Exhibit 10.115
EXECUTION COPY
(Depositor to Issuer)
SALE AGREEMENT
This SALE AGREEMENT (this "Agreement"), dated as of December 1,
2004, is by and among Bluegreen Receivables Finance Corporation IX, a Delaware
corporation (the "Depositor"), BXG Receivables Note Trust 2004-C, a statutory
trust formed under the laws of the State of Delaware (the "Issuer"), and their
respective permitted successors and assigns.
W I T N E S S E T H:
WHEREAS, from time to time, the Depositor will acquire certain
timeshare loans from Bluegreen Corporation, a Massachusetts corporation
("Bluegreen" or the "Club Originator") pursuant to that certain Purchase and
Contribution Agreement, dated as of December 1, 2004 (the "Purchase Agreement"),
by and among Bluegreen and the Depositor;
WHEREAS, the Depositor desires to sell, and the Issuer desires to
purchase, from time to time, in accordance with the terms of this Agreement,
those certain timeshare loans acquired pursuant to the Purchase Agreement;
WHEREAS, on the Closing Date, the Issuer intends to enter into that
certain Indenture dated as of December 1, 2004 (the "Indenture"), by and among
the Issuer, Bluegreen, as servicer (in such capacity, the "Servicer"), Vacation
Trust, Inc., a Florida corporation, as club trustee (the "Club Trustee"),
Concord Servicing Corporation, as backup servicer, Branch Banking and Trust
Company, a North Carolina corporation, as agent (the "Agent"), and U.S. Bank
National Association, as indenture trustee (the "Indenture Trustee"), whereby
the Issuer will pledge the Trust Estate (as defined in the Indenture) to the
Indenture Trustee to secure the Issuer's Timeshare Loan-Backed VFN Notes, Series
2004-C, Class A, Timeshare Loan-Backed VFN Notes, Series 2004-C, Class B,
Timeshare Loan-Backed VFN Notes, Series 2004-C, Class C and Timeshare
Loan-Backed VFN Notes, Series 2004-C, Class D (collectively, the "Notes");
WHEREAS, pursuant to the terms the Indenture, the Issuer shall
pledge such Timeshare Loans, as part of the Trust Estate, to the Indenture
Trustee to secure the Notes;
WHEREAS, the Depositor may, and in certain circumstances will be
required, to cure, repurchase or substitute and provide one or more Qualified
Substitute Timeshare Loans for a Timeshare Loan that is a Defective Timeshare
Loan, previously sold to the Issuer hereunder and pledged to the Indenture
Trustee pursuant to the Indenture; and
WHEREAS, the Depositor may, at the direction of the Club Originator,
be required to exercise the Club Originator's option to purchase or replace
Timeshare Loans that become subject to an Upgrade or Defaulted Timeshare Loans
previously sold to the Issuer and pledged to the Indenture Trustee pursuant to
the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto covenant and agree as follows:
SECTION 1. Definitions; Interpretation. Capitalized terms used but
not defined herein shall have the meanings specified in "Standard Definitions"
attached hereto as Annex A.
SECTION 2. Acquisition of Timeshare Loans.
(a) Timeshare Loans. On each Funding Date, in return for the
Timeshare Loan Acquisition Price the Depositor does hereby transfer, assign,
sell and grant to the Issuer, without recourse (except as provided in Section 6
and Section 8 hereof), any and all of the Depositor's right, title and interest
in and to (i) any Timeshare Loans listed on the related Borrowing Notice, (ii)
the Receivables in respect of such Timeshare Loans due after the related Cut-Off
Date, (iii) the related Timeshare Loan Documents (excluding any rights as
developer or declarant under the Timeshare Declaration, the Timeshare Program
Consumer Documents or the Timeshare Program Governing Documents), (iv) all
Related Security in respect of each such Timeshare Loan, (v) the Depositor's
rights and remedies under the Purchase Agreement, including, but not limited to,
its rights with respect to the representations and warranties of the Club
Originator therein, together with all rights of the Depositor with respect to
any breach thereof, including any right to require the Club Originator to cure,
repurchase or substitute any Defective Timeshare Loans in accordance with the
provisions of the Purchase Agreemnt and (vi) all income, payments, proceeds and
other benefits and rights related to any of the foregoing (the property in
clauses (i)-(vi), being the "Assets"). Upon such sale and transfer, the
ownership of each Timeshare Loan and all collections allocable to principal and
interest thereon after the related Cut-Off Date and all other property interests
or rights conveyed pursuant to and referenced in this Section 2(a) shall
immediately vest in the Issuer, its successors and assigns. The Depositor shall
not take any action inconsistent with such ownership nor claim any ownership
interest in any Timeshare Loan for any purpose whatsoever other than for federal
and state income tax reporting, if applicable. The parties to this Agreement
hereby acknowledge that the "credit risk" of the Timeshare Loans conveyed
hereunder shall be borne by the Issuer and its subsequent assignees.
(b) Delivery of Timeshare Loan Documents. In connection with the
sale, transfer, assignment and conveyance of the Timeshare Loans hereunder, the
Issuer hereby directs the Depositor and the Depositor hereby agrees to deliver
or cause to be delivered, at least five Business Days prior to each Funding
Date, to the Custodian all related Timeshare Loan Files and to the Servicer all
related Timeshare Loan Servicing Files.
(c) Collections. The Depositor shall deposit or cause to be
deposited all collections in respect of Timeshare Loans received by the
Depositor or its Affiliates after the related Cut-Off Date in the Lockbox
Account.
(d) Limitation of Liability. None of the Issuer, the Depositor or
any subsequent assignee of the Issuer shall have any obligation or liability
with respect to any Timeshare Loan nor shall the Issuer, the Depositor or any
subsequent assignee have any liability to any Obligor in respect of any
Timeshare Loan. No such obligation or liability is intended to be assumed by the
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Issuer, the Depositor or any subsequent assignee herewith and any such liability
is hereby expressly disclaimed.
SECTION 3. Intended Characterization; Grant of Security Interest. It
is the intention of the parties hereto that each transfer of Timeshare Loans to
be made pursuant to the terms hereof shall constitute a sale by the Depositor to
the Issuer and not a loan secured by such Timeshare Loans. In the event,
however, that a court of competent jurisdiction were to hold that any such
transfer constitutes a loan and not a sale, it is the intention of the parties
hereto that the Depositor shall be deemed to have granted to the Issuer as of
the date hereof a first priority perfected security interest in all of the
Depositor's right, title and interest in, to and under the Assets specified in
Section 2 hereof and the proceeds thereof and that with respect to such
conveyance, this Agreement shall constitute a security agreement under
applicable law. In the event of the characterization of any such transfer as a
loan, the amount of interest payable or paid with respect to such loan under the
terms of this Agreement shall be limited to an amount which shall not exceed the
maximum non-usurious rate of interest allowed by the applicable state law or any
applicable law of the United States permitting a higher maximum non-usurious
rate that preempts such applicable state law, which could lawfully be contracted
for, charged or received (the "Highest Lawful Rate"). In the event any payment
of interest on any such loan exceeds the Highest Lawful Rate, the parties hereto
stipulate that (a) to the extent possible given the term of such loan, such
excess amount previously paid or to be paid with respect to such loan be applied
to reduce the principal balance of such loan, and the provisions thereof
immediately be deemed reformed and the amounts thereafter collectible thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for thereunder and (b) to the extent that the
reduction of the principal balance of, and the amounts collectible under, such
loan and the reformation of the provisions thereof described in the immediately
preceding clause (a) is not possible given the term of such loan, such excess
amount will be deemed to have been paid with respect to such loan as a result of
an error and upon discovery of such error or upon notice thereof by any party
hereto such amount shall be refunded by the recipient thereof.
