EXHIBIT 10.106
SALE AND SERVICING AGREEMENT
AMONG
BXG RECEIVABLES OWNER TRUST 2004-A,
AS ISSUER,
BLUEGREEN RECEIVABLES FINANCE CORPORATION VII,
AS TRUST DEPOSITOR,
BLUEGREEN CORPORATION,
INDIVIDUALLY AND AS SERVICER,
CONCORD SERVICING CORPORATION,
AS BACK-UP SERVICER,
VACATION TRUST, INC.,
AS CLUB TRUSTEE,
U.S. BANK NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE AND CUSTODIAN,
GENERAL ELECTRIC CAPITAL CORPORATION,
AS FACILITY ADMINISTRATOR,
AND
AND THE PERSONS FROM TIME TO TIME SIGNATORY
HERETO AS NOTEHOLDERS
DATED AS OF AUGUST 3, 2004
Table of Contents
Page
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ARTICLE I DEFINITIONS.............................................................................................. 2
Section 1.1. Definitions..................................................................................... 2
Section 1.2. Usage of Terms.................................................................................. 2
Section 1.3. Section References.............................................................................. 2
Section 1.4. Other Interpretive Provisions................................................................... 2
Section 1.5. Accounting Terms................................................................................ 2
ARTICLE II TRANSFER OF RECEIVABLES.................................................................................. 2
Section 2.1. Sales........................................................................................... 2
Section 2.2. Procedures for Purchases........................................................................ 3
Section 2.3. Establishment of Accounts; Reserve Account...................................................... 4
Section 2.4. Deposits to Accounts............................................................................ 6
Section 2.5. Investment of Accounts.......................................................................... 6
Section 2.6. Payments and Computations; Funding Indemnity for Failed Purchase................................ 6
Section 2.7. Addition/Substitution of Receivables............................................................ 7
Section 2.8. [Reserved]...................................................................................... 10
Section 2.9. Acceptance by Trust............................................................................. 10
Section 2.10. Monthly Distributions........................................................................... 10
Section 2.11. Distributions................................................................................... 10
Section 2.12. Servicer Purchase Option........................................................................ 12
Section 2.13. Upgrades........................................................................................ 13
Section 2.14. Release of Interest............................................................................. 14
ARTICLE III SERVICING OF RECEIVABLES................................................................................. 14
Section 3.1. Responsibility for Receivable Administration................................................... 14
Section 3.2. Standard of Care............................................................................... 14
Section 3.3. Filing......................................................................................... 14
Section 3.4. Records........................................................................................ 15
Section 3.5. Inspection..................................................................................... 15
Section 3.6. Duties and Responsibilities of Servicer........................................................ 15
Section 3.7. Consideration.................................................................................. 16
ARTICLE IV CONDITIONS OF PURCHASES AND TRANSFERS.................................................................... 16
Section 4.1. Conditions Precedent to Initial Purchase....................................................... 16
Section 4.2. Conditions Precedent to All Transfers.......................................................... 16
ARTICLE V REPRESENTATIONS AND WARRANTIES........................................................................... 17
Section 5.1. Representations and Warranties of the Trust Depositor.......................................... 18
Section 5.2. Representations and Warranties Relating to the Receivables..................................... 22
Section 5.3. Survival; Knowledge; Notice of Breach.......................................................... 23
Section 5.4. Representations and Warranties of the Club and the Club Trustee................................ 23
Section 5.5. Representations and Warranties of the Servicer................................................. 25
ARTICLE VI COVENANTS................................................................................................ 27
Section 6.1. Covenants of the Trust Depositor............................................................... 27
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Section 6.2. General Covenants of the Club Trustee.......................................................... 31
Section 6.3. General Covenants of the Servicer and Bluegreen................................................ 33
ARTICLE VII SUBJECT TO CLUB TRUST AGREEMENT.......................................................................... 39
Section 7.1. Rights Subject to Club Trust Agreement......................................................... 39
ARTICLE VIII SERVICER TERMINATION EVENTS.............................................................................. 39
Section 8.1. Servicer Termination Events.................................................................... 39
Section 8.2. Service Transfer............................................................................... 41
Section 8.3. Successor Servicer to Act; Appointment of Successor Servicer................................... 42
Section 8.4. Effect of Transfer............................................................................. 42
Section 8.5. Successor Servicer Indemnification............................................................. 43
Section 8.6. Responsibilities of the Successor Servicer..................................................... 43
Section 8.7. Waiver of Servicer Termination Event........................................................... 43
ARTICLE IX PERFORMANCE AND DUTIES OF SERVICER....................................................................... 43
Section 9.1. General Requirements of Servicer............................................................... 44
Section 9.2. Servicer as Independent Contractor............................................................. 44
Section 9.3. [Omitted]...................................................................................... 44
Section 9.4. Description of Reports......................................................................... 44
Section 9.5. Officer's Certificate.......................................................................... 46
Section 9.6. Annual Report of Accountants................................................................... 46
Section 9.7. Annual Statement of Compliance from Servicer................................................... 46
Section 9.8. Sales and Inventory Reports.................................................................... 47
Section 9.9. Financial Reports.............................................................................. 47
Section 9.10. Time Share Association Reports; Club Reports.................................................... 47
Section 9.11. Audit Reports................................................................................... 48
Section 9.12. Other Reports................................................................................... 48
Section 9.13. SEC Reports..................................................................................... 48
ARTICLE X FACILITY ADMINISTRATOR................................................................................... 48
Section 10.1. Appointment; Nature of Relationship............................................................. 48
Section 10.2. Powers.......................................................................................... 48
Section 10.3. General Immunity................................................................................ 49
Section 10.4. No Responsibility for Advances, Recitals, etc................................................... 49
Section 10.5. Action on Instructions of Noteholders........................................................... 49
Section 10.6. Employment of Agents and Counsel................................................................ 49
Section 10.7. Reliance on Documents; Counsel.................................................................. 50
Section 10.8. Facility Administrator's Reimbursement and Indemnification...................................... 50
Section 10.9. Notice of Default............................................................................... 50
Section 10.10. Rights as a Noteholder.......................................................................... 50
Section 10.11. Noteholder Credit Decision...................................................................... 51
Section 10.12. Successor Facility Administrator................................................................ 51
ARTICLE XI ASSIGNMENTS; REPURCHASE OPTION........................................................................... 52
Section 11.1. Assignments; Participations..................................................................... 52
Section 11.2. Trust Depositor's Repurchase Option............................................................. 52
ARTICLE XII TERMINATION.............................................................................................. 52
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Section 12.1. Sale of Trust Assets............................................................................ 52
ARTICLE XIII MISCELLANEOUS............................................................................................ 53
Section 13.1. Amendments and Waivers.......................................................................... 53
Section 13.2. Protection of Title to Trust.................................................................... 54
Section 13.3. Notices, Etc.................................................................................... 55
Section 13.4. No Waiver; Remedies............................................................................. 57
Section 13.5. Binding Effect.................................................................................. 57
Section 13.6. Term of this Agreement.......................................................................... 57
Section 13.7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE............................ 58
Section 13.8. WAIVER OF JURY TRIAL............................................................................ 58
Section 13.9. Costs, Expenses and Taxes....................................................................... 58
Section 13.10. No Bankruptcy Covenant.......................................................................... 59
Section 13.11. Protection of Ownership Interests of the Trust; Intent of Parties; Back-up Security Interest.... 59
Section 13.12. Back-up Security Interest....................................................................... 60
Section 13.13. Execution in Counterparts; Severability; Integration............................................ 61
Section 13.14. Further Assurances.............................................................................. 61
Section 13.15. Savings Clause.................................................................................. 61
Section 13.16. Limitation of Liability of Owner Trustee and Indenture Trustee.................................. 61
Section 13.17. Confidentiality................................................................................. 61
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SCHEDULES
SCHEDULE IA/IB Condition Precedent Documents/List of Deliveries
SCHEDULE II Servicer Reports
SCHEDULE III Locations and State of Organization
SCHEDULE IV Location of Receivables Files
EXHIBITS
EXHIBIT A Form of Request Notice For Initial and Incremental Purchases
EXHIBIT B Form of Substitution Notice
EXHIBIT C List of Eligible Resorts
EXHIBIT D Form of Notice of Waiver
EXHIBIT E Club Trust Agreement
EXHIBIT F Provisions of the Trust Depositor's Certificate of Incorporation
EXHIBIT G Form of Servicing Officer's Certificate
EXHIBIT H Form of Assignment
EXHIBIT I Form of Mortgage Assignment
EXHIBIT J Collection Policies
EXHIBIT K Reserved
EXHIBIT L-1 Forms of Contracts
EXHIBIT L-2 Forms of Mortgages
EXHIBIT M Form of Allonge
EXHIBIT N Form of Notice (Aruba Receivables)
ANNEXES
Definitions Annex
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SALE AND SERVICING AGREEMENT
SALE AND SERVICING AGREEMENT, dated as of August 3, 2004, among BXG
Receivables Owner Trust 2004-A (together with its successors and assigns, the
"Issuer" or the "Trust"), Bluegreen Receivables Finance Corporation VII
(together with its successor and assigns, the "Trust Depositor"), U.S. Bank
National Association (in its capacity as Indenture Trustee, together with its
successors and assigns, the "Indenture Trustee" and in its capacity as
Custodian, together with its successors and assigns, the "Custodian"), Vacation
Trust, Inc., as club trustee under the Club Trust Agreement (in such capacity,
the "Club Trustee"); Concord Servicing Corporation ("Back-Up Servicer"),
Bluegreen Corporation (individually to the extent set forth herein, together
with its successor and assigns, "Bluegreen", as a Seller or, in its capacity as
Servicer, together with its successors and assigns, the "Servicer"), General
Electric Capital Corporation, in its capacity as facility administrator
("Facility Administrator"), and the Person from time to time signatory hereto as
Noteholders ("Noteholders").
WHEREAS, the Trust desires to purchase from time to time from the Trust
Depositor the Trust Assets including, but not limited to, the Receivables
related to the financing of certain timeshare interests by the Sellers and
subsequently sold by the Sellers to the Trust Depositor;
WHEREAS, the Trust Depositor is willing to sell the Trust Assets to the
Trust pursuant to the terms hereof;
WHEREAS, General Electric Capital Corporation is willing to act as
Facility Administrator under the Transaction Documents;
WHEREAS, Bluegreen is willing to act as owner trust administrator under
the Administration Agreement;
WHEREAS, U.S. Bank National Association is willing to act as Indenture
Trustee under the Indenture and as Custodian under the Custodial Agreement;
WHEREAS, Concord Servicing Corporation is willing to act as Back-Up
Servicer under the Back-Up Servicing Agreement;
WHEREAS, the Club Trustee is a limited purpose entity which, on behalf of
the Beneficiaries, holds title to certain Intervals and Deeds relating to
Receivables sold pursuant to this Agreement;
WHEREAS, Bluegreen is willing and has agreed pursuant hereto to act as
Servicer for the Trust Assets and to service the Receivables pursuant to the
terms hereof;
WHEREAS, the Noteholders have agreed to purchase notes issued by the Trust
to facilitate the Trust's purchase of the Trust Assets;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Definitions Annex.
Section 1.2. Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other gender; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their respective terms and not prohibited by this
Agreement; references to Persons include their permitted successors and assigns;
and the term "including" means "including without limitation."
Section 1.3. Section References. All section references, unless otherwise
indicated, shall be to Sections in this Agreement.
Section 1.4. Other Interpretive Provisions. Except to the extent otherwise
specified in the particular term or provision at issue, this Agreement
(including the Definitions Annex hereto) shall be interpreted and construed in
accordance with the Document Conventions.
Section 1.5. Accounting Terms. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE II
TRANSFER OF RECEIVABLES
Section 2.1. Sales.
(a) Subject to the terms and conditions of this Agreement, the Trust
Depositor shall sell 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 Transfer Date") during the period from the Closing Date to
but not including the Purchase Period Termination Date (the first such sale and
purchase to be effected hereunder, the "Initial Purchase"; each subsequent sale
and purchase, an "Incremental Purchase"; and any such sale and purchase, a
"Purchase"). Under no circumstances, however, shall the Trust be obligated to
make any Purchase if, after giving effect to such Purchase, the aggregate
Outstanding Amount would exceed the lesser of (i) the Note Purchase Limit or
(ii) the Funding Date Overcollateralization. Upon the payment of the related
Cash Purchase Price (as defined below) for the Initial Purchase or any
Incremental Purchase and on each Substitute Asset Transfer Date, the Trust
Depositor shall have, and shall be deemed hereunder to have, irrevocably and
absolutely sold, assigned, transferred 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
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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.
Although the Trust Depositor and the Trust agree that such transfer is
intended to be a sale of ownership of the Trust Assets, rather than the granting
of a security interest to secure a borrowing, and that the Trust Assets shall
not be property of the Trust Depositor, in the event, notwithstanding such
intent, such transfer is deemed to be a grant of a security interest to secure a
borrowing, the Trust Depositor shall be deemed to have granted (and hereby
grants to) the Trust a perfected first priority security interest in such Trust
Assets (subject to Permitted Liens) and this Agreement shall constitute a
security agreement under Requirements of Law securing the repayment of the
purchase price paid hereunder and the obligations and/or interests provided for
in this Agreement and the other Transaction Documents and in the order and
priorities, and subject to the other terms and conditions of this Agreement.
(b) The purchase price for the Purchased Receivables in each Asset Pool
Portion shall be the applicable Cash Purchase Price. The "Cash Purchase Price"
for any Asset Pool Portion shall be an amount equal to the product of (i) the
Receivable Balance as of the applicable Cutoff Date of the Eligible Receivables
to be purchased, multiplied by (ii) the applicable Credit Enhancement Factor in
effect on such Transfer Date. Subject to the satisfaction of the conditions and
on the terms set forth herein, the Trust shall pay to the Trust Depositor the
Cash Purchase Price for the Purchased Receivable on the related Transfer Date.
(c) Upon payment of the Cash Purchase Price by the Trust in the amount
determined in accordance with Section 2.1(b) with respect to all Trust Assets
purchased on a Transfer Date, the ownership of all such Trust Assets will be
solely vested in the Trust. None of the Sellers, Servicer, Trust Depositor nor
Club Trustee shall take any action inconsistent with such ownership and shall
not claim any ownership interest in any Trust Asset. The Trust Depositor, the
Sellers, Servicer and Club Trustee shall each indicate in their respective books
and records that ownership of each Purchased Receivable and related Trust Assets
is held by the Trust. 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 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.
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(a) During the Purchase Period, no later than eleven (11) days prior to
each Transfer Date, the Trust Depositor shall notify the Indenture Trustee and
the Facility Administrator of the intent to effect a Purchase and the proposed
Transfer Date thereof. During the Purchase Period, no later than 10:00 a.m.
(Chicago, Illinois time) on a date which is at least two (2) Business Days
before any intended Transfer Date, the Trust Depositor will deliver or cause to
be delivered to the Indenture Trustee and the Facility Administrator a Request
Notice substantially in the form of Exhibit A hereto. In the event that the
Trust Depositor does not provide a properly completed Request Notice (and
subject to all other terms and conditions to such Purchase hereunder), the Trust
will not be obligated to purchase Eligible Receivables on such intended Transfer
Date until such time as such terms and conditions are met. Each such Request
Notice shall specify, among other things, (i) the aggregate amount of such
Purchase, which shall be in a minimum amount equal to $10,000,000, or such
lesser amount as may be equal to the then unused portion of the Note Purchase
Limit, (ii) the intended Transfer Date for such Purchase, and (iii) the
aggregate Outstanding Amount, Funding Date Overcollateralization and the Note
Purchase Limit, both immediately preceding and after giving effect to such
Purchase.
(b) On each Transfer Date, and subject to the satisfaction of the
conditions of Article IV hereof and Articles IV and V of the Note Purchase
Agreement, the Servicer will prepare and deliver an Assignment to the Trust
Depositor and the Trust in the form of Exhibit H hereto, Mortgage Assignments
and an Allonge in the form attached hereto as Exhibit M (an "Allonge"), as
applicable, which has been stapled to the original notes evidencing each
Receivable with respect to each of the Trust Assets being transferred on such
Transfer Date by the Trust. The Trust Depositor and the Trust shall thereupon
execute such Assignment and deliver executed unrecorded, originals thereof to
the Servicer who will in turn cause executed copies of such Assignment, Allonges
and Mortgage Assignments, as applicable, to be delivered to the Indenture
Trustee, the Custodian and the Facility Administrator, as applicable, and
recorded in accordance with the provisions of this Agreement. Upon the Facility
Administrator's receipt of a certification from the Custodian that it has
received the Receivables Files as set forth in the Custodial Agreement, an
Assignment for the related Trust Assets, an Allonge and a Mortgage Assignment,
as applicable, and for each Receivable listed on the List of Receivables
delivered in connection with the Request Notice, the Trust shall thereupon pay
to the Trust Depositor the Cash Purchase Price for such Trust Assets, by wire
transfer in same day funds in accordance with the wire transfer instructions
specified in the related Request Notice. The Trust Depositor shall be solely
responsible for obtaining ownership of the Trust Assets 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.
(c) The Facility Administrator will promptly notify the Noteholders of the
receipt of a Request Notice.
Section 2.3. Establishment of Accounts; Reserve Account.
(a) On or prior to the Closing Date, the Servicer shall (i) establish an
Eligible Deposit Account in the name of the Trust, titled "BXG Receivables Owner
Trust 2004-A Lockbox Account re Bluegreen Receivables Sale and Servicing
Agreement" (the "Lockbox Account"), and (ii) enter into the Lockbox Agreement
which shall direct that all monies deposited in the Lockbox Account shall be
forwarded in accordance with Section 2.4. The Trust Depositor and the Servicer
shall send to the Lockbox Bank for deposit into the Lockbox Account all
Collections they may receive in respect of Purchased Receivables no later than
the next Business Day following the date of receipt thereof. Any
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Collections in respect of Purchased Receivables held by the Trust Depositor or
the Servicer pending transfer to the Lockbox Account shall be held in trust for
the benefit of the Indenture Trustee and the Noteholders until such amounts are
deposited into the Lockbox Account as set forth above. The Servicer shall
receive evidence of all deposits made to the Lockbox Account and shall post
them, on a daily basis, to the respective Receivables upon receipt.
(b) On or prior to the Closing Date, the Servicer shall establish an
Eligible Deposit Account with and in the name of the Indenture Trustee for the
benefit of the Noteholders titled "BXG Receivables Owner Trust 2004-A Collection
Account re Bluegreen Receivables Sale and Servicing Agreement" (the "Collection
Account").
(c) On or prior to the Closing Date, the Trust Depositor and the Indenture
Trustee shall establish an Eligible Deposit Account in the name of the Indenture
Trustee for the benefit of the Noteholders titled "BXG Receivables Owner Trust
2004-A Bluegreen Facility Reserve Account" (the "Reserve Account").
