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EXHIBIT 10.106
EXECUTION COPY
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SALE AND SERVICING AGREEMENT
AMONG
BXG RECEIVABLES OWNER TRUST 2000,
AS ISSUER,
BLUEGREEN RECEIVABLES FINANCE CORPORATION IV,
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 TRUST NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE AND CUSTODIAN,
▇▇▇▇▇▇ FINANCIAL, INC.,
AS FACILITY ADMINISTRATOR
AND
▇▇▇▇▇▇ FINANCIAL, INC.
AND
BARCLAYS BANK PLC,
AS NOTEHOLDERS
DATED AS OF SEPTEMBER 1, 2000
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TABLE OF CONTENTS
ARTICLE ONE 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 TWO TRANSFER OF RECEIVABLES.....................................................................2
SECTION 2.1. SALES................................................................................2
SECTION 2.2. PROCEDURES FOR PURCHASES.............................................................5
SECTION 2.3. ESTABLISHMENT OF ACCOUNTS; RESERVE ACCOUNT...........................................6
SECTION 2.4. DEPOSITS TO ACCOUNTS.................................................................7
SECTION 2.5. INVESTMENT OF ACCOUNTS...............................................................7
SECTION 2.6. PAYMENTS AND COMPUTATIONS; FUNDING INDEMNITY FOR FAILED PURCHASE.....................7
SECTION 2.7. ADDITION/SUBSTITUTION OF RECEIVABLES.................................................8
SECTION 2.8. EXTENSION OF PURCHASE PERIOD; INCREASE IN COMMITMENT................................10
SECTION 2.9. ACCEPTANCE BY TRUST.................................................................10
SECTION 2.10. MONTHLY DISTRIBUTIONS..............................................................11
SECTION 2.11. DISTRIBUTIONS......................................................................11
ARTICLE THREE 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.............................................................................15
SECTION 3.5. INSPECTION..........................................................................15
ARTICLE FOUR CONDITIONS OF PURCHASES...................................................................16
SECTION 4.1. CONDITIONS PRECEDENT TO INITIAL PURCHASE............................................16
SECTION 4.2. CONDITIONS PRECEDENT TO ALL PURCHASES...............................................16
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES............................................................17
SECTION 5.1. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR...............................18
SECTION 5.2. REPRESENTATIONS AND WARRANTIES OF TRUST DEPOSITOR RELATING TO THE RECEIVABLES.......22
SECTION 5.3. REPRESENTATIONS AND WARRANTIES OF THE CLUB AND THE CLUB TRUSTEE.....................24
SECTION 5.4. REPRESENTATIONS AND WARRANTIES OF THE SERVICER......................................26
ARTICLE SIX GENERAL COVENANTS..........................................................................28
SECTION 6.1. GENERAL COVENANTS OF THE TRUST DEPOSITOR............................................28
SECTION 6.2. GENERAL COVENANTS OF THE CLUB TRUSTEE...............................................33
SECTION 6.3. GENERAL COVENANTS OF THE SERVICER...................................................35
SECTION 6.4. RELEASE OF INTEREST IN INTERVAL.....................................................38
SECTION 6.5. RETRANSFER OF INELIGIBLE RECEIVABLES................................................38
ARTICLE SEVEN SUBJECT TO CLUB TRUST AGREEMENT..........................................................40
SECTION 7.1. RIGHTS SUBJECT TO CLUB TRUST AGREEMENT..............................................40
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ARTICLE EIGHT SERVICER TERMINATION EVENTS..............................................................40
SECTION 8.1. SERVICER TERMINATION EVENTS.........................................................40
SECTION 8.2. SERVICE TRANSFER....................................................................42
SECTION 8.3. SUCCESSOR SERVICER TO ACT; APPOINTMENT OF SUCCESSOR SERVICER........................43
SECTION 8.4. EFFECT OF TRANSFER..................................................................43
SECTION 8.5. SUCCESSOR SERVICER INDEMNIFICATION..................................................44
SECTION 8.6. RESPONSIBILITIES OF THE SUCCESSOR SERVICER..........................................44
SECTION 8.7. WAIVER OF SERVICER TERMINATION EVENT................................................44
ARTICLE NINE PERFORMANCE AND DUTIES OF SERVICER........................................................45
SECTION 9.1. GENERAL REQUIREMENTS OF SERVICER....................................................45
SECTION 9.2. SERVICER AS INDEPENDENT CONTRACTOR..................................................45
SECTION 9.3. [OMITTED]...........................................................................45
SECTION 9.4. DESCRIPTION OF REPORTS..............................................................45
SECTION 9.5. OFFICER'S CERTIFICATE...............................................................47
SECTION 9.6. ANNUAL REPORT OF ACCOUNTANTS........................................................47
SECTION 9.7. ANNUAL STATEMENT OF COMPLIANCE FROM SERVICER........................................48
SECTION 9.8. SALES AND INVENTORY REPORTS.........................................................48
SECTION 9.9. QUARTERLY FINANCIAL REPORTS.........................................................48
SECTION 9.10. TIME SHARE ASSOCIATION REPORTS.....................................................48
SECTION 9.11. AUDIT REPORTS......................................................................49
SECTION 9.12. OTHER REPORTS......................................................................49
SECTION 9.13. SEC REPORTS........................................................................49
SECTION 9.14. SERVICER REMARKETING...............................................................49
SECTION 9.15. SERVICER ADVANCES..................................................................50
SECTION 9.16. CONSIDERATION......................................................................50
ARTICLE TEN FACILITY ADMINISTRATOR.....................................................................50
SECTION 10.1. APPOINTMENT; NATURE OF RELATIONSHIP................................................50
SECTION 10.2. POWERS.............................................................................50
SECTION 10.3. GENERAL IMMUNITY...................................................................51
SECTION 10.4. NO RESPONSIBILITY FOR ADVANCES, RECITALS, ETC......................................51
SECTION 10.5. ACTION ON INSTRUCTIONS OF NOTEHOLDERS..............................................51
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.........................52
SECTION 10.9. NOTICE OF DEFAULT..................................................................52
SECTION 10.10. RIGHTS AS A NOTEHOLDER............................................................53
SECTION 10.11. NOTEHOLDER CREDIT DECISION........................................................53
SECTION 10.12. SUCCESSOR FACILITY ADMINISTRATOR..................................................53
ARTICLE ELEVEN ASSIGNMENTS; REPURCHASE OPTION..........................................................54
SECTION 11.1. ASSIGNMENTS; PARTICIPATIONS........................................................54
SECTION 11.2. TRUST DEPOSITOR'S REPURCHASE OPTION................................................55
ARTICLE TWELVE TERMINATION.............................................................................55
SECTION 12.1. SALE OF TRUST ASSETS...............................................................55
ARTICLE THIRTEEN MISCELLANEOUS.........................................................................56
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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...............61
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..............................64
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
SECTION 13.17. CONFIDENTIALITY...................................................................65
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SCHEDULES
SCHEDULE I Condition Precedent Documents
SCHEDULE II Servicer Reports
SCHEDULE III Tradenames, Fictitious Names and "Doing Business As" Names
SCHEDULE IV Fees
SCHEDULE V Location of Receivables Files
EXHIBITS
EXHIBIT A Form of Request Notice For Initial and Incremental Purchases
EXHIBIT B Form of List of Deliveries for all Advances
EXHIBIT C List of Resorts
EXHIBIT D Form of Monthly Report
EXHIBIT E 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 Subsequent Transfer Agreement
EXHIBIT J Form of Substitute Receivables Transfer Agreement
EXHIBIT K Credit Policy
EXHIBIT l Collection Policies
ANNEXES
Definitions Annex
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SALE AND SERVICING AGREEMENT
SALE AND SERVICING AGREEMENT, dated as of September 1, 2000, among BXG
Receivables Owner Trust 2000 (together with its successors and assigns, the
"ISSUER" or the "TRUST"), Bluegreen Receivables Finance Corporation IV (together
with its successor and assigns, the "TRUST DEPOSITOR"), U.S. Bank Trust 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" or, in its capacity as Servicer, together with its
successors and assigns, the "SERVICER"), ▇▇▇▇▇▇ Financial, Inc., in its capacity
as facility administrator ("FACILITY ADMINISTRATOR"), and ▇▇▇▇▇▇ Financial, Inc.