The characterization of the Depositor as "debtor" and the Issuer as
"secured party" in any such financing statement required hereunder is solely for
protective purposes and shall in no way be construed as being contrary to the
intent of the parties that this transaction be treated as a sale to the Issuer
of the Depositor's entire right, title and interest in and to the Assets.
Each of the Depositor, the Club, the Club Trustee and any of their
Affiliates hereby agrees to make the appropriate entries in its general
accounting records to indicate that the Timeshare Loans have been transferred to
the Indenture Trustee and constitute a part of the Issuer's estate in accordance
with the terms of the Trust created under the Trust Agreement.
SECTION 4. Conditions Precedent to Acquisition of Timeshare Loans by
the Issuer. The obligations of the Issuer to purchase any Timeshare Loans
hereunder shall be subject to the satisfaction of the following conditions:
(a) With respect to each Funding Date for each Timeshare Loan or any
Qualified Substitute Timeshare Loan replacing a Timeshare Loan, all
representations and warranties of the
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Depositor contained in Section 5(a) hereof shall be true and correct on such
date as if made on such date, and all representations and warranties as to the
Timeshare Loans contained in Section 5(b) hereof and all information provided in
the Schedule of Timeshare Loans in respect of each such Timeshare Loan conveyed
on such Funding Date shall be true and correct on such Funding Date.
(b) Prior to a Funding Date, the Depositor shall have delivered or
shall have caused the delivery of (i) the related Timeshare Loan Files to the
Custodian and the Custodian shall have delivered a Custodian's Certificate
therefor pursuant to the Custodial Agreement to the Depositor, the Issuer, the
Indenture Trustee and the Agent and (ii) the Timeshare Loan Servicing Files to
the Servicer.
(c) The Depositor shall have delivered or caused to be delivered all
other information theretofore required or reasonably requested by the Issuer to
be delivered by the Depositor or performed or caused to be performed all other
obligations required to be performed as of the related Funding Date, including
all filings, recordings and/or registrations as may be necessary in the
reasonable opinion of the Issuer or the Indenture Trustee to establish and
preserve the right, title and interest of the Issuer or the Indenture Trustee,
as the case may be, in the related Timeshare Loans.
(d) On the related Funding Date, the Indenture shall be in full
force and effect.
(e) Each of the conditions precedent to a Borrowing under the
Indenture and the Note Funding Agreement shall have been satisfied.
(f) Each Timeshare Loan conveyed on a Funding Date shall be an
Eligible Timeshare Loan.
(g) Each Qualified Substitute Timeshare Loan replacing a Timeshare
Loan shall satisfy each of the criteria specified in the definition of
"Qualified Substitute Timeshare Loan" and each of the conditions herein and in
the Indenture for substitution of Timeshare Loans shall have been satisfied.
(h) The Issuer shall have received such other certificates and
opinions as it shall reasonably request.
SECTION 5. Representations and Warranties and Certain Covenants of
the Depositor.
(a) The Depositor represents and warrants to the Issuer and the
Indenture Trustee for the benefit of the Noteholders, on the Closing Date and on
each Funding Date (with respect to any Timeshare Loans or Qualified Substitute
Timeshare Loans transferred on such Funding Date) as follows:
(i) Due Incorporation; Valid Existence; Good Standing. It is a
corporation duly organized and validly existing in good standing under the
laws of the jurisdiction of
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its incorporation; and is duly qualified to do business as a foreign
corporation and in good standing under the laws of each jurisdiction where
the character of its property, the nature of its business or the
performance of its obligations under this Agreement makes such
qualification necessary, except where the failure to be so qualified will
not have a material adverse effect on its business or its ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of any Timeshare
Loans.
(ii) Possession of Licenses, Certificates, Franchises and
Permits. It holds, and at all times during the term of this Agreement will
hold, all material licenses, certificates, franchises and permits from all
governmental authorities necessary for the conduct of its business, and
has received no notice of proceedings relating to the revocation of any
such license, certificate, franchise or permit, which singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect its ability to perform its
obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of any Timeshare Loans.
(iii) Corporate Authority and Power. It has, and at all times
during the term of this Agreement will have, all requisite corporate power
and authority to own its properties, to conduct its business, to execute
and deliver this Agreement and all documents and transactions contemplated
hereunder and to perform all of its obligations under this Agreement and
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder. The Depositor has all
requisite corporate power and authority to acquire, own, transfer and
convey Timeshare Loans to the Issuer.
(iv) Authorization, Execution and Delivery Valid and Binding.
This Agreement and all other Transaction Documents and instruments
required or contemplated hereby to be executed and delivered by the
Depositor have been duly authorized, executed and delivered by the
Depositor and, assuming the due execution and delivery by, the other party
or parties hereto and thereto, constitute legal, valid and binding
agreements enforceable against the Depositor in accordance with their
respective terms subject, as to enforceability, to bankruptcy, insolvency,
reorganization, liquidation, dissolution, moratorium and other similar
applicable laws affecting the enforceability of creditors' rights
generally applicable in the event of the bankruptcy, insolvency,
reorganization, liquidation or dissolution, as applicable, of the
Depositor and to general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
This Agreement constitutes a valid transfer of the Depositor's interest in
the Timeshare Loans to the Issuer or, in the event of the characterization
of any such transfer as a loan, the valid creation of a first priority
perfected security interest in such Timeshare Loans in favor of the
Issuer.
(v) No Violation of Law, Rule, Regulation, etc. The execution,
delivery and performance by the Depositor of this Agreement and any other
Transaction
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Document to which it is a party do not and will not (A) violate any of the
provisions of its articles of incorporation or bylaws, (B) violate any
provision of any law, governmental rule or regulation currently in effect
applicable to it or its properties or by which the Depositor or its
properties may be bound or affected, including, without limitation, any
bulk transfer laws, where such violation would have a material adverse
effect on its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Timeshare Loans, (C) violate any judgment, decree,
writ, injunction, award, determination or order currently in effect
applicable to it or its properties or by which the Depositor or its
properties are bound or affected, where such violation would have a
material adverse effect on its ability to perform its obligations under
this Agreement or any other Transaction Document to which it is a party or
under the transactions contemplated hereunder or thereunder or the
validity or enforceability of any Timeshare Loans, (D) conflict with, or
result in a breach of, or constitute a default under, any of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which it is a party or by which it is bound where such
violation would have a material adverse effect on its ability to perform
its obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of Timeshare Loans or (E)
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, mortgage, deed of
trust, contract or other instrument.