(d) Prior to the Facility Termination Date, on or prior to each Payment
Date (and in anticipation of allocations and distributions to be made on such
Payment Date pursuant to Section 2.6), the Servicer, in consultation with the
Facility Administrator and based upon information provided in the Monthly Report
delivered by the Servicer to the Facility Administrator and the Indenture
Trustee two (2) Business Days prior to the related Payment Date, shall determine
the extent to which Available Amounts in the Collection Account (including
proceeds of any Servicer Advance deposited therein in accordance with Section
9.15) are insufficient to pay Indenture Trustee Fees, Owner Trustee 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)(vii), (a)(viii) and (a)(ix), on or prior to each Payment Date
amounts held in the Reserve Account shall be transferred to the Collection
Account, treated as Available Amounts for such Payment Date and thereafter
applied to cover such insufficiencies in order for any of such payments or
allocations to be made. After the occurrence and during the continuance of an
Event of Default or Termination Event all amounts held in the Reserve Account
shall be transferred to the Collection Account and applied and allocated as
Available Amounts on the Payment Date with respect to the related Collection
Period to the extent of insufficiencies with respect to the payments to be made
pursuant to Sections 2.11(b)(vii), (b)(viii) and (b)(x).
(e) Each Seller Party shall deposit all Collections it may receive in
respect of Receivables into the Lockbox Account upon the earlier to occur of the
second Business Day following any date on which any Seller Party shall have
received such Collections; provided, that if an Event of Termination has
occurred and is continuing, all Collections received by any Seller Party shall
be deposited within one Business Day of receipt thereof. Each of the Trust
Depositor and the Servicer agree that any Collections in respect of Receivables
held by any Seller Party pending transfer to the Lockbox Account are held in
trust for the benefit of the Trust and the Indenture Trustee until such amounts
are deposited into the Lockbox Account.
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(f) The Trust Depositor and the Servicer shall, and the Servicer shall
cause the Sellers to, instruct all Obligors, as applicable, to make all payments
with respect to the Receivables to the Lockbox Account.
Section 2.4. Deposits to Accounts.
On each Business Day, all Collections in the Lockbox Account shall be
transferred by automated wire by the Lockbox Bank to the Collection Account. In
addition, the proceeds of Servicer Advances made pursuant to Section 6.3(s),
transfers from the Reserve Account made pursuant to Section 2.3(d), and payments
of any Transfer Deposit Amount received from the Sellers or Trust Depositor
shall be deposited to the Collection Account.
Section 2.5. Investment of Accounts.
Subject to the provisions of this Section 2.5 and the Indenture, amounts
on deposit in any Trust Account (other than the Lockbox Account) shall be
invested in Permitted Investments. Until the Facility Termination Date, the
Indenture Trustee, at the 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.
(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)
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as a result of the liquidation or redeployment of deposits or other funds
acquired by such Noteholder to fund or maintain such Purchase, as the case may
be; provided, that no such indemnification shall be required if any Purchase is
not made or effectuated as a result of any action or inaction by any Noteholder
or any provider of liquidity support for any Noteholder, other than a failure by
such Noteholder to make an advance to allow the Trust to make any Purchase due
to a failure of any condition precedent to such Purchase set forth herein.
Section 2.7. Addition/Substitution of Receivables.
(a) On any day prior to the Facility Termination Date provided it is done
no more than once each Collection Period, and subject to the terms and
conditions hereof, the Trust Depositor may at its option replace a Defaulted
Receivable and related Trust Assets currently in the Asset Pool (a "Replaced
Asset") with one or more Substitute Assets; provided, however, that if such
option is not exercised prior to the expiration of the Trust Depositor's fiscal
quarter during which the related Receivable became a Defaulted Receivable, then
the Trust Depositor's right to exercise such option with respect to such
Defaulted Receivable shall be irrevocably waived, unless, prior to the
expiration of such fiscal quarter of the Trust Depositor, the Trust Depositor
gives notice to the Trust and the Facility Administrator of its intention to
exercise such option with respect to such Defaulted Receivable and does so prior
to the expiration of the Trust Depositor's next succeeding fiscal quarter. If,
however, the Trust Depositor fails to exercise such option with respect to such
Defaulted Receivable prior to the expiration of the Trust Depositor's next
succeeding fiscal quarter, then the Trust Depositor's right to exercise such
option with respect to such Defaulted Receivable shall be irrevocably waived.
Subject to the conditions set forth in paragraph (c) below and Section 4.2
hereof, the Trust Depositor if exercising such substitution option, shall sell,
transfer, assign, set over and otherwise absolutely convey to the Trust, without
recourse, representation or warranty other than as expressly provided in the
Transaction Documents, all the Trust Depositor's right, title and interest in
and to the Substitute Assets related to the Receivables listed on the List of
Substitute Receivables (including, without limitation, all Collections and
rights to receive Collections with respect thereto after the related Cutoff
Date, but excluding any collections or rights to receive payments which were
collected pursuant thereto on or prior to such Cutoff Date), such Substitute
Assets becoming Trust Assets and part of the Asset Pool. Within ten Business
Days after the Facility Administrator's receipt of a certification from the
Custodian that it has received all of the Receivables Files, an Assignment for
such Substitute Assets and a Mortgage Assignment, as applicable, (which may be
unrecorded subject to the Servicer's obligation to deliver a recorded version
thereof pursuant to this Agreement) and an Allonge, as applicable, for each
Receivable relating thereto, the Indenture Trustee and the Trust shall thereupon
endorse back and deliver to the Trust Depositor any necessary releases or
assignments relating to the Replaced Assets. Without limiting the foregoing, all
Collections and rights to receive Collections with respect to any Replaced Asset
after the Cutoff Date for the Substitute Asset that replaces such Replaced
Asset, but excluding any Collections or rights to receive payments which were
collected with respect to such Replaced Asset on or prior to such Cutoff Date,
shall be assigned to the Trust Depositor. Such assignment of the Replaced Assets
to the Trust Depositor shall be without recourse to the Indenture Trustee and
the Trust and free and clear of any Lien created pursuant to this Agreement, and
neither the Indenture Trustee nor the Trust shall be deemed to make any
representation or warranty, express or implied.
(b) Upon discovery by the Servicer, any Seller, the Trust Depositor, the
Trust, the Indenture Trustee or the Facility Administrator (a "Notifying Party")
of (i) a misrepresentation on the related
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Transfer Date of any matters, or a breach on the related Transfer Date of a
warranty, set forth in Section 5.2 or Section 3.2 of the Sale and Contribution
Agreement with respect to a Trust Asset, or (ii) if an exception to a Receivable
File is not rectified in accordance with Section 6.3(q) or (iii) if a Lien
(other than a Permitted Lien) exists or arises with respect to any Interval at
any time prior to the time at which the related Mortgage Assignments are
recorded and regardless of when such Lien may be discovered (any of the
foregoing, an "Ineligible Asset"), the party discovering such breach shall give
prompt written notice to the other parties. Not later than the Determination
Date which is at most thirty (30) days after the earlier to occur of the
discovery of such misrepresentation or breach by the Trust Depositor or receipt
by the Trust Depositor of written notice of such misrepresentation or breach
given by a Notifying Party, the Trust Depositor shall, at its option, either
cure the misrepresentation or breach within the above described time period or
repurchase such Ineligible Asset, unless such Purchased Asset becomes a Replaced
Asset prior to such date; provided, however, if such misrepresentation or breach
relates solely to paragraph (r)(ii) of the definition of "Eligible Receivable"
or the representations or warranties set forth in Section 5.2(h) of this
Agreement or the representations and warranties set forth in Section 3.2(h) of
the Sale and Contribution Agreement, the Trust Depositor shall not have the
option of curing the breach; provided further that if the Ineligible Asset
relates to a defective Receivable File described in clause (ii) above, no cure
period shall be permitted. Upon the deposit by the Trust Depositor of the
Transfer Deposit Amount for such Ineligible Asset in the Collection Account (for
allocation pursuant to Section 2.11(a) or (b), as applicable) in immediately
available funds, the Trust Depositor shall be deemed to have repurchased such
Ineligible Asset and there shall be deducted from the Receivable Balance of the
Asset Pool, the Receivable Balance of the Receivable relating to such Ineligible
Asset. On and after the date of such retransfer, each Ineligible Asset so
retransferred shall not be included in the Asset Pool. Without limiting the
foregoing, all Collections and rights to receive Collections with respect to
such Ineligible Asset on or after the date of such retransfer, but excluding any
Collections or rights to receive payments which were collected with respect to
such Ineligible Asset prior to such date of retransfer shall be assigned to the
Trust Depositor. Notwithstanding the foregoing, in lieu of repurchasing an
Ineligible Asset described in clause (i) of the definition thereof as set forth
above, the Trust Depositor may, subject to the conditions and requirements of
Section 2.7(c) (other than the Substitute Asset Transfer Condition), effect a
replacement of such Asset with a Substitute Asset.
Upon the deposit of the Transfer Deposit Amount in the Collection Account
and the Custodian's receipt of a Request for Release as set forth in the
Custodial Agreement and the Facility Administrator's receipt of a certification
from the Custodian that it has received all of the Receivables Files, an
Assignment for the related Assets and a Mortgage Assignment and an Allonge for
each Receivable relating to a Substitute Asset, as applicable, the Indenture
Trustee and the Trust shall endorse back and deliver to the Trust Depositor any
necessary releases or assignments for the Ineligible Asset relating thereto.
Such release or assignment of the Ineligible Asset shall be without recourse to
the Indenture Trustee and the Trust and free and clear of any Lien created
pursuant to this Agreement, and neither the Indenture Trustee nor the Trust
shall be deemed to make any other representation or warranty, express or
implied, other than that the Trust and Indenture Trustee have the trust or
corporate authority and have taken all necessary trust or corporate action to
accomplish such release or assignment. The Indenture Trustee and the Trust
shall, at the sole expense of the Servicer, execute such documents and
instruments of transfer as may be prepared by the Servicer on behalf of the
Trust Depositor and take such other actions as shall reasonably be requested by
the Trust Depositor to effect the transfer of such Ineligible Asset pursuant to
this Section 2.7(b).
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The obligation of the Trust Depositor to repurchase and accept retransfer
of any Ineligible Asset (or in the alternative, effect a valid replacement of
such Asset as described above) shall constitute the sole remedy available to the
Trust respecting any misrepresentation of any matters or any breach of the
warranties set forth in Section 5.2 with respect to such Asset and is not
intended to and does not constitute "credit recourse" to the Trust Depositor.
Notwithstanding anything to the contrary contained herein, in the event the
Trust Depositor, prior to the applicable Determination Date, remedies the
condition which rendered the Asset an "Ineligible Asset" (other than clause (ii)
of the definition thereof) during the previously described 30 day period, the
Trust Depositor is not obligated to repurchase or replace such Asset. It is
understood and agreed by the parties hereto that the payment obligations of the
Obligors' in respect of the Receivables transferred hereunder shall not be the
obligation of any Seller, the Trust Depositor or the Servicer, except with
respect to Servicer Advances and remedies associated with misrepresentations and
breaches of warranties.
(c) The Trust Depositor may transfer to the Trust the Substitute Assets
and the other property and rights related thereto described in Section 2.7(a) or
(b) only upon timely delivery of a Substitution Notice to the Indenture Trustee,
the Custodian and the Facility Administrator complying with the definition
thereof and the satisfaction of each of the following conditions on or prior to
the related Substitute Asset Transfer Date (and the delivery of a related
Substitution Notice by the Trust Depositor shall be deemed a representation and
warranty by the Trust Depositor that such conditions have been or will be, as of
the related Substitute Transfer Date, satisfied):
(i) the Substitute Assets being conveyed to the Trust satisfy the
Substitute Asset Qualification Conditions and the related Receivables are
Eligible Receivables;
(ii) in the case of Section 2.7(a) and after giving effect to any
conveyance pursuant thereto, the Substitute Asset Transfer Condition shall
remain satisfied;
(iii) the Trust Depositor shall have delivered to the Facility
Administrator and the Indenture Trustee a duly executed written
assignment, substantially in the form of Exhibit H hereto, which shall
include a List of Substitute Receivables listing the Receivables relating
to the Substitute Assets;
(iv) the Trust Depositor shall have deposited or caused to be
deposited in the Collection Account all Collections received with respect
to the Substitute Assets after the related Cutoff Date;
(v) as of each Substitute Asset Transfer Date, both the Sellers and
the Trust Depositor were Solvent and the conveyance would not have the
effect of rendering either no longer Solvent;
(vi) with respect to Receivables transferred on such Substitute
Asset Transfer Date, no selection procedures believed by the Sellers or
the Trust Depositor to be adverse to the interests of the Trust shall have
been utilized in selecting the Substitute Assets;
(vii) each of the representations and warranties made by the Sellers
pursuant to Article III of the Sale and Contribution Agreement applicable
to the Substitute Assets shall be true and
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correct as of the related Substitute Asset Transfer Date, and the Sellers
shall have performed in all material respects all obligations to be
performed by them hereunder or thereunder on or prior to such Substitute
Asset Transfer Date;
(viii) the Sellers shall, at their own expense, on the Substitute
Asset Transfer Date, have indicated in their Computer Disk and Records
that the Receivables identified on the List of Substitute Receivables in
the related Substitution Notice have been sold to the Trust through the
Trust Depositor pursuant to this Agreement and the Sale and Contribution
Agreement.
Section 2.8. [Reserved].
Section 2.9. Acceptance by Trust. On the Closing Date, if the conditions
set forth in Article IV have been satisfied, the Trust shall execute and issue,
and the Indenture Trustee shall authenticate and deliver to, or upon the order
of, the Trust Depositor, the Notes secured by the Collateral.
Section 2.10. Monthly Distributions. Each Noteholder as of the related
Record Date shall be paid on the next succeeding Payment Date by check mailed to
such Noteholder at the address for such Noteholder appearing on the Note
Register or by wire transfer if such Noteholder provides written instructions to
the Paying Agent at least ten days prior to such Payment Date.
Section 2.11. Distributions.
(a) On each Payment Date (other than after the occurrence and during the
continuance of an Event of Default or a Termination Event in which event Section
2.11(b) shall apply), the Servicer will allocate Available Amounts and instruct
the Indenture Trustee to make payments from the Collection Account in the
following order of priority:
(i) pro rata, to the extent of Available Amounts, to the Indenture
Trustee, the Indenture Trustee Fee including any unpaid Indenture Trustee
Fees with respect to one or more prior Collection Periods and any
extraordinary out-of-pocket costs and expenses of the Indenture Trustee
not in excess of $2,500 per Payment Date; to the Custodian, the Custodian
Fee including any unpaid Custodian Fees with respect to one or more prior
Collection Periods; to the Lockbox Bank, the Lockbox Bank Fee including
any unpaid Lockbox Bank Fees with respect to one or more prior Collection
Periods; to the Owner Trustee, the Owner Trustee Fee including any unpaid
Owner Trustee Fees with respect to one or more prior Collection Periods;
to the Sellers and/or the Servicer, any Credit Card Fees and Audit Fees
including any unpaid Credit Card Fees and Audit Fees with respect to one
or more prior Collection Periods;
(ii) to the Back-Up Servicer, the Back-Up Servicing Fee, including
any unpaid Back-Up Servicing Fees with respect to one or more prior
Collection Periods;
(iii) to the Servicer, if the Servicer is not Bluegreen or an
Affiliate of Bluegreen, the Servicing Fee, including any unpaid Servicing
Fee with respect to one or more prior Collection Periods;
(iv) to Bluegreen or an Affiliate thereof, but only to the extent
the Servicer Purchase Option has been declined by the Servicer, any
accrued and unpaid Remarketing Fees;
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(v) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Unreimbursed Servicer Advances (which reimbursement
shall be applicable to any Unreimbursed Servicer Advances previously made
by any Predecessor Servicer);
(vi) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Protective Advances to the extent not previously
reimbursed;
(vii) to the Noteholders, the Note Interest Distributable Amount;
(viii) to the Noteholders, the Note Principal Distributable Amount;
(ix) to any Affected Party, costs relating to an Increased Costs
Event in respect of such Affected Party;
(x) to the Servicer, if the Servicer is Bluegreen or an Affiliate of
Bluegreen, the Servicing Fee, including any unpaid Servicing Fee with
respect to one or more prior Collection Periods;
(xi) to the Reserve Account, the amount necessary to increase the
amount in the Reserve Account to the Reserve Account Required Amount;
(xii) to the Indenture Trustee, any extraordinary out-of-pocket
costs and expenses of the Indenture Trustee not paid due to the
limitations contained in clause (i) above; and
(xiii) any remaining amounts to the Trust Depositor.
(b) On each Payment Date after the occurrence and during the continuance
of an Event of Default or a Termination Event, the Servicer will allocate
Available Amounts and instruct the Indenture Trustee to make payments from the
Collection Account in the following order of priority:
(i) pro rata, to the extent of Available Amounts, to the Indenture
Trustee, the Indenture Trustee Fee including any unpaid Indenture Trustee
Fees with respect to one or more prior Collection Periods and any
extraordinary out-of-pocket costs and expenses of the Indenture Trustee
not in excess of $2,500 per Payment Date; to the Custodian, the Custodian
Fee including any unpaid Custodian Fees with respect to one or more prior
Collection Periods; to the Lockbox Bank, the Lockbox Bank Fee including
any unpaid Lockbox Bank Fees with respect to one or more prior Collection
Periods; to the Owner Trustee, the Owner Trustee Fee including any unpaid
Owner Trustee Fees with respect to one or more prior Collection Periods;
to the Sellers and/or the Servicer, any Credit Card Fees and Audit Fees
including any unpaid Credit Card Fees and Audit Fees with respect to one
or more prior Collection Periods;
(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;
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(iv) to Bluegreen or an Affiliate thereof, but only to the extent
the Servicer Purchase Option has been declined by the Servicer, any
accrued and unpaid Remarketing Fees;
(v) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Unreimbursed Servicer Advances (which reimbursement
shall be applicable to any Unreimbursed Servicer Advances previously made
by any Predecessor Servicer);
(vi) first, to any Predecessor Servicer and second, to the Servicer,
as applicable, any Protective Advances to the extent not previously
reimbursed;
(vii) to the Noteholders, the Note Interest Distributable Amount;
(viii) to the Noteholders, the Note Principal Distributable Amount
(determined in accordance with clause (i) of the definition thereof);
(ix) to the Servicer, if the Servicer is Bluegreen or an Affiliate
of Bluegreen, the Servicing Fee, including any unpaid Servicing Fee with
respect to one or more prior Collection Periods;
(x) to the Noteholders, any remaining amounts until such time as the
Notes are paid in full (including amounts owing to any Affected Party in
respect of an Increased Costs Event);
(xi) to the Indenture Trustee, any extraordinary out-of-pocket costs
and expenses of the Indenture Trustee not paid due to the limitations
contained in clause (i) above; and
(xii) any remaining amounts to the Trust Depositor.
No recourse may be had to Bluegreen, the Issuer, Trust Depositor,
Indenture Trustee, Club Trustee, Servicer, Back-Up Servicer or any of their
respective Affiliates in the event that amounts distributed under this Section
2.11 are insufficient for payment of any amounts due under Section 2.11.
