretion of the Servicer for the purpose of collecting and
transferring to the Indenture Trustee for deposit into the Collection
Account all payments received by the Servicer or remitted to the Lockbox
Account in
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respect of the Receivables (except as otherwise expressly provided
herein), and to carry out the duties and obligations imposed upon the
Servicer pursuant to the terms of this Agreement;
(vii) arrange for liquidations of Intervals related to Defaulted
Receivables, as applicable, and the remarketing of such Intervals as
provided herein; it being understood that except as expressly set forth
herein or in the Indenture, the Servicer shall not sell Defaulted
Receivables;
(viii) use reasonable best efforts to enforce the purchase and
substitution obligations of the Sellers under the Sale and Contribution
Agreement;
(ix) to the extent that the Custodian Fees or the Lockbox Fees are,
in the Servicer's reasonable business judgment, no longer commercially
reasonable, use commercially reasonable efforts to (i) obtain reasonable
fees from the existing Custodian or Lockbox Bank, as applicable, or (ii)
exercise its rights under the Custodial Agreement or the Lockbox Agreement
to replace the Custodian or Lockbox Bank, as applicable, in accordance
with the Custodial Agreement or Lockbox Agreement, as the case may be. Any
such successor shall be reasonably acceptable to the Facility
Administrator;
(x) diligently pursue all exceptions to the Receivables Files
delivered to the Custodian;
(xi) delivery of such information and data to the Backup Servicer as
is required under the Backup Servicing Agreement;
(xii) provide the required annual ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ notices to
Obligors in accordance with and to the extent required by the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as amended or modified from time to time;
(xiii) to the extent applicable, deliver any new or amended
information contained in any new or amended ACH Forms executed by an
Obligor to the Back-up Servicer in computer file or files stored on
diskette, magnetic tape or provided electronically to the Back-up
Servicer;
(xiv) provide documents related to the Receivables to the Indenture
Trustee and Custodian as provided in Section 2.2(b);
(xv) process all optional release activities pursuant to the
Servicer Purchase Option;
(xvi) ▇▇▇▇, collect and remit moneys payable hereunder and under the
other Transaction Documents; and
(xvii) maintain the same file identifier for each Receivable as is
used in connection with the Purchase related thereto.
Section 3.7. Consideration. As consideration for Servicer's performance of
the Receivables servicing as described herein, Servicer shall be paid the
Servicing Fee in accordance with Section 2.11.
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ARTICLE IV
CONDITIONS OF PURCHASES AND TRANSFERS
Section 4.1. Conditions Precedent to Initial Purchase.
The Initial Purchase hereunder is subject to the condition precedent that
the Facility Administrator shall have received on or before the date of such
purchase the items listed in Schedule IA, each (unless otherwise indicated)
dated such date, in form and substance reasonably satisfactory to the Facility
Administrator.
Section 4.2. Conditions Precedent to All Transfers.
The Initial Purchase, each Incremental Purchase and each other Transfer
from the Trust Depositor by the Trust shall be subject to the further conditions
precedent that:
(a) the Servicer shall have delivered to the Facility Administrator
and the Custodian those items listed on Schedule IB on or before the dates
listed therein and such additional information as may be reasonably
requested by the Facility Administrator;
(b) all actions or additional actions necessary, in the reasonable
judgment of the Facility Administrator, to obtain an absolute ownership
interest in favor of the Trust in the Trust Assets being transferred shall
have been taken (and the Facility Administrator may in its discretion
require, as a condition to such determination, the delivery of an Opinion
of Counsel to such effect);
(c) on each Transfer Date, the following statements shall be true
and correct:
(i) the representations and warranties contained in Sections 5.1,
5.4, 5.5 and, solely with respect to the Assets being transferred on such
Transfer Date, Section 5.2 of this Agreement and Section 3.2 of the Sale
and Contribution Agreement, are true and correct on and as of such day as
though made on and as of such date;
(ii) all other representations and warranties of any Seller Party
in any Transaction Document (other than this Agreement) are true and
correct on and as of such day as though made on and as of such date;
(iii) no event has occurred and is continuing, or would result
from such Purchase which constitutes a Servicer Event of Termination,
Termination Event or an Event of Default;
(iv) after giving effect to such Purchase, the Outstanding Amount
will not exceed the lesser of (i) Funding Date Overcollateralization and
(ii) the Note Purchase Limit;
(v) on and as of such day, the Sellers, the Trust Depositor, the
Servicer and the Club Trustee each has performed in all material respects
all of the agreements, paid all fees, costs and expenses and satisfied all
conditions contained in this Agreement and the other Transaction Documents
to be performed by such Person at or prior to such day;
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(d) no law, rule or regulation shall prohibit, and no order,
judgment or decree of any federal, state or local court or government
body, agency or instrumentality shall prohibit or enjoin any of the
activities contemplated by the Transaction Documents;
(e) in addition to the other documents set forth on Schedule 1B, the
Custodian shall have received an original note/instrument and related
Allonge with respect to each such Receivable (other than with respect to
an Aruba Receivable);
(f) the Facility Administrator shall have received such other
approvals, opinions or documents as the Facility Administrator may
reasonably request;
(g) the Custodian shall have issued its Custodian's Certificate with
no exceptions related to the applicable Receivables Files, except any
exceptions indicated on Schedule 1 attached to such Custodian's
Certificate that are expressly permitted pursuant to the Custodial
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Seller under the Sale and Contribution Agreement has made, and upon
the transfer of Substitute Assets is deemed to remake, each of the
representations and warranties set forth therein and has consented to the
assignment by the Trust Depositor to the Trust of the Trust Depositor's rights
with respect thereto. Such representations speak as of the execution and
delivery of the Sale and Contribution Agreement and this Agreement and as of the
Initial Transfer Date in the case of the initial Receivables, and as of the
applicable Substitute Asset Transfer Date in the case of the Substitute Assets,
but shall survive the sale, transfer and assignment of the Receivables to the
Trust. Pursuant to Section 2.1 of this Agreement, the Trust Depositor has sold,
assigned, transferred, set-over and conveyed to the Trust as part of the Trust
Assets its rights under the Sale and Contribution Agreement, including without
limitation, its rights with respect to the representations and warranties of the
Sellers therein, together with all rights of the Trust Depositor with respect to
any breach thereof including any right to require the Sellers to repurchase any
Receivables in accordance with and subject to the terms of the Sale and
Contribution Agreement. It is understood and agreed that the representations and
warranties set forth or referred to in this Section shall survive transfer of
the Trust Assets to the Trust hereunder and the delivery of the Receivables
Files to the Custodian.
The Trust Depositor hereby represents and warrants to the Trust, the Owner
Trustee, the Indenture Trustee, the Facility Administrator and the Noteholders
that it has entered into the Sale and Contribution Agreement with the Sellers,
that each Seller has made the representations and warranties in the Sale and
Contribution Agreement as set forth therein, that such representations and
warranties run to and are for the benefit of the Trust Depositor, the Owner
Trustee, the Facility Administrator, the Indenture Trustee and the Noteholders,
and that pursuant to Section 2.1 of this Agreement the Trust Depositor has sold,
transferred, set-over, conveyed and assigned to the Trust all rights of the
Trust Depositor to cause the Sellers to repurchase Receivables in the event of a
breach of such representations and warranties in accordance with and subject to
the terms of the Sale and Contribution Agreement.
Section 5.1. Representations and Warranties of the Trust Depositor.
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The Trust Depositor represents and warrants, as of the Closing Date and
each Transfer Date, as follows:
(a) Organization and Good Standing. The Trust Depositor is a
corporation duly organized and validly existing in good standing under the
laws of the State of Delaware, 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. The Trust Depositor 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 the Trust Depositor by all necessary action on the part
of the Trust Depositor.
(d) No Conflict. The execution and delivery of this Agreement and
each other Transaction Document to which it is a party, the performance of
the transactions contemplated hereby and thereby and the fulfillment of
the terms hereof and thereof do not contravene or violate (i) its articles
or certificate of incorporation or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement,
contract or 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 the Trust
Depositor, except where any such contravention or violation would not have
a Material Adverse Effect.
(e) No Violation. The execution and delivery of this Agreement and
each other Transaction Document to which it is a party, the performance of
the transactions contemplated hereby and thereby and the fulfillment of
the terms hereof and thereof (including, without limitation, the sale of
the Trust Assets by the Trust Depositor or remittance of Collections in
accordance with the provisions of this Agreement) will not conflict with
or violate, in any material respect, any Requirements of Law applicable to
the Trust Depositor or to the Trust Assets.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Trust Depositor, threatened
against the Trust Depositor, 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.
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(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 Trust Depositor's execution and delivery
of this Agreement and the other Transaction Documents to which it is a
party, the performance of the transactions contemplated hereby and
thereby, and the fulfillment of the terms hereof and thereof, have been
obtained.
(h) Bulk Sales. The execution, delivery and performance of this
Agreement do not require compliance with any applicable "bulk sales" law
by the Trust Depositor.
(i) Solvency. Both before and after giving effect to the
transactions under this Agreement, the Trust Depositor will be Solvent.
(j) Selection Procedures. No selection procedures adverse to the
interests of the Trust were utilized by the Trust Depositor in selecting
the Receivables in the Asset Pool.
(k) Taxes. The Trust Depositor has filed or caused to be filed all
tax returns which, to its knowledge, are required to be filed and has paid
when due all taxes shown to be due and payable on such returns or on any
assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any amount of tax due the validity of
which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in accordance with
generally accepted accounting principles have been provided on the books
of the Trust Depositor); no tax lien has been filed and, to the Trust
Depositor's knowledge, no claim is being asserted, with respect to any
such tax, fee or other charge.
(l) Agreements Enforceable. This Agreement and the other Transaction
Documents to which the Trust Depositor is a party constitute the legal,
valid and binding obligation of the Trust Depositor enforceable against
the Trust Depositor in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or law).
(m) Margin Regulation. The Trust Depositor is not 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. The Trust Depositor does not own 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.
The Trust Depositor will not take or permit to be taken any action which
might cause any Transaction Document to violate any regulation of the
Federal Reserve Board.
(n) No Liens. Each Trust Asset, together with the Receivable related
thereto, shall, immediately prior to its sale hereunder, be owned by the
Trust Depositor free and clear of any Lien (except Permitted Liens), and
upon each Purchase, the Trust shall acquire an undivided ownership
interest in each Trust Asset and in the Collections with respect thereto,
free and clear of any Lien
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(except Permitted Liens). No effective financing statement or other
instrument similar in effect covering any Trust Asset or the Collections
with respect thereto shall at any time be on file in any recording office
except such as may be filed in favor of the Trust or the Indenture Trustee
relating to this Agreement and the other Transaction Documents, or in
favor of the Trust Depositor as assignee of the Sellers.
(o) Note Purchase Limit and Funding Date Overcollateralization.
After giving effect to any current Purchase or conveyance of Receivables,
(i) the aggregate Outstanding Amount does not exceed the lesser of (x)
Funding Date Overcollateralization and (y) the Note Purchase Limit and
(ii) the aggregate amount of all advances made by the Noteholders under
the Note Purchase Agreement does not exceed the Note Purchase Limit.
(p) Reports Accurate. No Asset Report, exhibit, financial statement,
document, book, record or report furnished or to be furnished by the Trust
Depositor pursuant to this Agreement 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, as the case
may be, at such time) as of the date so furnished, and no such document
contains or will contain any material misstatement of fact or omits or
shall omit to state a material fact or any fact necessary in light of the
circumstances under which made, to make the statements contained therein
not misleading.
(q) Location of Offices. The principal place of business and chief
executive office of the Trust Depositor and the Seller, and the office
where the Trust Depositor and Seller keep all the Records, are located at
the addresses of the Trust Depositor and Seller, respectively, referred to
on Schedule III hereof (or at such other locations as to which the notice
and other requirements specified herein shall have been satisfied). The
state of incorporation and organizational identification number, if any,
of the Trust Depositor and the Seller are set forth on Schedule III
hereto.
(r) Tradenames. The Trust Depositor has no trade names, fictitious
names, assumed names or "doing business as" names or other names under
which it has done or is doing business.
(s) Sale and Contribution Agreement. The Sale and Contribution
Agreement, including the other Transaction Documents contemplated thereby,
is the only agreement pursuant to which the Trust Depositor acquires
ownership of the Trust Assets. To the knowledge of the Trust Depositor,
the representation and warranties of Sellers under the Sale and
Contribution Agreement are true and correct.
(t) Value Given. The Trust Depositor shall have given reasonably
equivalent value to the Sellers in consideration for the transfer to the
Trust Depositor of the Assets under the Sale and Contribution Agreement,
no such transfer shall have been made for or on account of an antecedent
debt owed by 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.
(u) Special Purpose Entity. The Certificate of Incorporation of the
Trust Depositor includes substantially the provisions set forth on Exhibit
F hereto, and each Seller has confirmed in writing to the Trust Depositor
and has covenanted in the Sale and Contribution Agreement that it
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will not cause the Trust Depositor to file a voluntary petition under the
Bankruptcy Code or any other bankruptcy or insolvency laws.
(v) Accounting. The Trust Depositor accounts for the transfer from
the Sellers of interests in Assets and Collections under the Sale and
Contribution Agreement and will account for transfers under this Agreement
as sales of such Assets in its books, records and financial statements, in
each case consistent with GAAP and with the requirements set forth herein.
(w) Separate Entity. The Trust Depositor is operated as an entity
with assets and liabilities distinct from those of the Sellers and any
Affiliates thereof (other than the Trust Depositor), and the Trust
Depositor hereby acknowledges that the Trust is entering into the
transactions contemplated by this Agreement and the other Transaction
Documents in reliance upon the Trust Depositor's identity as a separate
legal entity from the Sellers and from each such other Affiliate of the
Sellers.
(x) Investment Company and Public Utility Holding Company. The Trust
Depositor is not 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.
(y) Accuracy of Representations and Warranties. Each representation
or warranty by the Trust Depositor contained herein or in any certificate
or other document furnished by the Trust Depositor pursuant hereto or in
connection herewith is when furnished true and correct in all material
respects; provided, however, the Trust and the Noteholders acknowledge
that with respect to the condition of a Receivable as an "Eligible
Receivable" as of its date of Purchase or transfer hereunder, the Trust's
remedy for a breach of a representation or warranty relating to a
Receivable's status as an Eligible Receivable is provided by and limited
to Section 2.7 hereof.
The representations and warranties set forth in this section shall survive
the transfer of the Trust Assets to the Trust, and termination of the rights and
obligations of the Servicer hereunder. Upon discovery by the Trust Depositor,
the Servicer or the Trust of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 5.2. Representations and Warranties of Trust Depositor Relating to
the Receivables.
The Trust Depositor hereby represents and warrants that, solely with
respect to the Receivables then being sold or transferred as of the applicable
Transfer Date:
(a) Valid Sale and Transfer of Ownership. The Trust Depositor (i)
has good and marketable title to each Trust 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 Trust Assets to the Trust, and
(iii) upon transfer of such Trust Asset to the Trust pursuant to the terms
of this Agreement, has validly and effectively conveyed to the Trust all
of the Trust Depositor's right, title and interest in and to the Trust
Assets free and clear of any Lien (other than Permitted Liens).
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(b) Eligibility of Receivables. Each Receivable relating to each
Trust Asset is an Eligible Receivable.
(c) List of Receivables. As of the related Transfer Date, the List
of Receivables and the information 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. Upon transfer of such Trust Asset to the Trust
pursuant to the terms of this Agreement, each Trust Asset has been
transferred to the Trust in compliance, in all material respects, with all
Requirements of Law and each Trust Asset was, immediately prior to its
sale hereunder, legally and beneficially owned by the Trust Depositor free
and clear of any Lien (except Permitted Liens), and upon each Purchase,
the Trust shall acquire an ownership interest in each Trust Asset and in
the Collections with respect thereto, free and clear of any Lien (except
Permitted Liens).
(e) Consents. With respect to each Purchased Asset, all material
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Sellers or the Trust Depositor in connection with
the transfer of such Assets to the Trust have been duly obtained, effected
or given and are in full force and effect.
(f) Environmental Conditions. To the knowledge of the Trust
Depositor, the operations of the Seller Parties 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. To the knowledge of the Trust Depositor, the
servicing and collection practices used by the Seller Parties and their
Affiliates have complied in all material respects with all Requirements of
Law and have met customary industry standards for the servicing of
receivables substantially similar to the Receivables.