(vi) Governmental Consent. No consent, approval, order or
authorization of, and no filing with or notice to, any court or other
Governmental Authority in respect of the Depositor is required which has
not been obtained in connection with the authorization, execution,
delivery or performance by the Depositor of this Agreement or any of the
other Transaction Documents to which it is a party or under the
transactions contemplated hereunder or thereunder, including, without
limitation, the transfer of Timeshare Loans and the creation of the
security interest of the Issuer therein pursuant to Section 3 hereof.
(vii) Defaults. It is not in default under any material
agreement, contract, instrument or indenture to which it is a party or by
which it or its properties is or are bound, or with respect to any order
of any court, administrative agency, arbitrator or governmental body, in
each case, which would have a material adverse effect on the transactions
contemplated hereunder or on its business, operations, financial condition
or assets, and no event has occurred which with notice or lapse of time or
both would constitute such a default with respect to any such agreement,
contract, instrument or indenture, or with respect to any such order of
any court, administrative agency, arbitrator or governmental body.
(viii) Insolvency. It is solvent and will not be rendered
insolvent by the transfer of any Timeshare Loans hereunder. On and after
the Closing Date, it will not engage in any business or transaction the
result of which would cause the property remaining with it to constitute
an unreasonably small amount of capital.
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(ix) Pending Litigation or Other Proceedings. There is no
pending or, to its Knowledge, threatened action, suit, proceeding or
investigation before any court, administrative agency, arbitrator or
governmental body against or affecting it which, if decided adversely,
would materially and adversely affect (A) its condition (financial or
otherwise), business or operations, (B) its ability to perform its
obligations under, or the validity or enforceability of, this Agreement or
any other documents or transactions contemplated under this Agreement, (C)
any Timeshare Loan or title of any Obligor to any related Timeshare
Property or (D) the Issuer's or the Indenture Trustee's ability to
foreclose or otherwise enforce the liens of the Mortgage Notes and the
rights of the Obligors to use and occupy the related Timeshare Properties.
(x) Information. No document, certificate or report furnished
or required to be furnished by or on behalf of the Depositor pursuant to
this Agreement, in its capacity as Depositor, contains or will contain
when furnished any untrue statement of a material fact or fails or will
fail to state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances in which it
was made. There are no facts known to the Depositor which, individually or
in the aggregate, materially adversely affect, or which (aside from
general economic trends) may reasonably be expected to materially
adversely affect in the future, the financial condition or assets or
business of the Depositor, or which may impair the ability of the
Depositor to perform its obligations under this Agreement, which have not
been disclosed herein or therein or in the certificates and other
documents furnished to the Issuer by or on behalf of the Depositor
specifically for use in connection with the transactions contemplated
hereby or thereby.
(xi) Foreign Tax Liability. It is not aware of any Obligor
under a Timeshare Loan who has withheld any portion of payments due under
such Timeshare Loan because of the requirements of a foreign taxing
authority, and no foreign taxing authority has contacted it concerning a
withholding or other foreign tax liability.
(xii) Employee Benefit Plan Liability. As of the Closing Date
and each Funding Date, as applicable, (i) no "accumulated funding
deficiency" (as such term is defined under ERISA and the Code), whether or
not waived, exists with respect to any "employee pension benefit plan" (as
such term is defined under ERISA) sponsored, maintained or contributed to
by the Depositor or any of its Affiliates, and, to the Depositor's
Knowledge, no event has occurred or circumstance exists that may result in
an accumulated funding deficiency as of the last day of the current plan
year of any such plan; (ii) the Depositor and each of its Affiliates has
made all contributions required under each multiemployer plan (as such
term is defined under ERISA) (a "Multiemployer Plan") to which the
Depositor or any of its Affiliates contributes or in which the Depositor
or any of its Affiliates participates (a "Depositor Multiemployer Plan");
and (iii) neither the Depositor nor any of its Affiliates has withdrawn
from any Multiemployer Plan with respect to which there is any outstanding
liability and, to the Depositor's Knowledge, no event has occurred or
circumstance exists that presents a risk of the occurrence of any
withdrawal from, or the partition, termination, reorganization or
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insolvency of, any Depositor Multiemployer Plan that could result in any
liability to the Depositor.
(xiii) Taxes. It has filed all tax returns (federal, state and
local) which it reasonably believes are required to be filed and has paid
or made adequate provision in its GAAP financial statements for the
payment of all taxes, assessments and other governmental charges due from
it or is contesting any such tax, assessment or other governmental charge
in good faith through appropriate proceedings or except where the failure
to file or pay will not have a material adverse effect on the rights and
interests of the Issuer or any of its subsequent assignees. It knows of no
basis for any material additional tax assessment for any fiscal year for
which adequate reserves in its GAAP financial statements have not been
established. It intends to pay all such taxes, assessments and
governmental charges when due.
(xiv) Place of Business. The principal place of business and
chief executive office where the Depositor keeps its records concerning
Timeshare Loans will be 0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 (or such other place specified by the Depositor by written
notice to the Issuer and the Indenture Trustee). The Depositor is a
corporation formed under the laws of the State of Delaware.
(xv) Securities Laws. It is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. No portion of the Timeshare
Loan Acquisition Price for each of the Timeshare Loans will be used by it
to acquire any security in any transaction which is subject to Section 13
or Section 14 of the Securities Exchange Act of 1934, as amended.