and Barclays Bank PLC, 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, the ▇▇▇▇▇▇ Financial, Inc. 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 Trust 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;
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE ONE
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 TWO
TRANSFER OF RECEIVABLES
SECTION 2.1 SALES.
(a) Subject to the terms and conditions of this Agreement, the
Trust Depositor shall sell and 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 PURCHASE 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, either (i) the
aggregate Outstanding Amount for all Classes of Notes would exceed the Note
Purchase Limit or (ii) the aggregate Outstanding Amount for all Classes of Notes
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would exceed Availability. Upon the payment of the related Cash Purchase Price
(as defined below) for the Initial Purchase or any Incremental Purchase, the
Trust Depositor shall have, and shall be deemed hereunder to have, irrevocably
and absolutely sold, assigned, transferred 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 may be. The aggregate amount of all advances made by the
Noteholders during the Purchase Period shall not exceed the Note Purchase Limit.
(b) The purchase price for the Purchased Receivables in each
Asset Pool Portion shall be the applicable Cash Purchase Price. The "CASH
PURCHASE PRICE" 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 Credit Enhancement Factor(s) in effect on such
Purchase 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 Purchase Date in accordance
with the provisions of SECTION 2.2(B).
On the date of the Initial Purchase, on each Incremental Purchase Date
and on each Subsequent Transfer Date, the Trust Depositor shall sell, transfer,
assign, set over and otherwise absolutely convey to the Trust by execution of an
Assignment substantially in the form of EXHIBIT H hereto:
(i) the Receivables (including Subsequent
Receivables) conveyed or being conveyed to the Trust hereunder
and specified on the List of Receivables (or Subsequent List
of Receivables) delivered to the Facility Administrator and
the Custodian, and all payments of interest and principal,
other Collections thereon and monies received, due or to
become due in payment of such Receivables after the Cutoff
Date;
(ii) the Mortgages and other instruments or documents
securing such 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;
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(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;
(ix) all rights under the Interest Rate Cap
Agreements; and
(x) all income from and proceeds of the foregoing
(the property in clauses (i)-(x), being the "TRUST Assets").
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 applicable 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.
(c) Upon payment of the Cash Purchase Price by the Trust in
the amount determined in accordance with SECTION 2.1(B) and SECTION 2.2(B) with
respect to all Trust Assets purchased on a Purchase 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. 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 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
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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
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 twenty (20) days
prior to each Purchase Date, the Trust Depositor shall notify the Indenture
Trustee and the Facility Administrator of the intent to effect a Purchase and
the proposed Purchase 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 Purchase 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 Purchase
Date until such time as such terms and conditions are met. Each such Request
Notice shall specify, among other things, (i) the aggregate amount of such
Purchase, which shall be in a minimum amount equal to $10,000,000, or such
lesser amount as may be equal to the then unused portion of the Note Purchase
Limit, (ii) the intended Purchase Date for such Purchase, and (iii) the
aggregate Outstanding Amount for all Classes of Notes, Availability and the Note
Purchase Limit, both immediately preceding and after giving effect to such
Purchase.
(b) On each Purchase Date, and subject to the satisfaction of
the conditions of Article IV hereof and Articles IV and V of the Note Purchase
Agreements, the Servicer will prepare and deliver an Assignment to the Trust
Depositor and the Trust in the form of EXHIBIT H hereto with respect to the
Trust Assets being purchased on such Purchase Date by the Trust. The Trust
Depositor and the Trust shall thereupon execute such Assignment and deliver
executed copies thereof to the Servicer who will in turn cause a fully executed
copy of such Assignment to be delivered to the Indenture Trustee, the Custodian
and the Facility Administrator. 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 from the Sellers pursuant to the Sale
and Contribution Agreement or otherwise, prior to transfer of ownership of such
Trust Assets to the Trust under this Agreement.
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(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) Prior to or simultaneously with the execution and delivery
of this Agreement, the Servicer shall (i) establish an Eligible Deposit Account
in the name of the Trust, titled "BXG RECEIVABLES OWNER TRUST 2000 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) Prior to or simultaneously with the execution and delivery
of this Agreement, 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 2000 COLLECTION ACCOUNT RE BLUEGREEN
RECEIVABLES SALE AND SERVICING AGREEMENT" (the "COLLECTION ACCOUNT"). The Trust
Depositor and the Servicer shall deposit all Collections they may receive in
respect of any Interest Rate Cap Agreement into the Collection Account no later
than the next Business Day following the date of receipt thereof.
(c) Prior to or simultaneously with the execution and delivery
of this Agreement, 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 2000/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 9.15) are insufficient to pay Indenture Trustee Fees, Owner Trustee
Fees, Facility Administrator Fees, Minimum Usage Fees, Lockbox Fees, Protective
Advances, Back-Up Servicer Fees, Custodian 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)(VIII), (A)(IX), (A)(X) and (A)(XI) on or prior to each Payment Date
amounts held in the Reserve Account shall be transferred to the Collection
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Account, treated as Available Amounts for such Payment Date and thereafter
applied in order for any of such 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)(VIII), (B)(IX), (B)(X), (B)(XI), (B)(XIV) and (B)(XV).
SECTION 2.4. DEPOSITS TO ACCOUNTS.
On each Monday, Wednesday, and Friday (or, if any Monday, Wednesday or
Friday is not a Business Day, then on the next succeeding Business Day) and the
last Business Day of each month pursuant to the Lockbox Agreement, all
Collections in the Lockbox Account shall be transferred by automated wire by the
Lockbox Bank to the Collection Account. In addition, the proceeds of Servicer
Advances made pursuant to SECTION 9.15, 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, 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 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. 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 Indenture
Trustee may trade with itself or an Affiliate in the purchase or sale of
Permitted Investments. 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.
(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.
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(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 Liquidity Bank or 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.