Section 2.12. Servicer Purchase Option. Upon written notice to the
Indenture Trustee and the Facility Administrator delivered at least eleven (11)
days before the date of purchase, the Servicer (so long as the Servicer is
Bluegreen or an Affiliate thereof) shall have the right (but not the obligation)
to purchase from the Trust a Defaulted Receivable and related Assets for an
amount (which amount shall be deposited into the Collection Account) equal to
24% of the Obligor's initial purchase price for the Interval in respect of such
Defaulted Receivable (the "Servicer Purchase Option"). The transfer of title to
such Defaulted Receivable to the Servicer shall be without recourse to the Trust
or the Indenture Trustee and free and clear of any Lien created pursuant to this
Agreement, and neither the Trust nor the Indenture Trustee shall be deemed to
make any representation or warranty, express or implied. In order to perfect,
protect and more fully evidence the Servicer's ownership of the Defaulted
Receivable and related Assets purchased pursuant to the exercise of the Servicer
Purchase Option, the Indenture Trustee and the Trust shall execute or cause to
be executed such instruments, releases or notices as may be necessary or
appropriate, to perfect, protect and more fully evidence the respective
interests of the parties to this Agreement in such Trust Assets. The Servicer
Purchase Option is exercisable with respect to a Defaulted Receivable only
before the expiration of the 60 day period following the date on which the
related Receivable became a Defaulted Receivable unless the Servicer gives
written notice of its irrevocable
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waiver of the Servicer Purchase Option with respect to such Defaulted Receivable
to the Indenture Trustee and the Facility Administrator prior to the expiration
of such 60 day period in the form attached hereto as Exhibit D. Notwithstanding
the foregoing, the Servicer may only exercise the Servicer Purchase Option to
the extent that, after giving effect to such purchase, the Receivable Balance of
Receivables previously purchased pursuant to the Servicer Purchase Option does
not exceed 20% of the Receivable Balance of all Eligible Receivables (determined
as of the applicable Cutoff Date therefor) theretofore purchased by the Trust.
The right of the Trust Depositor to replace a Replaced Asset in accordance
with Section 2.7 or the right of the Servicer to exercise the Servicer Purchase
Option shall be subject and subordinate to the rights of the Indenture Trustee
to sell, dispose or otherwise liquidate the applicable Receivable and related
Trust Assets following the occurrence of a Termination Event or an Event of
Default. Such rights of the Trust Depositor or the Servicer shall not apply to
any Trust Asset or Interval which the Indenture Trustee has sold or caused to be
sold, nor shall such rights apply to any Trust Asset or Interval as to which the
Indenture Trustee has provided at least five (5) Business Days prior notice to
the Servicer of its intention so to sell (unless, prior to the expiration of
such five (5) Business Days, the Trust Depositor has irrevocably committed to
replace such Replaced Asset or the Servicer has irrevocably committed to
exercise the Servicer Purchase Option, as the case may be, in each case during
the next succeeding Collection Period).
Section 2.13. Upgrades. Receivables which are the subject of an Upgrade
shall become part of the Asset Pool in accordance with the terms and conditions
of this Section 2.13, subject to timely delivery of a Substitution Notice to the
Indenture Trustee and the Facility Administrator and satisfying the conditions
set forth in Section 2.7(c) (other than (c)(ii)). In connection with an Upgrade
by an Obligor, the Trust Depositor shall acquire from the applicable Seller
pursuant to the Sale and Contribution Agreement, a new Eligible Receivable
arising in connection with such Upgrade or otherwise (together with, if
necessary, one or more other Eligible Receivables which were the subject of an
Upgrade or otherwise) (an "Upgrade Receivable") having a Receivable Balance (or
Receivable Balances) approximately equal to the Receivable Balance of the
Pre-Upgrade Receivable (as defined below). Subject to the definition of Eligible
Receivable, the Trust Depositor shall use its best efforts to cause a
Pre-Upgrade Receivable to be replaced with an Upgrade Receivable in respect of
the same Obligor and then, to the extent not possible, to be replaced with
another Upgrade Receivable. To the extent the Receivable Balance (or Receivable
Balances) of the Upgrade Receivable(s) is less than the Receivable Balance of
the Pre-Upgrade Receivable, the Trust Depositor shall deposit cash into the
Collection Account in the amount of such deficiency. Upon such acquisition by
the Trust Depositor and compliance by the Trust Depositor with Section 2.2
including delivery to the Indenture Trustee and the Facility Administrator of a
Substitution Notice indicating such Upgrade and identifying the existing
Receivable subject to the Upgrade (each, a "Pre-Upgrade Receivable"), the
related Upgrade Receivable(s) and related Trust Assets (including, but not
limited to, any Collections thereon after the Cutoff Date) shall be deemed to be
Substitute Assets for all purposes of this Agreement purchased by the Trust on
the Transfer Date of the related Pre-Upgrade Receivable and shall be deemed to
be part of the Asset Pool. In connection therewith, the Indenture Trustee and
the Trust shall release or re-convey, as applicable, to the Trust Depositor all
of its interests in the related Pre-Upgrade Receivable in accordance with
Section 2.14. In no event shall the Trust Depositor be permitted to repurchase
for cash any Pre-Upgrade Receivable. Upon each conveyance of Upgrade Receivables
hereunder, the Trust Depositor shall be deemed to have represented and warranted
that the conditions set forth in Section 4.2 have been satisfied.
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Section 2.14. Release of Interest.
At the same time as (i) any Receivable becomes a Prepaid Receivable, (ii)
any Receivable matures, (iii) any Receivable is the subject of an Upgrade and
the conditions set forth in Section 2.13 have been satisfied, (iv) the Trust
Depositor through the Servicer, substitutes or replaces any Receivable as
contemplated in Section 2.7 hereof, or (v) the Servicer exercises the Servicer
Purchase Option, the Indenture Trustee and the Trust will release their interest
in the Interval relating to such Receivable and related Trust Assets; provided,
that such release will not constitute a release of the respective interests of
Indenture Trustee and the Trust in the proceeds of Trust Assets except with
respect to any proceeds received by the Servicer with respect to a Receivable
and related Trust Assets which were subject to the Servicer Purchase Option. In
connection with any of the events described in the preceding sentence, the
Indenture Trustee and the Trust will execute and deliver (at the expense of the
Trust Depositor) to the Servicer any assignments, bills of sale, termination
statements and any other releases and instruments as the Servicer may reasonably
request in order to effect such release and transfer, and the Indenture Trustee
and the Trust shall be deemed to have transferred to the Trust Depositor or the
Servicer, as the case may be, all of the Indenture Trustee's and the Trust's
right, title and interest in such Trust Assets in respect of such Receivable
free and clear of any interest created by the Indenture Trustee or the Trust
hereunder and under the other Transaction Documents, but without any recourse or
other representation or warranty, express or implied. Nothing in this Section
shall diminish the Servicer's obligations pursuant to Section 2.11 of this
Agreement with respect to the proceeds of any sale of such Trust Assets.
ARTICLE III
SERVICING OF RECEIVABLES
Section 3.1. Responsibility for Receivable Administration. The Servicer is
hereby appointed the servicer hereunder until such time as any Service Transfer
may be effected under Section 8.2. The Servicer will have the sole right and
obligation to manage, administer, service and make collections on the
Receivables and the Trust Assets and perform or cause to be performed all
contractual and customary undertakings of the holder of the Receivables to the
Obligor.
Section 3.2. Standard of Care. In managing, administering, servicing and
making collections on the Receivables and the related Trust Assets pursuant to
this Agreement, the Servicer will exercise that degree of skill and care
consistent with the skill and care that the Servicer exercises with respect to
similar contracts serviced by the Servicer, and, in any event no less degree of
skill and care than would be exercised by a prudent servicer of timeshare
receivables. The Servicer shall at all times act in good faith and in the best
interests of the Trust, with respect to the Trust Assets and the proceeds
thereof, and use commercially reasonable efforts and exercise sound business
judgment in performing its duties under this Agreement.
Section 3.3. Filing. On or prior to the date of the first Purchase
hereunder, the Servicer shall cause the UCC financing statement(s) to be filed
and from time to time the Servicer shall take and cause to be taken such actions
and execute such documents as are necessary or desirable or as the Owner Trustee
or Indenture Trustee may reasonably request to perfect and protect the Trust's
and the Indenture Trustee's interests in the Trust Assets (subject to Permitted
Liens) against all other persons, including, without limitation, the filing of
financing statements, amendments thereto and continuation statements,
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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 the Indenture Trustee or their respective authorized
agents may, using generally accepted audit procedures, verify the status of each
Receivable and review the Computer Disk and records relating thereto for
conformity to Monthly Reports prepared pursuant to Section 9.4 and compliance
with the standards represented to exist as to each Receivable in this Agreement.
(b) At all times during the term hereof, the Servicer shall keep available
a copy of the List of Receivables at its principal executive office for
inspection by the Facility Administrator and the Noteholders.
Section 3.6. Duties and Responsibilities of Servicer.
(a) In addition to any other customary services which the Servicer may
perform or may be required to perform hereunder, the Servicer shall perform or
cause to be performed through sub-servicers, as applicable, the following
servicing and collection activities in accordance with the terms of this
Agreement:
(i) perform standard accounting services and general record keeping
services with respect to the Receivables;
(ii) respond to telephone or written inquiries of Obligors
concerning the Receivables;
(iii) keep Obligors informed of the proper place and method for
making payment with respect to the Receivables;
(iv) contact Obligors to effect collections and to discourage
delinquencies in the payment of amounts owed under the Receivables and
doing so by any lawful means;
(v) report tax information to Obligors and taxing authorities to the
extent required by Requirements of Law;
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(vi) take such other action as may be necessary or appropriate in
the discretion of the Servicer for the purpose of collecting and
transferring to the Indenture Trustee for deposit into the Collection
Account all payments received by the Servicer or remitted to the Lockbox
Account in respect of the Receivables (except as otherwise expressly
provided herein), and to carry out the duties and obligations imposed upon
the Servicer pursuant to the terms of this Agreement;
(vii) arranging for liquidations of Intervals related to Defaulted
Receivables, as applicable, and the remarketing of such Intervals as
provided herein; it being understood that except as expressly set forth
herein or in the Indenture, the Servicer shall not sell Defaulted
Receivables;
(viii) use reasonable best efforts to enforce the purchase and
substitution obligations of the Sellers under the Sale and Contribution
Agreement;
(ix) to the extent that the Custodian Fees or the Lockbox Fees are,
in the Servicer's reasonable business judgment, no longer commercially
reasonable, use commercially reasonable efforts to (i) obtain reasonable
fees from the existing Custodian or Lockbox Bank, as applicable, or (ii)
exercise its rights under the Custodial Agreement or the Lockbox Agreement
to replace the Custodian or Lockbox Bank, as applicable, in accordance
with the Custodial Agreement or Lockbox Agreement, as the case may be. Any
such successor shall be reasonably acceptable to the Facility
Administrator;
(x) diligently pursue all exceptions to the Receivables Files
delivered to the Custodian; and
(xi) delivery of such information and data to the Backup Servicer as
is required under the Backup Servicing Agreement.
Section 3.7. Consideration. As consideration for Servicer's performance of
the Receivables servicing as described herein, Servicer shall be paid the
Servicing Fee in accordance with Section 2.11.
ARTICLE IV
CONDITIONS OF PURCHASES AND TRANSFERS
Section 4.1. Conditions Precedent to Initial Purchase.
The Initial Purchase hereunder is subject to the condition precedent that
the Facility Administrator shall have received on or before the date of such
purchase the items listed in Schedule IA, each (unless otherwise indicated)
dated such date, in form and substance reasonably satisfactory to the Facility
Administrator.
Section 4.2. Conditions Precedent to All Transfers.
The Initial Purchase, each Incremental Purchase and each other Transfer
from the Trust Depositor by the Trust shall be subject to the further conditions
precedent that:
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(a) the Servicer shall have delivered to the Facility Administrator and
the Custodian those items listed on Schedule IB on or before the dates listed
therein and such additional information as may be reasonably requested by the
Facility Administrator;
(b) all actions or additional actions necessary, in the reasonable
judgment of the Facility Administrator, to obtain an absolute ownership interest
in favor of the Trust in the Trust Assets being transferred shall have been
taken (and the Facility Administrator may in its discretion require, as a
condition to such determination, the delivery of an Opinion of Counsel to such
effect);
(c) on each Transfer Date, the following statements shall be true and
correct:
(i) the representations and warranties contained in Sections 5.1,
5.4, 5.5 and, solely with respect to the Assets being transferred on such
Transfer Date, Section 5.2 of this Agreement and Section 3.2 of the Sale and
Contribution Agreement, are true and correct on and as of such day as though
made on and as of such date;
(ii) all other representations and warranties of any Seller Party in
any Transaction Document (other than this Agreement) are true and correct on and
as of such day as though made on and as of such date;
(iii) no event has occurred and is continuing, or would result from
such Purchase which constitutes a Servicer Event of Termination, Termination
Event or an Event of Default;
(iv) after giving effect to such Purchase, the Outstanding Amount
will not exceed the lesser of (i) Funding Date Overcollateralization and (ii)
the Note Purchase Limit;
(v) on and as of such day, the Sellers, the Trust Depositor, the
Servicer and the Club Trustee each has performed in all material respects all of
the agreements contained in this Agreement and the other Transaction Documents
to be performed by such Person at or prior to such day;
(d) no law, rule or regulation shall prohibit, and no order, judgment or
decree of any federal, state or local court or government body, agency or
instrumentality shall prohibit or enjoin any of the activities contemplated by
the Transaction Documents;
(e) in addition to the other documents set forth on Schedule 1B, the
Custodian shall have received an original note/instrument and related Allonge
with respect to each such Receivable (other than with respect to an Aruba
Receivable); and
(f) the Facility Administrator shall have received such other approvals,
opinions or documents as the Facility Administrator may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
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Each Seller under the Sale and Contribution Agreement has made, and upon
the transfer of Substitute Assets is deemed to remake, each of the
representations and warranties set forth therein and has consented to the
assignment by the Trust Depositor to the Trust of the Trust Depositor's rights
with respect thereto. Such representations speak as of the execution and
delivery of the Sale and Contribution Agreement and this Agreement and as of the
Initial Transfer Date in the case of the initial Receivables, and as of the
applicable Substitute Asset Transfer Date in the case of the Substitute Assets,
but shall survive the sale, transfer and assignment of the Receivables to the
Trust. Pursuant to Section 2.1 of this Agreement, the Trust Depositor has sold,
assigned, transferred and conveyed to the Trust as part of the Trust Assets its
rights under the Sale and Contribution Agreement, including without limitation,
its rights with respect to the representations and warranties of the Sellers
therein, together with all rights of the Trust Depositor with respect to any
breach thereof including any right to require the Sellers to repurchase any
Receivables in accordance with and subject to the terms of the Sale and
Contribution Agreement. It is understood and agreed that the representations and
warranties set forth or referred to in this Section shall survive transfer of
the Trust Assets to the Trust hereunder and the delivery of the Receivables
Files to the Custodian.
The Trust Depositor hereby represents and warrants to the Trust, the Owner
Trustee, the Indenture Trustee, the Facility Administrator and the Noteholders
that it has entered into the Sale and Contribution Agreement with the Sellers,
that each Seller has made the representations and warranties in the Sale and
Contribution Agreement as set forth therein, that such representations and
warranties run to and are for the benefit of the Trust Depositor, the Owner
Trustee, the Facility Administrator, the Indenture Trustee and the Noteholders,
and that pursuant to Section 2.1 of this Agreement the Trust Depositor has
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 and
each Transfer Date, as follows:
(a) Organization and Good Standing. The Trust Depositor is a corporation
duly organized and validly existing in good standing under the laws of the State
of Delaware, and has full power (corporate or otherwise), authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and each other
Transaction Document to which it is a party.
(b) Due Qualification. The Trust Depositor is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a Material Adverse Effect.
(c) Due Authorization. The execution and delivery of this Agreement and
each other Transaction Document to which it is a party, and the consummation of
the transactions provided for herein and therein have been duly authorized by
the Trust Depositor by all necessary action on the part of the Trust Depositor.
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(d) No Conflict. The execution and delivery of this Agreement and each
other Transaction Document to which it is a party, the performance of the
transactions contemplated hereby and thereby and the fulfillment of the terms
hereof and thereof do not contravene or violate (i) its articles or certificate
of incorporation or by-laws, (ii) any law, rule or regulation applicable to it,
(iii) any restrictions under any agreement, contract or instrument to which it
is a party or by which it or any of its property is bound, or (iv) any order,
writ, judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any Lien on the
assets of the Trust Depositor, except where any such contravention or violation
would not have a Material Adverse Effect.
(e) No Violation. The execution and delivery of this Agreement and each
other Transaction Document to which it is a party, the performance of the
transactions contemplated hereby and thereby and the fulfillment of the terms
hereof and thereof (including, without limitation, the sale of the Trust Assets
by the Trust Depositor or remittance of Collections in accordance with the
provisions of this Agreement) will not conflict with or violate, in any material
respect, any Requirements of Law applicable to the Trust Depositor or to the
Trust Assets.
(f) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Trust Depositor, threatened against the Trust
Depositor, before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Agreement or any other Transaction Document, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Transaction Document or (iii) seeking any determination or ruling that
could reasonably be expected to be adversely determined, and if adversely
determined, would have a Material Adverse Effect.
(g) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or of any Governmental Authority required in
connection with the Trust Depositor's execution and delivery of this Agreement
and the other Transaction Documents to which it is a party, the performance of
the transactions contemplated hereby and thereby, and the fulfillment of the
terms hereof and thereof, have been obtained.
(h) Bulk Sales. The execution, delivery and performance of this Agreement
do not require compliance with any applicable "bulk sales" law by the Trust
Depositor.
(i) Solvency. Both before and after giving effect to the transactions
under this Agreement, the Trust Depositor will be Solvent.
(j) Selection Procedures. No selection procedures adverse to the interests
of the Trust were utilized by the Trust Depositor in selecting the Receivables
in the Asset Pool.
(k) Taxes. The Trust Depositor has filed or caused to be filed all tax
returns which, to its knowledge, are required to be filed and has paid when due
all taxes shown to be due and payable on such returns or on any assessments made
against it or any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority (other than
any amount of tax due the validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
accordance with generally accepted accounting principles have been
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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 or the Indenture Trustee relating to this
Agreement and the other Transaction Documents, or in favor of the Trust
Depositor as assignee of the Sellers.
(o) Note Purchase Limit and Funding Date Overcollateralization. After
giving effect to any current Purchase or conveyance of Receivables, (i) the
aggregate Outstanding Amount does not exceed the lesser of (x) Funding Date
Overcollateralization and (y) the Note Purchase Limit and (ii) the aggregate
amount of all advances made by the Noteholders under the Note Purchase Agreement
does not exceed the Note Purchase Limit.
(p) Reports Accurate. No Asset Report, exhibit, financial statement,
document, book, record or report furnished or to be furnished by the Trust
Depositor pursuant to this Agreement is or will be, when considered as a whole,
inaccurate in any material respect as of the date it is or shall be dated or
(except as otherwise disclosed to the Noteholders, as the case may be, at such
time) as of the date so furnished, and no such document contains or will contain
any material misstatement of fact or omits or shall omit to state a material
fact or any fact necessary in light of the circumstances under which made, to
make the statements contained therein not misleading.