(h) Compliance with Laws. To the knowledge of the Trust Depositor,
the Trust Assets were originated and have been serviced in compliance
with, and do not contravene any Requirements of Law, including, without
limitation, all Consumer Laws. To the knowledge of the Trust Depositor,
each Seller Party has complied in all material respects with 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.
(i) Patriot Act Matters. The Trust Depositor (a) is and at all times
shall be in compliance with applicable OFAC 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
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the IEEPA may apply to Trust Depositor's activities; (b) 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 the Trust
Depositor; and (c) (i) is not, to its actual current knowledge, now, nor,
to its actual current knowledge, 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 is
implementing, either directly or indirectly through third parties, such
policies as are reasonably necessary to ensure that the Trust Depositor is
not promoting, facilitating or otherwise intentionally furthering, the
transfer, deposit or withdrawal of criminally derived property, or of
money or monetary instruments which are (or which Trust Depositor 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) is taking such steps and implementing, either directly or
indirectly through third parties, such policies as are reasonably
necessary to ensure that the Trust Depositor is in compliance with all
laws and regulations applicable to its business for the prevention of
money laundering and with anti terrorism laws 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 the Trust Depositor is required to develop such
a program under the rules and regulations promulgated pursuant to Section
352 of the Patriot Act.. Nothing in this Section 5.2(i) shall be construed
to imply that the provisions of the laws and regulations set forth herein
are, in fact, applicable to the Trust Depositor.
(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."
Section 5.3. Survival; Knowledge; Notice of Breach. The representations
and warranties set forth in this Article V shall survive the transfer of the
Trust Assets to the Trust and termination of the rights and obligations of the
Servicer under the Transaction Documents. Neither the survival or the liability
of the Trust Depositor with respect to the Trust Depositor's representations and
warranties set forth in this Article V shall be reduced by any due diligence or
other investigation made by the Facility Administrator, the Trust, the Indenture
Trustee or any Noteholder at any time or by the disclosure of any facts or
circumstances to the Facility Administrator, the Trust, the Indenture Trustee or
any Noteholder (whether prior to or after the date of this Agreement). Upon
discovery by any Seller Party or the Facility Administrator of a breach of any
of the representations and warranties in this Article V, the party discovering
such breach shall give prompt written notice to the others.
Section 5.4. Representations and Warranties of the Club and the Club
Trustee.
The Club Trustee represents and warrants, as of the Closing Date and each
Transfer Date, as follows:
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(a) The Bluegreen Vacation Club Trust is a trust duly established in
accordance with the Club Trust Agreement under the laws of the State of
Florida for the purpose of holding and preserving certain property for the
benefit of the beneficiaries referred to in the Club Trust Agreement. The
Club Trustee has all necessary trust and other authorizations and powers
required to carry out its obligations under the Club Trust Agreement in
the State of Florida and in all other states in which it owns Resort
Interests. The Bluegreen Vacation Club Trust is not a corporation or
business trust under the laws of the State of Florida. The Bluegreen
Vacation Club Trust is not taxable as an association, corporation or
business trust under federal law or the laws of the State of Florida.
(b) The Club Trustee is a corporation duly formed, validly existing
and in good standing under the laws of the State of Florida. As of the
date of this Agreement, the Club Trustee is authorized to transact
business in no other state. The Club Trustee is not an affiliate of the
Servicer and is in compliance with the requirements of Chapter 721,
Florida Statutes, that it be independent of the Servicer.
(c) The Club Trustee had all necessary corporate power to execute
and deliver, and has all necessary corporate power to perform its
obligations under this Agreement, the other Transaction Documents to which
it is a party, the Club Trust Agreement and the Club Management Agreement.
The Club Trustee possesses all requisite franchises, operating rights,
licenses, permits, consents, authorizations, exemptions and orders as are
necessary to discharge its obligations under the Club Trust Agreement.
(d) A certified copy of the Club Trust Agreement has been delivered
to the Facility Administrator together with all amendments and supplements
in respect thereof.
(e) The Club Trustee holds all right, title and interest in and to
all of the Resort Interests related to the Receivables solely for the
benefit of the Beneficiaries referred to in, and subject in each case to
the provisions of, the Club Trust Agreement and the other documents and
agreements related thereto. Except with respect to the Mortgages, the Club
Trustee has permitted none of such Resort Interests to be made subject to
any lien or encumbrance during the time it has been a part of the trust
estate under the Club Trust Agreement.
(f) There are no actions, suits, proceedings, orders or injunctions
pending against the Bluegreen Vacation Club Trust or the Club Trustee, at
law or in equity, or before or by any Governmental Authority which, if
adversely determined, could reasonably be expected to have a Material
Adverse Effect.
(g) Neither the Bluegreen Vacation Club Trust nor the Club Trustee
has incurred any indebtedness for borrowed money (directly, by guarantee,
or otherwise).
(h) All ad valorem taxes and other taxes and assessments against the
Bluegreen Vacation Club Trust and/or its trust estate have been paid and
neither the Servicer nor the Club Trustee knows of any basis for any
additional taxes or assessments against any such property. The Bluegreen
Vacation Club Trust has filed all required tax returns and has paid all
taxes shown to be
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due and payable on such returns, including all taxes in respect of sales
of Owner Beneficiary Rights (as defined in the Club Trust Agreement) and
Vacation Points.
(i) The Bluegreen Vacation Club Trust and the Club Trustee are in
compliance in all material respects with all Requirements of Law
applicable to it and in compliance with each material instrument,
agreement or document to which it is a party or by which it is bound,
including, without limitation, the Club Trust Agreement.
(j) Except as expressly permitted in the Club Trust Agreement, the
Club Trustee has maintained the One-to-One Beneficiary to Accommodation
Ratio (as such terms are defined in the Club Trust Agreement).
(k) Upon purchase of the Receivables and related Trust Assets
hereunder, the Trust is an "Interest Holder Beneficiary" under the Club
Trust Agreement and each of the Receivables constitutes "Lien Debt",
"Purchase Money Lien Debt" and "Owner Beneficiary Obligations" under the
Club Trust Agreement.
(l) Except as disclosed to the Facility Administrator in writing,
each Mortgage associated with a Receivable and granted by the Club Trustee
or the Obligor on the related Receivable, as applicable, has been duly
executed, delivered and recorded by or pursuant to the instructions of the
Club Trustee under the Club Trust Agreement and such Mortgage is valid and
binding and effective to create the lien and security interests it
purports to create. Each of such Mortgages was granted in connection with
the financing of a sale of a Resort Interest.
Section 5.5. Representations and Warranties of the Servicer.
The Servicer represents and warrants, as of the Closing Date and
each Transfer Date, as follows:
(a) Organization and Good Standing. The Servicer is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently engaged.
The Servicer is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
Material Adverse Effect. The Servicer is properly licensed in each
jurisdiction to the extent required by the laws of such jurisdiction to
service the Trust Assets in accordance with the terms hereof except where
the failure to be so licensed could not reasonably be expected to have a
Material Adverse Effect.
(b) Authorization; Binding Obligations. The Servicer has the power
and authority to make, execute, deliver and perform this Agreement and the
other Transaction Documents to which the Servicer is a party and all of
the transactions contemplated under this Agreement and the other
Transaction Documents to which the Servicer is a party, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents to which
the Servicer is a party. This Agreement and the other Transaction
Documents to which the Servicer is a party constitute the legal, valid and
binding obligation of the Servicer enforceable in accordance with their
terms, except as such enforceability
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may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or law).
(c) No Consent Required. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any Governmental
Authority in connection with the execution, delivery, performance,
validity or enforceability of this Agreement and the other Transaction
Documents to which the Servicer is a party.
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which the Servicer is a
party by the Servicer will not violate any provisions of any existing law
or regulation or any order or decree of any court or of any Federal or
state regulatory body or administrative agency having jurisdiction over
the Servicer or any of its properties or the Articles of Organization or
Bylaws of the Servicer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which the Servicer is a party or
by which the Servicer or any of the Servicer's properties may be bound, or
result in the creation of or imposition of any security interest, lien,
pledge, preference, equity or encumbrance of any kind upon any of its
properties pursuant to the terms of any such mortgage, indenture, contract
or other agreement, other than this Agreement the result of which could
reasonably be expect to have a Material Adverse Effect.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer, 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 in the opinion
of the Servicer have a Material Adverse Effect.
(f) Margin Regulation. The Servicer is not 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. The Servicer does not own 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. The
Servicer will not 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 the
Servicer's (so long as Bluegreen or any Affiliate thereof is the Servicer)
ability to repurchase shares of its common stock so long as it is
otherwise done in compliance with the terms hereof.
(g) Collection Policy. The Servicer has complied in all material
respects with the Collection Policy with regard to each Receivable and the
related Contract, has notified the Facility Administrator and the
Noteholders, in accordance with Section 6.3(o)(ii) hereunder, of any
change
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to the Collection Policy, and has not made any change to the Collection
Policy that would materially and adversely affect or impair the
collectibility of any Receivable or that is a material change, except for
such changes as to which the Facility Administrator and the Noteholders
have been notified and as to which the Noteholders have consented. For
purposes of this section, any change that would cause the Issuer to not be
a qualifying special purpose entity, as "qualifying special purpose
entity" is defined under GAAP, shall be material.
(h) Compliance with Laws. The Servicer has complied with all
Requirements of Law relating to or in connection with the servicing of the
Receivables, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
(i) Insurance. The Servicer and each Eligible Resort which is
managed by the Club Managing Entity maintain such insurance coverage as
may be required by any applicable Requirements of Law or pursuant to the
Declarations for such Eligible Resort.
(j) Club Ownership. Bluegreen Vacations Unlimited, Inc. is the sole
Class B member of Bluegreen Vacation Club, Inc. and has the right to
elect, and has elected, at least a majority of the board of directors of
Bluegreen Vacation Club, Inc. Bluegreen Vacations Unlimited, Inc. has not
pledged or encumbered or granted a security interest in respect of such
interest.
(k) Reservation System. Other than with respect to the services
contracted for by the Club Managing Entity or any 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 (which may include customary hardware or software leases,
licenses or maintenance fees), 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. The Servicer owns 100% of the equity capital of
the Club Managing Entity.
(l) Club Trust Agreement. A true and correct copy of the Club Trust
Agreement is attached hereto as Exhibit E and is in full force and effect.
(m) Bluegreen Vacation Club, Inc. Bluegreen Vacation Club, Inc. is a
non-stock corporation duly formed, validly existing and in good standing
under the laws of the State of Florida.
ARTICLE VI
COVENANTS
Section 6.1. Covenants of the Trust Depositor.
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Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, the Trust Depositor hereby covenants
and agrees that:
(a) Compliance with Laws; Preservation of Corporate Existence. The
Trust Depositor will comply in all material respects with all Requirements
of Law applicable to the Trust Depositor, the Receivables and the
Intervals and preserve and maintain its corporate existence, rights,
franchises, qualifications and privileges except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.
(b) Security Interests. Except as specifically contemplated by this
Agreement, the Trust Depositor will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Receivable in the Asset Pool or related Interval, whether
now existing or hereafter transferred hereunder, or any interest therein,
and the Trust Depositor will not sell, pledge, assign or suffer to exist
any Lien on its interest, if any, hereunder. The Trust Depositor will
immediately notify the Trust of the existence of any such Lien on any
Receivable in the Asset Pool or related Interval; and the Trust Depositor
shall defend the right, title and interest of the Trust in, to and under
the Receivables in the Asset Pool and the related Interval, against all
claims of third parties; provided, however, that nothing in this Section
6.l(b) shall prevent or be deemed to prohibit the Trust Depositor from
suffering to exist Permitted Liens upon any of the Trust Assets or any
related Interval.
(c) Activities of Trust Depositor. The Trust Depositor shall not
engage in any business or activity of any kind, or enter into any
transaction or indenture, mortgage, instrument, agreement, receivable,
lease or other undertaking, which is not directly related to the
transactions contemplated and authorized by this Agreement, the other
Transaction Documents and its Certificate of Incorporation.
(d) Agreements. Except as contemplated by the Transaction Documents,
the Trust Depositor shall not amend or modify the provisions of its
Certificate of Incorporation, or issue any power of attorney except to the
Trust or the Servicer.
(e) Separate Corporate Existence. The Trust Depositor shall:
(i) Maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions. Except for
payments to its equity holders in the form of a dividend and for payments
for the Trust Assets purchased from the Sellers under the Sale and
Contribution Agreement, the funds of the Trust Depositor will not be
diverted to any other Person or used other than for corporate uses of the
Trust Depositor.
(ii) Ensure that, to the extent that it shares the same officers or
other employees as any of its stockholders or Affiliates, the salaries of
and the expenses related to providing benefits to such officers and other
employees shall be fairly allocated among such entities, and each such
entity shall bear its fair share of the salary and benefit costs
associated with all such common officers and employees.
(iii) Ensure that, to the extent that it and any Seller (together
with their respective stockholders or Affiliates) jointly do business with
vendors or service providers or share overhead
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expenses, the costs incurred in so doing shall be allocated fairly among
such entities, and each such entity shall bear its fair share of such
costs. To the extent that it and any Seller (together with their
respective stockholders or Affiliates) do business with vendors or service
providers when the goods and services provided are partially for the
benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share of
such costs. All material transactions between Trust Depositor and any of
its Affiliates shall be only on an arms' length basis.
(iv) To the extent that Trust Depositor and any of its stockholders
or Affiliates have offices at the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each such entity
shall bear its fair share of such expenses.
(v) Conduct its affairs strictly in accordance with its Certificate
of Incorporation and observe all necessary, appropriate and customary
corporate formalities, including, but not limited to, holding all regular
and special stockholders' and directors' meetings appropriate to authorize
all corporate action, keeping separate and accurate minutes of its
meetings, passing all resolutions or consents necessary to authorize
actions taken or to be taken, and maintaining accurate and separate books,
records and accounts, including, but not limited to, payroll and
intercompany transaction accounts.
(vi) Otherwise operate as an entity with assets and liabilities
distinct from those of the Sellers and any Affiliates thereof.
(f) Location of Trust Depositor, Records; Instruments. The Trust
Depositor (x) shall not change its name or state of incorporation or move
the location of its chief executive office outside the State of Florida
without 30 days' prior written notice to the Facility Administrator and
the Indenture Trustee and (y) shall not move or permit the Servicer to
move the location of the Receivable Files, other than to the Custodian,
from the locations thereof on the Initial Transfer Date, without 30 days'
prior written notice to the Facility Administrator and the Trustee and (z)
will promptly take all actions required (including, but not limited to,
all filings and other acts necessary or advisable under the UCC of each
relevant jurisdiction in order to evidence the Trust's ownership interest
(and back-up grant of a first priority perfected security interest to the
Trust (subject to Permitted Liens)) in all Trust Assets in the Asset Pool.
The Trust Depositor will give the Facility Administrator and the Indenture
Trustee prompt notice of a change within the State of Florida of the
location of its chief executive office.
(g) Accounting for Purchases. The Trust Depositor will not account
for or treat (whether in financial statements or otherwise) the
transactions contemplated hereby or by the Sale and Contribution Agreement
in any manner other than the sale or contribution of the Assets by the
Sellers to the Trust Depositor in accordance with GAAP.
(h) ERISA Matters. The Trust Depositor will not (a) engage in any
prohibited transaction for which an exemption is not available or has not
previously been obtained from the United States Department of Labor; (b)
permit to exist any accumulated funding deficiency, as defined in Section
302(a) of ERISA and Section 412(a) of the Code, or funding deficiency with
respect to any Benefit Plan other than a Multiemployer Plan; (c) fail to
make any payments to a
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Multiemployer Plan that the Trust Depositor may be required to make under
the agreement relating to such Multiemployer Plan or any law pertaining
thereto; (d) terminate any Benefit Plan so as to result in any liability;
or (e) permit to exist any occurrence of any reportable event described in
Title IV of ERISA which represents a material risk of a liability of the
Trust Depositor under ERISA or the Code.
(i) Nature of Business. The Trust Depositor will engage in no
business other than the purchase of Assets from the Sellers, the sale of
Trust Assets to the Trust and the other transactions permitted or
contemplated by this Agreement and the other Transaction Documents.