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 (x) replace a
Purchased Receivable currently in the Asset Pool (a "REPLACED RECEIVABLE") with
one or more Subsequent Receivables; or (y) transfer Subsequent Receivables to
the Trust. Subject to the conditions set forth in paragraph (b) below, the Trust
Depositor if exercising such 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, (i) all
the Trust Depositor's right, title and interest in and to the Subsequent
Receivables listed on the related Subsequent List of Receivables (including,
without limitation, all Collections and rights to receive Collections with
respect thereto after the related Subsequent Cutoff Date, but excluding any
collections or rights to receive payments which were collected pursuant thereto
prior to such Subsequent Cutoff Date), and (ii) all other rights and property
interests consisting of Trust Assets related to such Subsequent Receivables (the
property in clauses (i)-(ii) above, upon such transfer, becoming part of the
Trust Assets and the Asset Pool).
(b) The Trust Depositor may transfer to the Trust the
Subsequent Receivables and the other property and rights related thereto
described in paragraph (a) above only upon the satisfaction of each of the
following conditions on or prior to the related Subsequent Transfer Date (and
the delivery of a related Addition Notice by the Trust Depositor shall be deemed
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a representation and warranty by the Trust Depositor, that such conditions have
been or will be, as of the related Subsequent Transfer Date, satisfied):
(i) The Trust Depositor shall have provided the
Indenture Trustee and the Facility Administrator notice of its
intention to effect a Subsequent Transfer at least twenty (20)
days prior to the proposed Subsequent Transfer Date and the
Trust Depositor shall have provided the Indenture Trustee and
the Facility Administrator with an Addition Notice complying
with the definition thereof no later than two (2) Business
Days prior to the proposed Subsequent Transfer Date;
(ii) the Subsequent Receivable(s) being conveyed to
the Trust, satisfy the Subsequent Receivable Qualification
Conditions;
(iii) after giving effect to such conveyance, the
Subsequent Receivable Transfer Conditions shall remain
satisfied;
(iv) the Trust Depositor shall have delivered to the
Facility Administrator and the Indenture Trustee a duly
executed written assignment in favor of the Trust, in
substantially the form of EXHIBIT I hereto (the "SUBSEQUENT
TRANSFER AGREEMENT" or, in the case of Substitute Receivables,
substantially in the form of EXHIBIT J hereto (the "SUBSTITUTE
RECEIVABLES TRANSFER Agreement"), which shall include a
Subsequent List of Receivables listing the Subsequent
Receivables or Substitute Receivables;
(v) the Trust Depositor shall have deposited or
caused to be deposited in the Collection Account all
Collections received with respect to the Subsequent
Receivables after the related Subsequent Cutoff Date;
(vi) as of each Subsequent 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;
(vii) 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 Subsequent
Receivables;
(viii) each of the representations and warranties
made by the Sellers pursuant to Article III of the Sale and
Contribution Agreement applicable to the Subsequent
Receivables shall be true and correct as of the related
Subsequent Transfer Date, and the Sellers shall have performed
in all material respects all obligations to be performed by
them hereunder or thereunder on or prior to such Subsequent
Transfer Date; and
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(ix) the Sellers shall, at their own expense, on or
prior to the Subsequent Transfer Date, have indicated in their
Computer Disk and Records that the Subsequent Receivables
identified on the Subsequent List of Receivables in the
Subsequent Transfer Agreement have been sold to the Trust
through the Trust Depositor pursuant to this Agreement and the
Sale and Contribution Agreement.
(c) In connection with any replacement of existing Receivables
in the Asset Pool with Subsequent Receivables effected in accordance with
Section 2.7(a), the Indenture Trustee shall, automatically and without further
action, be deemed to transfer to the Trust Depositor, free and clear of any Lien
created pursuant to this Agreement, all of the right, title and interest of the
Trust in, to and under the related Replaced Receivable (including any
Collections received with respect thereto after the related Subsequent Cutoff
Date), and the Indenture Trustee shall be deemed to represent and warrant that
it has the corporate authority and has taken all necessary corporate action to
accomplish such transfer, but without any other recourse, representation or
warranty, express or implied.
SECTION 2.8. EXTENSION OF PURCHASE PERIOD; INCREASE IN COMMITMENT.
(a) The Trust Depositor may, within 180 days, but no later
than 90 days, prior to the then applicable Purchase Period Termination Date, by
written notice to the Facility Administrator, who will make written request for
the Noteholders to extend the Purchase Period for one additional period of 364
days commencing on the Purchase Period Termination Date then in effect. The
Facility Administrator will promptly notify the Noteholders of such request. The
Noteholders shall make a determination, in their sole discretion and after a
full credit review, not less than 30 days prior to the then applicable Purchase
Period Termination Date as to whether or not they will agree to extend the
Purchase Period Termination Date; PROVIDED, HOWEVER, that the failure of the
Noteholders to make a timely response to the Trust Depositor's request for
extension of the Purchase Period Termination Date shall be deemed to constitute
a refusal by the Noteholders to extend the Purchase Period Termination Date. The
Purchase Period Termination Date shall only be extended upon the written consent
of all of the Noteholders.
(b) At any time after the Closing Date, the Trust Depositor
may, by written notice to the Facility Administrator (who will promptly forward
such notice to the Noteholders) at least ninety (90) days prior to the Purchase
Period Termination Date, request an increase in the Note Purchase Limit;
PROVIDED that any such increase must be in a minimum amount of U.S. $50,000,000.
The unanimous consent of the Noteholders, in their sole discretion, may approve
such request for an increase in the Note Purchase Limit, which increase shall
become effective only upon receipt by the Trust Depositor of written
confirmation of the Noteholders' consent to such increase, which specifies the
Note Purchase Limit as so increased.
SECTION 2.9. ACCEPTANCE BY TRUST. On the Closing Date, if the
conditions set forth in Article Four have been satisfied, the Trust shall
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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 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 after a Termination Event 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; 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;
(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 the Noteholders in accordance with their
applicable Note Percentage with respect to Receivables which
are not Aruba Receivables, the Minimum Usage Fee;
(v) to the Facility Administrator, the Facility
Administrator Fee, including any unpaid Facility Administrator
Fee with respect to one or more prior Collection Periods;
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(vi) 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);
(vii) FIRST, to any Predecessor Servicer and SECOND,
to the Servicer, as applicable, any Protective Advances to the
extent not previously reimbursed;
(viii) to the Class A Noteholders, the Class A Note
Interest Distributable Amount;
(ix) to the Class B Noteholders, the Class B Note
Interest Distributable Amount;
(x) to the Class A Noteholders, the Class A Principal
Distributable Amount;
(xi) to the Class B Noteholders, the Class B
Principal Distributable Amount;
(xii) to the Class A Noteholders, costs relating to a
Class A Increased Costs Event, and to the Class B Noteholders,
costs relating to a Class B Increased Costs Event, pro rata;
(xiii) 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;
(xiv) if Bluegreen or an Affiliate thereof is the
Servicer, to the Servicer, but only to the extent the Servicer
Purchase Option has been declined by the Servicer, any accrued
and unpaid Remarketing Fees;
(xv) to the Reserve Account, the amount necessary to
increase the amount in the Reserve Account to the Reserve
Account Required Amount; and
(xvi) 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 after a Termination Event, the Servicer
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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; 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;
(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 the Noteholders in accordance with their applicable
Note Percentage with respect to Receivables which are not Aruba
Receivables, the Minimum Usage Fee;
(v) to the Facility Administrator, the Facility Administrator
Fee, including any unpaid Facility Administrator Fee with respect to
one or more prior Collection Periods;
(vi) 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);
(vii) FIRST, to any Predecessor Servicer and SECOND, to the
Servicer, as applicable, any Protective Advances to the extent not
previously reimbursed;
(viii) to the Class A Noteholders, the Class A Note Interest
Distributable Amount;
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(ix) to the Class B Noteholders, the Class B Note Interest
Distributable Amount;
(x) to the Class A Noteholders, the Class A Principal
Distributable Amount;
(xi) to the Class B Noteholders, the Class B Principal
Distributable Amount;
(xii) 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;
(xiii) if Bluegreen or an Affiliate thereof is the Servicer,
to the Servicer, but only to the extent the Servicer Purchase Option
has been declined by the Servicer, any accrued and unpaid Remarketing
Fees;
(xiv) to the Class A Noteholders, any remaining amounts until
such time as the Class A Notes are paid in full (including amounts in
respect of a Class A Increased Costs Event);
(xv) to the Class B Noteholders, any remaining amounts until
such time as the Class B Notes are paid in full (including amounts in
respect of a Class B Increased Costs Event); and
(xvi) 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.