(q) Location of Offices. The principal place of business and chief
executive office of the Trust Depositor and the Seller, and the office where the
Trust Depositor and Seller keep all the Records, are located at the addresses of
the Trust Depositor and Seller, respectively, referred to on Schedule III
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hereof (or at such other locations as to which the notice and other requirements
specified herein shall have been satisfied). The state of incorporation and
organizational identification number, if any, of the Trust Depositor and the
Seller are set forth on Schedule III hereto.
(r) Tradenames. The Trust Depositor has no trade names, fictitious names,
assumed names or "doing business as" names or other names under which it has
done or is doing business.
(s) Sale and Contribution Agreement. The Sale and Contribution Agreement,
including the other Transaction Documents contemplated thereby, is the only
agreement pursuant to which the Trust Depositor acquires ownership of the Trust
Assets. To the knowledge of the Trust Depositor, the representation and
warranties of Sellers under the Sale and Contribution Agreement are true and
correct.
(t) Value Given. The Trust Depositor shall have given reasonably
equivalent value to the Sellers in consideration for the transfer to the Trust
Depositor of the Assets under the Sale and Contribution Agreement, no such
transfer shall have been made for or on account of an antecedent debt owed by
any Seller to the Trust Depositor, and no such transfer is or may be voidable or
subject to avoidance under any section of the Bankruptcy Code.
(u) Special Purpose Entity. The Certificate of Incorporation of the Trust
Depositor includes substantially the provisions set forth on Exhibit F hereto,
and each Seller has confirmed in writing to the Trust Depositor and has
covenanted in the Sale and Contribution Agreement that it will not cause the
Trust Depositor to file a voluntary petition under the Bankruptcy Code or any
other bankruptcy or insolvency laws.
(v) Accounting. The Trust Depositor accounts for the transfer from the
Sellers of interests in Assets and Collections under the Sale and Contribution
Agreement and will account for transfers under this Agreement as sales of such
Assets in its books, records and financial statements, in each case consistent
with GAAP and with the requirements set forth herein.
(w) Separate Entity. The Trust Depositor is operated as an entity with
assets and liabilities distinct from those of the Sellers and any Affiliates
thereof (other than the Trust Depositor), and the Trust Depositor hereby
acknowledges that the Trust is entering into the transactions contemplated by
this Agreement and the other Transaction Documents in reliance upon the Trust
Depositor's identity as a separate legal entity from the Sellers and from each
such other Affiliate of the Sellers.
(x) Investment Company and Public Utility Holding Company. The Trust
Depositor is not an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended, or a "holding
company" or a "subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(y) Accuracy of Representations and Warranties. Each representation or
warranty by the Trust Depositor contained herein or in any certificate or other
document furnished by the Trust Depositor pursuant hereto or in connection
herewith is when furnished true and correct in all material respects; provided,
however, the Trust and the Noteholders acknowledge that with respect to the
condition of a Receivable as an "Eligible Receivable" as of its date of Purchase
or transfer hereunder, the Trust's
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remedy for a breach of a representation or warranty relating to a Receivable's
status as an Eligible Receivable is provided by and limited to Section 2.7
hereof.
The representations and warranties set forth in this section shall survive
the transfer of the Trust Assets to the Trust, and termination of the rights and
obligations of the Servicer hereunder. Upon discovery by the Trust Depositor,
the Servicer or the Trust of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 5.2. Representations and Warranties of Trust Depositor Relating to
the Receivables.
The Trust Depositor hereby represents and warrants that, solely with
respect to the Receivables then being sold or transferred as of the applicable
Transfer Date:
(a) Valid Sale and Transfer of Ownership. The Trust Depositor (i) has good
and marketable title to each Trust Asset free and clear of any Lien (other than
Permitted Liens) of any Person , (ii) is the sole owner thereof and has full
right to transfer the Trust Assets to the Trust, and (iii) upon transfer of such
Trust Asset to the Trust pursuant to the terms of this Agreement, has validly
and effectively conveyed to the Trust all of the Trust Depositor's right, title
and interest in and to the Trust Assets free and clear of any Lien (other than
Permitted Liens).
(b) Eligibility of Receivables. Each Receivable relating to each Trust
Asset is an Eligible Receivable.
(c) List of Receivables. As of the related Transfer Date, the List of
Receivables and the information delivered in connection therewith is an accurate
and complete listing in all material respects of all the Receivables in and to
become part of the Asset Pool on such date and the information contained therein
(including with respect to the identity of such Receivables, Obligors thereon,
and the amounts owing thereunder) is true and correct in all material respects.
(d) No Liens. Upon transfer of such Trust Asset to the Trust pursuant to
the terms of this Agreement, each Trust Asset has been transferred to the Trust
in compliance, in all material respects, with all Requirements of Law and each
Trust Asset was, immediately prior to its sale hereunder, legally and
beneficially owned by the Trust Depositor free and clear of any Lien (except
Permitted Liens), and upon each Purchase, the Trust shall acquire an ownership
interest in each Trust Asset and in the Collections with respect thereto, free
and clear of any Lien (except Permitted Liens).
(e) Consents. With respect to each Purchased Asset, all material consents,
licenses, approvals or authorizations of or registrations or declarations with
any Governmental Authority required to be obtained, effected or given by the
Sellers or the Trust Depositor in connection with the transfer of such Assets to
the Trust have been duly obtained, effected or given and are in full force and
effect.
(f) Environmental Conditions. To the knowledge of the Trust Depositor, the
operations of the Seller Parties and the Eligible Resorts are in compliance with
all Requirements of Law and none of the Eligible Resorts are the subject of any
governmental investigation evaluating whether any remedial
- 22 -
action is needed to respond to a release of any toxic or hazardous wastes or
substances into the environment.
(g) Servicing. To the knowledge of the Trust Depositor, the servicing and
collection practices used by the Seller Parties and their Affiliates have
complied in all material respects with all Requirements of Law and have met
customary industry standards for the servicing of receivables substantially
similar to the Receivables.
(h) Compliance with Laws. To the knowledge of the Trust Depositor, the
Trust Assets were originated and have been serviced in compliance with, and do
not contravene any Requirements of Law, including, without limitation, all
Consumer Laws. To the knowledge of the Trust Depositor, each Seller Party has
complied in all material respects with all applicable federal, state and local
laws and regulations in the marketing and sales of the related Intervals,
including without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, state securities and blue sky laws, the Interstate Land
Sales Full Disclosure Act, the mail fraud statutes, land use, land sales,
timeshare sales and zoning laws.
(i) FTC Holder Rule Language. None of the related Receivables include
language from the Federal Trade Commission's trade regulation rule titled
"Preservation of Consumers' Claims and Defenses" (16 C.F.R. Part 433), including
any language similar to the following: "Any holder of this consumer contract is
subject to all claims and defenses which the debtor could assert against the
seller of goods and services obtained [pursuant hereto or] with the proceeds
hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the
debtor hereunder."
Section 5.3. Survival; Knowledge; Notice of Breach. The representations
and warranties set forth in this Article V shall survive the transfer of the
Trust Assets to the Trust and termination of the rights and obligations of the
Servicer under the Transaction Documents. Neither the survival or the liability
of the Trust Depositor with respect to the Trust Depositor's representations and
warranties set forth in this Article V shall be reduced by any due diligence or
other investigation made by the Facility Administrator, the Trust, the Indenture
Trustee or any Noteholder at any time or by the disclosure of any facts or
circumstances to the Facility Administrator, the Trust, the Indenture Trustee or
any Noteholder (whether prior to or after the date of this Agreement). Upon
discovery by any Seller Party or the Facility Administrator of a breach of any
of the representations and warranties in this Article V, the party discovering
such breach shall give prompt written notice to the others.
Section 5.4. Representations and Warranties of the Club and the Club
Trustee.
The Club Trustee represents and warrants, as of the Closing Date and each
Transfer Date, as follows:
(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
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State of Florida. The Bluegreen Vacation Club Trust is not taxable as an
association, corporation or business trust under federal law or the laws of the
State of Florida.
(b) The Club Trustee is a corporation duly formed, validly existing and in
good standing under the laws of the State of Florida. The Club Trustee is
authorized to transact business in no other state. The Club Trustee is not an
affiliate of the Servicer and is in compliance with the requirements of Chapter
721, Florida Statutes, that it be independent of the Servicer.
(c) The Club Trustee had all necessary corporate power to execute and
deliver, and has all necessary corporate power to perform its obligations under
this Agreement, the other Transaction Documents to which it is a party, the Club
Trust Agreement and the Club Management Agreement. The Club Trustee possesses
all requisite franchises, operating rights, licenses, permits, consents,
authorizations, exemptions and orders as are necessary to discharge its
obligations under the Club Trust Agreement.
(d) A certified copy of the Club Trust Agreement has been delivered to the
Facility Administrator together with all amendments and supplements in respect
thereof.
(e) The Club Trustee holds all right, title and interest in and to all of
the Resort Interests related to the Receivables solely for the benefit of the
Beneficiaries referred to in, and subject in each case to the provisions of, the
Club Trust Agreement and the other documents and agreements related thereto.
Except with respect to the Mortgages, the Club Trustee has permitted none of
such Resort Interests to be made subject to any lien or encumbrance during the
time it has been a part of the trust estate under the Club Trust Agreement.
(f) There are no actions, suits, proceedings, orders or injunctions
pending against the Bluegreen Vacation Club Trust or the Club Trustee, at law or
in equity, or before or by any Governmental Authority which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
(g) Neither the Bluegreen Vacation Club Trust nor the Club Trustee has
incurred any indebtedness for borrowed money (directly, by guarantee, or
otherwise).
(h) All ad valorem taxes and other taxes and assessments against the
Bluegreen Vacation Club Trust and/or its trust estate have been paid and neither
the Servicer nor the Club Trustee knows of any basis for any additional taxes or
assessments against any such property. The Bluegreen Vacation Club Trust has
filed all required tax returns and has paid all taxes shown to be due and
payable on such returns, including all taxes in respect of sales of Owner
Beneficiary Rights (as defined in the Club Trust Agreement) and Vacation Points.
(i) The Bluegreen Vacation Club Trust and the Club Trustee are in
compliance in all material respects with all Requirements of Law applicable to
it and in compliance with each material instrument, agreement or document to
which it is a party or by which it is bound, including, without limitation, the
Club Trust Agreement.
- 24 -
(j) Except as expressly permitted in the Club Trust Agreement, the Club
Trustee has maintained the One-to-One Beneficiary to Accommodation Ratio (as
such terms are defined in the Club Trust Agreement).
(k) Upon purchase of the Receivables and related Trust Assets hereunder,
the Trust is an "Interest Holder Beneficiary" under the Club Trust Agreement and
each of the Receivables constitutes "Lien Debt", "Purchase Money Lien Debt" and
"Owner Beneficiary Obligations" under the Club Trust Agreement.
(l) Except as disclosed to the Facility Administrator in writing, each
Mortgage associated with a Receivable and granted by the Club Trustee or the
Obligor on the related Receivable, as applicable, has been duly executed,
delivered and recorded by or pursuant to the instructions of the Club Trustee
under the Club Trust Agreement and such Mortgage is valid and binding and
effective to create the lien and security interests it purports to create. Each
of such Mortgages was granted in connection with the financing of a sale of a
Resort Interest.
Section 5.5. Representations and Warranties of the Servicer.
The Servicer represents and warrants, as of the Closing Date and each
Transfer Date, as follows:
(a) Organization and Good Standing. The Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and has the corporate power to own its assets
and to transact the business in which it is currently engaged. The Servicer is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure so to qualify would have a Material Adverse Effect. The Servicer is
properly licensed in each jurisdiction to the extent required by the laws of
such jurisdiction to service the Trust Assets in accordance with the terms
hereof except where the failure to be so licensed could not reasonably be
expected to have a Material Adverse Effect.
(b) Authorization; Binding Obligations. The Servicer has the power and
authority to make, execute, deliver and perform this Agreement and the other
Transaction Documents to which the Servicer is a party and all of the
transactions contemplated under this Agreement and the other Transaction
Documents to which the Servicer is a party, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement and the other Transaction Documents to which the Servicer is a party.
This Agreement and the other Transaction Documents to which the Servicer is a
party constitute the legal, valid and binding obligation of the Servicer
enforceable in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or law).
(c) No Consent Required. The Servicer is not required to obtain the
consent of any other party or any consent, license, approval or authorization
from, or registration or declaration with, any Governmental Authority in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement and the other Transaction Documents to which the Servicer is a
party.
- 25 -
(d) No Violations. The execution, delivery and performance of this
Agreement and the other Transaction Documents to which the Servicer is a party
by the Servicer will not violate any provisions of any existing law or
regulation or any order or decree of any court or of any Federal or state
regulatory body or administrative agency having jurisdiction over the Servicer
or any of its properties or the Articles of Organization or Bylaws of the
Servicer, or constitute a material breach of any mortgage, indenture, contract
or other agreement to which the Servicer is a party or by which the Servicer or
any of the Servicer's properties may be bound, or result in the creation of or
imposition of any security interest, lien, pledge, preference, equity or
encumbrance of any kind upon any of its properties pursuant to the terms of any
such mortgage, indenture, contract or other agreement, other than this Agreement
the result of which could reasonably be expect to have a Material Adverse
Effect.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Servicer, threatened against the Servicer, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement or
any other Transaction Document, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any other Transaction
Document or (iii) seeking any determination or ruling that could reasonably be
expected to be adversely determined, and if adversely determined, would in the
opinion of the Servicer have a Material Adverse Effect.
(f) Margin Regulation. The Servicer is not engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any Margin Stock. The
Servicer does not own any Margin Stock, and none of the proceeds of any Purchase
will be used, directly or indirectly, for the purpose of purchasing or carrying
any Margin Stock, for the purpose of reducing or retiring any Indebtedness which
was originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any portion of such proceeds to be a "purpose credit"
within the meaning of Regulations T, U or X of the Federal Reserve Board. The
Servicer will not take or permit to be taken any action which might cause any
Transaction Document to violate any regulation of the Federal Reserve Board.
Notwithstanding the foregoing, this Agreement shall not limit the Servicer's (so
long as Bluegreen or any Affiliate thereof is the Servicer) ability to
repurchase shares of its common stock so long as it is otherwise done in
compliance with the terms hereof.
(g) Collection Policies. The Servicer has complied in all material
respects with the Collection Policies with regard to each Receivable and the
related Contract, and has not made any change to the Collection Policies with
respect to any Receivable except for such changes as to which the Facility
Administrator and the Noteholders have been notified and as to which the
Noteholders have consented to.
(h) Compliance with Laws. The Servicer has complied with all Requirements
of Law relating to or in connection with the servicing of the Receivables,
except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
(i) Insurance. The Servicer and each Eligible Resort which is managed by
the Club Managing Entity maintain such insurance coverage as may be required by
any applicable Requirements of Law or pursuant to the Declarations for such
Eligible Resort.
(j) Club Ownership. Bluegreen Vacations Unlimited, Inc. is the sole Class
B member of Bluegreen Vacation Club, Inc. and has the right to elect, and has
elected, at least a majority of the board
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of directors of Bluegreen Vacation Club, Inc. Bluegreen Vacations Unlimited,
Inc. has not pledged or encumbered or granted a security interest in respect of
such interest.
(k) Reservation System. Other than with respect to the services contracted
for by the Club Managing Entity or any Affiliate thereof with a third party
which rights under such contracts shall be licensed (on a non-exclusive basis)
to the Indenture Trustee for the benefit of the Noteholders, the Reservation
System is owned by the Club Managing Entity free and clear of any Liens, but
subject to the provisions of the Club Management Agreement and the Club Trust
Agreement, and the Club has the right to utilize such system under and pursuant
to the Club Management Agreement. The Club Management Agreement is in full force
and effect and no default on the part of the Club Trustee or the Club Managing
Entity exists thereunder. The Servicer owns 100% of the equity capital of the
Club Managing Entity.
(l) Club Trust Agreement. A true and correct copy of the Club Trust
Agreement is attached hereto as Exhibit E and is in full force and effect.
(m) Bluegreen Vacation Club, Inc. Bluegreen Vacation Club, Inc. is a
non-stock corporation duly formed, validly existing and in good standing under
the laws of the State of Florida.
ARTICLE VI
COVENANTS
Section 6.1. Covenants of the Trust Depositor.
Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, the Trust Depositor hereby covenants
and agrees that:
(a) Compliance with Laws; Preservation of Corporate Existence. The Trust
Depositor will comply in all material respects with all Requirements of Law
applicable to the Trust Depositor, the Receivables and the Intervals and
preserve and maintain its corporate existence, rights, franchises,
qualifications and privileges except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Security Interests. Except as specifically contemplated by this
Agreement, the Trust Depositor will not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable in the Asset Pool or related Interval, whether now existing or
hereafter transferred hereunder, or any interest therein, and the Trust
Depositor will not sell, pledge, assign or suffer to exist any Lien on its
interest, if any, hereunder. The Trust Depositor will immediately notify the
Trust of the existence of any such Lien on any Receivable in the Asset Pool or
related Interval; and the Trust Depositor shall defend the right, title and
interest of the Trust in, to and under the Receivables in the Asset Pool and the
related Interval, against all claims of third parties; provided, however, that
nothing in this Section 6.l(b) shall prevent or be deemed to prohibit the Trust
Depositor from suffering to exist Permitted Liens upon any of the Trust Assets
or any related Interval.
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(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 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.
- 28 -
(f) Location of Trust Depositor, Records; Instruments. The Trust Depositor
(x) shall not change its name or state of incorporation or move the location of
its chief executive office outside the State of Florida without 30 days' prior
written notice to the Facility Administrator and the Indenture Trustee and (y)
shall not move or permit the Servicer to move the location of the Receivable
Files, other than to the Custodian, from the locations thereof on the Initial
Transfer Date, without 30 days' prior written notice to the Facility
Administrator and the Trustee and (z) will promptly take all actions required
(including, but not limited to, all filings and other acts necessary or
advisable under the UCC of each relevant jurisdiction in order to evidence the
Trust's ownership interest (and back-up grant of a first priority perfected
security interest to the Trust (subject to Permitted Liens)) in all Trust Assets
in the Asset Pool. The Trust Depositor will give the Facility Administrator and
the Indenture Trustee prompt notice of a change within the State of Florida of
the location of its chief executive office.
(g) Accounting for Purchases. The Trust Depositor will not account for or
treat (whether in financial statements or otherwise) the transactions
contemplated hereby or by the Sale and Contribution Agreement in any manner
other than the sale or contribution of the Assets by the Sellers to the Trust
Depositor in accordance with GAAP.
(h) ERISA Matters. The Trust Depositor will not (a) engage in any
prohibited transaction for which an exemption is not available or has not
previously been obtained from the United States Department of Labor; (b) permit
to exist any accumulated funding deficiency, as defined in Section 302(a) of
ERISA and Section 412(a) of the Code, or funding deficiency with respect to any
Benefit Plan other than a Multiemployer Plan; (c) fail to make any payments to a
Multiemployer Plan that the Trust Depositor may be required to make under the
agreement relating to such Multiemployer Plan or any law pertaining thereto; (d)
terminate any Benefit Plan so as to result in any liability; or (e) permit to
exist any occurrence of any reportable event described in Title IV of ERISA
which represents a material risk of a liability of the Trust Depositor under
ERISA or the Code.