(j) Seller Assets. With respect to each Asset acquired by the Trust
Depositor from the Sellers, the Trust Depositor will (i) acquire such
Asset pursuant to and in accordance with the terms of the Sale and
Contribution Agreement, (ii) take all action necessary to perfect, protect
and more fully evidence the Trust Depositor's ownership of such Asset,
including, without limitation, (A) filing and maintaining effective
financing statements (Form UCC-1) against the Sellers in all necessary or
appropriate filing offices, and filing continuation statements, amendments
or assignments with respect thereto in such filing offices, and (B)
executing or causing to be executed such other instruments or notices as
may be necessary or appropriate, and (iii) take all additional action that
the Trust may reasonably request to perfect, protect and more fully
evidence the respective interests of the parties to this Agreement in the
Trust Assets.
(k) Transactions with Affiliates. The Trust Depositor will not enter
into, or be a party to, any transaction with any of its Affiliates, except
(i) the transactions permitted or contemplated by this Agreement and the
other Transaction Documents, and (ii) other transactions (including,
without limitation, the lease of office space or computer hardware or
software by the Trust Depositor to or from an Affiliate) (A) in the
ordinary course of business, (B) pursuant to the reasonable requirements
of the Trust Depositor's business, and (C) upon fair and reasonable terms
that are no less favorable to the Trust Depositor than could be obtained
in a comparable arms'-length transaction with a Person not an Affiliate of
the Trust Depositor. It is understood that any compensation arrangement
for officers shall be permitted under clause (ii)(A) through (C) above if
such arrangement has been expressly approved by the board of directors of
the Trust Depositor.
(l) Indebtedness; Investments. The Trust Depositor will not incur
any Indebtedness other than Indebtedness arising hereunder or under the
other Transaction Documents. Except for its residual interest in the
Trust, the Trust Depositor will not make any Investments other than
Permitted Investments.
(m) Change in the Sale and Contribution Agreement. The Trust
Depositor will not amend, modify, waive or terminate any terms or
conditions of the Sale and Contribution Agreement except as permitted
hereby.
(n) Amendment to Bylaws and Certificate of Incorporation. The Trust
Depositor will not amend, modify or otherwise make any change to its
Bylaws or its Certificate of Incorporation to delete or otherwise nullify
or circumvent the provisions set forth on Exhibit F hereto.
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(o) Authorized Signatory. Any person signing a Request Notice on
behalf of Trust Depositor, as provided in Exhibit A hereto shall have the
requisite power and authority to sign the same on behalf of the Trust
Depositor.
(p) Merger or Consolidation. The Trust Depositor shall not merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of transactions and except
as otherwise contemplated herein) all or any material part of its assets
(whether now owned or hereafter acquired) to, or acquire all or any
material part of the assets of, any Person.
(q) Limited Activities. Notwithstanding any other provision in this
Section and any provision of law, the Trust Depositor shall not do any of
the following:
(i) engage in any business or activity other than as set forth in or
permitted by its Certificate of Incorporation or Bylaws; or
(ii) without the affirmative vote of a majority of the members of
the Board of Directors of the Trust Depositor (which must include the
affirmative vote of at least one duly appointed Independent director) (A)
dissolve or liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or seek to obtain relief under any
applicable federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the corporation or a substantial part of its
property, (E) make a general assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts generally as they become
due, or (G) take any corporate action in furtherance of the actions set
forth in clauses (A) through (F) above; provided, however, that no
director may be required by any shareholder of the Trust Depositor to
consent to the institution of bankruptcy or insolvency proceedings against
the Trust Depositor so long as it is solvent.
Section 6.2. General Covenants of the Club Trustee.
Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, the Club Trustee hereby covenants and
agrees that:
(a) No Conveyance. The Club Trustee agrees not to convey or grant
any Lien upon any Owner Beneficiary Rights (or any Vacation Points
appurtenant thereto) or Resort Interest in the Club relating to a
Receivable which has been sold and assigned to the Trust unless the
Indenture Trustee shall have issued an instruction to the Club Trustee
pursuant to Section 8.07(c) of the Club Trust Agreement in connection with
its exercise of its rights as an Interest Holder Beneficiary (as defined
in the Club Trust Agreement) under Section 7.02 of the Club Trust
Agreement.
(b) Separate Corporate Existence. The Club Trustee shall:
(i) Maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions. The funds of
the Club Trustee will not be
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diverted to any other Person or for other than trust or corporate uses of
the Club Trustee, as applicable.
(ii) Ensure that, to the extent that it shares the same officers or
other employees as any of its stockholders, beneficiaries or Affiliates,
the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among such
entities, and each such entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that the Club Trustee and the
Servicer (together with their respective stockholders or Affiliates)
jointly do business with vendors or service providers or share overhead
expenses, the costs incurred in so doing shall be allocated fairly among
such entities, and each such entity shall bear its fair share of such
costs. To the extent that the Club Trustee and the Servicer (together with
their respective stockholders or Affiliates) do business with vendors or
service providers when the goods and services provided are partially for
the benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share of
such costs. All material transactions between Club Trustee and any of its
Affiliates shall be only on an arms' length basis.
(iv) To the extent that the Club Trustee and any of its
stockholders, beneficiaries or Affiliates have offices in the same
location, there shall be a fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its fair share of such
expenses.
(v) Conduct its affairs strictly in accordance with the Club Trust
Agreement, its Amended and Restated Articles of Incorporation and its
Bylaws, as applicable, and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, holding
all regular and special stockholders', trustees' and directors' meetings
appropriate to authorize all trust and corporate action, keeping separate
and accurate minutes of its meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, payroll and intercompany transaction accounts.
(c) Merger or Consolidation. The Club Trustee shall not consolidate
with or merge into any other corporation or convey, transfer or lease
substantially all of its assets as an entirety to any Person unless the
corporation formed by such consolidation or into which the Club Trustee,
as the case may be, has merged or the Person which acquires by conveyance,
transfer or lease substantially all the assets of the Club Trustee, as the
case may be, as an entirety, can lawfully perform the obligations of the
Club Trustee hereunder and executes and delivers to the Indenture Trustee
an agreement in form and substance reasonably satisfactory to the
Indenture Trustee which contains an assumption by such successor entity of
the due and punctual performance and observance of each covenant and
condition to be performed or observed by the Club Trustee under this
Agreement.
(d) Corporate Matters. Notwithstanding any other provision of this
Section and any provision of law, the Club Trustee shall not do any of the
following:
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(i) engage in any business or activity other than as set forth
herein or in or as contemplated by the Club Trust Agreement, its Amended
and Restated Articles of Incorporation or its Bylaws, as applicable;
(ii) without the affirmative vote of a majority of the members of
the board of directors (or Persons performing similar functions) of the
Club Trustee (which must include the affirmative vote of at least one duly
appointed Independent Director (as defined in the Club Trust Agreement)),
(A) dissolve or liquidate, in whole or in part, or institute proceedings
to be adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the corporation or a substantial part of its
property, (E) make a general assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts generally as they become
due, (G) terminate the Club Managing Entity as manager under the Club
Management Agreement or (H) take any corporate action in furtherance of
the actions set forth in clauses (A) through (G) above; provided, however,
that no director may be required by any shareholder or beneficiary of the
Club Trustee to consent to the institution of bankruptcy or insolvency
proceedings against the Club Trustee so long as it is solvent;
(iii) merge or consolidate with any other corporation, company or
entity or sell all or substantially all of its assets or acquire all or
substantially all of the assets or capital stock or other ownership
interest of any other corporation, company or entity; or
(iv) with respect to the Club Trustee, amend or otherwise modify its
Amended and Restated Articles of Incorporation or Bylaws or any
definitions contained therein in a manner adverse to the Indenture Trustee
or any Noteholder without the prior written consent of the Facility
Administrator.
(e) Indebtedness. The Club Trustee shall not incur any Indebtedness
other than (i) trade payables and operating expenses (including taxes)
incurred in the ordinary course of business or (ii) in connection with
servicing Resort Interests included in the Club's trust estate in the
ordinary course of business consistent with past practices; provided, that
in no event shall the Club Trustee incur Indebtedness for borrowed money.
(f) Amendments. The Club Trustee agrees not to amend or otherwise
modify the Club Trust Agreement in a manner which could reasonably be
expected to have an adverse effect on the Trust Assets, the Trust, the
Indenture Trustee or the Noteholders, without the prior written consent of
the Facility Administrator.
Section 6.3. General Covenants of the Servicer and Bluegreen.
Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, so long as the Servicer is Bluegreen,
the Servicer (and, Bluegreen, as applicable) covenants and agrees that:
(a) Financial Covenants
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(i) Net Worth. Servicer agrees to maintain a Tangible Net Worth as
of the last day of each calendar quarter equal to or greater than the sum
of (i) 75% of Tangible Net Worth as of the end of the calendar quarter
immediately prior to the date hereof plus (ii) 50% of Consolidated Net
Income for each calendar quarter ending since such date.
(ii) Leverage Ratio. The Servicer shall not permit its Leverage
Ratio as of the last day of any calendar quarter to exceed 2.50:1.
(iii) Interest Coverage Ratio. The Servicer shall not permit its
Interest Coverage Ratio as of the last day of any calendar quarter to be
less than 2.00:1. For the avoidance of doubt, a negative Consolidated
Interest Expense number shall be deemed to be zero.
(iv) Bluegreen Points. The Servicer shall not permit the total
number of Vacation Points available at any time to be less than
930,661,200, which number represented at least 90% of all Vacation Points
as of December 31, 2005.
(v) Resorts. The Servicer shall not permit the total number of
resorts included in the Club to be less than thirty-nine (39), which
number represented approximately 90% of all resorts included in the Club
as of December 31, 2005; provided that for purposes of this clause (v), a
resort shall include all phases, subdivisions and/or developments at the
same or substantially the same geographic location.
(b) Inspections and Audits. Servicer shall, at such reasonable times
during normal business hours and as often as may be reasonably requested,
permit any agents or representatives of the Facility Administrator to
inspect the Eligible Resorts and any of Servicer's assets (including
financial and accounting books and records) relating thereto, to examine
and make copies of and abstracts from the records and books of account of
the Servicer or the Time Share Association (to the extent controlled by
the Servicer) or serviced under the Servicing Agreement and to discuss its
affairs, finances and accounts with any of its officers, employees or
independent public accountants. Servicer acknowledges that the Facility
Administrator intends to conduct such audits and inspections on at least
an annual basis. Servicer shall make available to the Facility
Administrator all credit information in Servicer's possession or under
Servicer's control with respect to Obligors as the Facility Administrator
may reasonably request. Upon the Facility Administrator's request,
Servicer shall furnish to Facility Administrator evidence of payment of
all real estate taxes relating to the Eligible Resorts. Servicer (to the
extent Bluegreen or an Affiliate thereof is the Servicer hereunder) shall
be required to pay all reasonable fees, costs and expenses incurred by the
Facility Administrator for any and all Eligible Resorts inspections,
audits and any other diligence relating to Servicer's finances or books or
records.
(c) Maintenance. For so long as the Time Share Association for the
Eligible Resorts is managed by the Club Managing Entity, the Servicer
shall use commercially reasonable best efforts to maintain the Eligible
Resorts in good repair, working order and condition (ordinary wear and
tear excepted).
(d) Management Contract. For so long as the Time Share Association
for the Eligible Resorts is managed by the Club Managing Entity, the
manager, related management contract and master marketing and sale
contract (if applicable) for each Eligible Resort shall at all
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times be reasonably satisfactory to the Facility Administrator. For so
long as the Time Share Association for the Eligible Resorts is managed by
the Club Managing Entity, the related management contract and master
marketing and sale contract (if applicable) may not be amended or modified
in a manner which could reasonably be expected to have a Material Adverse
Effect, without the prior written consent of the Facility Administrator.
(e) Release and Bonding of Liens. In the event any Lien (other than
a Permitted Lien) attaches to any Receivable or related Trust Asset from
any Person claiming from and through the Servicer or one of its
Affiliates, the Servicer 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 Indenture Trustee with a bond in accordance
with the applicable laws of the state in which the Receivable or related
Trust Asset is located, issued by a corporate surety acceptable to the
Indenture Trustee, in an amount and in form reasonably acceptable to the
Indenture Trustee, or (c) provide the Indenture Trustee with such other
security as the Indenture Trustee may reasonably require.
(f) Claims. Servicer shall: (a) promptly notify the Indenture
Trustee and the Facility Administrator of (i) any claim, action or
proceeding which may be reasonably expected to have a Material Adverse
Effect, and (ii) any action, suit, proceeding, order or injunction of
which Servicer becomes aware after the date hereof pending or threatened
against or affecting Servicer or any Affiliate which may be reasonably
expected to have a Material Adverse Effect; (b) at the request of Trust
with respect to a claim or action or proceeding which arises from or
through the Servicer or one of its Affiliates, appear in and defend, at
Servicer's expense, any such claim, action or proceeding which would have
a Material Adverse Effect; and (c) comply in all respects, and shall cause
all Affiliates to comply in all respects, with the terms of any orders
imposed on such Person by any Governmental Authority the failure to comply
with which would have a Material Adverse Effect.
(g) Negative Pledge. Except as contemplated by the Transaction
Documents, the Servicer (i) shall not, and shall not permit the Club
Managing Entity or any other Seller Party to, encumber, pledge or
otherwise ▇▇▇▇▇ ▇ ▇▇▇▇ on the Reservation System (including, without
limitation, all hardware, software and data in respect thereof), any
Operating Contract or the Club Management Agreement, (ii) shall, and shall
cause the Club Managing Entity, to use commercially reasonable efforts to
keep the Reservation System operational, not to dispose of the same and to
allow the Club the use of, and access to, the Reservation System in
accordance with the terms of Club Management Agreement and (iii) shall not
permit Bluegreen Vacations Unlimited, Inc. or any other Seller Party to
encumber, pledge or otherwise ▇▇▇▇▇ ▇ ▇▇▇▇ in respect of its interest as a
Class B member in Bluegreen Vacation Club, Inc.
(h) Negative Pledge on Amenities and Common Areas. The Servicer
shall (i) not, and shall not permit any other Seller Party or any Time
Share Association managed by the Club Managing Entity to, and (ii) use its
best efforts to not permit any other Time Share Association to, encumber,
pledge or otherwise ▇▇▇▇▇ ▇ ▇▇▇▇ on any amenities or common areas or
furnishings in respect of the Eligible Resorts.
(i) Modifications of Receivables. Except in connection with a
reduction or increase in the interest rate not in excess of 1.0% in
respect of an Obligor's election to begin or cease
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making payments via pre-authorized checking, in connection with Upgrades
or in connection with modifications to comply with the Servicemembers
Civil Relief Act, the Servicer shall not reschedule, revise downward or
defer payments on a Receivable or modify the terms or conditions of the
related Contract or Mortgage in a manner adverse to the Trust unless the
Note Majority shall have consented in writing to the same; provided that
the Servicer shall, without the consent of the Note Majority, be permitted
to modify, waive or amend the terms or conditions of the related Contract
with respect to Receivables representing not more than 1.00% of the
aggregate advances made under the Notes in connection only with Workout
Receivables.
(j) General. At all times during the term of this Agreement to the
extent not required to be retained by the Custodian, Servicer shall
maintain complete and accurate files and records pertaining to each
Receivable and related Trust Assets and of all business activities and
operations conducted by Servicer in connection with its performance under
this Agreement. All such files and records shall, upon the Indenture
Trustee's request, be delivered to the Indenture Trustee or its designee
upon early termination of this Agreement.
(k) Notices to Obligors.
(i) Promptly after the Closing Date or applicable Transfer Dates, as
the case may be, and, in any event, not later than five (5) Business Days
thereafter, the Servicer will direct or otherwise cause all Obligors of
Receivables, and shall instruct or cause all future Obligors of such
Receivables with respect to such Receivables, to remit all payments with
respect to such Receivables only (x) by check, money order, phone payment,
or Western Union Quick Collect mailed to, or generated by, an office of
the Servicer, (y) by check, wire transfer, money order or moneygram to the
Lockbox or Lockbox Account or (z) by pre-authorized checking or credit
card payment for deposit into the Lockbox Account.