(xvi) Bluegreen Vacation Club. With respect to the Club Loans:
(A) The Club Trust Agreement, of which a true and
correct copy is attached hereto as Exhibit B is in full force and
effect; and a certified copy of the Club Trust Agreement has been
delivered to the Indenture Trustee together with all amendments and
supplements in respect thereof;
(B) The arrangement of contractual rights and
obligations (duly established in accordance with the Club Trust
Agreement under the laws of the State of Florida) was established
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 Club is not a
corporation or business trust under the laws of the State of
Florida. The Club is not taxable as an association, corporation or
business trust under federal law or the laws of the State of
Florida;
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(C) 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
for purposes of Chapter 721, Florida Statutes and is in compliance
with the requirements of such Chapter 721 requiring that it be
independent of the Servicer;
(D) The Club Trustee has 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;
(E) The Club Trustee holds all right, title and interest
in and to all of the Timeshare Properties related to the Club Loans
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 related Timeshare Loans 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 Club or the Club Trustee, at law or
in equity, or before or by any governmental authority which, if
adversely determined, could reasonably be expect to have a material
adverse effect on the Trust Estate or the Club Trustee's ability to
perform its obligations under the Transaction Documents;
(G) Neither the Club 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 Club and/or its trust estate have been paid when due and
neither the Servicer nor the Club Trustee knows of any basis for any
additional taxes or assessments against any such property. The Club
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 Club and the Club Trustee are in compliance in
all material respects with all applicable laws, statutes, rules and
governmental regulations applicable to it and in compliance with
each material instrument, agreement or document to which it is a
party or by which it is bound, including, without limitation, the
Club Trust Agreement;
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(J) Except as expressly permitted in the Club Trust
Agreement, the Club Trustee has maintained the One-to-One
Beneficiary to Accommodation Ratio (as such terms are defined in the
Club Trust Agreement);
(K) Bluegreen Vacation Club, Inc. is a non-stock
corporation duly formed, validly existing and in good standing under
the laws of the State of Florida;
(L) Upon purchase of the Club Loans and related Trust
Estate hereunder, the Issuer is an "Interest Holder Beneficiary"
under the Club Trust Agreement and each of the Club Loans
constitutes "Lien Debt", "Purchase Money Lien Debt" and "Owner
Beneficiary Obligations" under the Club Trust Agreement; and
(M) Except as disclosed to the Indenture Trustee in
writing, each Mortgage associated with a Club Loan and granted by
the Club Trustee or the Obligor on the related Club Loan, 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 in favor of the Indenture
Trustee (upon assignment thereof to the Indenture Trustee). Each of
such Mortgages was granted in connection with the financing of a
sale of a Resort Interest.
(b) The Depositor hereby represents and warrants to the Issuer and
the Indenture Trustee that it has entered into the Purchase Agreement, the the
Club Originator has made the representations and warranties in the Purchase
Agreement, as set forth therein, that such representations and warranties run to
and are for the benefit of the Depositor, the Issuer, the Indenture Trustee and
the Noteholders, and that pursuant to Section 2 hereof, the Depositor has
transferred and assigned to the Issuer all rights and remedies under the
Purchase Agreement.
(c) The Purchase Agreement and the other Transaction Documents
contemplated thereby, are the only agreements pursuant to which the Depositor
acquires ownership of the Timeshare Loans. To the Knowledge of the Depositor,
the representations and warranties of the Club Originator under the Purchase
Agreement are true and correct.
(d) In consideration of Sections (b) and (c) above, the Depositor
hereby makes the representations and warranties relating to the Timeshare Loans
contained in Schedule I hereto for the benefit of the Issuer and the Indenture
Trustee for the benefit of the Noteholders as of each Funding Date (only with
respect to each Timeshare Loan or Qualified Substitute Timeshare Loan
transferred on such Funding Date), as applicable.
(e) It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive the sale of each Timeshare
Loan to the Issuer and any assignment of such Timeshare Loans by the Issuer to
the Indenture Trustee on behalf of the Noteholders and shall continue so long as
any such Timeshare Loans shall remain outstanding or until such time as such
Timeshare Loans are repurchased, purchased or a Qualified Substitute Timeshare
Loan is
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provided pursuant to Section 6 hereof. The Depositor acknowledges that it has
been advised that the Issuer intends to assign all of its right, title and
interest in and to each Timeshare Loan and its rights and remedies under this
Agreement to the Indenture Trustee on behalf of the Noteholders. The Depositor
agrees that, upon any such assignment, the Indenture Trustee may enforce
directly, without joinder of the Issuer (but subject to any defense that the
Depositor may have under this Agreement) all rights and remedies hereunder.
(f) With respect to any representations and warranties contained in
Section 5 which are made to the Depositor's Knowledge, if it is discovered that
any representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of a Timeshare Loan or the interests of the Issuer
or any subsequent assignee thereof, then notwithstanding such lack of Knowledge
of the accuracy of such representation and warranty at the time such
representation or warranty was made (without regard to any Knowledge
qualifiers), such inaccuracy shall be deemed a breach of such representation or
warranty for purposes of the repurchase or substitution obligations described in
Sections 6(a)(i) or (ii) below.
SECTION 6. Repurchases and Substitutions.
(a) Mandatory Repurchases and Substitutions for Breaches of
Representations and Warranties. Upon the receipt of notice by the Depositor of a
breach of any of the representations and warranties in Section 5 hereof (on the
date on which such representation or warranty was made) which materially and
adversely affects the value of a Timeshare Loan or the interests of the Issuer
or any subsequent assignee of the Issuer (including the Indenture Trustee on
behalf of the Noteholders) therein, the Depositor shall, within 30 days (or, if
the Depositor shall have provided satisfactory evidence to the Agent (at its
sole discretion) that (1) such breach can not be cured within the 30 day period,
(2) such breach can be cured within an additional 30 day period and (3) it is
diligently pursuing a cure, then 60 days) of receipt of such notice, cure in all
material respects the circumstance or condition which has caused such
representation or warranty to be incorrect or either (i) repurchase the Issuer's
interest in such Defective Timeshare Loan from the Issuer at the Repurchase
Price or (ii) provide one or more Qualified Substitute Timeshare Loans and pay
the related Substitution Shortfall Amounts, if any. The Depositor acknowledges
that the Issuer shall pledge such Timeshare Loans and rights to the Indenture
Trustee. The Depositor further acknowledges that the Indenture Trustee will be
appointed attorney-in-fact under the Indenture and may enforce the Depositor's
repurchase or substitution obligations if the Depositor has not complied with
its repurchase or substitution obligations under this Agreement within the
aforementioned 30 day or 60-day period.
(b) Optional Purchases or Substitutions of Club Loans. The Issuer
hereby acknowledges that pursuant to the Purchase Agreement, the Depositor has
irrevocably granted to the Club Originator any options to repurchase or
substitute Original Club Loans it has thereunder. The Issuer acknowledges that
with respect to any Original Club Loans for which the Club Originator and the
related Obligor have elected to effect an Upgrade, the Club Originator will (at
its option) either (i) pay the Repurchase Price for such Original Club Loan or
(ii) substitute one or more Qualified Substitute Timeshare Loans for such
Original Club Loan and pay the related Substitution Shortfall Amounts, if any;
provided, however, that the Club Originator's option to substitute one or more
Qualified Substitute Timeshare Loans for an
11
Original Club Loan is limited on any date to (x) 20% of the then Aggregate
Initial Loan Balance less (y) the Loan Balances of all Original Club Loans
previously substituted by the Club Originator pursaunt to this Section 6(b) on
the related substitution dates pursuant to this Agreement and/or the Purchase
Agreement. In addition, the Issuer acknowledges that the Club Originator shall
use best efforts to exercise its substitution option with respect to Original
Club Loans prior to exercise of its repurchase option. To the extent that the
Club Originator shall elect to substitute Qualified Substitute Timeshare Loans
for an Original Club Loan, the Club Originator shall use best efforts to cause
each such Qualified Substitute Timeshare Loan to be, in the following order of
priority, (i) the Upgrade Club Loan related to such Original Club Loan and (ii)
an Upgrade Club Loan unrelated to such Original Club Loan.