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ARTICLE THREE
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 Closing Date, 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 first priority
perfected interest 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.
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
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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.
ARTICLE FOUR
CONDITIONS OF PURCHASES
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 I, each (unless otherwise indicated)
dated such date, in form and substance reasonably satisfactory to the Facility
Administrator.
SECTION 4.2. CONDITIONS PRECEDENT TO ALL PURCHASES.
The Initial Purchase and each Incremental Purchase from the Trust
Depositor by the Trust shall be subject to the further conditions precedent
that:
(a) the Facility Administrator, the Indenture Trustee and the
Custodian shall have received on or before the date of such Purchase the items
listed in EXHIBIT B in form and substance reasonably satisfactory to the
Facility Administrator;
(b) the Servicer shall have delivered to the Facility
Administrator (A) with respect to the Initial Purchase, a completed Asset Report
dated within five (5) Business Days prior to the date of such Purchase and
containing such additional information as may be reasonably requested by the
Facility Administrator, (B) with respect to Incremental Purchases, a Subsequent
List of Receivables relating to such Incremental Purchase, and (C) executed
Assignments (under both the Sale and Contribution Agreement and this Agreement)
relating thereto; and the Receivables File with respect to such Asset Pool
Portion being purchased shall have been delivered into the custody of the
Custodian (for the benefit of the Trust) (or arrangements for custody thereof
otherwise satisfactory to the Trust shall have been implemented);
(c) 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 Asset Pool Portion being
purchased shall have been taken;
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(d) on the date of such Purchase, the following statements
shall be true and the Trust Depositor by accepting the Cash Purchase Price of
such Purchase shall be deemed to have certified that:
(i) the representations and warranties contained in
Sections 5.1 and 5.2(a) and, solely with respect to the
Receivables subject to such Purchase, Section 5.2(b) are true
and correct on and as of such day as though made on and as of
such date,
(ii) no event has occurred and is continuing, or
would result from such Purchase which constitutes a Servicer
Event of Termination, Termination Event or an Event of
Default,
(iii) on and as of such day the Outstanding Amount of
the Notes will not exceed Availability or the Note Purchase
Limit, and
(iv) on and as of such day, the Trust Depositor and
the Servicer each has performed in all material respects all
of the agreements contained in this Agreement and the other
Transaction Documents to be performed by such Person at or
prior to such day;
(e) 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;
(f) 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); and
(g) the Facility Administrator shall have received an executed
Interest Rate Cap Agreement meeting the requirements of SECTION 6.1 hereof.
(h) the Facility Administrator shall have received such other
approvals, opinions or documents as the Facility Administrator may reasonably
request.
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES
Each Seller under the Sale and Contribution Agreement has made, and
upon execution of each Subsequent Purchase Agreement 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
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delivery of the Sale and Contribution Agreement and this Agreement and as of the
Closing Date in the case of the initial Receivables, and as of the applicable
Subsequent Transfer Date in the case of the Subsequent Receivables or Substitute
Receivables, 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 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 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 delivery of
the Receivables Files to the Custodian.
The Trust Depositor hereby represents and warrants to the Owner Trustee
and the Indenture Trustee 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 transferred 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.
The Trust Depositor represents and warrants, as of the Closing Date,
each Purchase Date and each Subsequent 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 corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and each other
Transaction Document to which it is a party.
(b) DUE QUALIFICATION. The 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 on its ability to perform its
obligations hereunder.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party, and the
consummation of the transactions provided for herein and therein have been duly
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authorized by the Trust Depositor by all necessary corporate 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 will not conflict with, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any material indenture,
receivable, agreement, mortgage, deed of trust, or other instrument to which the
Trust Depositor is a party (or by which it or any of its property is bound).
(e) NO VIOLATION. The execution and delivery of this Agreement
and each other Transaction Document to which it is a party, the performance of
the transactions contemplated hereby and thereby and the fulfillment of the
terms hereof and thereof (including, without limitation, the sale of 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.
(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 materially and adversely affect the performance by the Trust
Depositor of its obligations under this Agreement or any Transaction Document.
(g) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required in connection with the 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. After giving effect to the transactions under
this Agreement, the Trust Depositor will be Solvent.
(j) SELECTION PROCEDURES. No selection procedures materially
adverse to the interests of the Trust were utilized by the Trust Depositor in
selecting the Receivables in the Asset Pool.
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(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 (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 relating to this Agreement, or in favor of
the Trust Depositor as assignee of the Sellers.
(o) NOTE PURCHASE LIMIT AND AVAILABILITY. After giving effect
to any current Purchase or conveyance of Receivables, (i) the aggregate
Outstanding Amount of all Notes does not exceed Availability or the Note
Purchase Limit and (ii) the aggregate amount of all advances made by the
Noteholders under the Note Purchase Agreements does not exceed the Note Purchase
Limit.
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(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 in
Section 13.3 hereof (or at such other locations as to which the notice and other
requirements specified herein shall have been satisfied).
(r) TRADENAMES. Except as described in SCHEDULE III, neither
the Trust Depositor nor the Seller has trade names, fictitious names, assumed
names or "DOING BUSINESS AS" names or other names under which either has done or
is doing business.
(s) SALE AND CONTRIBUTION AGREEMENT. The Sale and Contribution
Agreement, 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 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.
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(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 their
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 6.5 hereof.
(z) RESERVATION SYSTEM. Other than with respect to the
services contracted for by the Club Managing Entity with a third party which
rights under such contracts shall be licensed (on a non-exclusive basis) to the
Indenture Trustee for the benefit of the Noteholders, the Reservation System is
owned by the Club Managing Entity free and clear of any liens or security
interests, 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 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.
(aa) CLUB TRUST AGREEMENT. The Club Trust Agreement, of which
a true and correct copy is attached hereto as EXHIBIT E, is in full force and
effect.
The representations and warranties set forth in this section
shall survive the transfer of the 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.
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SECTION 5.2. REPRESENTATIONS AND WARRANTIES OF TRUST DEPOSITOR RELATING
TO THE RECEIVABLES.