(ii) Within 30 days of the related Transfer Date for an Aruba
Receivable, the Servicer shall confirm to the Custodian that notices have
been mailed out to each Obligor under an Aruba Receivable that such Aruba
Receivable has been transferred and assigned to the Trust and that the
Trust has in turn, pledged such Aruba Receivable to the Indenture Trustee,
in trust, for the benefit of the Noteholders. Such notice may include any
notice or notices that the Bluegreen Properties, N.V.'s predecessors in
title to the Aruba Receivable may give to the same Obligor with respect to
any transfers and assignments of the Receivable by such predecessors. Such
notice shall be in the form attached hereto as Exhibit N, as the same may
be amended, revised or substituted by the Facility Administrator and the
Servicer from time to time.
(l) Compliance with Agreements and Requirements of Laws. The
Servicer will comply, and cause its Affiliates to comply, in all respects
with all applicable Requirements of Law, including, without limitation,
all Requirements of Law that require the provision by the Trust, the
Indenture Trustee, any Noteholder or Servicer of notices, disclosures or
other communications to Obligors or to any other Person that has an
interest in any property securing a Receivable, except where the failure
to so comply could not reasonably be expected to have a Material Adverse
Effect. The Servicer will preserve and maintain its corporate existence,
rights, licenses, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where its business is
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conducted, except where the failure to so preserve and maintain or qualify
could not reasonably be expected to have a Material Adverse Effect.
(m) Real Estate Taxes. Servicer will pay, or cause to be paid (to
the extent funds are available from the Time Share Association), when due
all of Servicer's and its Affiliates' liabilities in respect of real
estate taxes relating to the Eligible Resorts. Servicer will pay, or cause
to be paid, when due all of Servicer's and its Affiliates' liabilities in
respect of real estate taxes relating to any shortfall pursuant to
keepwell arrangements with the Timeshare Associations or otherwise in
respect of unsold Intervals. Servicer shall notify the Facility
Administrator promptly of the non-payment of real estate taxes relating to
the Eligible Resorts.
(n) Taxes. The Servicer will file or cause to be filed all United
States federal tax returns and all other material tax returns and reports
required by law to be filed by it and will promptly pay all taxes and
governmental charges at any time owing by it except any such taxes which
are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
(o) Collection Policies.
(i) The Servicer will (and will cause the Sellers to) (A) 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 (B) comply in all material respects with the
Collection Policies in regard to each Receivable and the related Contract.
(ii) At least thirty (30) days prior to the effectiveness of any
change in or amendment to any Collection Policy that would materially and
adversely affect or impair the collectibility of any Receivable or that is
a material change, the Servicer shall provide to the Facility
Administrator a copy of the Collection Policies then in effect and a
notice indicating such change or amendment, requesting the Noteholders'
consent thereto. The Servicer shall provide a copy of any change or
amendment to any Collection Policy within thirty (30) days after the
effectiveness of such change in or amendment to any Collection Policy. For
purposes of this section, any change that would cause the Issuer to not be
a qualifying special purpose entity, as "qualifying special purpose
entity" is defined under GAAP, shall be material.
(p) Insurance.
(i) The Servicer shall maintain, or cause to be maintained, with
financially sound and reputable insurance companies, such insurance
coverage as may be required by any Requirements of Law or pursuant to any
Declarations. The Servicer shall use its best efforts to cooperate with
and assist the Trust and the Indenture Trustee to enable the Trust and the
Indenture Trustee to (x) obtain an endorsement showing the Indenture
Trustee as mortgage loss payee with respect to each policy of property and
casualty insurance with respect to each Eligible Resort, to the extent of
its interest thereunder and to the extent that it is entitled thereto
under the Declarations, (y) obtain the benefits of a mortgagee under the
Declarations with respect to such insurance and (z) exercise the rights
and remedies of a mortgagee under the Declarations. On or before March 31
of each year commencing in 2007 or at any time upon request of the
Facility
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Administrator, the Servicer shall deliver to the Facility Administrator,
certifications evidencing coverage under all insurance policies described
above.
(ii) If (A) the deductible with respect to any all-risk property
casualty insurance policy (excluding in respect of earthquake, flood and
windstorm damage risk) or any third-party liability insurance policy
exceeds $100,000 per occurrence and (B) after the occurrence of a loss,
the applicable Time Share Association (x) must pay such deductible to
obtain the benefits of such insurance and (y) is unable to pay such
deductible, from the proceeds of assessments to owners of an Interval or
cash reserves or otherwise, the Servicer shall be obligated to advance
(for the purpose of satisfying such deductible) to the Time Share
Association the amount of such deductible that is in excess of $100,000 in
order to obtain the benefits of such insurance policies.
(q) Exceptions; Recordation. The Servicer shall cause all exceptions
to a Receivable File to be rectified within sixty (60) days of the related
Transfer Date for such Receivable File. As soon as practicable after the
related Transfer Date (but in no event later than ten (10) Business Days
after such date (or as soon as practicable with respect to Receivables for
which the original Mortgages are still at the related recording office)),
the Servicer shall deliver in proper form for recording all Mortgage
Assignments in respect of the Trust Assets to be recorded in the
appropriate offices. Notwithstanding the foregoing sentence, the Servicer
shall cause all evidences of recordation and all title insurance policies
for which title commitments were delivered on the related Transfer Date to
be delivered to the Custodian to be held as part of the Receivables File
promptly after the Servicer's receipt of the same and in any event within
180 days of the related Transfer Date.
(r) Remarketing. Bluegreen shall be obligated to use commercially
reasonable efforts to remarket the Intervals related to Defaulted
Receivables. Bluegreen shall not, with respect to the remarketing of the
Intervals associated with the Defaulted Receivables and related Trust
Assets, make any "adverse selection" with respect to such Trust Assets
vis-a-vis other receivables serviced by Bluegreen. Bluegreen, on behalf of
the Trust and at the discretion of the Facility Administrator, shall take
all necessary steps to have the record title of the applicable Resort
Interests subject to such Defaulted Receivables continue to be held by the
Club Trustee. In such event, Bluegreen shall direct the Club Trustee,
directly or through its agents, (i) to exercise the remedies provided for
in the Club Trust Agreement, in the Receivables themselves or in the other
Club documents with respect to such Defaulted Receivables and the Obligors
thereunder and (ii) to remarket the "Owner Beneficiary Rights" (as defined
in the Club Trust Agreement) of the Obligors under such Defaulted
Receivables with the purpose of effecting a recovery of the maximum
proceeds in respect of such Defaulted Receivables or finding replacements
therefor. Bluegreen, at the request of the Facility Administrator, shall
reserve its rights under the Club Trust Agreement and/or the applicable
Mortgages to obtain, at any time, record title and all beneficial
interests in respect of the Intervals related to Defaulted Receivables.
All actions taken by Bluegreen in respect of any Defaulted Receivable
shall, at all times, be carried out in a manner such that none of the
Trust, the Facility Administrator, the Owner Trustee or the Indenture
Trustee shall, under Requirements of Law, be deemed to be the developer or
declarant of any Eligible Resort or the Club. Bluegreen shall deposit the
proceeds associated with the remarketing of the Interval related to a
Defaulted Receivable into the Collection Account and shall be paid the
"Remarketing Fee" associated with such Interval from the proceeds of the
remarketing thereof pursuant to Section 2.11 or pursuant to the Servicer
Purchase Option. Bluegreen (in the event the
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Servicer is Bluegreen or an Affiliate thereof other than the Trust
Depositor) shall at all times have the right (but not the obligation) to
utilize the Servicer Purchase Option as set forth in Section 2.12 in lieu
of performing the remarketing functions set forth in this Section. In
connection with Bluegreen's performance of its remarketing duties
hereunder Bluegreen (i) will undertake such duties in the ordinary course
in a manner similar and consistent with (or better than) the manner in
which Bluegreen sells or markets other timeshare properties it or its
Affiliates owns and (ii) may not sell any Defaulted Receivables that are
Trust Assets except for or as specifically permitted by this Agreement.
Any proceeds from remarketing deposited into the Collection Account shall
be in the form of cash. In no event shall the Trust originate any loan in
connection with such remarketing.
(s) Servicer Advances. The Servicer is obligated to make on the
Business Day preceding a Payment Date advances of regularly scheduled
principal and interest payments relating to any Receivable the subject of
a delinquent payment (other than a Defaulted Receivable with respect to
which there shall be no Servicer Advances) if it determines in its sole
discretion that such advances will be recoverable in future periods (each
a "Servicer Advance" and collectively the "Servicer Advances"). Such
Servicer Advances are reimbursable from Collections pursuant to Section
2.11.
(t) Termination of Club Managing Entity. The Servicer shall not
permit the Club Managing Entity to terminate the Club Management Agreement
without the prior written consent of the Facility Administrator, such
consent not to be unreasonably withheld or delayed.
(u) Modifications to Collection Policy. Without the prior written
consent of the Note Majority, the Servicer will not, and will not permit
any Seller Party to, make any change that would materially and adversely
affect or impair the collectibility of any Receivable or that is a
material change, to any Collection Policy. For purposes of this section,
any change that would cause the Issuer to not be a qualifying special
purpose entity, as "qualifying special purpose entity" is defined under
GAAP, shall be material.
(v) Fidelity Bond and Errors and Omissions Insurance. On or prior to
the Closing Date, the Servicer shall maintain or cause to be maintained
fidelity bond and errors and omissions insurance with respect to the
Servicer in a minimum amount of $1,000,000 per policy and shall name the
Indenture Trustee as an additional insured. No provision of this clause
(v) requiring such fidelity bond or errors and omissions insurance shall
diminish or relieve the Servicer from its duties and obligations as set
forth in this Indenture. The Servicer shall be deemed to have complied
with this provision if one of its respective Affiliates has such fidelity
bond or errors and omissions insurance coverage and, by the terms of such
fidelity bond or errors and omissions insurance policy, the coverage
afforded thereunder extends to the Servicer. On or before March 31 of each
year commencing in 2007 or at any time upon request of the Facility
Administrator, the Servicer shall deliver to the Facility Administrator, a
certification evidencing coverage under such fidelity bond and the errors
and omissions insurance. Any such fidelity bond or errors and omissions
insurance policy (or endorsement thereto) shall contain a provision that
such policy shall not be canceled or modified without ten (10) Business
Days prior written notice to the Facility Administrator or such other
amendment or cancellation provisions as may be acceptable to the Facility
Administrator; provided that Servicer agrees to use commercially
reasonable efforts to
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require the applicable insurer to provide 30 days prior written notice of
any cancellation or modification.
ARTICLE VII
SUBJECT TO CLUB TRUST AGREEMENT
Section 7.1. Rights Subject to Club Trust Agreement. Notwithstanding
anything to the contrary set forth herein or in any other Transaction Documents
or otherwise, all references to the rights of the Trust and the Indenture
Trustee with respect to Receivables shall be subject at all times to the
provisions of the Club Trust Agreement and the other agreements executed by the
Beneficiaries in connection therewith.
ARTICLE VIII
SERVICER TERMINATION EVENTS
Section 8.1. Servicer Termination Events.
Each of the following events shall constitute a "Servicer Termination
Event":
(a) any failure by the Servicer to make any payment or deposit
required to be made by the Servicer hereunder, under the Lockbox Agreement
or any other Transaction Document and the continuance of such failure for
a period of one (1) Business Day after the date on which such payment or
deposit was due and not made provided, however, that in the event of a
Force Majeure Delay, the period within which the Servicer shall make such
payment or deposit shall be extended to such longer period as is
appropriate, not to exceed 10 Business Days;
(b) failure on the Servicer's part to observe or perform in any
material respect any covenant or agreement in this Agreement, the Lockbox
Agreement or any other Transaction Document (other than a covenant or
agreement, the breach of which is specifically addressed elsewhere in this
Section) which continues unremedied for 30 days after the earlier of (i)
the date on which notice of such failure is delivered to Servicer or (ii)
Servicer otherwise has actual knowledge of such fact;
(c) any assignment by the Servicer of its duties or rights
hereunder, under the Lockbox Agreement, or any other Transaction Document,
except as specifically permitted hereunder or thereunder, or any attempt
to make such an assignment;
(d) an involuntary case under any applicable bankruptcy, insolvency
or other similar law shall have been commenced in respect of the Servicer
and shall not have been dismissed within 30 days, or a court having
jurisdiction in the premises shall have entered a decree or order for
relief in respect of the Servicer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Servicer or for any
substantial liquidation or winding up of its affairs;
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(e) the Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or other similar official) of the
Servicer or for any substantial part of its property, or shall have made
any general assignment for the benefit of its creditors, or shall have
failed to, or admitted in writing its inability to, pay its debts as they
become due, or shall have taken any corporate action in furtherance of the
foregoing;
(f) (i) any failure by the Servicer to comply with the covenants
contained in Section 6.3(a) which remains uncured for 30 days after the
date on which such failure commences, (ii) any failure by the Servicer or
Bluegreen to comply with the covenants contained in Section 6.3 (b), (g),
(h), (i), (k), (l), (n), (p), (q) or (v); (iii) any failure by the
Servicer to deliver the reports described in Article IX of this Agreement
which remains uncured for five (5) Business Days after the date on which
such failure commences; provided, however that the period within which
Servicer shall deliver such reports shall be extended to such longer
period up to 10 Business Days as is appropriate in the event of a Force
Majeure Delay; or (iv) any failure on the part of the Servicer or
Bluegreen to observe or perform any of its covenants or agreements set
forth in any Transaction Document (other than as expressly provided for in
another clause of this Section 8.1), which failure continues unremedied
for a period of 30 days after the earlier of (i) the Servicer or Bluegreen
obtains actual knowledge of such failure after due inquiry or (ii) the
Facility Administrator, the Indenture Trustee or the Custodian provides
the Servicer or Bluegreen with written notice of such failure.
(g) any representation, warranty or statement of the Servicer made
in this Agreement or any certificate, report or other writing delivered
pursuant hereto shall prove to be incorrect in any material respect as of
the time when the same shall have been made and, within 30 days after the
earlier of (i) written notice thereof shall have been given to the
Servicer by the Trust, the Indenture Trustee or the Facility Administrator
or (ii) the Servicer otherwise has actual knowledge thereof, the
circumstances or condition in respect of which such representation,
warranty or statement was incorrect shall not have been eliminated or
otherwise cured;
(h) a default or breach shall occur under any other agreement,
document or instrument to which the Servicer is a party or by which the
Servicer or its property is bound that is not cured within any applicable
grace period therefor, and such default or breach (i) involves the failure
to make any payment when due in respect of any Indebtedness of the
Servicer in excess of five percent (5%) of the Servicer's Tangible Net
Worth, (ii) causes, or permits any holder of such Indebtedness or a
trustee or agent to cause, Indebtedness or a portion thereof in excess of
five percent (5%) of the Servicer's Tangible Net Worth to become due prior
to its stated maturity or prior to its regularly scheduled dates of
payment, regardless of whether such default is waived, or such right is
exercised, by such holder, trustee or agent; provided that it shall not be
a Servicer Termination Event solely under this clause (ii) if such default
or breach is cured or waived within 60 days after the occurrence thereof
so long as such cure or waiver is being diligently pursued, or (iii)
results in such Indebtedness becoming due prior to its stated maturity or
prior to its regularly scheduled dates of payment;
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(i) as of any Determination Date, the Trailing Three Month (60 to
120) Day Delinquency Rate exceeds 7.0% and such excess shall exist for 30
days;
(j) as of any Determination Date, the Trailing Six Month Default
Rate exceeds 8.0% and such excess shall exist for 30 days;
(k) as of any Determination Date, with respect to any Tranche, the
Lifetime Cumulative Default Rate for such Tranche shall exceed the
Lifetime Servicer Cumulative Default Threshold for such Tranche and such
excess with respect to such Tranche shall continue for 30 days;
(l) any Eligible Resort (except for La Cabana Beach & Racquet Club
and Casa del Mar Beach Resort or other resort approved by the Noteholders)
shall fail to be a Bluegreen Vacation Club Component Site Resort or
otherwise fail to maintain all rights and privileges with respect to the
Club, and such failure shall exist for 30 days;
(m) any Eligible Resort (except for La Cabana Beach & Racquet Club
and Casa del Mar Beach Resort or other resort approved by the Noteholders)
shall cease to be managed and operated by Bluegreen or one of its
Subsidiaries and such condition shall continue for 30 days; provided that
it shall not be a Servicer Termination Event under this clause (m) if any
successor manager or operator of any Eligible Resort (other than Bluegreen
or one of its Subsidiaries) is reasonably acceptable to the Facility
Administrator; provided further that this clause (m) shall not be a
Servicer Termination Event so long as none of General Electric Capital
Corporation or any of its Affiliates is the Facility Administrator or a
Noteholder;
(n) the operating budgets and reserve accounts for the Time Share
Associations at each Eligible Resort (except for La Cabana Beach & Racquet
Club and Casa del Mar Beach Resort) shall fail to be maintained in
compliance with all applicable Requirements of Law and the applicable Time
Share Documents and such failure shall continue for 30 days; or
(o) a Change of Control shall occur.