(c) Optional Purchases or Substitutions of Defaulted Timeshare
Loans. The Issuer acknowledges that pursuant to the Purchase Agreement, the
Depositor has irrevocably granted the Club Originator any options to repurchase
or substitute Defaulted Club Loans it has thereunder and as described in the
following sentence. With respect to Defaulted Timeshare Loans on any date, the
Club Originator will have the option, but not the obligation, to either (i)
purchase a related Defaulted Timeshare Loan subject to the lien of the Indenture
at the Repurchase Price for such related Defaulted Timeshare Loan or (ii)
substitute one or more Qualified Substitute Timeshare Loans for such related
Defaulted Timeshare Loan and pay the related Substitution Shortfall Amounts, if
any; provided, however, that the Club Originator's option to purchase a related
Defaulted Timeshare Loan or to substitute one or more Qualified Substitute
Timeshare Loans for a related Defaulted Timeshare Loan is limited on any date to
the Optional Purchase Limit and the Optional Substitution Limit, respectively.
The Club Originator may irrevocably waive its option to purchase or substitute a
related Defaulted Timeshare Loan by delivering to the Indenture Trustee a Waiver
Letter in the form of Exhibit A attached hereto.
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts.
The Issuer hereby directs and the Depositor hereby agrees to remit or cause to
be remitted all amounts in respect of Repurchase Prices and Substitution
Shortfall Amounts payable during the related Due Period in immediately available
funds to the Indenture Trustee to be deposited in the Collection Account on the
related Funding Date in accordance with the provisions of the Indenture. In the
event that more than one Timeshare Loan is replaced pursuant to Sections 6(a),
(b) or (c) hereof on any Funding Date, the Substitution Shortfall Amounts and
the Loan Balances of Qualified Substitute Timeshare Loans shall be calculated on
an aggregate basis for all substitutions made on such Funding Date.
(e) Schedule of Timeshare Loans. The Issuer hereby directs and the
Depositor hereby agrees, on each date on which a Timeshare Loan has been
repurchased, purchased or substituted, to provide or cause to be provided to the
Issuer and the Indenture Trustee with a electronic supplement to Schedule III
hereto and the Schedule of Timeshare Loans reflecting the removal and/or
substitution of Timeshare Loans and subjecting any Qualified Substitute
Timeshare Loans to the provisions of this Agreement.
(f) Qualified Substitute Timeshare Loans. On the related Funding
Date, the Issuer hereby directs and the Depositor hereby agrees to deliver or to
cause the delivery of the Timeshare Loan Files relating to the Qualified
Substitute Timeshare Loans to the Indenture Trustee or to the Custodian, at the
direction of the Indenture
12
Trustee, in accordance with the provisions of the Indenture. As of such related
Funding Date, the Depositor does hereby transfer, assign, sell and grant to the
Issuer, without recourse (except as provided in Section 6 and Section 8 hereof),
any and all of the Depositor's right, title and interest in and to (i) each
Qualified Substitute Timeshare Loan conveyed to the Issuer on such Funding Date,
(ii) the Receivables in respect of the Qualified Substitute Timeshare Loans due
after the related Cut-Off Date, (iii) the related Timeshare Loan Documents
(excluding any rights as developer or declarant under the Timeshare Declaration,
the Timeshare Program Consumer Documents or the Timeshare Program Governing
Documents), (iv) all Related Security in respect of such Qualified Substitute
Timeshare Loans, (v) the Depositor's rights and remedies under the Purchase
Agreement with respect to such Qualified Substitute Timeshare Loans and (vi) all
income, payments, proceeds and other benefits and rights related to any of the
foregoing. Upon such sale, the ownership of each Qualified Substitute Timeshare
Loan and all collections allocable to principal and interest thereon since the
related Cut-Off Date and all other property interests or rights conveyed
pursuant to and referenced in this Section 6(f) shall immediately vest in the
Issuer, its successors and assigns. The Depositor shall not take any action
inconsistent with such ownership nor claim any ownership interest in any
Qualified Substitute Timeshare Loan for any purpose whatsoever other than
consolidated financial and federal and state income tax reporting. The Depositor
agrees that such Qualified Substitute Timeshare Loans shall be subject to the
provisions of this Agreement and shall thereafter be deemed a "Timeshare Loan"
for the purposes of this Agreement.
(g) Officer's Certificate for Qualified Substitute Timeshare Loans.
The Depositor shall, on each related Funding Date, certify or cause to be
certified in writing to the Issuer and the Indenture Trustee that each new
Timeshare Loan meets all the criteria of the definition of "Qualified Substitute
Timeshare Loan" and that (i) the Timeshare Loan Files for such Qualified
Substitute Timeshare Loans have been delivered to the Custodian, and (ii) the
Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans
have been delivered to the Servicer.
(h) Release. In connection with any repurchase, purchase or
substitution of one or more Timeshare Loans contemplated by this Section 6, upon
satisfaction of the conditions contained in this Section 6, the Issuer and the
Indenture Trustee shall execute and deliver or shall cause the execution and
delivery of such releases and instruments of transfer or assignment presented to
it by the Depositor, in each case without recourse, as shall be necessary to
vest in the Depositor or its designee the legal and beneficial ownership of such
Timeshare Loans. The Issuer and the Indenture Trustee shall cause the Custodian
to release the related Timeshare Loan Files to the Depositor or its designee and
the Servicer to release the related Timeshare Loan Servicing Files to the
Depositor or its designee.
(i) Sole Remedy. It is understood and agreed that the obligations of
the Depositor contained in Section 6(a) to cure a material breach, or to
repurchase or substitute Defective Timeshare Loans and the obligation of the
Depositor to indemnify pursuant to Section 8, shall constitute the sole remedies
available to the Issuer or its subsequent assignees for the breaches of any of
its representations or warranties contained in Section 5 and such remedies are
not intended to and do not constitute "credit recourse" to the Depositor.
13
SECTION 7. Additional Covenants of the Depositor. The Depositor
hereby covenants and agrees with the Issuer as follows:
(a) It shall comply with all applicable laws, rules, regulations and
orders applicable to it and its business and properties except where the failure
to comply will not have a material adverse effect on its business or its ability
to perform its obligations under this Agreement or any other Transaction
Document to which it is a party or under the transactions contemplated hereunder
or thereunder or the validity or enforceability of the Timeshare Loans.
(b) It shall preserve and maintain its existence (corporate or
otherwise), rights, franchises and privileges in the jurisdiction of its
organization and except where the failure to so preserve and maintain will not
have a material adverse effect on its business or its ability to perform its
obligations under this Agreement or any other Transaction Document to which it
is a party or under the transactions contemplated hereunder or thereunder or the
validity or enforceability of the Timeshare Loans.