(i) Nature of Business. The Trust Depositor will engage in no business
other than the purchase of Assets from the Sellers, the sale of Trust Assets to
the Trust and the other transactions permitted or contemplated by this Agreement
and the other Transaction Documents.
(j) Seller Assets. With respect to each Asset acquired by the Trust
Depositor from the Sellers, the Trust Depositor will (i) acquire such Asset
pursuant to and in accordance with the terms of the Sale and Contribution
Agreement, (ii) take all action necessary to perfect, protect and more fully
evidence the Trust Depositor's ownership of such Asset, including, without
limitation, (A) filing and maintaining effective financing statements (Form
UCC-1) against the Sellers in all necessary or appropriate filing offices, and
filing continuation statements, amendments or assignments with respect thereto
in such filing offices, and (B) executing or causing to be executed such other
instruments or notices as may be necessary or appropriate, and (iii) take all
additional action that the Trust may reasonably request to perfect, protect and
more fully evidence the respective interests of the parties to this Agreement in
the Trust Assets.
(k) Transactions with Affiliates. The Trust Depositor will not enter into,
or be a party to, any transaction with any of its Affiliates, except (i) the
transactions permitted or contemplated by this Agreement and the other
Transaction Documents, and (ii) other transactions (including, without
limitation, the lease of office space or computer hardware or software by the
Trust Depositor to or from
- 29 -
an Affiliate) (A) in the ordinary course of business, (B) pursuant to the
reasonable requirements of the Trust Depositor's business, and (C) upon fair and
reasonable terms that are no less favorable to the Trust Depositor than could be
obtained in a comparable arms'-length transaction with a Person not an Affiliate
of the Trust Depositor. It is understood that any compensation arrangement for
officers shall be permitted under clause (ii)(A) through (C) above if such
arrangement has been expressly approved by the board of directors of the Trust
Depositor.
(l) Indebtedness; Investments. The Trust Depositor will not incur any
Indebtedness other than Indebtedness arising hereunder or under the other
Transaction Documents. Except for its residual interest in the Trust, the Trust
Depositor will not make any Investments other than Permitted Investments.
(m) Change in the Sale and Contribution Agreement. The Trust Depositor
will not amend, modify, waive or terminate any terms or conditions of the Sale
and Contribution Agreement except as permitted hereby.
(n) Amendment to Bylaws and Certificate of Incorporation. The Trust
Depositor will not amend, modify or otherwise make any change to its Bylaws or
its Certificate of Incorporation to delete or otherwise nullify or circumvent
the provisions set forth on Exhibit F hereto.
(o) Authorized Signatory. Any person signing a Request Notice on behalf of
Trust Depositor, as provided in Exhibit A hereto shall have the requisite power
and authority to sign the same on behalf of the Trust Depositor.
(p) Merger or Consolidation. The Trust Depositor shall not merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions and except as
otherwise contemplated herein) all or any material part of its assets (whether
now owned or hereafter acquired) to, or acquire all or any material part of the
assets of, any Person.
(q) Limited Activities. Notwithstanding any other provision in this
Section and any provision of law, the Trust Depositor shall not do any of the
following:
(i) engage in any business or activity other than as set forth in or
permitted by its Certificate of Incorporation or Bylaws; or
(ii) without the affirmative vote of a majority of the members of
the Board of Directors of the Trust Depositor (which must include the
affirmative vote of at least one duly appointed Independent director) (A)
dissolve or liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or seek to obtain relief under any
applicable federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the corporation or a substantial part of its
property, (E) make a general assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts generally as they become
due, or (G) take any corporate action in furtherance of the actions set
forth in clauses (A) through (F) above; provided, however, that no
director may be required by any shareholder of the Trust
- 30 -
Depositor to consent to the institution of bankruptcy or insolvency
proceedings against the Trust Depositor so long as it is solvent.
Section 6.2. General Covenants of the Club Trustee.
Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, the Club Trustee hereby covenants and
agrees that:
(a) No Conveyance. The Club Trustee agrees not to convey or grant any Lien
upon any Owner Beneficiary Rights (or any Vacation Points appurtenant thereto)
or Resort Interest in the Club relating to a Receivable which has been sold and
assigned to the Trust unless the Indenture Trustee shall have issued an
instruction to the Club Trustee pursuant to Section 8.07(c) of the Club Trust
Agreement in connection with its exercise of its rights as an Interest Holder
Beneficiary (as defined in the Club Trust Agreement) under Section 7.02 of the
Club Trust Agreement.
(b) Separate Corporate Existence. The Club Trustee shall:
(i) Maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions. The funds of
the Club Trustee will not be diverted to any other Person or for other
than trust or corporate uses of the Club Trustee, as applicable.
(ii) Ensure that, to the extent that it shares the same officers or
other employees as any of its stockholders, beneficiaries or Affiliates,
the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among such
entities, and each such entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and employees.
(iii) Ensure that, to the extent that the Club Trustee and the
Servicer (together with their respective stockholders or Affiliates)
jointly do business with vendors or service providers or share overhead
expenses, the costs incurred in so doing shall be allocated fairly among
such entities, and each such entity shall bear its fair share of such
costs. To the extent that the Club Trustee and the Servicer (together with
their respective stockholders or Affiliates) do business with vendors or
service providers when the goods and services provided are partially for
the benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share of
such costs. All material transactions between Club Trustee and any of its
Affiliates shall be only on an arms' length basis.
(iv) To the extent that the Club Trustee and any of its
stockholders, beneficiaries or Affiliates have offices in the same
location, there shall be a fair and appropriate allocation of overhead
costs among them, and each such entity shall bear its fair share of such
expenses.
(v) Conduct its affairs strictly in accordance with the Club Trust
Agreement, its Amended and Restated Articles of Incorporation and its
Bylaws, as applicable, and observe all
- 31 -
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, its Amended
and Restated Articles of Incorporation or its Bylaws, as applicable;
(ii) without the affirmative vote of a majority of the members of
the board of directors (or Persons performing similar functions) of the
Club Trustee (which must include the affirmative vote of at least one duly
appointed Independent Director (as defined in the Club Trust Agreement)),
(A) dissolve or liquidate, in whole or in part, or institute proceedings
to be adjudicated bankrupt or insolvent, (B) consent to the institution of
bankruptcy or insolvency proceedings against it, (C) file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (D) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the corporation or a substantial part of its
property, (E) make a general assignment for the benefit of creditors, (F)
admit in writing its inability to pay its debts generally as they become
due, (G) terminate the Club Managing Entity as manager under the Club
Management Agreement or (H) take any corporate action in furtherance of
the actions set forth in clauses (A) through (G) above; provided, however,
that no director may be required by any shareholder or beneficiary of the
Club Trustee to consent to the institution of bankruptcy or insolvency
proceedings against the Club Trustee so long as it is solvent;
(iii) merge or consolidate with any other corporation, company or
entity or sell all or substantially all of its assets or acquire all or
substantially all of the assets or capital stock or other ownership
interest of any other corporation, company or entity; or
(iv) with respect to the Club Trustee, amend or otherwise modify its
Amended and Restated Articles of Incorporation or Bylaws or any
definitions contained therein in a manner
- 32 -
adverse to the Indenture Trustee or any Noteholder without the prior
written consent of the Facility Administrator.
(e) Indebtedness. The Club Trustee shall not incur any Indebtedness other
than (i) trade payables and operating expenses (including taxes) incurred in the
ordinary course of business or (ii) in connection with servicing Resort
Interests included in the Club's trust estate in the ordinary course of business
consistent with past practices; provided, that in no event shall the Club
Trustee incur Indebtedness for borrowed money.
(f) Amendments. The Club Trustee agrees not to amend or otherwise modify
the Club Trust Agreement in a manner which could reasonably be expected to have
an adverse effect on the Trust Assets, the Trust, the Indenture Trustee or the
Noteholders, without the prior written consent of the Facility Administrator.
Section 6.3. General Covenants of the Servicer and Bluegreen.
Until the date following the Facility Termination Date on which all
Aggregate Outstandings have been indefeasibly paid in full and this Agreement
terminates in accordance with its terms, so long as the Servicer is Bluegreen,
the Servicer (and, Bluegreen, as applicable) covenants and agrees that:
(a) Financial Covenants
(i) Net Worth. Servicer agrees to maintain a Tangible Net Worth as
of the last day of each calendar quarter equal to or greater than the sum
of (i) 80% of Tangible Net Worth as of the end of the calendar quarter
immediately prior to the date hereof plus (ii) 50% of Consolidated Net
Income for each calendar quarter ending since such date.
(ii) Leverage Ratio. The Servicer shall not permit its Leverage
Ratio as of the last day of any calendar quarter to exceed 2.25:1.
(iii) Interest Coverage Ratio. The Servicer shall not permit its
Interest Coverage Ratio as of the last day of any calendar quarter to be
less than 2.00:1. For the avoidance of doubt, a negative Consolidated
Interest Expense number shall be deemed to be zero.
(iv) Bluegreen Points. The Servicer shall not permit the total
number of Vacation Points available at any time to be less than
623,581,650, which number represents at least 90% of all Vacation Points
as of June 30, 2004.
(v) Resorts. The Servicer shall not permit the total number of
resorts included in the Club to be less than thirty-six (36), which number
represents at least 90% of all resorts included in the Club as of June 30,
2004; provided that for purposes of this clause (v), a resort shall
include all phases, subdivisions and/or developments at the same or
substantially the same geographic location.
(b) Inspections and Audits. Servicer shall, at such reasonable times
during normal business hours and as often as may be reasonably requested, permit
any agents or representatives of the Facility Administrator to inspect the
Eligible Resorts and any of Servicer's assets (including financial and
- 33 -
accounting books and records) relating thereto, to examine and make copies of
and abstracts from the records and books of account of the Servicer or the Time
Share Association (to the extent controlled by the Servicer) or serviced under
the Servicing Agreement and to discuss its affairs, finances and accounts with
any of its officers, employees or independent public accountants. Servicer
acknowledges that the Facility Administrator intends to conduct such audits and
inspections on at least an annual basis. Servicer shall make available to the
Facility Administrator all credit information in Servicer's possession or under
Servicer's control with respect to Obligors as the Facility Administrator may
reasonably request. Upon the Facility Administrator's request, Servicer shall
furnish to Facility Administrator evidence of payment of all real estate taxes
relating to the Eligible Resorts. Servicer (to the extent Bluegreen or an
Affiliate thereof is the Servicer hereunder) shall be required to pay all
reasonable fees, costs and expenses incurred by the Facility Administrator for
any and all Eligible Resorts inspections, audits and any other diligence
relating to Servicer's finances or books or records.
(c) Maintenance. For so long as the Time Share Association for the
Eligible Resorts is managed by the Club Managing Entity, the Servicer shall use
commercially reasonable best efforts to maintain the Eligible Resorts in good
repair, working order and condition (ordinary wear and tear excepted).
(d) Management Contract. For so long as the Time Share Association for the
Eligible Resorts is managed by the Club Managing Entity, the manager, related
management contract and master marketing and sale contract (if applicable) for
each Eligible Resort shall at all times be reasonably satisfactory to the
Facility Administrator. For so long as the Time Share Association for the
Eligible Resorts is managed by the Club Managing Entity, the related management
contract and master marketing and sale contract (if applicable) may not be
amended or modified in a manner which could reasonably be expected to have a
Material Adverse Effect, without the prior written consent of the Facility
Administrator.
(e) Release and Bonding of Liens. In the event any Lien (other than a
Permitted Lien) attaches to any Receivable or related Trust Asset from any
Person claiming from and through the Servicer or one of its Affiliates, the
Servicer shall, within the earlier to occur of ten (10) days after such
attachment or the respective lienholders action to foreclose on such lien,
either (a) cause such lien to be released of record, or (b) provide the
Indenture Trustee with a bond in accordance with the applicable laws of the
state in which the Receivable or related Trust Asset is located, issued by a
corporate surety acceptable to the Indenture Trustee, in an amount and in form
reasonably acceptable to the Indenture Trustee, or (c) provide the Indenture
Trustee with such other security as the Indenture Trustee may reasonably
require.
(f) Claims. Servicer shall: (a) promptly notify the Indenture Trustee and
the Facility Administrator of (i) any claim, action or proceeding which may be
reasonably expected to have a Material Adverse Effect, and (ii) any action,
suit, proceeding, order or injunction of which Servicer becomes aware after the
date hereof pending or threatened against or affecting Servicer or any Affiliate
which may be reasonably expected to have a Material Adverse Effect; (b) at the
request of Trust with respect to a claim or action or proceeding which arises
from or through the Servicer or one of its Affiliates, appear in and defend, at
Servicer's expense, any such claim, action or proceeding which would have a
Material Adverse Effect; and (c) comply in all respects, and shall cause all
Affiliates to comply in all respects, with the terms of any orders imposed on
such Person by any Governmental Authority the failure to comply with which would
have a Material Adverse Effect.
- 34 -
(g) Negative Pledge. Except as contemplated by the Transaction Documents,
the Servicer (i) shall not, and shall not permit the Club Managing Entity or any
other Seller Party to, encumber, pledge or otherwise ▇▇▇▇▇ ▇ ▇▇▇▇ on the
Reservation System (including, without limitation, all hardware, software and
data in respect thereof), any Operating Contract or the Club Management
Agreement, (ii) shall, and shall cause the Club Managing Entity, to use
commercially reasonable efforts to keep the Reservation System operational, not
to dispose of the same and to allow the Club the use of, and access to, the
Reservation System in accordance with the terms of Club Management Agreement and
(iii) shall not permit Bluegreen Vacations Unlimited, Inc. or any other Seller
Party to encumber, pledge or otherwise ▇▇▇▇▇ ▇ ▇▇▇▇ in respect of its interest
as a Class B member in Bluegreen Vacation Club, Inc.
(h) Negative Pledge on Amenities and Common Areas. The Servicer shall (i)
not, and shall not permit any other Seller Party or any Time Share Association
managed by the Club Managing Entity to, and (ii) use its best efforts to not
permit any other Time Share Association to, encumber, pledge or otherwise ▇▇▇▇▇
▇ ▇▇▇▇ on any amenities or common areas or furnishings in respect of the
Eligible Resorts.
(i) Modifications of Receivables. Except in connection with a reduction or
increase in the interest rate not in excess of 1.0% in respect of an Obligor's
election to begin or cease making payments via pre-authorized checking, in
connection with Upgrades or in connection with modifications to comply with the
Servicemembers Civil Relief Act, the Servicer shall not reschedule, revise
downward or defer payments on a Receivable or modify the terms or conditions of
the related Contract or Mortgage in a manner adverse to the Trust unless the
Note Majority shall have consented in writing to the same; provided that the
Servicer shall, without the consent of the Note Majority, be permitted to
modify, waive or amend the terms or conditions of the related Contract with
respect to Receivables representing not more than 1.00% of the aggregate
advances made under the Notes.
(j) General. At all times during the term of this Agreement to the extent
not required to be retained by the Custodian, Servicer shall maintain complete
and accurate files and records pertaining to each Receivable and related Trust
Assets and of all business activities and operations conducted by Servicer in
connection with its performance under this Agreement. All such files and records
shall, upon the Indenture Trustee's request, be delivered to the Indenture
Trustee or its designee upon early termination of this Agreement.
(k) Notices to Obligors.
(i) Promptly after the Closing Date or applicable Transfer Dates, as
the case may be, and, in any event, not later than five (5) Business Days
thereafter, the Servicer will direct all Obligors of Receivables, and
shall instruct all future Obligors of such Receivables, to remit all
payments with respect to such Receivables only (x) by check, money order,
phone payment, or Western Union Quick Collect mailed to, or generated by,
an office of the Servicer, (y) by check, wire transfer, money order or
moneygram to the Lockbox or Lockbox Account or (z) by pre-authorized
checking or credit card payment for deposit into the Lockbox Account.
(ii) Within 30 days of the related Transfer Date for an Aruba
Receivable, the Servicer shall confirm to the Custodian that notices have
been mailed out to each Obligor under an Aruba Receivable that such Aruba
Receivable has been transferred and assigned to the Trust and that the
Trust has in turn, pledged such Aruba Receivable to the Indenture Trustee,
in trust,
- 35 -
for the benefit of the Noteholders. Such notice may include any notice or
notices that the Bluegreen Properties, N.V.'s predecessors in title to the
Aruba Receivable may give to the same Obligor with respect to any
transfers and assignments of the Receivable by such predecessors. Such
notice shall be in the form attached hereto as Exhibit N, as the same may
be amended, revised or substituted by the Facility Administrator and the
Servicer from time to time.
(l) Compliance with Agreements and Requirements of Laws. The Servicer will
comply, and cause its Affiliates to comply, in all respects with all applicable
Requirements of Law, including, without limitation, all Requirements of Law that
require the provision by the Trust, the Indenture Trustee, any Noteholder or
Servicer of notices, disclosures or other communications to Obligors or to any
other Person that has an interest in any property securing a Receivable, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. The Servicer will preserve and maintain its corporate
existence, rights, licenses, franchises and privileges in the jurisdiction of
its organization, and qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where its business is conducted, except where
the failure to so preserve and maintain or qualify could not reasonably be
expected to have a Material Adverse Effect.
(m) Real Estate Taxes. Servicer will pay, or cause to be paid (to the
extent funds are available from the Time Share Association), when due all of
Servicer's and its Affiliates' liabilities in respect of real estate taxes
relating to the Eligible Resorts. Servicer will pay, or cause to be paid, when
due all of Servicer's and its Affiliates' liabilities in respect of real estate
taxes relating to any shortfall pursuant to keepwell arrangements with the
Timeshare Associations or otherwise in respect of unsold Intervals. Servicer
shall notify the Facility Administrator promptly of the non-payment of real
estate taxes relating to the Eligible Resorts.
(n) Taxes. The Servicer will file or cause to be filed all United States
federal tax returns and all other material tax returns and reports required by
law to be filed by it and will promptly pay all taxes and governmental charges
at any time owing by it except any such taxes which are not yet delinquent or
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
(o) Collection Policies.
(i) The Servicer will (and will cause the Sellers to) (A) perform
and comply in all material respects with all provisions, covenants and
other promises required to be observed by it under the Contracts related
to the Receivables, and (B) comply in all material respects with the
Collection Policies in regard to each Receivable and the related Contract.
(ii) At least thirty (30) days prior to the effectiveness of any
change in or amendment to any Collection Policy, the Servicer shall
provide to the Facility Administrator a copy of the Collection Policies
then in effect and a notice indicating such change or amendment, and
requesting the Noteholders' consent thereto.
(p) Insurance.