In the event that any party hereto becomes aware of a Servicer Termination Event
(or an event which with the passage of time or giving of notice would become a
Servicer Termination Event) such party shall promptly notify the other parties
hereto. Additionally, upon the occurrence of a Servicer Termination Event and
the Facility Administrator's giving of notice of a Service Transfer pursuant to
Section 8.2(a) hereof, such Servicer Termination Event shall be irrevocably
deemed to have "occurred and be continuing" unless otherwise waived by more than
50% of the Outstanding Amount; provided, further, that so long as Bluegreen or
an Affiliate of Bluegreen is not the Servicer, clauses (h) through (o) of this
Section 8.1 shall not constitute a Servicer Termination Event.
Section 8.2. Service Transfer.
(a) If a Servicer Termination Event has occurred and is continuing,
the Facility Administrator, at the direction of the Noteholders shall, by
written notice delivered to the Servicer, terminate all (but not less than
all) of the Servicer's management, administrative, servicing, custodial
and collection functions (such termination being herein called a "Service
Transfer" and such terminated Servicer, being called a "Predecessor
Servicer"); provided that notwithstanding
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anything in this Agreement to the contrary, in the event the Back-up
Servicer shall become the Servicer hereunder, at any time thereafter the
Back-up Servicer may resign from its duties as Servicer upon ninety (90)
days written notice to the Indenture Trustee and the Facility
Administrator.
(b) Upon receipt of the notice required by Section 8.2(a) (or, if
later, on a date designated therein), all rights, benefits, fees,
indemnities, authority and power of the Servicer under this Agreement,
whether with respect to the Trust Assets or otherwise shall pass to and be
vested in the Back-up Servicer (the "Successor Servicer") pursuant to and
under this Section 8.2; and, without limitation, the Successor Servicer is
authorized and empowered to execute and deliver on behalf of the Servicer,
as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. In the event that
the Back-up Servicer is unable to act as the Successor Servicer, subject
to Section 3.7(e) of the Indenture, the Indenture Trustee without further
action shall be appointed as Successor Servicer pursuant to and under this
Section 8.2. The Servicer agrees to cooperate with the Successor Servicer
in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the transfer to the
Successor Servicer for administration by it of all cash amounts which
shall at the time be held by the Servicer for deposit, or have been
deposited by the Servicer, in the Collection Account, or for its own
account in connection with its services hereafter or thereafter received
with respect to the Receivables and the related Trust Assets. The Servicer
shall transfer to the Successor Servicer (i) all records held by the
Servicer relating to the Receivables and the related Trust Assets in such
electronic form as the Successor Servicer may reasonably request and (ii)
any Receivables Files in the Servicer's possession relating to the
Receivables and the related Trust Assets. In addition, the Servicer shall
permit access to its premises during normal business hours provided
reasonable notice has been provided to the Servicer (including all
computer records and programs to the extent permitted under any related
licensing agreements) to the Successor Servicer or its designee, and shall
pay the reasonable out-of-pocket transition expenses of the Successor
Servicer.
Section 8.3. Successor Servicer to Act; Appointment of Successor Servicer.
On or after a Service Transfer pursuant to Section 8.2, the Successor Servicer
shall be the successor in all respects to the Servicer in its capacity as
Servicer under this Agreement and the other Transaction Documents and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof, and the terminated Servicer shall be
relieved of such responsibilities, duties and liabilities arising after such
Service Transfer; provided, however, that the Successor Servicer shall not be
liable for any acts or omissions of the Servicer occurring prior to such Service
Transfer or for any breach by the Servicer of any of its representations and
warranties or covenants contained herein or in any related document or
agreement. On or after a Service Transfer pursuant to Section 8.2, the Successor
Servicer shall be the successor in all respects to the Trust Administrator in
its capacity as Trust Administrator under the Administration Agreement and the
transactions set forth or provided for therein.
Section 8.4. Effect of Transfer.
(a) After a Service Transfer, the terminated Servicer shall have no
further obligations with respect to the management, administration,
servicing, custody or collection of the Receivables and the related Trust
Assets and the Successor Servicer appointed pursuant to Section 8.2 shall
have all of such obligations, except that the terminated Servicer will
transmit or cause to
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be transmitted directly to the Successor Servicer for its own account,
promptly on receipt and in the same form in which received, any amounts
(properly endorsed where required for the Successor Servicer to collect
them) received as payments upon or otherwise in connection with the
Receivables and the related Trust Assets.
(b) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the
Servicer) other than those relating to the management, administration,
servicing, custody or collection of the Receivables and the related Trust
Assets.
Section 8.5. Successor Servicer Indemnification. The Servicer shall
defend, indemnify and hold the Successor Servicer and any officers, directors,
employees or agents of the Successor Servicer harmless against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and any other costs, fees, and expenses that the Successor
Servicer may sustain in connection with the claims asserted at any time by third
parties against the Successor Servicer which result from (i) any illegal,
willful or grossly negligent act taken or omission by the Servicer or (ii) a
breach of any representations or covenants of the Servicer in Sections 5.5 and
6.3 hereof. The indemnification provided by this Section 8.5 shall survive the
termination of this Agreement.
Section 8.6. Responsibilities of the Successor Servicer. The Successor
Servicer will not be responsible for delays attributable to the Predecessor
Servicer's failure to deliver information, defects in the information supplied
by the Predecessor Servicer or other circumstances beyond the control of the
Successor Servicer.
The Successor Servicer will make arrangements with the Servicer for the
prompt and safe transfer of, and the Predecessor Servicer shall provide to the
Successor Servicer, all necessary servicing files and records, including (as
deemed necessary by the Successor Servicer at such time): (i) microfiche loan
documentation, (ii) servicing system tapes, (iii) Receivable payment history,
(iv) collections history and (v) the trial balances, as of the close of business
on the day immediately preceding conversion to the Successor Servicer,
reflecting all applicable loan information.
The Successor Servicer shall have no responsibility and shall not be in
default hereunder nor incur any liability for any failure, error, malfunction or
any delay in carrying out any of its duties under this Agreement if any such
failure or delay results from the Successor Servicer acting in accordance with
information prepared or supplied by a Person other than the Successor Servicer
or from the failure of any such Person to prepare or provide such information.
The Successor Servicer shall have no responsibility, shall not be in default and
shall incur no liability (i) for any act or failure to act by any third party,
including the Servicer or for any inaccuracy or omission in a notice or
communication received by the Successor Servicer from any third party or (ii)
which is due to or results from the invalidity, unenforceability of any
Receivable with Requirements of Law or the breach or the inaccuracy of any
representation or warrant made with respect to any Receivable.
Section 8.7. Waiver of Servicer Termination Event. Noteholders
representing more than 50% of the Outstanding Amount, may, by written notice
delivered to the parties, waive any Servicer Termination Event.
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ARTICLE IX
PERFORMANCE AND DUTIES OF SERVICER
Section 9.1. General Requirements of Servicer. Servicer will maintain a
loan processing database and will service the Receivables and the other Trust
Assets in accordance with generally accepted receivables servicing practices for
similar types of receivables. In the performance of its duties, unless otherwise
specifically provided herein, Servicer shall comply with the terms of the
Receivables signed by the Obligor. Servicer shall use commercially reasonable
efforts (consistent with the preceding sentence) to collect and shall process
all payments in accordance with its present practice. Servicer shall also
provide the Facility Administrator with monthly reports of all cash flow
(including any delinquencies), together with such other information reasonably
requested by the Facility Administrator all in the form attached hereto as
Schedule II as well as the reports described in this Article IX; provided,
however, in the event of a Service Transfer, the Back-up Servicer shall provide
the Facility Administrator with monthly reports of all cash flow (including any
delinquencies), together with such other information reasonably requested by the
Facility Administrator in the form attached hereto as Schedule II as well as the
reports described in Sections 9.4 and 9.6 hereof only. Bluegreen will remarket
Intervals related to Defaulted Receivables pursuant to Section 6.3(r) hereof and
make Servicer Advances pursuant to Section 6.3(s) hereof. Notwithstanding
anything to the contrary contained herein, upon a Service Transfer, the Back-up
Servicer shall be under no obligation to remarket Intervals related to Defaulted
Receivables pursuant to Section 6.3(r) hereof, make Servicer Advances pursuant
to Section 6.3(s) hereof or provide the information set forth in Section 9.4(h)
or Section 9.12 hereof.
Section 9.2. Servicer as Independent Contractor. Servicer shall have the
status of an independent contractor. Nothing herein contained shall be
considered to create a partnership or joint venture between the Trust, the
Facility Administrator, the Servicer or any Noteholder. Servicer is not to be
considered an agent or employee of the Trust or the Facility Administrator for
any purpose, and the employees of Servicer are not entitled to any of the
benefits that the Trust, the Facility Administrator or any Noteholder provides
its employees.
Section 9.3. [Omitted]
Section 9.4. Description of Reports. For each Collection Period during the
term of this Agreement, Servicer will prepare the following standard industry
reports and submit them to the Facility Administrator and the Indenture Trustee
no later than the second Business Day prior to the related Payment Date
(collectively, the "Monthly Report"):
(a) Title: Trial/Aging Balance Report
Purpose: A listing of all Receivables indicating the
outstanding principal balance of each Receivable and
the aggregate outstanding balance of all Receivables.
(b) Title: New Receivables Report
Purpose: A listing of all Receivables added to the Receivables
Pool during such month.
(c) Title: Cash Receipts Report
Purpose: A listing of all Receivables showing the following
with
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respect to each Receivable and totals with respect to
all Receivables: payments received, showing a
breakdown into principal, interest and other amounts
paid.
(d) Title: Delinquency/Default/Aging Report
Purpose: A listing of all Receivables showing delinquencies,
broken down into columns indicating the length of
such delinquencies at 30 days, 60 days, 90 days, and
120 days or more, a listing of all Defaulted
Receivables and a computer diskette or magnetic tape
prepared in the form of Schedule II hereto which
provides the aging history of the Receivables.
(e) Title: Cancellation, Prepayment, Upgrades, Aging,
Remarketing, Payoff and Servicer Purchase Option
Report
Purpose: A listing of all Receivables which were: canceled,
paid off in their entirety, the subject of a
prepayment or Upgrade or subject to the Servicer
Purchase Option. An aging report of all repossessed
Intervals. A listing of all Receivables subject to
remarketing with the sales price of all remarketed
Intervals compared against the original sales price.
(f) Title: Summary Report
Purpose: A report in the form of Schedule II attached hereto
or such other form as approved by the Facility
Administrator summarizing changes from the prior
month's report. The Facility Administrator may from
time to time in its reasonable discretion modify the
reporting requirements and add reports on an
as-needed basis, which Servicer shall complete in a
timely fashion. Servicer and the Facility
Administrator shall agree upon the timing of
preparation and delivery of additional reports and
the additional cost, if any, of the modification.
(g) Title: Cash Flow Report
Purpose: A report which delineates total Collections received
for a Collection Period, Servicer Advances made with
respect to the related Payment Date as well as fees
to third party service providers (i.e. Indenture
Trustee Fees, Lockbox Fees, etc.).
(h) Title: Vacation Points
Purpose: A report which lists all outstanding Vacation Points
and the total amount of available Accommodations
relating thereto.
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Section 9.5. Officer's Certificate. The Reports delivered pursuant to
Section 9.4 hereof shall be accompanied by a certificate of an Officer of the
Servicer substantially in the form of Exhibit G, certifying the accuracy of the
Reports and that no Servicer Termination Event or event that with notice or
lapse of time or both would become a Servicer Termination Event has occurred, or
if such event has occurred and is continuing, specifying the event and its
status; provided, however, that this Section 9.5 shall not apply after the
occurrence of a Service Transfer.
Section 9.6. Annual Report of Accountants.
(a) The Servicer shall cause a firm of nationally recognized
independent certified public accountants (the "Independent Accountants")
(provided that if the Back-up Servicer becomes the Servicer hereunder,
such accountants shall not be required to be "nationally recognized"), to
deliver to the Facility Administrator and the Indenture Trustee beginning
on April 30, 2007, with respect to the twelve months ended the immediately
preceding December 31 (or other applicable date), a statement (the
"Accountant's Report") addressed to the Board of Directors of the Servicer
and Servicer will promptly provide a copy to the Facility Administrator
and the Indenture Trustee to the effect that such firm has audited the
financial statements of Servicer and issued its report thereon and that
such audit:
(i) was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records
and such other auditing procedures as such firm considered necessary in
the circumstances; and
(ii) so long as Bluegreen or one of its Affiliates is the Servicer,
included an examination of documents and records relating to the servicing
of the Receivables and the related Trust Assets under this Agreement.
The Accountant's Report shall further state that (so long as Bluegreen or one of
its Affiliates is the Servicer):
(1) a review in accordance with agreed upon procedures was
made of one randomly selected Monthly Report; and
(2) except as disclosed in the Report, no exceptions or
errors in the Monthly Report so examined were found.
(b) The Accountant's Report shall also indicate that the firm is
independent of the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants.
Section 9.7. Annual Statement of Compliance from Servicer. The Servicer
(in the event the Servicer is Bluegreen or an Affiliate thereof) will deliver to
the Facility Administrator and the Indenture Trustee, on or before March 31 of
each year commencing March 31, 2007, an Officer's Certificate stating that (a) a
review of the activities of the Servicer during the prior calendar year and of
its performance under this Agreement was made under the supervision of the
officer signing such certificate, (b) to such officer's knowledge, based on such
review, the Servicer has fully performed all its obligations under this
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Agreement, or, if there has been a default in the performance of any such
obligation, specifying each such default known to such officer and the nature
and status thereof, and (c) to such officer's knowledge, based on such review,
the Servicer has provided all required privacy notices to Obligors in accordance
with and to the extent required by the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, as amended or
modified from time to time.
Section 9.8. Sales and Inventory Reports. A quarterly report showing all
sales and cancellations of sales of Intervals on Eligible Resorts on a resort by
resort basis, in form and content reasonably satisfactory to the Facility
Administrator; and within thirty (30) Business Days after the end of each fiscal
year (provided the Servicer is Bluegreen or an Affiliate thereof), an annual
sales and inventory report for the Eligible Resorts detailing the sales of all
Intervals on a resort by resort basis during such fiscal year and the available
inventory of Units and Intervals, certified by the Servicer (provided the
Servicer is Bluegreen or an Affiliate thereof) to be true, correct and complete
and otherwise in the form approved by the Trust.
Section 9.9. Financial Reports.
(a) Not later than the earlier of (A) 120 days after the end of each
fiscal year of the Servicer and (B) the public filing with the SEC of the
Servicer's Form 10-K for such fiscal year, the Servicer shall deliver to
the Facility Administrator the audited consolidated financial statements
of the Servicer (provided the Servicer is Bluegreen or an Affiliate
thereof).
(b) Not later than the earlier of (A) 60 days after the end of each
of the first three fiscal quarterly periods of each fiscal year of the
Servicer and (B) the public filing with the SEC of the Servicer's Form
10-Q for each such fiscal quarter, the Servicer shall deliver to the
Facility Administrator unaudited financial statements of Servicer
(provided the Servicer is Bluegreen or an Affiliate thereof) certified by
its chief financial officer as fairly presenting the financial position of
Bluegreen and its Subsidiaries, as well as, to the extent requested by the
Facility Administrator and available to Servicer (provided the Servicer is
Bluegreen or an Affiliate thereof), unaudited bi-annual financial
statements of the Time Share Association.
(c) Each delivery of financial statements under this Section 9.9
shall be accompanied by a certificate of the Servicer's chief financial
officer certifying as to its compliance with the covenants contained in
Section 6.3(a).