The Trust Depositor hereby represents and warrants to the Trust that,
solely with respect to the Receivables then being sold or transferred as of the
Closing Date, on a later Purchase Date and as of a Subsequent Transfer Date:
(a) VALID SALE AND TRANSFER OF OWNERSHIP. The Trust Depositor
has good and marketable title to each Trust Asset free and clear of any Lien
(other than Permitted Liens) of any Person and is the sole owner thereof and has
full right to transfer the Trust Assets to the Trust.
(b) ELIGIBILITY OF RECEIVABLES. As of the initial Cutoff Date:
(i) the List of Receivables and the Asset Report
delivered in connection therewith is an accurate and complete
listing in all material respects of all the Receivables in and
to become part of the Asset Pool as of the Cutoff Date and the
information contained therein (including with respect to the
identity of such Receivables, Obligors thereon, and the
amounts owing thereunder) is true and correct in all material
respects as of the Cutoff Date,
(ii) each such Receivable is an Eligible Receivable,
(iii) each Trust Asset has been transferred to the
Trust free and clear of any Lien of any Person (other than
Permitted Liens) and in compliance, in all material respects,
with all Requirements of Law applicable to the Trust
Depositor, and
(iv) with respect to each Receivable, all material
consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by Trust Depositor
in connection with the transfer of such Trust Assets to the
Trust have been duly obtained, effected or given and are in
full force and effect.
On each Incremental Purchase Date or Subsequent Transfer Date, solely
with respect to the Receivables being sold on such date, the Trust Depositor
shall be deemed to represent and warrant to the Trust that:
(I) the Subsequent List of Receivables and the Asset
Report delivered in connection therewith is an
accurate and complete listing in all material
respects of all the Receivables then in, and as a
result of such Incremental Purchase or Subsequent
Transfer to become part of, the Asset Pool as of the
applicable Cutoff Date and the information contained
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therein (including with respect to the identity of
such Receivables, Obligors thereon, and the amounts
owing thereunder) is true and correct in all material
respects as of the applicable Cutoff Date,
(II) each Receivable transferred on such day is an
Eligible Receivable,
(III) each Trust Asset has been transferred to the Trust
free and clear of any Lien of any Person (other than
Permitted Liens) and in compliance, in all material
respects, with all Requirements of Law applicable to
Trust Depositor or the Sellers, and
(IV) with respect to each Trust 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 Trust Depositor in connection with the
transfer of such Trust Asset to the Trust have been
duly obtained, effected or given and are in full
force and effect.
(c) NOTICE OF BREACH. The representations and warranties set
forth in this Section 5.2 shall survive the transfer of the respective Trust
Assets, or interests therein, to the Trust. 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 5.3. REPRESENTATIONS AND WARRANTIES OF THE CLUB AND THE CLUB
TRUSTEE.
(a) The Bluegreen Vacation Club Trust is a trust duly
established in accordance with the 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. The Club
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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 expect to have a material adverse
effect on the Trust Assets or the Club Trustee's ability to perform its
obligations under the Transaction Documents.
(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 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.
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(i) The Bluegreen Vacation Club Trust and the Club Trustee are
in compliance in all material respects with all applicable laws, statutes, rules
and governmental regulations 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) 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.
(l) 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.
(m) 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 5.4. REPRESENTATIONS AND WARRANTIES OF THE SERVICER.
(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 on
the business, properties, assets, or condition (financial or otherwise) of the
Servicer. 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 on the
Servicer's business or financial condition.
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(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 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, bureau or agency 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
on the Trust Assets or the Servicer's ability to perform its obligations under
any of the Transaction Documents..
(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
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could reasonably be expected to be adversely determined, and if adversely
determined, would in the opinion of the Servicer have a material adverse effect
on the business, properties, assets or condition (financial or otherwise) of the
Servicer or its obligations under this Agreement or any Transaction Document.
(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.
ARTICLE SIX
GENERAL COVENANTS
SECTION 6.1. GENERAL COVENANTS OF THE TRUST DEPOSITOR.
Until the date on which all Aggregate Outstandings have been
indefeasibly paid in full, the Trust Depositor hereby covenants 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 on the Trust Assets or
the Trust Depositor's ability to perform its obligations under the Transaction
Documents.
(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
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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 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
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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.
(f) LOCATION OF TRUST DEPOSITOR, RECORDS; INSTRUMENTS. The
Trust Depositor (x) shall not 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 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 Purchase 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 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 Agreements in
any manner other than the sale of Trust Assets by the Trust Depositor to the
Trust or the sale or contribution of the Assets by the Sellers to the Trust
Depositor, as the case may be.
(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
Multiemployer Plan that the Trust Depositor may be required to make under the
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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 CERTIFICATE OF INCORPORATION. The Trust
Depositor will not amend, modify or otherwise make any change to its Certificate
of Incorporation to delete or otherwise nullify or circumvent the provisions set
forth on EXHIBIT F hereto.
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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) RESORTS. Neither the Trust Depositor nor the Servicer
shall permit the number of Resorts within the Club to be less than 20; provided
that for purposes of this clause (p), a "Resort" shall include all phases,
subdivisions and/or developments at the same or substantially the same
geographic location.
(q) 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.
(r) MERGER OR CONSOLIDATION. The Trust Depositor shall not
merge or consolidate with any other Person 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 Person unless the Person formed by such
consolidation or into which the Trust Depositor has merged or the Person which
acquires by conveyance, transfer or lease substantially all the assets or
capital stock of the Trust Depositor as an entirety, can lawfully perform the
obligations of the Trust Depositor hereunder and executes and delivers to the
Owner Trustee and the Indenture Trustee an agreement in form and substance
reasonably satisfactory to the Owner Trustee and 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 Trust Depositor under this Agreement.
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
(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
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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.
(s) INTEREST RATE PROTECTION. On each Purchase Date, the Trust
Depositor shall enter into an Interest Rate Cap Agreement for such Asset Pool
Portion with one or more Eligible Interest Rate Cap Providers with a notional
amount calculated on a stepped-down basis agreed to by the parties thereto and
the Noteholders, providing for a strike price of 100 basis points over the
initial weighted average of the Class A Note Rate and the Class B Note Rate
relating to such Asset Pool Portion and otherwise in form and substance
satisfactory to the parties to such Interest Rate Cap Agreement and the
Noteholders.
SECTION 6.2. GENERAL COVENANTS OF THE CLUB TRUSTEE.
Until the date on which all Aggregate Outstandings have been
indefeasibly paid in full, the Club Trustee hereby covenants that:
(a) NO CONVEYANCE. The Club Trustee agrees not to convey any
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
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
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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 or its Amended and Restated Articles
of Incorporation, as applicable, and observe all necessary,
appropriate and customary corporate formalities, including,
but not limited to, holding all regular and special
stockholders', trustees' and directors' meetings appropriate
to authorize all trust and corporate action, keeping separate
and accurate minutes of its meetings, passing all resolutions
or consents necessary to authorize actions taken or to be
taken, and maintaining accurate and separate books, records
and accounts, including, but not limited to, payroll and
intercompany transaction accounts.