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(i) The Servicer shall maintain, or cause to be maintained, with
financially sound and reputable insurance companies, such insurance
coverage as may be required by any Requirements of Law or pursuant to any
Declarations. The Servicer shall use its best efforts to cooperate with
and assist the Trust and the Indenture Trustee to enable the Trust and the
Indenture Trustee to (x) obtain an endorsement showing the Indenture
Trustee as mortgage loss payee with respect to each policy of property and
casualty insurance with respect to each Eligible Resort, to the extent of
its interest thereunder and to the extent that it is entitled thereto
under the Declarations, (y) obtain the benefits of a mortgagee under the
Declarations with respect to such insurance and (z) exercise the rights
and remedies of a mortgagee under the Declarations. On or before March 31
of each year or at any time upon request of the Facility Administrator,
the Servicer shall deliver to the Facility Administrator, certifications
evidencing coverage under all insurance policies described above.
(ii) If (A) the deductible with respect to any all-risk property
casualty insurance policy (excluding in respect of earthquake, flood and
windstorm damage risk) or any third-party liability insurance policy
exceeds $100,000 per occurrence and (B) after the occurrence of a loss,
the applicable Time Share Association (x) must pay such deductible to
obtain the benefits of such insurance and (y) is unable to pay such
deductible, from the proceeds of assessments to owners of an Interval or
cash reserves or otherwise, the Servicer shall be obligated to advance
(for the purpose of satisfying such deductible) to the Time Share
Association the amount of such deductible that is in excess of $100,000 in
order to obtain the benefits of such insurance policies.
(q) Exceptions; Recordation. The Servicer shall cause all exceptions to a
Receivable File to be rectified within sixty (60) days of the related Transfer
Date for such Receivable File. As soon as practicable after the related Transfer
Date (but in no event later than ten (10) Business Days after such date (or as
soon as practicable with respect to Receivables for which the original Mortgages
are still at the related recording office)), the Servicer shall deliver in
proper form for recording all Mortgage Assignments in respect of the Trust
Assets to be recorded in the appropriate offices. Notwithstanding the foregoing
sentence, the Servicer shall cause all evidences of recordation and all title
insurance policies for which title commitments were delivered on the related
Transfer Date to be delivered to the Custodian to be held as part of the
Receivables File promptly after the Servicer's receipt of the same and in any
event within 180 days of the related Transfer Date.
(r) Remarketing. Bluegreen shall be obligated to use commercially
reasonable efforts to remarket the Intervals related to Defaulted Receivables.
Bluegreen shall not, with respect to the remarketing of the Intervals associated
with the Defaulted Receivables and related Trust Assets, make any "adverse
selection" with respect to such Trust Assets vis-a-vis other receivables
serviced by Bluegreen. Bluegreen, on behalf of the Trust and at the discretion
of the Facility Administrator, shall take all necessary steps to have the record
title of the applicable Resort Interests subject to such Defaulted Receivables
continue to be held by the Club Trustee. In such event, Bluegreen shall direct
the Club Trustee, directly or through its agents, (i) to exercise the remedies
provided for in the Club Trust Agreement, in the Receivables themselves or in
the other Club documents with respect to such Defaulted Receivables and the
Obligors thereunder and (ii) to remarket the "Owner Beneficiary Rights" (as
defined in the Club Trust Agreement) of the Obligors under such Defaulted
Receivables with the purpose of effecting a recovery of the maximum proceeds in
respect of such Defaulted Receivables or finding replacements therefor.
Bluegreen, at the request of the Facility Administrator, shall reserve its
rights
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under the Club Trust Agreement and/or the applicable Mortgages to obtain, at any
time, record title and all beneficial interests in respect of the Intervals
related to Defaulted Receivables. All actions taken by Bluegreen in respect of
any Defaulted Receivable shall, at all times, be carried out in a manner such
that none of the Trust, the Facility Administrator, the Owner Trustee or the
Indenture Trustee shall, under Requirements of Law, be deemed to be the
developer or declarant of any Eligible Resort or the Club. Bluegreen shall
deposit the proceeds associated with the remarketing of the Interval related to
a Defaulted Receivable into the Collection Account and shall be paid the
"Remarketing Fee" associated with such Interval from the proceeds of the
remarketing thereof pursuant to Section 2.11 or pursuant to the Servicer
Purchase Option. Bluegreen (in the event the Servicer is Bluegreen or an
Affiliate thereof other than the Trust Depositor) shall at all times have the
right (but not the obligation) to utilize the Servicer Purchase Option as set
forth in Section 2.12 in lieu of performing the remarketing functions set forth
in this Section. In connection with Bluegreen's performance of its remarketing
duties hereunder Bluegreen (i) will undertake such duties in the ordinary course
in a manner similar and consistent with (or better than) the manner in which
Bluegreen sells or markets other timeshare properties it or its Affiliates owns
and (ii) may not sell any Defaulted Receivables that are Trust Assets except for
or as specifically permitted by this Agreement. Any proceeds from remarketing
deposited into the Collection Account shall be in the form of cash. In no event
shall the Trust originate any loan in connection with such remarketing.
(s) Servicer Advances. The Servicer is obligated to make on the Business
Day preceding a Payment Date advances of regularly scheduled principal and
interest payments relating to any Receivable the subject of a delinquent payment
(other than a Defaulted Receivable with respect to which there shall be no
Servicer Advances) if it determines in its sole discretion that such advances
will be recoverable in future periods (each a "Servicer Advance" and
collectively the "Servicer Advances"). Such Servicer Advances are reimbursable
from Collections pursuant to Section 2.11.
(t) Termination of Club Managing Entity. The Servicer shall not permit the
Club Managing Entity to terminate the Club Management Agreement without the
prior written consent of the Facility Administrator, such consent not to be
unreasonably withheld or delayed.
(u) Modifications to Collection Policies. Without the prior written
consent of the Note Majority, the Servicer will not, and will not permit any
Seller Party to, make any change to any Collection Policy.
(v) Fidelity Bond and Errors and Omissions Insurance. On or prior to the
Closing Date, the Servicer shall maintain or cause to be maintained fidelity
bond and errors and omissions insurance with respect to the Servicer in a
minimum amount of $1,000,000 per policy and shall name the Indenture Trustee as
an additional insured. No provision of this clause (v) requiring such fidelity
bond or errors and omissions insurance shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Indenture. The Servicer
shall be deemed to have complied with this provision if one of its respective
Affiliates has such fidelity bond or errors and omissions insurance coverage
and, by the terms of such fidelity bond or errors and omissions insurance
policy, the coverage afforded thereunder extends to the Servicer. On or before
March 31 of each year or at any time upon request of the Facility Administrator,
the Servicer shall deliver to the Facility Administrator, a certification
evidencing coverage under such fidelity bond and the errors and omissions
insurance. Any such fidelity bond or errors and omissions insurance policy (or
endorsement thereto) shall contain a provision that such policy shall not be
canceled or modified without ten (10) Business Days' prior written notice to the
Facility Administrator or such
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other amendment or cancellation provisions as may be acceptable to the Facility
Administrator; provided that Servicer agrees to use commercially reasonable
efforts to require the applicable insurer to provide 30 days prior written
notice of any cancellation or modification.
ARTICLE VII
SUBJECT TO CLUB TRUST AGREEMENT
Section 7.1. Rights Subject to Club Trust Agreement. Notwithstanding
anything to the contrary set forth herein or in any other Transaction Documents
or otherwise, all references to the rights of the Trust and the Indenture
Trustee with respect to Receivables shall be subject at all times to the
provisions of the Club Trust Agreement and the other agreements executed by the
Beneficiaries in connection therewith.
ARTICLE VIII
SERVICER TERMINATION EVENTS
Section 8.1. Servicer Termination Events.
Each of the following events shall constitute a "Servicer Termination
Event":
(a) any failure by the Servicer to make any payment or deposit required to
be made by the Servicer hereunder, under the Lockbox Agreement or any other
Transaction Document and the continuance of such failure for a period of one (1)
Business Day after the date on which such payment or deposit was due and not
made;
(b) failure on the Servicer's part to observe or perform in any material
respect any covenant or agreement in this Agreement, the Lockbox Agreement or
any other Transaction Document (other than a covenant or agreement, the breach
of which is specifically addressed elsewhere in this Section) which continues
unremedied for 30 days after the earlier of (i) the date on which notice of such
failure is delivered to Servicer or (ii) Servicer otherwise has actual knowledge
of such fact;
(c) any assignment by the Servicer of its duties or rights hereunder,
under the Lockbox Agreement, or any other Transaction Document, except as
specifically permitted hereunder or thereunder, or any attempt to make such an
assignment;
(d) an involuntary case under any applicable bankruptcy, insolvency or
other similar law shall have been commenced in respect of the Servicer and shall
not have been dismissed within 30 days, or a court having jurisdiction in the
premises shall have entered a decree or order for relief in respect of the
Servicer in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Servicer or for any substantial liquidation or winding up of its affairs;
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(e) the Servicer shall have commenced a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall have consented to the entry of an order for relief in an
involuntary case under any such law, or shall have consented to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian
or sequestrator (or other similar official) of the Servicer or for any
substantial part of its property, or shall have made any general assignment for
the benefit of its creditors, or shall have failed to, or admitted in writing
its inability to, pay its debts as they become due, or shall have taken any
corporate action in furtherance of the foregoing;
(f) (i) any failure by the Servicer to comply with the covenants contained
in Section 6.3(a) which remains uncured for 30 days after the date on which such
failure commences, (ii) any failure by the Servicer or Bluegreen to comply with
the covenants contained in Section 6.3 (b), (g), (h), (i), (k), (l), (n), (p),
(q) or (v); (iii) any failure by the Servicer to deliver the reports described
in Article IX of this Agreement which remains uncured for five (5) Business Days
after the date on which such failure commences; provided, however that the
period within which Servicer shall deliver such reports shall be extended to
such longer period as is appropriate in the event of a Force Majeure Delay; or
(iv) any failure on the part of the Servicer or Bluegreen to observe or perform
any of its covenants or agreements set forth in any Transaction Document (other
than as expressly provided for in another clause of this Section 8.1), which
failure continues unremedied for a period of 30 days after the earlier of (i)
the Servicer or Bluegreen obtains actual knowledge of such failure after due
inquiry or (ii) the Facility Administrator, the Indenture Trustee or the
Custodian provides the Servicer or Bluegreen with written notice of such
failure.
(g) any representation, warranty or statement of the Servicer made in this
Agreement or any certificate, report or other writing delivered pursuant hereto
shall prove to be incorrect in any material respect as of the time when the same
shall have been made and, within 30 days after the earlier of (i) written notice
thereof shall have been given to the Servicer by the Trust, the Indenture
Trustee or the Facility Administrator or (ii) the Servicer otherwise has actual
knowledge thereof, the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured;
(h) a default or breach shall occur under any other agreement, document or
instrument to which the Servicer is a party or by which the Servicer or its
property is bound that is not cured within any applicable grace period therefor,
and such default or breach (i) involves the failure to make any payment when due
in respect of any Indebtedness of the Servicer in excess of five percent (5%) of
the Servicer's Tangible Net Worth, (ii) causes, or permits any holder of such
Indebtedness or a trustee or agent to cause, Indebtedness or a portion thereof
in excess of five percent (5%) of the Servicer's Tangible Net Worth to become
due prior to its stated maturity or prior to its regularly scheduled dates of
payment, regardless of whether such default is waived, or such right is
exercised, by such holder, trustee or agent; provided that it shall not be a
Servicer Termination Event solely under this clause (ii) if such default or
breach is cured or waived within 60 days after the occurrence thereof so long as
such cure or waiver is being diligently pursued, or (iii) results in such
Indebtedness becoming due prior to its stated maturity or prior to its regularly
scheduled dates of payment;
(i) as of any Determination Date, the Trailing Three Month (60 to 120) Day
Delinquency Rate exceeds 7.0% and such excess shall exist for 30 days;
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(j) as of any Determination Date, the Trailing Six Month Default Rate
exceeds 8.0% and such excess shall exist for 30 days;
(k) as of any Determination Date, with respect to any Tranche, the
Lifetime Cumulative Default Rate for such Tranche shall exceed the Lifetime
Servicer Cumulative Default Threshold for such Tranche and such excess with
respect to such Tranche shall continue for 30 days;
(l) any Eligible Resort (except for La Cabana Beach & Racquet Club and
Casa del Mar Beach Resort) shall fail to be a Bluegreen Vacation Club Component
Site Resort or otherwise fail to maintain all rights and privileges with respect
to the Club;
(m) any Eligible Resort (except for La Cabana Beach & Racquet Club and
Casa del Mar Beach Resort) shall cease to be managed and operated by Bluegreen
or one of its Subsidiaries and such condition shall continue for 30 days;
provided that it shall not be a Servicer Termination Event under this clause (m)
if any successor manager or operator of any Eligible Resort (other than
Bluegreen or one of its Subsidiaries) is reasonably acceptable to the Facility
Administrator; provided further that this clause (m) shall not be a Servicer
Termination Event so long as none of General Electric Capital Corporation or any
of its Affiliates is the Facility Administrator or a Noteholder;
(n) the operating budgets and reserve accounts for the Time Share
Associations at each Eligible Resort (except for La Cabana Beach & Racquet Club
and Casa del Mar Beach Resort) shall fail to be maintained in compliance with
all applicable Requirements of Law and the applicable Time Share Documents and
such failure shall continue for 30 days; or
(o) a Change of Control shall occur.
In the event that any party hereto becomes aware of a Servicer Termination Event
(or an event which with the passage of time or giving of notice would become a
Servicer Termination Event) such party shall promptly notify the other parties
hereto. Additionally, upon the occurrence of a Servicer Termination Event and
the Facility Administrator's giving of notice of a Service Transfer pursuant to
Section 8.2(a) hereof, such Servicer Termination Event shall be irrevocably
deemed to have "occurred and be continuing" unless otherwise waived by more than
50% of the Outstanding Amount; provided, further, that so long as Bluegreen or
an Affiliate of Bluegreen is not the Servicer, clauses (h) through (p) of this
Section 8.1 shall not constitute a Servicer Termination Event.
Section 8.2. Service Transfer.
(a) If a Servicer Termination Event has occurred and is continuing,
the Facility Administrator, at the direction of the Noteholders shall, by
written notice delivered to the Servicer, terminate all (but not less than
all) of the Servicer's management, administrative, servicing, custodial
and collection functions (such termination being herein called a "Service
Transfer" and such terminated Servicer, being called a "Predecessor
Servicer"); provided that notwithstanding 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.
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(b) Upon receipt of the notice required by Section 8.2(a) (or, if
later, on a date designated therein), all rights, benefits, fees,
indemnities, authority and power of the Servicer under this Agreement,
whether with respect to the Trust Assets or otherwise shall pass to and be
vested in the Back-up Servicer (the "Successor Servicer") pursuant to and
under this Section 8.2; and, without limitation, the Successor Servicer is
authorized and empowered to execute and deliver on behalf of the Servicer,
as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do any and all acts or things necessary or appropriate
to effect the purposes of such notice of termination. In the event that
the Back-up Servicer is unable to act as the Successor Servicer, subject
to Section 3.7(e) of the Indenture, the Indenture Trustee without further
action shall be appointed as Successor Servicer pursuant to and under this
Section 8.2. The Servicer agrees to cooperate with the Successor Servicer
in effecting the termination of the responsibilities and rights of the
Servicer hereunder, including, without limitation, the transfer to the
Successor Servicer for administration by it of all cash amounts which
shall at the time be held by the Servicer for deposit, or have been
deposited by the Servicer, in the Collection Account, or for its own
account in connection with its services hereafter or thereafter received
with respect to the Receivables and the related Trust Assets. The Servicer
shall transfer to the Successor Servicer (i) all records held by the
Servicer relating to the Receivables and the related Trust Assets in such
electronic form as the Successor Servicer may reasonably request and (ii)
any Receivables Files in the Servicer's possession relating to the
Receivables and the related Trust Assets. In addition, the Servicer shall
permit access to its premises during normal business hours provided
reasonable notice has been provided to the Servicer (including all
computer records and programs to the extent permitted under any related
licensing agreements) to the Successor Servicer or its designee, and shall
pay the reasonable out-of-pocket transition expenses of the Successor
Servicer.
Section 8.3. Successor Servicer to Act; Appointment of Successor Servicer.
On or after a Service Transfer pursuant to Section 8.2, the Successor Servicer
shall be the successor in all respects to the Servicer in its capacity as
Servicer under this Agreement and the other Transaction Documents and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof, and the terminated Servicer shall be
relieved of such responsibilities, duties and liabilities arising after such
Service Transfer; provided, however, that the Successor Servicer shall not be
liable for any acts or omissions of the Servicer occurring prior to such Service
Transfer or for any breach by the Servicer of any of its representations and
warranties or covenants contained herein or in any related document or
agreement. On or after a Service Transfer pursuant to Section 8.2, the Successor
Servicer shall be the successor in all respects to the Trust Administrator in
its capacity as Trust Administrator under the Administration Agreement and the
transactions set forth or provided for therein.
Section 8.4. Effect of Transfer.
(a) After a Service Transfer, the terminated Servicer shall have no
further obligations with respect to the management, administration,
servicing, custody or collection of the Receivables and the related Trust
Assets and the Successor Servicer appointed pursuant to Section 8.2 shall
have all of such obligations, except that the terminated Servicer will
transmit or cause to 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.
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(b) A Service Transfer shall not affect the rights and duties of the
parties hereunder (including but not limited to the indemnities of the
Servicer) other than those relating to the management, administration,
servicing, custody or collection of the Receivables and the related Trust
Assets.
Section 8.5. Successor Servicer Indemnification. The Servicer shall
defend, indemnify and hold the Successor Servicer and any officers, directors,
employees or agents of the Successor Servicer harmless against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and any other costs, fees, and expenses that the Successor
Servicer may sustain in connection with the claims asserted at any time by third
parties against the Successor Servicer which result from (i) any illegal,
willful or grossly negligent act taken or omission by the Servicer or (ii) a
breach of any representations or covenants of the Servicer in Sections 5.5 and
6.3 hereof. The indemnification provided by this Section 8.5 shall survive the
termination of this Agreement.
Section 8.6. Responsibilities of the Successor Servicer. The Successor
Servicer will not be responsible for delays attributable to the Predecessor
Servicer's failure to deliver information, defects in the information supplied
by the Predecessor Servicer or other circumstances beyond the control of the
Successor Servicer.
The Successor Servicer will make arrangements with the Servicer for the
prompt and safe transfer of, and the Predecessor Servicer shall provide to the
Successor Servicer, all necessary servicing files and records, including (as
deemed necessary by the Successor Servicer at such time): (i) microfiche loan
documentation, (ii) servicing system tapes, (iii) Receivable payment history,
(iv) collections history and (v) the trial balances, as of the close of business
on the day immediately preceding conversion to the Successor Servicer,
reflecting all applicable loan information.
The Successor Servicer shall have no responsibility and shall not be in
default hereunder nor incur any liability for any failure, error, malfunction or
any delay in carrying out any of its duties under this Agreement if any such
failure or delay results from the Successor Servicer acting in accordance with
information prepared or supplied by a Person other than the Successor Servicer
or from the failure of any such Person to prepare or provide such information.