(c) On each Funding Date, as applicable, it shall indicate in its
and its Affiliates' computer files and other records that each Timeshare Loan
has been sold to the Issuer.
(d) It shall respond to any inquiries with respect to ownership of a
Timeshare Loan by stating that such Timeshare Loan has been sold to the Issuer
and that the Issuer is the owner of such Timeshare Loan.
(e) On or prior to the Closing Date, it shall file or cause to be
filed, at its own expense, financing statements in favor of the Issuer, and, if
applicable, the Indenture Trustee on behalf of the Noteholders, with respect to
the Timeshare Loans, in the form and manner reasonably requested by the Issuer
or its assigns. The Depositor shall deliver file-stamped copies of such
financing statements to the Issuer and the Indenture Trustee on behalf of the
Noteholders.
(f) It agrees from time to time to, at its expense, promptly execute
and deliver all further instruments and documents, and to take all further
actions, that may be necessary, or that the Issuer or the Indenture Trustee may
reasonably request, to perfect, protect or more fully evidence the sale of the
Timeshare Loans to the Issuer, or to enable the Issuer or the Indenture Trustee
to exercise and enforce its rights and remedies hereunder or under any Timeshare
Loan including, but not limited to, powers of attorney, UCC financing statements
and assignments of mortgage. It hereby appoints the Issuer and the Indenture
Trustee as attorneys-in-fact, which appointment is coupled with an interest and
is therefore irrevocable, to act on behalf and in the name of the Depositor
under this Section 7(f).
(g) Any change in the legal name of the Depositor and any use by it
of any tradename, fictitious name, assumed name or "doing business as" name
occurring after the Closing Date shall be promptly within 10 Business Days
disclosed to the Issuer and the Indenture Trustee in writing.
(h) Upon the discovery or receipt of notice by a Responsible Officer
of the Depositor of a breach of any of its representations or warranties and
covenants contained herein,
14
the Depositor shall promptly disclose to the Issuer and the Indenture Trustee,
in reasonable detail, the nature of such breach.
(i) In the event that the Depositor shall receive any payments in
respect of a Timeshare Loan after the Closing Date or Funding Date, as
applicable (including any insurance proceeds that are not payable to the related
Obligor), the Depositor shall, within two (2) Business Days of receipt, transfer
or cause to be transferred, such payments to the Lockbox Account.
(j) The Depositor will keep its principal place of business and
chief executive office and the office where it keeps its records concerning the
Timeshare Loans at the address of the Depositor listed herein.
(k) In the event that the Depositor or the Issuer or any assignee of
the Issuer should receive actual notice of any transfer taxes arising out of the
transfer, assignment and conveyance of a Timeshare Loan to the Issuer, on
written demand by the Issuer, or upon the Depositor otherwise being given notice
thereof, the Depositor shall pay, and otherwise indemnify and hold the Issuer,
or any subsequent assignee, harmless, on an after-tax basis, from and against
any and all such transfer taxes.
(l) The Depositor authorizes the Issuer and the Indenture Trustee to
file continuation statements, and amendments thereto, relating to the Timeshare
Loans and all payments made with regard to the related Timeshare Loans without
the signature of the Depositor where permitted by law. A photocopy or other
reproduction of this Agreement shall be sufficient as a financing statement
where permitted by law. The Issuer confirms that it is not its present intention
to file a photocopy or other reproduction of this Agreement as a financing
statement, but reserves the right to do so if, in its good faith determination,
there is at such time no reasonable alternative remaining to it.
(m) The Depositor agrees to properly disclose and account for the
transfer of Timeshare Loans hereunder as a sale under and in accordance with
GAAP and the Statement of Financial Accounting Standards No. 140 (or any
successor statement of the Financial Accounting Standards Board).
SECTION 8. Indemnification.
(a) The Depositor agrees to indemnify the Issuer, the Indenture
Trustee, the Noteholders, the Purchasers and the Agent (collectively, the
"Indemnified Parties") against any and all claims, losses, liabilities,
(including reasonable legal fees and related costs) that the Issuer, the
Indenture Trustee, the Noteholders or the Agent may sustain directly related to
any breach of the representations and warranties of the Depositor under Section
5 hereof (the "Indemnified Amounts") excluding, however (i) Indemnified Amounts
to the extent resulting from the gross negligence or willful misconduct on the
part of such Indemnified Party; (ii) any recourse for any uncollectible
Timeshare Loan not related to a breach of representation or warranty; (iii)
recourse to the Depositor for a Defective Timeshare Loan so long as the same is
cured, substituted or repurchased pursuant to Section 6 hereof, (iv) income,
franchise or similar taxes by such Indemnified Party arising out of or as a
result of this Agreement or the transfer of
15
the Timeshare Loans; (v) Indemnified Amounts attributable to any violation by an
Indemnified Party of any requirement of law related to an Indemnified Party; or
(vi) the operation or administration of the Indemnified Party generally and not
related to the enforcement of this Agreement. The Depositor shall (A) promptly
notify the Issuer and the Indenture Trustee if a claim is made by a third party
with respect to this Agreement or the Timeshare Loans, and relating to (i) the
failure by the Depositor to perform its duties in accordance with the terms of
this Agreement or (ii) a breach of the Depositor's representations, covenants
and warranties contained in this Agreement, (B) assume (with the consent of the
Issuer, the Indenture Trustee, the Noteholders or the Agent, as applicable,
which consent shall not be unreasonably withheld) the defense of any such claim
and (C) pay all expenses in connection therewith, including legal counsel fees
and promptly pay, discharge and satisfy any judgment, order or decree which may
be entered against it or the Issuer, the Indenture Trustee, the Noteholders or
the Agent in respect of such claim. If the Depositor shall have made any
indemnity payment pursuant to this Section 8 and the recipient thereafter
collects from another Person any amount relating to the matters covered by the
foregoing indemnity, the recipient shall promptly repay such amount to the
Depositor.
(b) The obligations of the Depositor under this Section 8 to
indemnify the Issuer, the Indenture Trustee, the Noteholders and the Agent shall
survive the termination of this Agreement and continue until the Notes are paid
in full or otherwise released or discharged.
SECTION 9. No Proceedings. The Depositor hereby agrees that it will
not, directly or indirectly, institute, or cause to be instituted, or join any
Person in instituting, against the Issuer or any Association, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law so long as
there shall not have elapsed one year plus one day since the latest maturing
Notes issued by the Issuer.
SECTION 10. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing and
mailed or telecommunicated, or delivered as to each party hereto, at its address
set forth below or at such other address as shall be designated by such party in
a written notice to the other parties hereto. All such notices and
communications shall not be effective until received by the party to whom such
notice or communication is addressed.