(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:
(i) engage in any business or activity other than as
set forth herein or in or as contemplated by the Club Trust
Agreement or its Amended and Restated Articles of
Incorporation, as applicable;
(ii) without the affirmative vote of a majority of
the members of the 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
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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 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) The Club Trustee shall not incur any Indebtedness other
than (i) trade payables and operating expenses (including taxes) incurred in the
ordinary course of business or (ii) in connection with servicing Resort
Interests included in the Club's trust estate in the ordinary course of business
consistent with past practices; provided, that in no event shall the Club
Trustee incur Indebtedness for borrowed money.
SECTION 6.3. GENERAL COVENANTS OF THE SERVICER.
So long as the Servicer is Bluegreen, the Servicer covenants that:
(a) NET WORTH. Servicer agrees to maintain a Tangible Net
Worth of Eighty Million Dollars ($80,000,000).
(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 Resorts and Additional 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,
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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 Resorts and
Additional 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 Resorts and
Additional Resorts inspections, audits and any other diligence relating to
Servicer's finances or books or records.
(c) MAINTENANCE. For so long as the Servicer controls the
Resorts and Additional Resorts, the Servicer shall use commercially reasonable
best efforts to maintain the Resorts and Additional Resorts in good repair,
working order and condition (ordinary wear and tear excepted).
(d) MANAGEMENT CONTRACT. For so long as the Servicer controls
the Resorts and the Additional Resorts, the manager, related management contract
and master marketing and sale contract (if applicable) for each Resort shall at
all times be reasonably satisfactory to the Facility Administrator. For so long
as the Servicer controls the Time Share Association for the Resorts or
Additional Resorts, and the Servicer or an Affiliate thereof is the manager, the
related management contract and master marketing and sale contract may be
amended or modified only with the prior written consent of the Facility
Administrator, which consent shall not be unreasonably withheld or delayed.
(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 which
materially adversely affects the Trust's interest in the Receivable, 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 on the
Receivables or related Trust Assets, or any material part thereof, and (ii) any
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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 on
the Trust Assets or the Servicer's ability to service the same; (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 on the Trust Assets or the Servicer's ability to service
the same; 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 on the Trust Assets or the Servicer's ability to service
the same.
(g) NEGATIVE PLEDGE ON RESERVATION SYSTEM. Except as
contemplated by the Transaction Documents, the Servicer shall not, and shall not
permit the Club Managing entity to, encumber, pledge or otherwise ▇▇▇▇▇ ▇ ▇▇▇▇
or security interest in and to the Reservation System (including, without
limitation, all hardware, software and data in respect thereof) and furthermore
agrees, 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.
(h) MODIFICATIONS OF RECEIVABLES. The Servicer shall not
reschedule, revise downward or defer payments on a Receivable or modify the
terms or conditions of the related contract in a manner adverse to the Trust
unless the Facility Administrator shall have consented in writing to the same.
(i) 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.
(j) COMPLIANCE WITH COLLECTION POLICIES. The Servicer shall
comply in all material respects with the Collection Policies in effect on the
Closing Date (or as amended from time to time with the consent of the Facility
Administrator) and with the terms of the Receivables.
(k) NOTICES TO OBLIGORS. Promptly after the Closing Date and,
in any event, not later than five (5) Business Days thereafter, the Servicer
will direct all Obligors of Receivables, and shall instruct all future Obligors
of such Receivables, to remit all payments with respect to such Receivables only
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(i) by check, money order, phone payment, or Western Union Quick Collect mailed
to, or generated by, an office of the Servicer, (ii) by check, wire transfer,
money order or moneygram to the Lockbox or Lockbox Account or (iii) by
pre-authorized checking or credit card payment for deposit into the Lockbox
Account.
(l) COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS. The
Servicer shall perform each of its obligations under this Agreement and the
other Transaction Documents and comply with all federal, state and local laws
and regulations applicable to it and the Receivables, including those relating
to truth in lending, time share, real estate, retail installment sales, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices, privacy, licensing, taxation, ERISA and labor matters and
Environmental Laws, except to the extent that the failure to so comply,
individually or in the aggregate, could not reasonably be expected to have a
material adverse effect on its ability to perform its obligations hereunder or
on its business, properties, assets, or condition (financial or otherwise) of
the Servicer and its Subsidiaries taken as a whole.
SECTION 6.4. RELEASE OF INTEREST IN INTERVAL.
At the same time as (i) any Receivable becomes a Prepaid Receivable and
in connection therewith the Interval related to such Prepaid Receivable is sold,
(ii) any Receivable matures, or (iii) the Trust Depositor through the Servicer,
substitutes or replaces any Receivable as contemplated in SECTIONS 2.7 and 6.5
hereof, the Indenture Trustee will release its interest in the Interval relating
to such Prepaid Receivable or such Replaced Interval, as the case may be;
PROVIDED, that such release will not constitute a release of the respective
interests of Indenture Trustee and Trust Depositor in the proceeds of such sale.
In connection with any of the events described in the preceding sentence, the
Indenture Trustee 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
shall be deemed to have transferred to the Obligor all of the Indenture
Trustee's right, title and interest in such Interval and shall be deemed to have
represented to the Obligor that the Indenture Trustee has the authority to so
transfer, has completed all corporate action required by it to effect such
transfer and has transferred such interest free and clear of any interest
created by the Indenture Trustee hereunder or under the other Transaction
Documents, but without any other recourse, 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
such sale.
SECTION 6.5. RETRANSFER OF INELIGIBLE RECEIVABLES.
Upon discovery by the Servicer, Trust Depositor, the Indenture Trustee
or Trust of a breach when made of a representation or warranty of the Trust
Depositor set forth in Section 5.2(b) with respect to a Receivable in the Asset
Pool which, in the Facility Administrator's reasonable determination, materially
adversely affects the Receivable or with respect to Receivables for which, in
the Facility Administrator's reasonable determination, the breach of a
representation or warranty in the aggregate materially adversely affects the
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Indenture Trustee or the Noteholders (an "INELIGIBLE RECEIVABLE"), the party
discovering such breach shall give prompt written notice to the other parties.