The Successor Servicer shall have no responsibility, shall not be in default and
shall incur no liability (i) for any act or failure to act by any third party,
including the Servicer or for any inaccuracy or omission in a notice or
communication received by the Successor Servicer from any third party or (ii)
which is due to or results from the invalidity, unenforceability of any
Receivable with Requirements of Law or the breach or the inaccuracy of any
representation or warrant made with respect to any Receivable.
Section 8.7. Waiver of Servicer Termination Event. Noteholders
representing more than 50% of the Outstanding Amount, may, by written notice
delivered to the parties, waive any Servicer Termination Event.
ARTICLE IX
PERFORMANCE AND DUTIES OF SERVICER
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Section 9.1. General Requirements of Servicer. Servicer will maintain a
loan processing database and will service the Receivables and the other Trust
Assets in accordance with generally accepted receivables servicing practices for
similar types of receivables. In the performance of its duties, unless otherwise
specifically provided herein, Servicer shall comply with the terms of the
Receivables signed by the Obligor. Servicer shall use commercially reasonable
efforts (consistent with the preceding sentence) to collect and shall process
all payments in accordance with its present practice. Servicer shall also
provide the Facility Administrator with monthly reports of all cash flow
(including any delinquencies), together with such other information reasonably
requested by the Facility Administrator all in the form attached hereto as
Schedule II as well as the reports described in this Article IX; provided,
however, in the event of a Service Transfer, the Back-up Servicer shall provide
the Facility Administrator with monthly reports of all cash flow (including any
delinquencies), together with such other information reasonably requested by the
Facility Administrator in the form attached hereto as Schedule II as well as the
reports described in Sections 9.4 and 9.6 hereof only. Bluegreen will remarket
Intervals related to Defaulted Receivables pursuant to Section 6.3(r) hereof and
make Servicer Advances pursuant to Section 6.3(s) hereof. Notwithstanding
anything to the contrary contained herein, upon a Service Transfer, the Back-up
Servicer shall be under no obligation to remarket Intervals related to Defaulted
Receivables pursuant to Section 6.3(r) hereof, make Servicer Advances pursuant
to Section 6.3(s) hereof or provide the information set forth in Section 9.4(h)
or Section 9.12 hereof.
Section 9.2. Servicer as Independent Contractor. Servicer shall have the
status of an independent contractor. Nothing herein contained shall be
considered to create a partnership or joint venture between the Trust, the
Facility Administrator, the Servicer or any Noteholder. Servicer is not to be
considered an agent or employee of the Trust or the Facility Administrator for
any purpose, and the employees of Servicer are not entitled to any of the
benefits that the Trust, the Facility Administrator or any Noteholder provides
its employees.
Section 9.3. [Omitted]
Section 9.4. Description of Reports. For each Collection Period during the
term of this Agreement, Servicer will prepare the following standard industry
reports and submit them to the Facility Administrator and the Indenture Trustee
no later than the second Business Day prior to the related Payment Date
(collectively, the "Monthly Report"):
(a) Title: Trial/Aging Balance Report
Purpose: A listing of all Receivables indicating the
outstanding principal balance of each Receivable and
the aggregate outstanding balance of all
Receivables.
(b) Title: New Receivables Report
Purpose: A listing of all Receivables added to the
Receivables Pool during such month.
(c) Title: Cash Receipts Report
Purpose: A listing of all Receivables showing the following
with respect to each Receivable and totals with
respect to all Receivables: payments received,
showing a breakdown into principal, interest and
other amounts paid.
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(d) Title: Delinquency/Default/Aging Report
Purpose: A listing of all Receivables showing delinquencies,
broken down into columns indicating the length of
such delinquencies at 30 days, 60 days, 90 days, 120
days and more than 120 days, a listing of all
Defaulted Receivables and a computer diskette or
magnetic tape prepared in the form of Schedule II
hereto which provides the aging history of the
Receivables.
(e) Title: Cancellation, Prepayment, Upgrades, Aging,
Remarketing, Payoff and Servicer Purchase Option
Report
Purpose: A listing of all Receivables which were: canceled,
paid off in their entirety, the subject of a
prepayment or Upgrade or subject to the Servicer
Purchase Option. An aging report of all repossessed
Intervals. A listing of all Receivables subject to
remarketing with the sales price of all remarketed
Intervals compared against the original sales
price.
(f) Title: Summary Report
Purpose: A report in the form of Schedule II attached hereto
or such other form as approved by the Facility
Administrator summarizing changes from the prior
month's report. The Facility Administrator may from
time to time in its reasonable discretion modify the
reporting requirements and add reports on an
as-needed basis, which Servicer shall complete in a
timely fashion. Servicer and the Facility
Administrator shall agree upon the timing of
preparation and delivery of additional reports and
the additional cost, if any, of the modification.
(g) Title: Cash Flow Report
Purpose: A report which delineates total Collections received
for a Collection Period, Servicer Advances made with
respect to the related Payment Date as well as fees
to third party service providers (i.e. Indenture
Trustee Fees, Lockbox Fees, etc.).
(h) Title: Vacation Points
Purpose: A report which lists all outstanding Vacation Points
and the total amount of available Accommodations
relating thereto.
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Section 9.5. Officer's Certificate. The Reports delivered pursuant to
Section 9.4 hereof shall be accompanied by a certificate of an Officer of the
Servicer substantially in the form of Exhibit G, certifying the accuracy of the
Reports and that no Servicer Termination Event or event that with notice or
lapse of time or both would become a Servicer Termination Event has occurred, or
if such event has occurred and is continuing, specifying the event and its
status; provided, however, that this Section 9.5 shall not apply after the
occurrence of a Service Transfer.
Section 9.6. Annual Report of Accountants.
(a) The Servicer shall cause a firm of nationally recognized independent
certified public accountants (the "Independent Accountants") (provided that if
the Back-up Servicer becomes the Servicer hereunder, such accountants shall not
be required to be "nationally recognized"), to deliver to the Facility
Administrator and the Indenture Trustee beginning on March 31, 2005 (or April
30, 2005 with respect to the Back-up Servicer), with respect to the twelve
months ended the immediately preceding December 31 (or other applicable date), a
statement (the "Accountant's Report") addressed to the Board of Directors of the
Servicer and Servicer will promptly provide a copy to the Facility Administrator
and the Indenture Trustee to the effect that such firm has audited the financial
statements of Servicer and issued its report thereon and that such audit:
(i) was made in accordance with generally accepted auditing
standards, and accordingly included such tests of the accounting records
and such other auditing procedures as such firm considered necessary in
the circumstances; and
(ii) so long as Bluegreen or one of its Affiliates is the Servicer,
included an examination of documents and records relating to the servicing
of the Receivables and the related Trust Assets under this Agreement.
The Accountant's Report shall further state that (so long as Bluegreen or one of
its Affiliates is the Servicer):
(1) a review in accordance with agreed upon procedures was
made of one randomly selected Monthly Report; and
(2) except as disclosed in the Report, no exceptions or
errors in the Monthly Report so examined were found.
(b) The Accountant's Report shall also indicate that the firm is
independent of the Servicer within the meaning of the Code of Professional
Ethics of the American Institute of Certified Public Accountants.
Section 9.7. Annual Statement of Compliance from Servicer. The Servicer
(in the event the Servicer is Bluegreen or an Affiliate thereof) will deliver to
the Facility Administrator and the Indenture Trustee, on or before March 31 of
each year commencing March 31, 2005, 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
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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 Eligible Resorts on a resort by
resort basis, in form and content reasonably satisfactory to the Facility
Administrator; and within thirty (30) Business Days after the end of each fiscal
year (provided the Servicer is Bluegreen or an Affiliate thereof), an annual
sales and inventory report for the Eligible Resorts detailing the sales of all
Intervals on a resort by resort basis during such fiscal year and the available
inventory of Units and Intervals, certified by the Servicer (provided the
Servicer is Bluegreen or an Affiliate thereof) to be true, correct and complete
and otherwise in the form approved by the Trust.
Section 9.9. Financial Reports.
(a) Not later than the earlier of (A) 120 days after the end of each
fiscal year of the Servicer and (B) the public filing with the SEC of the
Servicer's Form 10-K for such fiscal year, the Servicer shall deliver to the
Facility Administrator the audited consolidated financial statements of the
Servicer (provided the Servicer is Bluegreen or an Affiliate thereof).
(b) Not later than the earlier of (A) 60 days after the end of each of the
first three fiscal quarterly periods of each fiscal year of the Servicer and (B)
the public filing with the SEC of the Servicer's Form 10-Q for each such fiscal
quarter, the Servicer shall deliver to the Facility Administrator unaudited
financial statements of Servicer (provided the Servicer is Bluegreen or an
Affiliate thereof) certified by its chief financial officer as fairly presenting
the financial position of Bluegreen and its Subsidiaries, as well as, to the
extent requested by the Facility Administrator and available to Servicer
(provided the Servicer is Bluegreen or an Affiliate thereof), unaudited
bi-annual financial statements of the Time Share Association.
(c) Each delivery of financial statements under this Section 9.9 shall be
accompanied by a certificate of the Servicer's chief financial officer
certifying as to its compliance with the covenants contained in Section 6.3(a).
Section 9.10. Time Share Association Reports; Club Reports.
(a) Not later than 60 days after the end of each of the first three
quarterly periods of each fiscal year of the Time Share Association and not
later than 120 days after the end of each fiscal year of the Time Share
Association and, to the extent the Servicer is Bluegreen and Bluegreen or its
Affiliates control the Eligible Resort, the Servicer shall deliver to the
Facility Administrator the quarterly and annual financial statements, as
applicable, of each Time Share Association and, to the extent the Eligible
Resort is not in the Servicer's or one of its Subsidiaries control, the Servicer
shall make a good faith effort to obtain the same from the respective Time Share
Association within such time periods.
(b) Not later than 150 days after the end of each fiscal year of the Club,
the Servicer shall deliver to the Facility Administrator the annual financial
statements of the Club.
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Section 9.11. Audit Reports. Promptly upon receipt thereof, one (1) copy
of each other report submitted to Servicer by its independent public accountants
in connection with any annual, interim or special audit made by them of the
books of the Servicer.
Section 9.12. Other Reports. Such other reports, statements, notices or
written communications relating to the Servicer, the Time Share Associations or
the Eligible Resorts as are available to Servicer and as the Facility
Administrator may reasonably require.
Section 9.13. SEC Reports. Promptly upon their becoming publicly available
one (1) copy of each financial statement, report, notice or proxy statement sent
by the Servicer to security holders generally, and of each regular or periodic
report and any registration statement, prospectus or written communication
(other than transmittal letters) in respect thereof filed by Servicer with, or
received by Servicer in connection therewith from, any securities exchange or
the Securities and Exchange Commission or any successor agency.
ARTICLE X
FACILITY ADMINISTRATOR
Section 10.1. Appointment; Nature of Relationship. General Electric
Capital Corporation is hereby appointed by each Noteholder as its contractual
representative (herein referred to as the "Facility Administrator") hereunder
and under each other Transaction Document, and each of the Noteholders
irrevocably authorizes the Facility Administrator to act as the contractual
representative of such Noteholder with the rights and duties expressly set forth
herein and in the other Transaction Documents. The Facility Administrator agrees
to act as such contractual representative upon the express conditions contained
in this Article X. Notwithstanding the use of the defined term "Facility
Administrator," it is expressly understood and agreed that the Facility
Administrator shall not have any fiduciary responsibilities to any Noteholder by
reason of this Agreement or any other Transaction Document and that the Facility
Administrator is merely acting as the contractual representative of the
Noteholders with only those duties as are expressly set forth in this Agreement
and the other Transaction Documents. In its capacity as the Noteholders'
contractual representative, the Facility Administrator (i) does not hereby
assume any fiduciary duties to any of the Noteholders and (ii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Transaction Documents. Each
of the Noteholders hereby agrees to assert no claim against the Facility
Administrator on any agency theory or any other theory of liability for breach
of fiduciary duty, all of which claims each Noteholder hereby waives.
Section 10.2. Powers. The Facility Administrator shall have and may
exercise such powers under the Transaction Documents as are specifically
delegated to the Facility Administrator by the terms thereof, together with such
powers as are reasonably incidental thereto. The Facility Administrator shall
have no implied duties to the Noteholders, or any obligation to the Noteholders
to take any action thereunder except any action specifically provided by the
Transaction Documents to be taken by the Facility Administrator.
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Section 10.3. General Immunity. Neither the Facility Administrator nor any
of its directors, officers, agents or employees shall be liable to any
Noteholder for any action taken or omitted to be taken by it or them hereunder
or under any other Transaction Document or in connection herewith or therewith
except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
Section 10.4. No Responsibility for Advances, Recitals, etc. Neither the
Facility Administrator nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any
Transaction Document or any advances hereunder; (b) the performance or
observance of any of the covenants or agreements of any obligor under any
Transaction Document, including, without limitation, any agreement by an obligor
to furnish information directly to each Noteholder; (c) the satisfaction of any
condition specified in Article IV, except receipt of items required to be
delivered solely to the Facility Administrator; (d) the existence or possible
existence of any Event of Default, Servicer Termination Event or Termination
Event; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Transaction Document or any other instrument or writing
furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g) the
financial condition of the Servicer or its Subsidiaries. The Facility
Administrator shall have no duty to disclose to the Noteholders information that
is not required to be furnished by the Servicer to the Facility Administrator at
such time, but is voluntarily furnished by the Servicer to the Facility
Administrator (either in its capacity as Facility Administrator or in its
individual capacity); provided that if any such information is provided to any
Noteholder by the Facility Administrator, the Facility Administrator shall
provide such information to all Noteholders.
Section 10.5. Action on Instructions of Noteholders. The Facility
Administrator shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under any other Transaction Document in accordance
with written instructions signed by the Noteholders holding the required
percentage of the Outstanding Amount, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Noteholders.
The Noteholders hereby acknowledge that the Facility Administrator shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement or any other Transaction Document
unless it shall be requested in writing to do so by the Noteholders. The
Facility Administrator shall be fully justified in failing or refusing to take
any action hereunder and under any other Transaction Document unless it shall
first be indemnified to its satisfaction by the Noteholders pro rata against any
and all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
Section 10.6. Employment of Agents and Counsel. The Facility Administrator
may execute any of its duties as Facility Administrator hereunder and under any
other Transaction Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Noteholders, except as to
money or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Facility Administrator shall be entitled to advice of
counsel concerning the contractual arrangement between the Facility
Administrator and the Noteholders and all matters pertaining to the Facility
Administrator's duties hereunder and under any other Transaction Document.
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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 held by such
Noteholder (i) for any amounts not reimbursed by the Servicer, any Seller, the
Trust or the Trust Depositor for which the Facility Administrator is entitled to
reimbursement by the Servicer, any Seller, the Trust or the Trust Depositor
under the Transaction Documents, (ii) for any other expenses incurred by the
Facility Administrator on behalf of the Noteholders, in connection with the
preparation, execution, delivery, administration and enforcement of the
Transaction Documents (including, without limitation, for any expenses incurred
by the Facility Administrator in connection with any dispute between the
Facility Administrator and any Noteholder or between two or more of the
Noteholders) and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Facility Administrator in any way relating to or arising out of the
Transaction Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Facility Administrator in
connection with any dispute between the Facility Administrator and any
Noteholder or between two or more of the Noteholders), or the enforcement of any
of the terms of the Transaction Documents or of any such other documents,
provided that no Noteholder shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Facility Administrator. The obligations of the
Noteholders under this Section 10.8 shall survive payment of all amounts
hereunder and termination of this Agreement.
Section 10.9. Notice of Default. The Facility Administrator shall not be
deemed to have knowledge or notice of the occurrence of any Event of Default,
Servicer Termination Event or Termination Event unless the Facility
Administrator has received written notice from a Noteholder, the Trust, the
Trust Depositor, the Indenture Trustee or the Servicer referring to this
Agreement describing such Event of Default, Servicer Termination Event or
Termination Event and stating that such notice is a "notice of default" or words
of similar import. In the event that the Facility Administrator receives such a
notice, the Facility Administrator shall give prompt notice thereof to the
Indenture Trustee and the Noteholders.
Section 10.10. Rights as a Noteholder. In the event the Facility
Administrator is a Noteholder, the Facility Administrator shall have the same
rights and powers hereunder and under any other Transaction Document as any
Noteholder and may exercise the same as though it were not the Facility
Administrator, and the term "Noteholder" or "Noteholders" shall, at any time
when the Facility Administrator is a Noteholder, unless the context otherwise
indicates, include the Facility Administrator in its individual capacity. The
Facility Administrator and its Affiliates may lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Transaction Document, with the
Servicer or any of its Subsidiaries in which the Servicer or such Subsidiary is
not restricted hereby from engaging with any other Person.
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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 various file review procedures as selected by the
Facility Administrator (collectively, the "Specified Procedures"). The Facility
Administrator shall be under no duty to inquire as to the accuracy or
genuineness of the information provided to it in conducting the Specified
Procedures nor shall it have any duty to review any information other than such
files, reports and other information provided to it by Bluegreen.
Section 10.12. Successor Facility Administrator. The Facility
Administrator, with the written consent of the Servicer (so long as Bluegreen or
an Affiliate thereof is the Servicer), which consent shall not be unreasonably
withheld or delayed, may resign at any time by giving written notice thereof to
the Noteholders and the Servicer, such resignation to be effective upon the
appointment of a successor Facility Administrator or, if no successor Facility
Administrator has been appointed, forty-five days after the retiring Facility
Administrator gives notice of its intention to resign. The Facility
Administrator may be removed at any time with or without cause by written notice
received by the Facility Administrator from all of the Noteholders, such removal
to be effective on the date specified by such Noteholders. Upon any such
resignation or removal, the Noteholders shall have the right to appoint, on
behalf of the Noteholders, a successor Facility Administrator with the written
consent of the Servicer (so long as the Servicer is Bluegreen or an Affiliate
thereof), which such consent shall not be unreasonably withheld or delayed. If
no successor Facility Administrator shall have been so appointed by the
Noteholders within thirty days after the resigning Facility Administrator's
giving notice of its intention to resign, then the resigning Facility
Administrator may appoint, on behalf of the Noteholders, a successor Facility
Administrator. Notwithstanding the previous sentence, the Facility Administrator
may at any time without the consent of the Servicer or any Noteholder, appoint
any of its Affiliates which is a commercial bank or other financial institution
as a successor Facility Administrator hereunder. If the Facility Administrator
has resigned or been removed and no successor Facility Administrator has been
appointed, the Noteholders may perform all the duties of the Facility
Administrator hereunder and for all other purposes shall deal directly with the
parties hereto. No successor Facility Administrator shall be deemed to be
appointed hereunder until such successor Facility Administrator has accepted the
appointment. Upon the acceptance of any appointment as Facility Administrator
hereunder by a successor Facility Administrator, such successor Facility
Administrator shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Facility
Administrator. Upon the effectiveness of the resignation or removal of the
Facility Administrator, the resigning or removed Facility Administrator shall be
discharged from its duties and obligations hereunder and under the Transaction
Documents. After the effectiveness of the resignation or removal of a Facility
Administrator, the provisions of this Article X shall continue in effect for the
benefit of such Facility Administrator in respect of any actions taken or
omitted to be taken by it while it was acting as the Facility Administrator
hereunder and under the other Transaction Documents.