Issuer
BXG Receivables Note Trust 0000-X
x/x Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Adminstration
Telecopier: (000) 000-0000
16
Depositor
Bluegreen Receivables Finance Corporation IX
0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, President
Telecopier: (000) 000-0000
SECTION 11. No Waiver; Remedies. No failure on the part of the
Depositor,t he Issuer or any assignee thereof to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any other remedies provided by law.
SECTION 12. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Depositor, the Issuer and their
respective successors and assigns. Any assignee of the Issuer shall be an
express third party beneficiary of this Agreement, entitled to directly enforce
this Agreement. The Depositor may not assign any of its rights and obligations
hereunder or any interest herein without the prior written consent of the Issuer
and any assignee thereof. The Issuer may, and intends to, assign all of its
rights hereunder to the Indenture Trustee on behalf of the Noteholders and the
Depositor consents to any such assignment. This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms, and shall remain in full force and effect until its termination;
provided, however, that the rights and remedies with respect to any breach of
any representation and warranty made by the Depositor pursuant to Section 5 and
the repurchase or substitution and indemnification obligations shall be
continuing and shall survive any termination of this Agreement but such rights
and remedies may be enforced only by the Issuer and the Indenture Trustee.
SECTION 13. Amendments; Consents and Waivers. No modification,
amendment or waiver of, or with respect to, any provision of this Agreement, and
all other agreements, instruments and documents delivered thereto, nor consent
to any departure by the Depositor from any of the terms or conditions thereof
shall be effective unless it shall be in writing and signed by each of the
parties hereto, the written consent of the Agent on behalf of the Required
Purchasers (covering matters of the type referred to in Section 9.1 of the
Indenture) or the written consent of the Required Purchasers (on all other
matters) is given and, to the extent any Notes are rated, confirmation from the
Rating Agency that such action will not result in a downgrade, withdrawal or
qualification of any rating assigned to a Class of Notes is received. The Issuer
shall provide the Agent and, to the extent any Notes are rated, the Rating
Agency with such proposed modifications, amendments or waivers. Any waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No consent to or demand by the Depositor in any case shall, in
itself, entitle it to any other consent or further notice or demand in similar
or other circumstances. The Depositor acknowledges that in connection with the
intended assignment by the Issuer of all of its right, title and interest in and
to each Timeshare Loan to the Indenture Trustee on behalf of the Noteholders,
the Issuer intends to issue the Notes, the proceeds of which will be used by the
Issuer to purchase the Timeshare Loans hereunder.
17
SECTION 14. Severability. 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, shall not in any
way be affected or impaired thereby in any other jurisdiction. Without limiting
the generality of the foregoing, in the event that a Governmental Authority
determines that the Issuer may not purchase or acquire Timeshare Loans, the
transactions evidenced hereby shall constitute a loan and not a purchase and
sale, notwithstanding the otherwise applicable intent of the parties hereto, and
the Depositor shall be deemed to have granted to the Issuer as of the date
hereof, a first priority perfected security interest in all of the Depositor's
right, title and interest in, to and under such Timeshare Loans and the related
property as described in Section 2 hereof.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAW.
(B) THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW
YORK CITY AND EACH PARTY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH ON THE SIGNATURE PAGE
HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER
THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE
PARTIES HERETO EACH WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS
TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE
BY THE COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE
PARTIES TO THIS AGREEMENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY OF THEM TO BRING ANY ACTION OR
PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 16. WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY
OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM
THEREIN.
SECTION 17. Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
18
SECTION 18. Execution in Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and both of which when taken together
shall constitute one and the same agreement.
19
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duty authorized, as of the date
first above written.
Very truly yours,
BLUEGREEN RECEIVABLES FINANCE
CORPORATION IX
By:______________________________________
Name:
Title:
BXG RECEIVABLES NOTE TRUST 2004-C
By: Wilmington Trust Company,
as Owner Trustee
By:______________________________________
Name:
Title:
Agreed and acknowledged as to
the last paragraph of Section 3
herein only:
BLUEGREEN VACATION CLUB TRUST
By: Vacation Trust, Inc., Individually and as Club Trustee
By:_______________________________________
Name:
Title:
[Signature Page to the Sale Agreement]
20
Annex A
Standard Definitions
Annex A
Schedule I
Representations and Warranties of the Depositor Regarding the Timeshare Loans
With respect to each Timeshare Loan, as of the related Funding Date (or if so
specified, as of the related Cut-Off Date):
(a) other than certain 50/50 Loans, payments due under the Timeshare
Loan are fully-amortizing and payable in level monthly installments;
(b) the payment obligations under the Timeshare Loan bear a fixed rate
of interest;
(c) the Obligor thereunder has made a down payment by cash, check or
credit card of at least 10% percent of the actual purchase price
(including closing costs) of the Timeshare Property (which cash down
payment may, in the case of Upgraded Club Loans only, be represented
by the principal payments on such Timeshare Loan since its date of
origination) and no part of such payment has been made or loaned to
Obligor by Bluegreen or an Affiliate thereof;
(d) as of the related Cut-Off Date, no principal or interest due with
respect to the Timeshare Loan is 31 days or more delinquent;
(e) the Obligor is not an Affiliate of Bluegreen or any Subsidiary;
provided, that solely for the purposes of this representation, a
relative of an employee and employees of Bluegreen or any Subsidiary
(or any of its Affiliates) shall not be deemed to be an "Affiliate"
(unless such person is an "affiliate" (as defined under GAAP) of
Bluegreen);
(f) immediately prior to the conveyance of the Timeshare Loan to the
Issuer, the Depositor will own full legal and equitable title to
such Timeshare Loan, and the Timeshare Loan (and the related
Timeshare Property) is free and clear of adverse claims, liens and
encumbrances and is not subject to claims of rescission, invalidity,
unenforceability, illegality, defense, offset, abatement,
diminution, recoupment, counterclaim or participation or ownership
interest in favor of any other Person;
(g) the Timeshare Loan (other than an Aruba Loan) is secured directly by
a first priority Mortgage on the related purchased Timeshare
Property;
(h) with respect to each Club Loan (other than an Aruba Club Loan), the
Timeshare Property mortgaged by or at the direction of the related
Obligor constitutes a fractional fee simple timeshare interest in
real property at the related Resort that entitles the holder of the
interest to the use of a specific property for a specified number of
days each year or every other year; the related Mortgage has been
delivered for filing and recordation with all appropriate
governmental authorities in all jurisdictions in which such Mortgage
is required to be filed and recorded to
I-1
create a valid, binding and enforceable first Lien on the related
Timeshare Property and such Mortgage creates a valid, binding and
enforceable first Lien on the related Timeshare Property, subject