Section 9.10. Time Share Association Reports; Club Reports.
(a) To the extent the Servicer is Bluegreen and Bluegreen or its
Affiliates control the Eligible Resort, the Servicer shall deliver to the
Facility Administrator the annual unaudited financial statements of each
Time Share Association not later than 90 days, and the annual audited
financial statements of each Time Share Association not later than 180
days, after the end of each fiscal year of the Time Share Association,
and, to the extent the Eligible Resort is not in the Servicer's or one of
its Subsidiaries control, the Servicer shall make a good faith effort to
obtain the same from the respective Time Share Association within such
time periods.
(b) Not later than 180 days after the end of each fiscal year of the
Club, the Servicer shall deliver to the Facility Administrator the annual
financial statements of the Club.
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Section 9.11. Audit Reports. Promptly upon receipt thereof, one (1) copy
of each other report submitted to Servicer by its independent public accountants
in connection with any annual, interim or special audit made by them of the
books of the Servicer.
Section 9.12. Other Reports. Such other reports, statements, notices or
written communications relating to the Servicer, the Time Share Associations or
the Eligible Resorts as are available to Servicer and as the Facility
Administrator may reasonably require.
Section 9.13. SEC Reports. Promptly upon their becoming publicly available
one (1) copy of each financial statement, report, notice or proxy statement sent
by the Servicer to security holders generally, and of each regular or periodic
report and any registration statement, prospectus or written communication
(other than transmittal letters) in respect thereof filed by Servicer with, or
received by Servicer in connection therewith from, any securities exchange or
the Securities and Exchange Commission or any successor agency. The parties
agree that current reports filed on Form 8-K are not regular or periodic reports
required to be delivered hereunder.
ARTICLE X
FACILITY ADMINISTRATOR
Section 10.1. Appointment; Nature of Relationship. General Electric
Capital Corporation is hereby appointed by each Noteholder as its contractual
representative (herein referred to as the "Facility Administrator") hereunder
and under each other Transaction Document, and each of the Noteholders
irrevocably authorizes the Facility Administrator to act as the contractual
representative of such Noteholder with the rights and duties expressly set forth
herein and in the other Transaction Documents. The Facility Administrator agrees
to act as such contractual representative upon the express conditions contained
in this Article X. Notwithstanding the use of the defined term "Facility
Administrator," it is expressly understood and agreed that the Facility
Administrator shall not have any fiduciary responsibilities to any Noteholder by
reason of this Agreement or any other Transaction Document and that the Facility
Administrator is merely acting as the contractual representative of the
Noteholders with only those duties as are expressly set forth in this Agreement
and the other Transaction Documents. In its capacity as the Noteholders'
contractual representative, the Facility Administrator (i) does not hereby
assume any fiduciary duties to any of the Noteholders and (ii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Transaction Documents. Each
of the Noteholders hereby agrees to assert no claim against the Facility
Administrator on any agency theory or any other theory of liability for breach
of fiduciary duty, all of which claims each Noteholder hereby waives.
Section 10.2. Powers. The Facility Administrator shall have and may
exercise such powers under the Transaction Documents as are specifically
delegated to the Facility Administrator by the terms thereof, together with such
powers as are reasonably incidental thereto. The Facility Administrator shall
have no implied duties to the Noteholders, or any obligation to the Noteholders
to take any action thereunder except any action specifically provided by the
Transaction Documents to be taken by the Facility Administrator.
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Section 10.3. General Immunity. Neither the Facility Administrator nor any
of its directors, officers, agents or employees shall be liable to any
Noteholder for any action taken or omitted to be taken by it or them hereunder
or under any other Transaction Document or in connection herewith or therewith
except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
Section 10.4. No Responsibility for Advances, Recitals, etc. Neither the
Facility Administrator nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any
Transaction Document or any advances hereunder; (b) the performance or
observance of any of the covenants or agreements of any obligor under any
Transaction Document, including, without limitation, any agreement by an obligor
to furnish information directly to each Noteholder; (c) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered solely to the Facility Administrator; (d) the existence or possible
existence of any Event of Default, Servicer Termination Event or Termination
Event; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Transaction Document or any other instrument or writing
furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Servicer or its Subsidiaries. The Facility
Administrator shall have no duty to disclose to the Noteholders information that
is not required to be furnished by the Servicer to the Facility Administrator at
such time, but is voluntarily furnished by the Servicer to the Facility
Administrator (either in its capacity as Facility Administrator or in its
individual capacity); provided that if any such information is provided to any
Noteholder by the Facility Administrator, the Facility Administrator shall
provide such information to all Noteholders.
Section 10.5. Action on Instructions of Noteholders. The Facility
Administrator shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under any other Transaction Document in accordance
with written instructions signed by the Noteholders holding the required
percentage of the Outstanding Amount, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Noteholders.
The Noteholders hereby acknowledge that the Facility Administrator shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Transaction Document
unless it shall be requested in writing to do so by the Noteholders. The
Facility Administrator shall be fully justified in failing or refusing to take
any action hereunder and under any other Transaction Document unless it shall
first be indemnified to its satisfaction by the Noteholders pro rata against any
and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
Section 10.6. Employment of Agents and Counsel. The Facility Administrator
may execute any of its duties as Facility Administrator hereunder and under any
other Transaction Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Noteholders, except as to
money or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Facility Administrator shall be entitled to advice of
counsel concerning the contractual arrangement between the Facility
Administrator and the Noteholders and all matters pertaining to the Facility
Administrator's duties hereunder and under any other Transaction Document.
Section 10.7. Reliance on Documents; Counsel. The Facility Administrator
shall be entitled to rely upon any notice, consent, certificate, affidavit,
letter, telegram, statement, paper, data or document
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believed by it to be genuine and correct and to have been signed or sent by the
proper person or persons, and, in respect to legal matters, upon the opinion of
counsel selected by the Facility Administrator, which counsel may be employees
of the Facility Administrator.
Section 10.8. Facility Administrator's Reimbursement and Indemnification.
Each Noteholder agrees to reimburse and indemnify the Facility Administrator
ratably in proportion to the aggregate Outstanding Amount held by such
Noteholder (i) for any amounts not reimbursed by the Servicer, any Seller, the
Trust or the Trust Depositor for which the Facility Administrator is entitled to
reimbursement by the Servicer, any Seller, the Trust or the Trust Depositor
under the Transaction Documents, (ii) for any other expenses incurred by the
Facility Administrator on behalf of the Noteholders, in connection with the
preparation, execution, delivery, administration and enforcement of the
Transaction Documents (including, without limitation, for any expenses incurred
by the Facility Administrator in connection with any dispute between the
Facility Administrator and any Noteholder or between two or more of the
Noteholders) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Facility Administrator in any way relating to or arising out of the
Transaction Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Facility Administrator in
connection with any dispute between the Facility Administrator and any
Noteholder or between two or more of the Noteholders), or the enforcement of any
of the terms of the Transaction Documents or of any such other documents,
provided that no Noteholder shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Facility Administrator. The obligations of the
Noteholders under this Section 10.8 shall survive payment of all amounts
hereunder and termination of this Agreement.
Section 10.9. Notice of Default. The Facility Administrator shall not be
deemed to have knowledge or notice of the occurrence of any Event of Default,
Servicer Termination Event or Termination Event unless the Facility
Administrator has received written notice from a Noteholder, the Trust, the
Trust Depositor, the Indenture Trustee or the Servicer referring to this
Agreement describing such Event of Default, Servicer Termination Event or
Termination Event and stating that such notice is a "notice of default" or words
of similar import. In the event that the Facility Administrator receives such a
notice, the Facility Administrator shall give prompt notice thereof to the
Indenture Trustee and the Noteholders.
Section 10.10. Rights as a Noteholder. In the event the Facility
Administrator is a Noteholder, the Facility Administrator shall have the same
rights and powers hereunder and under any other Transaction Document as any
Noteholder and may exercise the same as though it were not the Facility
Administrator, and the term "Noteholder" or "Noteholders" shall, at any time
when the Facility Administrator is a Noteholder, unless the context otherwise
indicates, include the Facility Administrator in its individual capacity. The
Facility Administrator and its Affiliates may lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Transaction Document, with the
Servicer or any of its Subsidiaries in which the Servicer or such Subsidiary is
not restricted hereby from engaging with any other Person.
Section 10.11. Noteholder Credit Decision. Except as expressly set forth
in this Section 10.11, each Noteholder acknowledges that it has, independently
and without reliance upon the Facility
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Administrator or any other Noteholder and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Transaction Documents. Each
Noteholder also acknowledges that it will, independently and without reliance
upon the Facility Administrator or any other Noteholder and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Transaction Documents. Notwithstanding the foregoing,
the Noteholders acknowledge and the Facility Administrator agrees that the
Facility Administrator will perform certain due diligence including tests
resulting in FICO scores with respect to the Obligors of certain Receivables and
various file review procedures as selected by the Facility Administrator
(collectively, the "Specified Procedures"). The Facility Administrator shall be
under no duty to inquire as to the accuracy or genuineness of the information
provided to it in conducting the Specified Procedures nor shall it have any duty
to review any information other than such files, reports and other information
provided to it by Bluegreen.
Section 10.12. Successor Facility Administrator. The Facility
Administrator, with the written consent of the Servicer (so long as Bluegreen or
an Affiliate thereof is the Servicer), which consent shall not be unreasonably
withheld or delayed, may resign at any time by giving written notice thereof to
the Noteholders and the Servicer, such resignation to be effective upon the
appointment of a successor Facility Administrator or, if no successor Facility
Administrator has been appointed, forty-five days after the retiring Facility
Administrator gives notice of its intention to resign. The Facility
Administrator may be removed at any time with or without cause by written notice
received by the Facility Administrator from all of the Noteholders, such removal
to be effective on the date specified by such Noteholders. Upon any such
resignation or removal, the Noteholders shall have the right to appoint, on
behalf of the Noteholders, a successor Facility Administrator with the written
consent of the Servicer (so long as the Servicer is Bluegreen or an Affiliate
thereof), which such consent shall not be unreasonably withheld or delayed. If
no successor Facility Administrator shall have been so appointed by the
Noteholders within thirty days after the resigning Facility Administrator's
giving notice of its intention to resign, then the resigning Facility
Administrator may appoint, on behalf of the Noteholders, a successor Facility
Administrator. Notwithstanding the previous sentence, the Facility Administrator
may at any time without the consent of the Servicer or any Noteholder, appoint
any of its Affiliates which is a commercial bank or other financial institution
as a successor Facility Administrator hereunder. If the Facility Administrator
has resigned or been removed and no successor Facility Administrator has been
appointed, the Noteholders may perform all the duties of the Facility
Administrator hereunder and for all other purposes shall deal directly with the
parties hereto. No successor Facility Administrator shall be deemed to be
appointed hereunder until such successor Facility Administrator has accepted the
appointment. Upon the acceptance of any appointment as Facility Administrator
hereunder by a successor Facility Administrator, such successor Facility
Administrator shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Facility
Administrator. Upon the effectiveness of the resignation or removal of the
Facility Administrator, the resigning or removed Facility Administrator shall be
discharged from its duties and obligations hereunder and under the Transaction
Documents. After the effectiveness of the resignation or removal of a Facility
Administrator, the provisions of this Article X shall continue in effect for the
benefit of such Facility Administrator in respect of any actions taken or
omitted to be taken by it while it was acting as the Facility Administrator
hereunder and under the other Transaction Documents.
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ARTICLE XI
ASSIGNMENTS; REPURCHASE OPTION
Section 11.1. Assignments; Participations.
(a) Except as otherwise contemplated by or permitted under this
Agreement, neither the Trust, the Trust Depositor nor the Servicer may
assign its rights under this Agreement without the prior written consent
of more than 66 2/3% of the Outstanding Amount.
(b) Any Noteholder may, in the ordinary course of its business and
in accordance with Requirements of Law, at any time sell to one or more
banks or other entities ("Participants") participating interests in the
Notes. In the event of any such sale by a Noteholder of participating
interests to a Participant, such Noteholder's obligations under the
Transaction Documents shall remain unchanged, such Noteholder shall remain
solely responsible to the other parties hereto for the performance of such
obligations, all amounts payable under this Agreement or the other
Transaction Documents shall be determined as if such Noteholder had not
sold such participating interests, and all parties shall continue to deal
solely and directly with such Noteholder in connection with such
Noteholder's rights and obligations under the Transaction Documents.
(c) Except as provided in the applicable Note Purchase Agreement,
any Noteholder may, in the ordinary course of its business and in
accordance with Requirements of Law, at any time assign to one or more
banks or other entities all or any part of its rights and obligations
under the Transaction Documents.
Section 11.2. Trust Depositor's Repurchase Option.
Following Trust Depositor's written notice to the Indenture Trustee and
the Facility Administrator at least twenty (20) days prior to a Payment Date, if
(i) the Receivable Balance of all Receivables in the Asset Pool is then less
than 10.00% of the aggregate Receivable Balances of the Receivables purchased
hereunder when so purchased and (ii) Bluegreen or an Affiliate of Bluegreen is
the Servicer, then the Trust Depositor may (but is not required to) repurchase
from the Trust on that Payment Date all outstanding Trust Assets at a price
equal to the Aggregate Outstandings. Such price is to be deposited in the
Collection Account one Business Day before such Payment Date, against the
Indenture Trustee's retransfer and release of the Receivables and related Trust
Assets to the Trust Depositor.
ARTICLE XII
TERMINATION
Section 12.1. Sale of Trust Assets.
(a) Upon any sale of the assets of the Trust pursuant to Section 9.02 of
the Trust Agreement, the Servicer shall instruct the Indenture Trustee to
deposit the proceeds from such sale after all payments and reserves therefrom
have been made (the "Insolvency Proceeds") in the Collection Account. On the
Payment Date on which the Insolvency Proceeds are deposited in the Collection
Account (or, if such proceeds are not so deposited on a Payment Date, on the
Payment Date immediately following such deposit), the Servicer shall instruct
the Indenture Trustee to allocate such Insolvency Proceeds and any
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funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein) in accordance with Section 2.11.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Amendments and Waivers.
(a) This Agreement may be amended from time to time by the Trust
Depositor, the Servicer, the Facility Administrator, the Indenture Trustee and
the Owner Trustee on behalf of the Trust, collectively, but without the consent
of the Noteholders, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions in this Agreement which are inconsistent with the
provisions herein which may be ambiguous or inconsistent with any other
provisions herein or in any other Transaction Document, as the case may be, or
to add any other provisions with respect to matters or questions arising under
this Agreement that shall not be inconsistent with the provisions of this
Agreement.
(b) Without limiting Section 13.1(a) above, this Agreement may also be
amended from time to time by the Trust Depositor, the Servicer, the Facility
Administrator, the Indenture Trustee and the Owner Trustee on behalf of the
Trust, with the consent of the Note Majority, provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Receivables or
distributions which are required to be made on any Note, (ii) amend the Reserve
Account Required Amount or the manner in which the Reserve Account is funded,
(iii) change the interest rate on any Notes or adversely affect the priority of
payment of principal or interest made to the Noteholders or (iv) reduce the
aforesaid percentage required to consent to any such amendment, in each case
without the consent of all of the Noteholders. Unless otherwise expressly stated
in any Transaction Document, any provisions requiring the consent of the
Noteholders under the Transaction Documents shall require the consent of the
Note Majority.
(c) Promptly after the execution of any such amendment or consent not
requiring Noteholder consent, the Indenture Trustee, as the case may be, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder. It shall not be necessary for the consent of Noteholders
pursuant to Section 13.1(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization by Noteholders of the execution thereof shall be subject to
such reasonable requirements the Indenture Trustee may prescribe.
(d) Prior to the execution of any amendment to this Agreement, pursuant to
Section 13.1(a) the Indenture Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement. The Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Indenture
Trustee's own rights, duties or immunities under this Agreement or otherwise.
(e) Upon the execution of any amendment or consent pursuant to this
Section 13.1, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part
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of this Agreement for all purposes, and every holder of Notes and Certificates
theretofore or thereafter issued hereunder shall be bound thereby.
Section 13.2. Protection of Title to Trust.