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ARTICLE XI
ASSIGNMENTS; REPURCHASE OPTION
Section 11.1. Assignments; Participations.
(a) Except as otherwise contemplated by or permitted under this Agreement,
neither the Trust, the Trust Depositor nor the Servicer may assign its rights
under this Agreement without the prior written consent of more than 66 2/3% of
the Outstanding Amount.
(b) Any Noteholder may, in the ordinary course of its business and in
accordance with Requirements of Law, at any time sell to one or more banks or
other entities ("Participants") participating interests in the Notes. In the
event of any such sale by a Noteholder of participating interests to a
Participant, such Noteholder's obligations under the Transaction Documents shall
remain unchanged, such Noteholder shall remain solely responsible to the other
parties hereto for the performance of such obligations, all amounts payable
under this Agreement or the other Transaction Documents shall be determined as
if such Noteholder had not sold such participating interests, and all parties
shall continue to deal solely and directly with such Noteholder in connection
with such Noteholder's rights and obligations under the Transaction Documents.
(c) Except as provided in the applicable Note Purchase Agreement, any
Noteholder may, in the ordinary course of its business and in accordance with
Requirements of Law, at any time assign to one or more banks or other entities
all or any part of its rights and obligations under the Transaction Documents.
Section 11.2. Trust Depositor's Repurchase Option.
Following Trust Depositor's written notice to the Indenture Trustee and
the Facility Administrator at least twenty (20) days prior to a Payment Date, if
(i) the Receivable Balance of all Receivables in the Asset Pool is then less
than 10.00% of the aggregate Receivable Balances of the Receivables purchased
hereunder when so purchased and (ii) Bluegreen or an Affiliate of Bluegreen is
the Servicer, then the Trust Depositor may (but is not required to) repurchase
from the Trust on that Payment Date all outstanding Trust Assets at a price
equal to the Aggregate Outstandings. Such price is to be deposited in the
Collection Account one Business Day before such Payment Date, against the
Indenture Trustee's retransfer and release of the Receivables and related Trust
Assets to the Trust Depositor.
ARTICLE XII
TERMINATION
Section 12.1. Sale of Trust Assets.
(a) Upon any sale of the assets of the Trust pursuant to Section 9.02 of
the Trust Agreement, the Servicer shall instruct the Indenture Trustee to
deposit the proceeds from such sale after all payments and reserves therefrom
have been made (the "Insolvency Proceeds") in the Collection Account. On the
Payment Date on which the Insolvency Proceeds are deposited in the Collection
Account (or, if such
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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.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Amendments and Waivers.
(a) This Agreement may be amended from time to time by the Trust
Depositor, the Servicer, the Facility Administrator, the Indenture Trustee and
the Owner Trustee on behalf of the Trust, collectively, but without the consent
of the Noteholders, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions in this Agreement which are inconsistent with the
provisions herein which may be ambiguous or inconsistent with any other
provisions herein or in any other Transaction Document, as the case may be, or
to add any other provisions with respect to matters or questions arising under
this Agreement that shall not be inconsistent with the provisions of this
Agreement.
(b) Without limiting Section 13.1(a) above, this Agreement may also be
amended from time to time by the Trust Depositor, the Servicer, the Facility
Administrator, the Indenture Trustee and the Owner Trustee on behalf of the
Trust, with the consent of the Note Majority, provided, however, that no such
amendment shall (i) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Receivables or
distributions which are required to be made on any Note, (ii) amend the Reserve
Account Required Amount or the manner in which the Reserve Account is funded,
(iii) change the interest rate on any Notes or adversely 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, in each case
without the consent of all of the Noteholders. Unless otherwise expressly stated
in any Transaction Document, any provisions requiring the consent of the
Noteholders under the Transaction Documents shall require the consent of the
Note Majority.
(c) Promptly after the execution of any such amendment or consent not
requiring Noteholder consent, the Indenture Trustee, as the case may be, shall
furnish written notification of the substance of such amendment or consent to
each Noteholder. It shall not be necessary for the consent of Noteholders
pursuant to Section 13.1(b) to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization by Noteholders of the execution thereof shall be subject to
such reasonable requirements the Indenture Trustee may prescribe.
(d) Prior to the execution of any amendment to this Agreement, pursuant to
Section 13.1(a) the Indenture Trustee shall be entitled to receive and rely upon
an Opinion of Counsel stating that the execution of such amendment is authorized
or permitted by this Agreement. The Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Indenture
Trustee's own rights, duties or immunities under this Agreement or otherwise.
- 53 -
(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 Section 9-506 of the UCC, unless it shall have
given the Trust, the Owner Trustee, the Facility Administrator and the Indenture
Trustee at least 30 days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Trust, the Trust Depositor and the Servicer shall give the
Facility Administrator, the Owner Trustee and the Indenture Trustee at least 30
days' prior written notice of any relocation of the principal executive office
of the Trust Depositor and the Servicer (in the case of notice provided by the
Servicer) if, as a result of such relocation, the applicable provisions of the
UCC would require filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment or new financing statement. The Servicer shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States.
(d) The Servicer shall maintain or cause to be maintained accounts and
records as to each Receivable accurately and in sufficient detail to permit (i)
the reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in or credited to the
Collection Account in respect of each Receivable.
(e) The Servicer shall maintain or cause to be maintained its computer
systems so that, from and after the time of sale under this Agreement of the
Receivables, the Servicer's master computer records (including any backup
archives) that shall refer to a Receivable indicate clearly the interest of the
Trust and the Indenture Trustee in such Receivable and that such Receivable is
owned by the Trust and has been pledged to the Indenture Trustee. Indication of
the Trust's ownership of and the Indenture Trustee's interest in a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Indenture Trustee's Lien on the related Receivable shall have
been released in accordance with the applicable provisions of the Transaction
Documents.
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(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: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust Depositor: Bluegreen Receivables Finance Corporation VII
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trust or the
Owner Trustee: Wilmington Trust Company
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▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (for so long as
Bluegreen or an Affiliate thereof
is the Servicer) to:
Bluegreen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Facility
Administrator: General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bluegreen Asset Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: In-House Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Back-Up Servicer: Concord Servicing Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. Pink, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Indenture Trustee
or the Custodian: U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EP-MN-WS3D
Attn: Structured Finance/BXG
Owner Trust 2004-A
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Club Trustee: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Noteholders: General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Bluegreen Asset Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: In-House Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Each party hereto may, by notice given in accordance herewith to each of
the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 13.4. No Waiver; Remedies.
No failure on the part of the Facility Administrator or the Indenture
Trustee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. To the extent permitted by law, the remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 13.5. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 13.6. Term of this Agreement.
This Agreement, including, without limitation, the Servicer's, the Club
Trustee's and the Trust Depositor's obligation to observe their respective
covenants set forth in Article VI, shall remain in full force and effect until
all Aggregate Outstandings have been indefeasibly paid in full and all
commitments of the Noteholders to make any advances in respect of any Purchases
hereunder shall have terminated; provided, however, that the provisions of
Section 13.9 and 13.10 shall be continuing and shall survive any termination of
this Agreement.
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Section 13.7. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION
TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF ILLINOIS. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN CHICAGO,
ILLINOIS. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 13.8. WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF
THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
Section 13.9. Costs, Expenses and Taxes.
(a) Bluegreen and the Trust Depositor agree to pay or cause to be paid on
demand all reasonable out-of-pocket costs and expenses of the Trust, the
Indenture Trustee, the Facility Administrator or any Noteholder actually
incurred in connection with the preparation, execution, delivery, administration
(including periodic auditing), amendment or modification of, or any waiver or
consent issued in connection with, this Agreement and the other documents to be
delivered hereunder or in connection herewith, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Trust, the
Indenture Trustee, the Facility Administrator or any Noteholder with respect
thereto and with respect to advising the Trust, the Indenture Trustee, the
Facility Administrator or any Noteholder as to its respective rights and
remedies under this Agreement and the other documents to be delivered hereunder
or in connection herewith, and all costs and out-of-pocket expenses, if any
(including reasonable counsel fees and expenses), incurred by the Trust, the
Indenture Trustee, the Facility Administrator or any Noteholder in connection
with the enforcement of this Agreement and the other documents to be delivered
hereunder or in connection herewith.
(b) Bluegreen and the Trust Depositor, jointly and severally, agree to
indemnify and hold the Trust, the Indenture Trustee, the Custodian, the Owner
Trustee, the Facility Administrator, each Noteholder and each of their
Affiliates, officers, directors, agents and employees (each an "Indemnified
Party") harmless against any and all damages, claims, losses, penalties, fines,
liabilities, fees, forfeitures, amounts paid in settlement, judgments,
reasonable attorneys' fees and related litigation costs, fees and expenses
(collectively, "Losses") which relate to or result from this Agreement and the
other Transaction Documents including, without limitation: (a) any action taken
by or on behalf of Bluegreen or the Trust Depositor relating to any Receivable
or related Trust Asset which is not permitted by or pursuant to the
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terms of this Agreement or any other Transaction Document, (b) any illegal act
or omission by Bluegreen or the Trust Depositor or any officer, director, agent
or employee of Bluegreen or the Trust Depositor, (c) any act or omission
constituting negligence or willful misconduct, or breach of fiduciary duty by
Bluegreen, the Club Trustee or the Trust Depositor or any officer, director,
agent or employee of Bluegreen or the Trust Depositor in connection with
Bluegreen's, the Club Trustee's or the Trust Depositor's performance under this
Agreement or the other Transaction Documents or any breach by Bluegreen, the
Club Trustee or the Trust Depositor of any of its obligations under this
Agreement or the other Transaction Documents, (d) any representation or warranty
made by Bluegreen, the Club Trustee or the Trust Depositor under or in
connection with this Agreement, any other Transaction Document or any other
information or report delivered by or on behalf of the Bluegreen or the Trust
Depositor pursuant hereto or thereto, which shall have been false or incorrect
when made or deemed made, (e) any failure of Bluegreen or the Trust Depositor or
any officer, director, agent or employee thereof to comply with any applicable
Requirement of Law with respect to any Receivable or Contract related thereto or
the nonconformity of any Receivable or Contract with any such Requirement of Law
or any failure of any Seller to keep or perform any of its obligations with
respect to any Contract, (f) the commingling by the Servicer or any of its
Affiliates of Collections of Receivables at any time with other funds of the
Servicer or its Affiliates, (g) any investigation, litigation or proceeding
arising out of or relating to this Agreement, the other Transaction Documents
and the transactions contemplated hereby or thereby or (h) any environmental or
products liability or similar claim arising out of or in connection with the
rights or services that are the subject of any Receivable, the related Trust
Assets or any Contract; provided, however that neither Bluegreen nor the Trust
Depositor shall be required to indemnify an Indemnified Party for or be liable
for the payment of any Losses resulting from the gross negligence or willful
misconduct of such Indemnified Party; provided further, however, that nothing
contained in this paragraph shall be construed to obligate Bluegreen or the
Trust Depositor to indemnify an Indemnified Party with respect to Losses
incurred as a result of the payment performance of the Receivables and related
Trust Assets, any credit problems of any Obligors or in respect of Excluded
Claims.
(c) The Servicer agrees to indemnify and hold the Trust, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Facility Administrator
and all of their officers, directors and employees harmless against any and all
Losses which result from: (a) any action taken by or on behalf of Bluegreen or
its Affiliates as the Servicer relating to any Receivable or related Trust Asset
which is not permitted by or pursuant to the terms of this Agreement, (b) any
illegal act or omission by Bluegreen or its Affiliates as Servicer, or (c) any
act or omission constituting gross negligence or willful misconduct by any
officer, director, agent or employee of Bluegreen or its Affiliates as Servicer
in connection with such party's performance under this Agreement.
Section 13.10. No Bankruptcy Covenant.
The parties hereto hereby covenant and agree that they will not institute
against, or join any other Person in instituting against, the Trust, the Trust
Depositor or the Club Trustee any involuntary Insolvency Proceedings or take any
action in contemplation or furtherance thereof.
Section 13.11. Protection of Ownership Interests of the Trust; Intent of
Parties; Back-up Security Interest.
- 59 -
(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
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 has
granted (and hereby grants to) the Trust a "security interest" (the term
security interest, as used throughout this Agreement, is used as defined in the
UCC) in the Trust Assets being conveyed hereunder, which is enforceable in
accordance with the UCC upon execution and delivery of this Agreement securing
the repayment of the purchase price paid hereunder and the obligations and/or
interests provided for in this Agreement and in the order and priorities, and
subject to the other terms and conditions of this Agreement and the other
Transaction Documents, together with such other obligations or interests as may
arise hereunder and thereunder in favor of the parties hereto and thereto. Upon
(i) the filing of UCC-1 financing statements naming the Trust as secured
party/buyer, the Trust Depositor, as debtor/seller, and the Indenture Trustee,
as assignee, and (ii) the Custodian, for the benefit of the Trust, taking
possession of the Receivables and Receivables Files, the Trust shall have a
first priority perfected security interest in the Trust Assets and Collections,
subject only to Permitted Liens. All filings (including, without limitation,
such UCC filings) as are necessary in any jurisdiction to perfect the interest
of the Trust in the Trust Assets and Collections have been (or prior to the
applicable Transfer Date will be) made. Upon (i) the filing of UCC-1 financing
statements naming the Indenture Trustee as secured party and the Trust as debtor
with respect to the Trust Assets and (ii) the Custodian, for the benefit of the
Indenture Trustee, taking possession of the Receivables and Receivables Files
and, in the case of Incremental Purchases or Substitute Assets on the applicable
Incremental Transfer Date or Substitute Asset Transfer Date, as applicable, the
Indenture Trustee shall have a first priority perfected security interest in the
Trust Assets, subject only to Permitted Liens. Neither the Trust Depositor nor
any Person claiming through or under Trust Depositor shall have any claim to or
interest in any of the Trust Assets, except to the extent set forth
- 60 -
in Sections 2.11(a) and (b), as applicable, and if, notwithstanding the
expressed intention of the parties hereto, this Agreement constitutes the grant
of a security interest (for collateral purposes) in such property, except for
the interest of Trust Depositor in such property as a debtor for purposes of the
UCC.
Section 13.13. Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement and the other Transaction Documents contain the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all prior
oral or written understandings.
Section 13.14. Further Assurances. The Trust agrees that it will cooperate
with Bluegreen to facilitate the remarketing of Intervals and Vacation Points
relating to a Defaulted Receivable pursuant to Section 6.3(r). Additionally, in
the event Bluegreen is the "Servicer" hereunder, Bluegreen or the Club will be
the exclusive "broker" of the Intervals or Vacation Points, as the case may be.
Section 13.15. Savings Clause. Notwithstanding anything to the contrary
stated herein, in the event Bluegreen is not acting as servicer hereunder, the
covenants in Section 6.3 shall remain in full force and effect with respect to
Bluegreen, and Bluegreen shall remain obligated to provide those Reports
described in Article IX hereof which it is able to continue to provide.
Section 13.16. Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company, not in its
individual capacity but solely in its capacity as Owner Trustee of the Trust,
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Trust have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder,
as to all of which recourse shall be had solely to the assets of the Trust. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Trust hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by U.S. Bank National Association, not in its
individual capacity but solely as Indenture Trustee, and in no event shall U.S.
Bank National Association have any liability for the representations,
warranties, covenants, agreements or other obligations of the Trust hereunder or
in any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the Trust Assets.
Section 13.17. Confidentiality. For a period of one (1) year following
receipt thereof, GECC, each Noteholder (other than GECC) and each other owner of
any interest in a Note (an "Obligated
- 61 -
Party") agrees 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 no Obligated Party 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 an Obligated Party, 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 any Obligated Party (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. Notwithstanding anything in this Agreement or any other
Transaction Document to the contrary, any information with respect to the "tax
treatment" or "tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated hereby shall not
be confidential and the Facility Administrator, the Indenture Trustee, the
Noteholders and the other parties hereto may disclose without limitation of any
kind any information with respect to the "tax treatment" or "tax structure" (in
each case, within the meaning of Treasury Regulation Section 1.6011-4);
provided, that to the extent any Transaction Document contains information that
relates to the "tax treatment" or "tax structure" and contains other
information, this paragraph shall only apply to the information regarding the
"tax treatment" or "tax structure." For purposes of this Section 13.17, the term
"GECC" shall refer solely to the real estate business of General Electric
Capital Corporation, it being understood that no other GECC business, component
or affiliate shall be bound hereby (unless and only to the extent the
confidential information is shared with such other GECC business, component or
affiliate). Each Obligated Party agrees to comply with the ▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1999 and the correlative Federal Trade Commission regulations to the
extent applicable to such Obligated Party and to the extent applicable to the
Trust Assets and the other confidential information provided to such Obligated
Party under the Transaction Documents. Each Obligated Party agrees to destroy
any confidential information in accordance with its document destruction
policies in effect from time to time.
[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 VII
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
THE SERVICER
AND BLUEGREEN: BLUEGREEN CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Chief Financial
Officer and Treasurer
THE BACK-UP SERVICER: CONCORD SERVICING CORPORATION
By: /s/ ▇▇▇▇ ▇. PINK
-----------------------------------------
Printed Name: ▇▇▇▇ ▇. Pink
Title: Vice President and General Counsel
Signature Page to Sale and Servicing Agreement
THE TRUST: BXG RECEIVABLES OWNER TRUST 2004-A
By: Wilmington Trust Company, not
individually but solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Financial Services Officer
THE INDENTURE TRUSTEE
AND THE CUSTODIAN: U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: Vice President
THE CLUB TRUSTEE: VACATION TRUST, INC., for itself and as Club
Trustee under the Club Trust Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary/Treasurer
THE FACILITY ADMINISTRATOR: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Operations Manager
THE NOTEHOLDER: GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Operations Manager
Signature Page to Sale and Servicing Agreement
SCHEDULE III
LOCATIONS AND STATE OF ORGANIZATION
BLUEGREEN CORPORATION
State of Incorporation: Massachusetts
Chief Executive Office: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Organizational ID No.: 030300793
BLUEGREEN RECEIVABLES FINANCE CORPORATION VII
State of Incorporation: Delaware
Chief Executive Office: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Organizational ID No.: 3757772
EXHIBIT C
LIST OF ELIGIBLE RESORTS
1. Orlando's Sunshine Resort
2. Orlando's Sunshine Resort II
3. Shenandoah Crossing Resort and Country Club
4. The Villas at Christmas Mountain
5. The Timbers at Christmas Mountain Village
6. Christmas Mountain Campground at Christmas Mountain Village
7. The Resort at World Golf Village Condominium
8. Shore Crest Vacation Villas II
9. Harbour Lights Resort
10. Lodge Alley Inn
11. The Falls Village Resort
12. Mountain Loft Resort
13. Laurel Crest Resort
14. Solara Surfside
15. Mountain Run at Boyne
16. La Cabana Beach & Racquet Club
17. Grande Villas at World ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ Resort
19. Oasis Lakes Resort, a Condominium