Not later than the Determination Date which is at most thirty (30) days after
the earlier to occur of the discovery of such breach by the Trust Depositor or
receipt by the Trust Depositor of written notice of such breach given by the
Trust, Indenture Trustee or the Servicer, the Trust Depositor shall, at its
option, either cure the breach within the above described time period or
repurchase such Ineligible Receivable and the Indenture Trustee shall convey,
free and clear of any Lien created by pursuant to this Agreement, all of its
right, title and interest in such Ineligible Receivable, and the Indenture
Trustee shall, in connection with such conveyance and without further action, be
deemed to represent and warrant that it has the corporate authority and has
taken all necessary corporate action to accomplish such conveyance, but without
any other recourse, representation or warranty, express or implied. In any of
the foregoing instances, the Trust Depositor shall accept a retransfer of each
such Ineligible Receivable, and there shall be deducted from the Receivable
Balance of the Asset Pool, the Receivable Balance of each such Ineligible
Receivable. On and after the date of such retransfer, each Ineligible Receivable
so retransferred shall not be included in the Asset Pool. In consideration of
such retransfer the Trust Depositor shall, on the date of retransfer of such
Ineligible Receivable, make or cause to be made a deposit in the Collection
Account (for allocation pursuant to SECTIONS 2.11(A) and (B), as applicable) in
immediately available funds in an amount equal to the Transfer Deposit Amount
for such Ineligible Receivable. Upon each retransfer to the Trust Depositor of
such Ineligible Receivable in accordance herewith, the Trust shall automatically
and without further action be deemed to transfer, assign and set-over to the
Trust Depositor, free and clear of any Lien created pursuant to this Agreement,
all the right, title and interest of the Trust in, to and under such Receivable
and all monies due or to become due with respect thereto, the related Interval
and all proceeds of such Receivable, Recoveries and Insurance Proceeds relating
thereto, all rights to security for any such Receivable, the deed (if any)
relating to any such Receivable and all proceeds and products of the foregoing,
and the Trust shall, in connection with such transfer, assignment and set-over
and without further action, be deemed to represent and warrant that it has the
corporate authority and has taken all necessary corporate action to accomplish
such transfer, assignment and set-over, but without any other recourse,
representation or warranty, express or implied. The Indenture Trustee 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 Receivable pursuant to this Section
6.5.
Notwithstanding the foregoing, in lieu of repurchasing an Ineligible
Receivable as described above, the Trust Depositor may, subject to the
conditions and requirements of SECTION 2.7 of this Agreement (other than the
12.5% limitation set forth in the definition of Subsequent Receivable Transfer
Condition), effect a replacement of such Receivable with a Substitute
Receivable, such replacement to be effected not later than the date that a
repurchase would have been required hereunder. Upon any such substitution, the
Ineligible Receivable and Trust Assets specifically relating thereto will be
retransferred to the Trust Depositor as provided above.
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Notwithstanding anything contained herein or in any Transaction
Document to the contrary, the obligation of the Trust Depositor to repurchase
and accept retransfer of any Ineligible Receivable (or in the alternative,
effect a valid replacement of such Receivable as described above) shall
constitute the sole remedy respecting any breach of the representations and
warranties set forth in SECTION 5.2 with respect to such Receivable available to
the Indenture Trustee, the Noteholders, the Facility Administrator, any other
party hereto or any other Person 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
Receivable an "INELIGIBLE RECEIVABLE" during the previously described 30 day
period, the Trust Depositor is not obligated to repurchase or replace such
Receivable. It is understood and agreed by the parties hereto that the payment
obligations of the Obligors' in respect of the Receivables purchased hereunder
shall not be the Trust Depositor's obligation, except with respect to Servicer
Advances and remedies associated with breaches of representations and warranties
to the extent permitted hereby.
ARTICLE SEVEN
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, 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 EIGHT
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 three Business Days after the date on which such payment or deposit was due
and not made;
(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
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continues unremedied for 30 days after the date on which notice of such failure
is delivered to Servicer or 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;
(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) Any failure by the Servicer to deliver the reports
described in Article Nine of this Agreement which remains uncured for three
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 as is appropriate in the event of a Force Majeure
Delay;
(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 written notice
thereof shall have been given to the Servicer by the Trust or 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
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five percent (5%) of the Servicer's Tangible Net Worth, or (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;
(i) As of any Determination Date, the Trailing Three Month (31
to 59), (60 to 89) and (90 to 119) Day Delinquency Rates exceed 8.0%, 6.0% and
4.0%, respectively; provided, however, if such Determination Date is after the
Purchase Period Termination Date and the Asset Pool aggregate Receivable Balance
as of such Determination Date is less than 7.50% of the aggregate of the
original Receivables Balances of all Receivables at any time in the Asset Pool,
such test shall no longer be applicable; or
(j) As of any Determination Date, the Trailing Three Month
Gross Recoveries shall be less than 80%.
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 balance of each Class of Notes; PROVIDED, FURTHER, that
so long as Bluegreen or an Affiliate of Bluegreen is not the Servicer, clauses
(h), (i) and (j) 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 may, and 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 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
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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
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
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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 5.4 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 applicable 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 of each Class of Notes,
may, by written notice delivered to the parties, waive any Servicer Termination
Event.
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ARTICLE NINE
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 Nine; 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. Servicer will remarket
Intervals related to Defaulted Receivables pursuant to SECTION 9.14 hereof and
make Servicer Advances pursuant to SECTION 9.15 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 9.14 hereof, make Servicer Advances pursuant to
SECTION 9.15 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.
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(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 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, or 90 or more days, a listing
of all Defaulted Receivables and a
computer diskette or magnetic tape
prepared in accordance with Exhibit
B hereto which provides the aging
history of the Receivables.
(e) Title: CANCELLATION, PREPAYMENT, UPGRADES
AND PAYOFF REPORT
Purpose: A listing of all Receivables which
were canceled, paid off in their
entirety, the subject of a
prepayment or Upgrade.
(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
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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/FULFILLMENT RATE
REPORT
Purpose: A report which (i) lists all
outstanding Vacation Points and the
total amount of available
Accommodations relating thereto and
(ii) sets forth the Fulfillment Rate
for the most recently ended fiscal
quarter.
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 June 30, 2001 (or April 30, 2001 with respect to the Back-up
Servicer), with respect to the twelve months ended the immediately preceding
March 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 the Back-up Servicer is not 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 the Back-up
Servicer is not the Servicer):
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(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 January 31 of
each year commencing January 31, 2001, 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 and (b) to such officer's knowledge, based on
such review, the Servicer has fully performed all its obligations under this
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.
SECTION 9.8. SALES AND INVENTORY REPORTS. A quarterly report showing
all sales and cancellations of sales of Intervals on Resorts and Additional
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 Resorts and Additional
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. QUARTERLY FINANCIAL REPORTS. Within forty-five (45) days
after the end of each of Servicer's (provided the Servicer is Bluegreen or an
Affiliate thereof) first three fiscal quarterly periods each year (or, if later,
that date by which Bluegreen is required to file financial statements with the
Securities and Exchange Commission), unaudited financial statements of Servicer
(provided the Servicer is Bluegreen or an Affiliate thereof) certified by its
chief financial officer 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.
SECTION 9.10. TIME SHARE ASSOCIATION REPORTS. To the extent the
Servicer is Bluegreen and Bluegreen or its Affiliates control the Resort or
Additional Resort, the quarterly and annual financial statements of the Time
Share Association and to the extent the Resort or Additional 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.
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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,
the Resorts or the Additional 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 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.
SECTION 9.14. SERVICER REMARKETING. The Servicer shall be obligated to
use commercially reasonable efforts to remarket the Intervals related to
Defaulted Receivables. The Servicer shall not, with respect to the remarketing
of the Intervals associated with the Defaulted Receivables and related Trust
Assets, make any "ADVERSE SELECTION" (i.e. the Servicer shall remarket the
Intervals relating to Trust Assets with the same degree of care as Servicer's
own portfolio of Intervals) with respect to such Trust Assets vis-a-vis other
receivables serviced by the Servicer. The Servicer, 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,
the Servicer 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 in respect of such Defaulted Receivables or finding replacements
therefor. The Servicer, 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
the Servicer 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 applicable law, be
deemed to be the developer or declarant of any Resort, Additional Resort or the
Club. The Servicer shall deposit the proceeds associated with the remarketing of
the Interval related to a Defaulted Receivable into the Lockbox 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. The Servicer (in the event the Servicer is Bluegreen
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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 in
lieu of performing the remarketing functions set forth in this Section.