(a) The Servicer shall file such financing statements and cause to be
filed such continuation statements, all in such manner and in such places as may
be required by law fully to preserve, maintain and protect the interest of the
Trust, the Noteholders, the Indenture Trustee and the Owner Trustee in the Trust
Assets and in the proceeds thereof. The Servicer shall deliver (or cause to be
delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Trust, the Trust Depositor nor the Servicer shall change
its name, identity or corporate structure in any manner that would, could or
might make any financing statement or continuation statement filed seriously
misleading within the meaning of ss. 9-506 of the UCC, unless it shall have
given the Trust, the Owner Trustee, the Facility Administrator and the Indenture
Trustee at least 30 days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Trust, the Trust Depositor and the Servicer shall give the
Facility Administrator, the Owner Trustee and the Indenture Trustee at least 30
days' prior written notice of any relocation of the principal executive office
of the Trust Depositor and the Servicer (in the case of notice provided by the
Servicer) if, as a result of such relocation, the applicable provisions of the
UCC would require filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain or cause to be maintained accounts and
records as to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in or credited to the
Collection Account in respect of each Receivable.
(e) The Servicer shall maintain or cause to be maintained its computer
systems so that, from and after the time of sale under this Agreement of the
Receivables, the Servicer's master computer records (including any backup
archives) that shall refer to a Receivable indicate clearly the interest of the
Trust and the Indenture Trustee in such Receivable and that such Receivable is
owned by the Trust and has been pledged to the Indenture Trustee. Indication of
the Trust's ownership of and the Indenture Trustee's interest in a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Indenture Trustee's Lien on the related Receivable shall have
been released in accordance with the applicable provisions of the Transaction
Documents.
(f) If at any time the Trust Depositor or the Servicer shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
vacation timeshare contracts to any prospective purchaser, lender or other
transferee, the Servicer shall give or cause to be given to such prospective
purchaser,
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lender or other transferee computer tapes, records or print-outs (including any
restored from back-up archives) that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Trust and has been pledged to the Indenture
Trustee.
(g) Upon request, the Servicer shall furnish to the Facility Administrator
and the Indenture Trustee, within five Business Days, a list of all Receivables
then held as part of the Trust Assets, together with a reconciliation of such
list to the Schedule of Receivables and to each of the Monthly Reports furnished
before such request indicating removal of Receivables from the Trust.
(h) The Servicer shall deliver to the Owner Trustee, the Facility
Administrator and the Indenture Trustee promptly after the execution and
delivery of this Agreement and of each amendment hereto, an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of the Owner Trustee and
the Indenture Trustee and reciting the details of each filings or referring to
prior Opinions of Counsel in which such details are given, or (B) stating that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest.
Section 13.3. Notices, Etc.
All notices, demands, certificates, requests and communications hereunder
("notices") shall be in writing and shall be effective (a) upon receipt when
sent through the U.S. mails, registered or certified mail, return receipt
requested, postage prepaid, with such receipt to be effective the date of
delivery indicated on the return receipt, or (b) one Business Day after delivery
to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telefax transmission with a verbal confirmation of receipt (except that
notices and communications pursuant to Article II shall not be effective until
received with respect to any notice sent by mail or telex), in all cases
addressed to the recipient as follows:
If to Bluegreen or the Servicer: Bluegreen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust Depositor: Bluegreen Receivables Finance
Corporation XI
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust or the Owner Trustee: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy (for so long as Bluegreen
or an Affiliate thereof is the Servicer)
to:
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Facility Administrator: General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bluegreen Asset Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: In-House Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Back-Up Servicer: Concord Servicing Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. Pink, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee
or the Custodian: U.S. Bank National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇: Private Certifications/
Bluegreen ▇▇▇▇-▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Club Trustee: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Noteholders: General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bluegreen Asset Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: In-House Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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 13.4. No Waiver; Remedies.
No failure on the part of the Facility Administrator or the Indenture
Trustee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. To the extent permitted by law, the remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 13.5. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 13.6. Term of this Agreement.
This Agreement, including, without limitation, the Servicer's, the Club
Trustee's and the Trust Depositor's obligation to observe their respective
covenants set forth in Article VI, shall remain in full force and effect until
all Aggregate Outstandings have been indefeasibly paid in full and all
commitments of the Noteholders to make any advances in respect of any Purchases
hereunder shall have terminated; provided, however, that the provisions of
Section 13.9 and 13.10 shall be continuing and shall survive any termination of
this Agreement.
Section 13.7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION
TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ILLINOIS. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN CHICAGO,
ILLINOIS. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY OF THE AFOREMENTIONED COURTS AND
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CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT.
Section 13.8. WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES 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 13.9. Costs, Expenses and Taxes.
(a) Bluegreen and the Trust Depositor agree to pay or cause to be
paid on demand all reasonable out-of-pocket costs and expenses of the
Trust, the Indenture Trustee, the Facility Administrator or any Noteholder
actually incurred in connection with the preparation, execution, delivery,
administration (including periodic auditing), amendment or modification
of, or any waiver or consent issued in connection with, this Agreement and
the other documents to be delivered hereunder or in connection herewith,
including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Trust, the Indenture Trustee, the Facility
Administrator or any Noteholder with respect thereto and with respect to
advising the Trust, the Indenture Trustee, the Facility Administrator or
any Noteholder as to its respective rights and remedies under this
Agreement and the other documents to be delivered hereunder or in
connection herewith, and all costs and out-of-pocket expenses, if any
(including reasonable counsel fees and expenses), incurred by the Trust,
the Indenture Trustee, the Facility Administrator or any Noteholder in
connection with the enforcement of this Agreement and the other documents
to be delivered hereunder or in connection herewith.
(b) Bluegreen and the Trust Depositor, jointly and severally, agree
to indemnify and hold the Trust, the Indenture Trustee, the Custodian, the
Owner Trustee, the Facility Administrator, each Noteholder and each of
their Affiliates, officers, directors, agents and employees (each an
"Indemnified Party") harmless against any and all damages, claims, 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 Bluegreen or
the Trust Depositor relating to any Receivable or related Trust Asset
which is not permitted by or pursuant to the terms of this Agreement or
any other Transaction Document, (b) any illegal act or omission by
Bluegreen or the Trust Depositor or any officer, director, agent or
employee of Bluegreen or the Trust Depositor, (c) any act or omission
constituting negligence or willful misconduct, or breach of fiduciary duty
by Bluegreen, the Club Trustee or the Trust Depositor or any officer,
director, agent or employee of Bluegreen or the Trust Depositor in
connection with Bluegreen's, the Club Trustee's or the Trust Depositor's
performance under this Agreement or the other Transaction Documents or any
breach by Bluegreen, the Club Trustee or the Trust Depositor of any of its
obligations under this Agreement or the other Transaction Documents, (d)
any representation or warranty made by
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Bluegreen, the Club Trustee or the Trust Depositor under or in connection
with this Agreement, any other Transaction Document or any other
information or report delivered by or on behalf of the Bluegreen or the
Trust Depositor pursuant hereto or thereto, which shall have been false or
incorrect when made or deemed made, (e) any failure of Bluegreen or the
Trust Depositor or any officer, director, agent or employee thereof to
comply with any applicable Requirement of Law 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 Seller to keep or perform any of its obligations with respect to any
Contract, (f) the commingling by the Servicer or any of its Affiliates of
Collections of Receivables at any time with other funds of the Servicer or
its Affiliates, (g) 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 (h) 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 Trust Assets or any Contract; provided, however that neither
Bluegreen nor the Trust Depositor shall be required to indemnify an
Indemnified Party for or be liable for the payment of any Losses resulting
from the gross negligence or willful misconduct of such Indemnified Party;
provided further, however, that nothing contained in this paragraph shall
be construed to obligate Bluegreen or the Trust Depositor to indemnify an
Indemnified Party with respect to Losses incurred as a result of the
payment performance of the Receivables and related Trust Assets, any
credit problems of any Obligors or in respect of Excluded Claims.
(c) The Servicer agrees to indemnify and hold the Trust, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Facility
Administrator and all of their officers, directors and employees harmless
against any and all Losses which result from: (a) any action taken by or
on behalf of Bluegreen or its Affiliates as the Servicer relating to any
Receivable or related Trust Asset which is not permitted by or pursuant to
the terms of this Agreement, (b) any illegal act or omission by Bluegreen
or its Affiliates as Servicer, or (c) any act or omission constituting
gross negligence or willful misconduct by any officer, director, agent or
employee of Bluegreen or its Affiliates as Servicer in connection with
such party's performance under this Agreement.
Section 13.10. No Bankruptcy Covenant.
The parties hereto hereby covenant and agree that they will not institute
against, or join any other Person in instituting against, the Trust, the Trust
Depositor or the Club Trustee any involuntary Insolvency Proceedings or take any
action in contemplation or furtherance thereof.
Section 13.11. Protection of Ownership Interests of the Trust; Intent of
Parties; Back-up Security Interest.
(a) The Trust Depositor agrees that from time to time, at its
expense, it will or will cause the Servicer to promptly execute and
deliver all instruments and documents, and take all actions, that may
reasonably be necessary or desirable, or that the Trust may reasonably
request, to perfect, protect or more fully evidence its ownership of and
interest in the Trust Assets, or to enable the Trust to exercise and
enforce its rights and remedies hereunder.
(b) If the Trust Depositor or the Servicer fails to perform any of
its obligations hereunder after ten (10) days' notice from the Trust, the
Trust may (but shall not be required to)
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perform, or cause performance of, such obligation; and the Trust's costs
and expenses incurred in connection therewith shall be payable by the
Trust Depositor (if the Servicer that fails to so perform is the Trust
Depositor or an Affiliate thereof) as provided in Section 12.9, as
applicable. The Trust Depositor irrevocably authorizes the Trust and
appoints the Trust as its attorney-in-fact to act on behalf of the Trust
Depositor (i) to execute on behalf of the Trust Depositor as debtor and to
file financing statements necessary or desirable in the Trust's sole
discretion to perfect and to maintain the perfection and priority of the
interest of the Trust in the Trust Assets and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing
statement with respect to the Trust Assets as a financing statement in
such offices as the Trust in its sole discretion deems necessary or
desirable to perfect and to maintain the perfection and priority of the
interests of the Trust in the Trust Assets.
Section 13.12. Back-up Security Interest. It is the intention of the
Sellers, the Trust Depositor and the Trust that the transactions contemplated by
the Sale and Contribution Agreement and this Agreement constitute an irrevocable
sale, assignment, conveyance, set-off and transfer of ownership of the Assets
transferred thereunder and the Trust Assets transferred hereunder. Nevertheless,
in the event a court of competent jurisdiction were to ever determine that the
transactions contemplated by the Sale and Contribution Agreement and this
Agreement were secured financings rather than "true sales", each Seller has
granted the Trust Depositor in the Sale and Contribution Agreement and the Trust
Depositor has granted (and hereby grants to) the Trust a "security interest"
(the term security interest, as used throughout this Agreement, is used as
defined in the UCC) in the Trust Assets being conveyed hereunder, which is
enforceable in accordance with the UCC upon execution and delivery of this
Agreement 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 this Agreement and
the other Transaction Documents, together with such other obligations or
interests as may arise hereunder and thereunder in favor of the parties hereto
and thereto. Upon (i) the filing of UCC-1 financing statements naming the Trust
as secured party/buyer, the Trust Depositor, as debtor/seller, and the Indenture
Trustee, as assignee, and (ii) the Custodian, for the benefit of the Trust,
taking possession of the Receivables and Receivables Files, the Trust shall have
a first priority perfected security interest in the Trust Assets and
Collections, subject only to Permitted Liens. All filings (including, without
limitation, such UCC filings) as are necessary in any jurisdiction to perfect
the interest of the Trust in the Trust Assets and Collections have been (or
prior to the applicable Transfer Date will be) made. Upon (i) the filing of
UCC-1 financing statements naming the Indenture Trustee as secured party and the
Trust as debtor with respect to the Trust Assets and (ii) the Custodian, for the
benefit of the Indenture Trustee, taking possession of the Receivables and
Receivables Files and, in the case of Incremental Purchases or Substitute Assets
on the applicable Incremental Transfer Date or Substitute Asset Transfer Date,
as applicable, the Indenture Trustee shall have a first priority perfected
security interest in the Trust Assets, subject only to Permitted Liens. Neither
the Trust Depositor nor any Person claiming through or under Trust Depositor
shall have any claim to or interest in any of the Trust Assets, except to the
extent set forth in Sections 2.11(a) and (b), as applicable, and if,
notwithstanding the expressed intention of the parties hereto, this Agreement
constitutes the grant of a security interest (for collateral purposes) in such
property, except for the interest of Trust Depositor in such property as a
debtor for purposes of the UCC.
Section 13.13. Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
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when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement. In case any provision in
or obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement and the other Transaction Documents contain the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all prior
oral or written understandings.
Section 13.14. Further Assurances. The Trust agrees that it will cooperate
with Bluegreen to facilitate the remarketing of Intervals and Vacation Points
relating to a Defaulted Receivable pursuant to Section 6.3(r). Additionally, in
the event Bluegreen is the "Servicer" hereunder, Bluegreen or the Club will be
the exclusive "broker" of the Intervals or Vacation Points, as the case may be.
Section 13.15. Savings Clause. Notwithstanding anything to the contrary
stated herein, in the event Bluegreen is not acting as servicer hereunder, the
covenants in Section 6.3 shall remain in full force and effect with respect to
Bluegreen, and Bluegreen shall remain obligated to provide those Reports
described in Article IX hereof which it is able to continue to provide.
Section 13.16. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company, not in its
individual capacity but solely in its capacity as Owner Trustee of the Trust,
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Trust have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder,
as to all of which recourse shall be had solely to the assets of the Trust. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Trust hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by U.S. Bank National Association, not in its
individual capacity but solely as Indenture Trustee, and in no event shall U.S.
Bank National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder or
in any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the Trust Assets.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
THE TRUST DEPOSITOR: BLUEGREEN RECEIVABLES FINANCE
CORPORATION XI
By: ____________________________________
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Assistant Treasurer
THE SERVICER
AND BLUEGREEN: BLUEGREEN CORPORATION
By: ___________________________________
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President, Chief
Financial Officer and Treasurer
THE BACK-UP SERVICER: CONCORD SERVICING CORPORATION
By: ___________________________________
Printed Name:__________________________
Title: ________________________________
Signature Page to Sale and Servicing Agreement
THE TRUST: BXG RECEIVABLES OWNER TRUST 2006-A
By: Wilmington Trust Company, not individually
but solely as Owner Trustee
By: _________________________________
Printed Name:________________________
Title: ______________________________
THE INDENTURE TRUSTEE
AND THE CUSTODIAN: U.S. BANK NATIONAL
ASSOCIATION
By: _________________________________
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: Vice President
THE CLUB TRUSTEE: VACATION TRUST, INC., for itself and as Club
Trustee under the Club Trust Agreement
By: _________________________________
Printed Name:________________________
Title: ______________________________
THE FACILITY ADMINISTRATOR: GENERAL ELECTRIC CAPITAL
CORPORATION
By: _________________________________
Printed Name:________________________
Title: ______________________________
THE NOTEHOLDER: GENERAL ELECTRIC CAPITAL
CORPORATION
By: _________________________________
Printed Name:________________________
Title: ______________________________
Signature Page to Sale and Servicing Agreement
SCHEDULE IA
CONDITION PRECEDENT DOCUMENTS
See attached closing list
CLOSING LIST
[see attached]
SCHEDULE IB
LIST OF DELIVERIES FOR ALL PURCHASES/TRANSFERS
To the Indenture Trustee, the Custodian and the Facility
Administrator at least two (2) Business Days prior to the requested
Transfer Date:
1. A Request Notice (in the form of Exhibit A to the Sale and Servicing
Agreement) listing all Receivables and related Trust Assets to be purchased.
2. A computer diskette or magnetic tape which shall include, but not be
limited to, the aging report relating to the Receivables and the related Trust
Assets to be purchased in connection with the requested purchase and the FICO
scores of the related Obligors from the applicable credit bureau.
3. Title Report/Commitment and Mortgage Assignment (other than in respect
of Aruba Receivables) (the form of Assignment attached as Exhibit I to the Sale
and Servicing Agreement (with only such modifications to such form as are
necessary to properly identify the collateral and to cause the document to be
properly recorded)).