SECTION 9.15. 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.
SECTION 9.16. 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.
ARTICLE TEN
FACILITY ADMINISTRATOR
SECTION 10.1. APPOINTMENT; NATURE OF RELATIONSHIP. ▇▇▇▇▇▇ Financial,
Inc. 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
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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.
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 of the Notes, 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.
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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 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 of Notes
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
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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 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 file review procedures consisting of
those items listed on EXHIBIT K hereto (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
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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 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.
ARTICLE ELEVEN
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 of each Class of Notes.
(b) Any Noteholder may, in the ordinary course of its business
and in accordance with applicable 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
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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 applicable 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
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, 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 TWELVE
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
funds remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein) in accordance with Section 2.11.
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ARTICLE THIRTEEN
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, (with notice to the
Rating Agencies provided by the Class A Noteholder) 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 Noteholders of more than 50% of the
outstanding balance of each Class of Notes, 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 affects 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, without the
consent of the Noteholders.
(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.
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(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 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 execute and file such financing
statements and cause to be executed and 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. 9-402(7) 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
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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, 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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Trust Depositor: Bluegreen Receivables Finance
Corporation IV
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Owner Trustee: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (for so long as
Bluegreen or an Affiliate
thereof is the Servicer) to:
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Facility Administrator: ▇▇▇▇▇▇ Financial, Inc.
30th Floor - HREF/VO
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Group General Counsel -
Vacation Ownership
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 Trust National
Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Structured Finance
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Club Trustee: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Noteholders: Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Financial, Inc.
30th Floor - HREF/VO
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager - Client Services
Vacation Ownership
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 and the
Trust Depositor's obligation to observe its respective covenants set forth in
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Article VI, shall remain in full force and effect until there are no Aggregate
Outstandings; 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 FEDERAL COURT LOCATED WITHIN THE STATE OF
ILLINOIS. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
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
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 with respect thereto and with respect to advising the Trust 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 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 shall pay or cause to be
paid on demand any and all damages, losses, claims, liabilities, fees and
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related costs and expenses, (including the reasonable fees and out-of pocket
expenses of attorneys) actually incurred by or awarded against the Trust, the
Noteholders, the Facility Administrator or any of their respective Affiliates
(each, an "INDEMNIFIED PARTY") arising out of or as a result of any acts,
omissions or alleged acts or omissions of the Sellers or Trust Depositor in
violation or in contravention of this Agreement or other Transaction Documents
and owed by such Indemnified Party to any other Person; PROVIDED that neither
the Trust Depositor nor Bluegreen shall be liable for the payment of any portion
of such damages, losses, claims, liabilities, fees or related costs or expenses
resulting from the gross negligence or willful misconduct of an Indemnified
Party or the breach of a Requirement of Law by an Indemnified Party; PROVIDED,
HOWEVER, that nothing contained in this paragraph shall be construed to obligate
Bluegreen or the Trust Depositor to indemnify an Indemnified Party with respect
to losses, claims, damages and liabilities incurred as a result of the payment
performance of the Trust Assets.
(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 claims, losses, penalties, fines, forfeitures, amounts paid
in settlement, judgments, reasonable attorneys' fees and related litigation
costs, fees and expenses which result from: (a) any action taken by or on behalf
of the Servicer (except in the event the Back-up Servicer is 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 the
Servicer, or (c) any act or omission constituting gross negligence or willful
misconduct by any officer, director, agent or employee of the Servicer in
connection with the Servicer'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) 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
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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 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 by
assignment of its rights thereunder 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 Purchase will be) made. Upon the filing of UCC-1
financing statements naming (i) 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 Subsequent
Receivables on the applicable Incremental Purchase Date or Subsequent 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.
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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 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 Servicer to facilitate the remarketing of Intervals and Vacation
Points relating to a Defaulted Receivable pursuant to SECTION 9.14.
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 Corporation is not acting as servicer
hereunder, the covenants in Section 6.3 (a), (b), (c), (d), (e), (f), (g), (k)
and (l) shall remain in full force and effect with respect to Bluegreen, and
Bluegreen shall remain obligated to provide those Reports described in Article
Nine 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 Trust National Association,
not in its individual capacity but solely as Indenture Trustee, and in no event
shall U.S. Bank Trust 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.
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SECTION 13.17. CONFIDENTIALITY. Each of the Facility Administrator and
the Noteholders (or any owner of an interest in a Note) agrees to take and to
use commercially reasonable efforts to cause its Affiliates to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all non-public information provided to it by or on behalf of Bluegreen
(individually and in its capacity as Servicer) under this Agreement or any other
Transaction Document, and none of such Persons nor any of their Affiliates shall
use any such information other than in connection with or in enforcement of this
Agreement and the other Transaction Documents, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by such Person or one of its Affiliates, or (ii) was or
becomes available on a non-confidential basis from a source other than
Bluegreen, provided that such source is not bound by a confidentiality agreement
with Bluegreen known to such Person; PROVIDED, HOWEVER, that such Person or any
assignee (including any assignee thereof) may disclose such information (A) at
the request of, or pursuant to any requirement of any such Person, or in
connection with, an examination of such Person by any regulatory authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable requirement of law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which such Person or any Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Transaction Document; (F) to such Person's independent auditors and other
professional advisors; (G) to any participant or assignee, actual or potential,
provided that such participant or assignee agrees in writing to keep such
information confidential to the same extent required of such Person hereunder;
(H) as to such Person or its Affiliate, as expressly permitted under the terms
of any other document or agreement regarding confidentiality to which Bluegreen
is party or is deemed party with such Person or its Affiliates; (I) to its
Affiliates; PROVIDED such Affiliate is bound by the confidentiality provisions;
(J) to any rating agency or regulatory body overseeing such Person or any
assignee and (K) to any party providing liquidity or credit support to such
Person or any assignee; provided that such participant or assignee agrees in
writing to keep such information confidential to the same extent required of
such Person hereunder.
[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 IV
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Treasurer
THE SERVICER
AND BLUEGREEN: BLUEGREEN CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Treasurer
THE BACK-UP SERVICER: CONCORD SERVICING CORPORATION
By: /s/ ▇▇▇▇ PINK
-----------------------------------------
Printed Name: ▇▇▇▇ PINK
Title: Vice President
Signature Page to Sale and Servicing Agreement
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THE TRUST: BXG RECEIVABLES OWNER TRUST 2000
By: Wilmington Trust Company, not
individually but solely as
Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services
THE INDENTURE TRUSTEE
AND THE CUSTODIAN: U.S. BANK TRUST NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: ASSISTANT VICE PRESIDENT
THE CLUB TRUSTEE: VACATION TRUST, INC., for itself and as
Club Trustee under the Club Trust Agreement
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT
THE FACILITY ADMINISTRATOR: ▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Printed Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
THE NOTEHOLDERS: ▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ASSOCIATE DIRECTOR
Signature Page to Sale and Servicing Agreement
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