4. Such additional information as the Facility Administrator may
reasonably require.
To the Custodian at least five (5) Business Days prior to the
requested Transfer Date:
1. Originals of all Receivables and related Trust Assets and the
Receivables File relating to each Receivable proposed to be purchased.
To the Custodian at least two (2) Business Days prior to the
requested Transfer Date:
1. The Receivables Schedule (in the form of Exhibit A to the Custodial
Agreement) listing all Receivables and related Trust Assets to be purchased.
2. The form of Assignment attached as Exhibit H to the Sale and Servicing
Agreement (with only such modifications to such form as are necessary to
properly identify the collateral and to cause the document to be properly
recorded), covering all of the Trust Assets to be sold in relation with such
purchase except that copies of the recordable Mortgages and Assignments, to
extent applicable, shall be satisfactory provided that recorded originals are
delivered to the Custodian within sixty (60) days after the Transfer Date or as
soon as practicable after received, all in forms approved by the Facility
Administrator, with each Receivable endorsed with (i) an allonge in the form
attached hereto as Exhibit M in respect of Receivables evidenced by notes and
mortgages, or (ii) other appropriate form acceptable to the Facility
Administrator.
All documents to be delivered to the Facility Administrator should be sent
to:
▇▇▇▇ ▇▇▇▇▇
Associate, VOF
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
All documents to be delivered to the Custodian should be sent to:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE II
SERVICER REPORTS
SCHEDULE III
LOCATIONS AND STATE OF ORGANIZATION
Bluegreen Corporation
State of Incorporation: Massachusetts
Chief Executive Office: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Organizational ID No.: 030300793
Bluegreen Receivables Finance Corporation XI
State of Incorporation: Delaware
Chief Executive Office: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Organizational ID No.: 4100459
SCHEDULE IV
LOCATION OF RECEIVABLE FILES
St. ▇▇▇▇, Minnesota
EXHIBIT A
FORM OF REQUEST NOTICE
I, ______________________, _______________ of Bluegreen Receivables
Finance Corporation XI (the "Trust Depositor"), hereby certify that, with
respect to that certain Sale and Servicing Agreement among the Trust Depositor,
the Trust, Bluegreen Corporation, the Club Trustee, the Back-up Servicer, the
Facility Administrator, the Noteholders and the Indenture Trustee (the "Sale and
Servicing Agreement"; all defined terms referenced in the Sale and Servicing
Agreement to have the same meaning herein):
The Trust Depositor hereby requests that an [Initial Purchase]
[Incremental Purchase] be made in accordance with the following terms:
(a) The aggregate Cash Purchase Price of such Purchase shall be
_________________.
(b) The Transfer Date shall be __________________.
(c) The Cutoff Date shall be __________________.
The representations and warranties contained in Section 5.1 and, with
respect to the Receivables to be purchased in this Asset Pool Portion, Section
5.2 of the Sale and Servicing Agreement, are true and correct as though made on
the date hereof. The Trust Depositor represents and warrants that the conditions
set forth in Sections 2.7 and 4.2 have been satisfied. The Trust Depositor has
delivered or caused to be delivered to the Facility Administrator and the
Indenture Trustee and the Custodian, as applicable, an updated List of
Receivables, separately identifying thereon the Receivables in the Asset Pool
Portion requested to be Purchased by virtue of this Request Notice, the
Receivables Files, the original Notes and such other documents as may be
required by and in accordance with the requirements of the Sale and Servicing
Agreement.
No event has occurred and is continuing, or would result from any Purchase
occurring on the date hereof, which constitutes a Termination Event or Event of
Default.
Prior to giving effect to the Purchase:
(A) the aggregate Outstanding Amount is $_______; and
(B) Funding Date Overcollateralization is $________ (consisting of the
sum of (i) the sum of the product calculated for each Asset Pool
Portion in the Asset Pool of (a) the Receivable Balance of all
Eligible Receivables in each Asset Pool Portion as of the end of the
most recent Collection Period multiplied by (b) the Credit
Enhancement Factor applicable to each such Asset Pool Portion
determined as of the applicable Transfer Date for each Asset Pool
Portion plus (ii) at any time after the end of a Collection Period
and prior to the next succeeding Payment Date, an amount equal to
the Note Principal Distributable Amount to be made on the next
succeeding Payment Date provided that the corresponding funds are in
the Collection Account as certified in writing by the Servicer.)
After giving effect to the Purchase:
(C) the Outstanding Amount will be $_______;
(D) Funding Date Overcollateralization is $______________ (determined in
paragraph B above plus the sum of the product of $____________,
representing the Receivable Balance of all Eligible Receivables in
this Purchase multiplied by _______________, representing the
applicable Credit Enhancement Factor for this Purchase);
(E) the Outstanding Amount will not exceed the Note Purchase Limit; and
(F) the Outstanding Amount will not exceed Funding Date
Overcollateralization.
The Cash Purchase Price for the Purchase should be delivered by wire
transfer to [insert appropriate identifying account and reference number
information].
The Trust Depositor and the Servicer have each performed in all material
respects all of their agreements and obligations contained in the Transaction
Documents to be performed by such Person at or prior to the date hereof.
No law, rule or regulation applicable to the Trust Depositor prohibits,
and no order, judgment or decree of any federal, state or local court or
governmental body, agency or instrumentality applicable to the Trust Depositor
prohibits or enjoins, the making of any Purchase to occur on the Transfer Date
specified above.
This is the _____ day of ______________.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION XI
By: _______________________________
Printed Name: _____________________
Title: ____________________________
EXHIBIT B
FORM OF SUBSTITUTION NOTICE
I, ______________________, _______________ of Bluegreen Receivables
Finance Corporation XI (the "Trust Depositor"), hereby certify that, with
respect to that certain Sale and Servicing Agreement among the Trust Depositor,
the Trust, Bluegreen Corporation, the Club Trustee, the Back-up Servicer, the
Facility Administrator, the Noteholders and the Indenture Trustee (the "Sale and
Servicing Agreement"; all defined terms referenced in the Sale and Servicing
Agreement to have the same meaning herein):
The Trust Depositor hereby provides notice of [the substitution of Trust
Assets][and][the Upgrade of Receivables] as follows:
[Substitution
(a) The aggregate Receivable Balance of Receivables being
substituted shall be $_________________.
(b) The aggregate Receivable Balance of Eligible Receivables being
transferred to the Trust shall be $_________________.
(c) The Transfer Date shall be __________________.
(d) The Cutoff Date shall be __________________.
(e) Transfer Deposit Amount shall be $______________.]
[Upgrade
(a) The aggregate Receivable Balance of Pre-Upgrade Receivables
shall be $_________________.
(b) The aggregate Receivable Balance of Eligible Receivables which
are Upgrade Receivables being transferred to the Trust shall be
$_________________.
(c) The aggregate Receivable Balance of Eligible Receivables which
are not Upgrade Receivables being transferred to the Trust shall be
$_________________.
(d) The Transfer Date shall be __________________.
(e) The Cutoff Date shall be __________________.
(f) Excess of Receivable Balance of Pre-Upgrade Receivables over
Receivable Balance of Eligible Receivables transferred in respect thereof
$_________________, which excess shall be deposited into the Collection
Account on the Transfer Date.]
The representations and warranties contained in Section 5.1 and, with
respect to the Receivables to be transferred on the Transfer Date, Section 5.2
of the Sale and Servicing Agreement, are true and correct as though made on the
date hereof. The Trust Depositor represents and warrants that the conditions set
forth in Sections 2.7, 2.13 and 4.2 of the Sale and Servicing Agreement, as
applicable, have
been satisfied. The Trust Depositor has delivered or caused to be delivered to
the Facility Administrator and the Indenture Trustee and the Custodian, as
applicable, an updated List of Receivables, the Receivables File, the original
Note and such other documents as may be required by and in accordance with the
requirements of the Sale and Servicing Agreement.
No event has occurred and is continuing, or would result from any Transfer
occurring on the date hereof or on the Transfer Date, which constitutes a
Termination Event or Event of Default. [The Trust Depositor hereby certifies
that the Transfer Deposit Amount in connection with such Substitute Assets will
be deposited into the Collection Account in accordance with Section 2.7 of the
Sale and Servicing Agreement on the Transfer Date.] [The Trust Depositor hereby
certifies that cash will be deposited into the Collection Account on the
Transfer Date in accordance with Section 2.13 of the Sale and Servicing
Agreement to the extent the Receivable Balance(s) of Upgrade Receivables
transferred on the Transfer Date are less than the Receivable Balance(s) of
Pre-Upgrade Receivables.] With respect to Upgrade Receivables, the Trust
Depositor represents and warrants that it has used its best efforts to cause
each Pre-Upgrade Receivable to be replaced with an Upgrade Receivable in respect
of the same Obligor and then, to the extent not possible, to be replaced with
another Upgrade Receivable.
The Trust Depositor and the Servicer have each performed in all material
respects all of their agreements and obligations contained in the Transaction
Documents to be performed by such Person at or prior to the date hereof.
No law, rule or regulation applicable to the Trust Depositor prohibits,
and no order, judgment or decree of any federal, state or local court or
governmental body, agency or instrumentality applicable to the Trust Depositor
prohibits or enjoins, the making of any Transfer to occur on the Transfer Date
specified above.
This is the _____ day of ______________.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION XI
By: ________________________________
Printed Name: ______________________
Title: _____________________________
EXHIBIT C
LIST OF ELIGIBLE RESORTS
1. Orlando's Sunshine Resort Condominium
2. Orlando's Sunshine Resort II Condominium
3. Shenandoah Crossing Farm & Country Club
4. The Timbers at Christmas Mountain
5. The Villas at Christmas Mountain
6. Christmas Mountain Campground
7. The Resort at World Golf Village Condominium
8. Shore Crest Vacation Villas II Horizontal Property Regime
9. Harbour Lights Resort Horizontal Property Regime
10. Lodge Alley Inn Horizontal Property Regime
11. The Falls Village Resort , a Condominium
12. MountainLoft Resort, a Condominium
13. Laurel Crest Resort, a Condominium
14. Solara Surfside Condominium
15. Mountain Run at Boyne
16. La Cabana Beach & Racquet Club
17. Grande Villas at World Golf Village Condominium
18. Casa del Mar Beach Resort, a Condominium
19. BG Fountains Condominium
20. BG Daytona Seabreeze Condominium
21. Hammocks at Marathon Condominium
22. The Suites at Hershey Condominium
EXHIBIT D
FORM OF NOTICE OF WAIVER
Bluegreen Corporation hereby irrevocably waives its right to exercise the
Servicer Purchaser Option with respect to those certain Defaulted Receivables
identified on the list attached hereto and incorporated herein by this
reference. The capitalized terms used herein shall have the meanings ascribed
thereto in the Definitions Annex to that certain Sale and Servicing Agreement
dated as of March 13, 2006 by and among the Trust Depositor, the Trust,
Bluegreen Corporation, the Club Trustee, the Back-up Servicer, the Facility
Administrator, the Noteholders and the Indenture Trustee.
IN WITNESS WHEREOF, this Notice of Waiver has been executed by the
undersigned and is effective as of the _____ day of __________, 20__.
BLUEGREEN CORPORATION
By: _______________________________
Printed Name: _____________________
Title: ____________________________
LIST OF DEFAULTED RECEIVABLES
[Insert list of Defaulted Receivables]
EXHIBIT E
CLUB TRUST AGREEMENT
See attached.
EXHIBIT F
TRUST DEPOSITOR'S CERTIFICATE OF INCORPORATION
See attached.
EXHIBIT G
FORM OF SERVICING OFFICER'S CERTIFICATE
I, ______________________, the duly elected and acting _______________ of
Bluegreen Corporation (the "Servicer"), hereby certify that, with respect to
that certain Sale and Servicing Agreement among the Trust Depositor, the Trust,
Bluegreen Corporation, the Club Trustee, the Back-up Servicer, the Facility
Administrator, the Noteholders and the Indenture Trustee (the "Sale and
Servicing Agreement"; all defined terms referenced in the Sale and Servicing
Agreement to have the same meaning herein):
(i) Attached hereto are the Reports required to be delivered pursuant to
Article IX of the Sale and Servicing Agreement and such Reports are true and
accurate copies thereof
(ii) No Servicer Termination Event or event that with notice or lapse of
time or both would become a Servicer Termination Event has occurred [or if such
event has occurred and is continuing, specifying the event and its status:
__________________________________
____________________________________________________________________
_________________________________________].
BLUEGREEN CORPORATION
By: _________________________
Name:________________________
Title:_______________________
EXHIBIT H
FORM OF SALE ASSIGNMENT
In accordance with the Sale and Servicing Agreement (the "Agreement")
dated as of March 13, 2006 made by and among the undersigned, as seller
thereunder ("Trust Depositor"), BXG Receivables Owner Trust 2006-A ("Trust"),
and others, the undersigned does hereby sell, transfer, assign, set over and
otherwise absolutely convey to Trust all its right, title and interest in and
to:
(i) all Receivables (including Substitute Receivables) conveyed or being
conveyed to the Trust hereunder and specified on the List of Receivables
(or List of Substitute 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 Cutoff Date;
(ii) the Mortgages and any other instruments, documents and rights
securing such Receivables, if applicable, 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;
(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, if any;
(v) all Insurance Proceeds with respect to any such Receivables, if
applicable;
(vi) all rights of the Trust Depositor under the Sale and Contribution
Agreement including but not limited to all rights with respect to the
Receivables, including, without limitation, in respect of the obligation
of the Sellers to repurchase or replace Receivables under certain
circumstances as specified therein;
(vii) the Trust Accounts and all Trust Account Property;
(viii) each Assignment; and
(ix) all income from and proceeds of the foregoing (the property in
clauses (i)-(viii), being the "Trust Assets").
This Assignment is made pursuant to and in reliance upon the
representation and warranties on the part of the undersigned specified in
Article V of the Agreement and no others. 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 ______, ____.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION XI
By:____________________________________
Printed Name:_____________________
Title:____________________________
Accepted:
BXG RECEIVABLES OWNER TRUST 2006-A
By:____________________________________
Printed Name:_____________________
Title:____________________________
EXHIBIT I
FORM OF MORTGAGE ASSIGNMENTS
EXHIBIT J
COLLECTION POLICIES
See attached.
EXHIBIT K
RESERVED
EXHIBIT L-1
FORMS OF CONTRACTS
EXHIBIT L-2
FORMS OF MORTGAGES
EXHIBIT M
FORM OF ALLONGE
[If purchase and finance agreements are "instruments"] [The foregoing note
or instrument shall be and is hereby endorsed as follows with respect to Aruba
Receivables:
This Allonge is attached to and made a part of the following note or
instrument:
"Pay to the order of Bluegreen Corporation, without recourse,
representation or warranty."
Bluegreen Properties N.V.
By:___________________________
Name:_________________________
Its:__________________________
The foregoing endorsement shall have the same effect as though it were
written directly on the note or instrument identified above.]
--------------------------------------------------------------------------------
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Sale and Contribution Agreement:
This Allonge is attached to and made a part of the following note or
instrument:
"Pay to the order of Bluegreen Receivables Finance Corporation XI,
without recourse, representation or warranty except as provided in the
Sale and Contribution Agreement."
Bluegreen Corporation
By:___________________________
Name:_________________________
Its:__________________________
The foregoing endorsement shall have the same effect as though it were
written directly on the note or instrument identified above.
--------------------------------------------------------------------------------
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Sale and Servicing Agreement:
"Pay to the order of BXG Receivables Owner Trust 2006-A, without
recourse, representation or warranty except as provided in the Sale and
Servicing Agreement."
Bluegreen Receivables Finance Corporation XI
By:___________________________
Name:_________________________
Its:__________________________
The foregoing endorsement shall have the same effect as though it
were written directly on the note or instrument identified above.
--------------------------------------------------------------------------------
The foregoing note or instrument shall be and is hereby endorsed as
follows with respect to the Indenture:
"Pay to the order of ____________________, without
recourse, representation or warranty except as provided in the
Indenture."
BXG Receivables Owner Trust 2006-A
By:___________________________
Name:_________________________
Its:__________________________
The foregoing endorsement shall have the same effect as though it
were written directly on the note or instrument identified above.
EXHIBIT N
FORM OF NOTICE (ARUBA RECEIVABLES)