only to Permitted Liens; and the Depositor is in compliance with any
Permitted Lien respecting the right to the use of such Timeshare
Property; each of the Assignments of Mortgage and each related
endorsement of the related Mortgage Note constitutes a duly
executed, legal, valid, binding and enforceable assignment or
endorsement, as the case may be, of such related Mortgage and
related Mortgage Note, and all monies due or to become due
thereunder, and all proceeds thereof;
(i) with respect to the Obligor and a particular Timeshare Property
purchased by such Obligor, there is only one original Mortgage and
Mortgage Note, in the case of a Club Loan (other than an Aruba Club
Loan), and, only one Finance Agreement, in the case of an Aruba
Right-to-Use Loan; all parties to the related Mortgage and the
related Mortgage Note (and, in the case of an Aruba Right-to-Use
Loan, Finance Agreement) had legal capacity to enter into such
Timeshare Loan Documents and to execute and deliver such related
Timeshare Loan Documents, and such related Timeshare Loan Documents
have been duly and properly executed by such parties; any amendments
to such related Timeshare Loan Documents required as a result of any
mergers involving the Depositor or its predecessors, to maintain the
rights of the Depositor or its predecessors thereunder as a
mortgagee (or the Depositor, in the case of an Aruba Loan) have been
completed;
(j) at the time the related Originator originated such Timeshare Loan to
the related Obligor, such Originator had full power and authority to
originate such Timeshare Loan and the Obligor had good and
indefeasible fee title or good and marketable fee simple title, or,
in the case of an Aruba Loan, a cooperative interest, as applicable,
to the Timeshare Property related to such Timeshare Loan, free and
clear of all Liens, except for Permitted Liens;
(k) the related Mortgage (or, in the case of an Aruba Right-to-Use Loan,
the related Finance Agreement) contains customary and enforceable
provisions so as to render the rights and remedies of the holder
thereof adequate for the realization against the related Timeshare
Property of the benefits of the security interests or lender's
contractual rights intended to be provided thereby, including (a) if
the Mortgage is a deed of trust, by trustee's sale, including power
of sale, (b) otherwise by judicial foreclosure or power of sale
and/or (c) termination of the contract, forfeiture of Obligor
deposits and payments towards the related Timeshare Loan and
expulsion from the related Association; in the case of the Club
Loans (other than Aruba Club Loans), there is no exemption available
to the related Obligor which would interfere with the mortgagee's
right to sell at a trustee's sale or power of sale or right to
foreclose such related Mortgage, as applicable;
I-2
(l) the related Mortgage Note is not and has not been secured by any
collateral except the Lien of the related Mortgage;
(m) if a Mortgage secures a Timeshare Loan, the title to the related
Timeshare Property is insured (or a binding commitment for title
insurance, not subject to any conditions other than standard
conditions applicable to all binding commitments, has been issued)
under a mortgagee title insurance policy issued by a title insurer
qualified to do business in the jurisdiction where the related
Timeshare Property is located in a form generally acceptable to
prudent originators of similar mortgage loans, insuring the
Depositor or its predecessor and its successors and assigns, as to
the first priority mortgage Lien of the related Mortgage in an
amount equal to the outstanding Loan Balance of such Timeshare Loan,
and otherwise in form and substance acceptable to the Indenture
Trustee; the Depositor or its assignees is a named insured of such
mortgagee's title insurance policy; such mortgagee's title insurance
policy is in full force and effect; no claims have been made under
such mortgagee's title insurance policy and no prior holder of such
Timeshare Loan has done or omitted to do anything which would impair
the coverage of such mortgagee's title insurance policy; no premiums
for such mortgagee's title insurance policy, endorsements and all
special endorsements are past due;
(n) the Depositor has not taken (or omitted to take), and has no notice
that the related Obligor has taken (or omitted to take), any action
that would impair or invalidate the coverage provided by any hazard,
title or other insurance policy on the related Timeshare Property;
(o) all applicable intangible taxes and documentary stamp taxes were
paid as to the related Timeshare Loan;
(p) the proceeds of the Timeshare Loan have been fully disbursed, there
is no obligation to make future advances or to lend additional funds
under the originator's commitment or the documents and instruments
evidencing or securing the Timeshare Loan and no such advances or
loans have been made since the origination of the Timeshare Loan;
(q) the terms of each Timeshare Loan Document have not been impaired,
waived, altered or modified in any respect, except (x) by written
instruments which are part of the related Timeshare Loan Documents
or (y) in accordance with the Credit Policy, the Collection Policy
or the Servicing Standard (provided that no Timeshare Loan has been
impaired, waived, altered, or modified in any respect more than
once). No other instrument has been executed or agreed to which
would effect any such impairment, waiver, alteration or
modification; the Obligor has not been released from liability on or
with respect to the Timeshare Loan, in whole or in part; if required
by law or prudent originators of similar loans in the jurisdiction
where the related Timeshare Property is located, all waivers,
alterations and modifications have been filed and/or recorded in all
places necessary to perfect,
I-3
maintain and continue a valid first priority Lien of the related
Mortgage, subject only to Permitted Liens;
(r) other than if it is an Aruba Loan, the Timeshare Loan is principally
and directly secured by an interest in real property;
(s) the Timeshare Loan was originated by one of the Depositor's
Affiliates in the normal course of its business; the Timeshare Loan
originated by the Depositor's Affiliates was underwritten in
accordance with its underwriting guidelines and the Credit Policy;
the origination, servicing and collection practices used by the
Depositor's Affiliates with respect to the Timeshare Loan have been
in all respects, legal, proper, prudent and customary;
(t) the related Timeshare Loan is assignable to and by the obligee and
its successors and assigns and the related Timeshare Property is
assignable upon liquidation of the related Timeshare Loan, without
the consent of any other Person (including any Association,
condominium association, homeowners' or timeshare association);
(u) the related Mortgage is and will be prior to any Lien on, or other
interests relating to, the related Timeshare Property;
(v) to the Depositor's Knowledge, there are no delinquent or unpaid
taxes, ground rents (if any), water charges, sewer rents or
assessments outstanding with respect to any of the Timeshare
Properties, nor any other outstanding Liens or charges affecting the
Timeshare Properties that would result in the imposition of a Lien
on the Timeshare Property affecting the Lien of the related Mortgage
or otherwise materially affecting the interests of the Indenture
Trustee on behalf of the Noteholders in the related Timeshare Loan;
(w) other than with respect to delinquent payments of principal or
interest 30 (thirty) or fewer days past due as of the Cut-Off Date,
there is no default, breach, violation or event of acceleration
existing under the Mortgage, the related Mortgage Note or any other
document or instrument evidencing, guaranteeing, insuring or
otherwise securing the related Timeshare Loan, and no event which,
with the lapse of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration thereunder; and the Depositor has
not waived any such material default, breach, violation or event of
acceleration under the Finance Agreement, Mortgage, the Mortgage
Note or any such other document or instrument, as applicable;
(x) neither the Obligor nor any other Person has the right, by statute,
contract or otherwise, to seek the partition of the Timeshare
Property;
(y) as of the related Cut-Off Date, the Timeshare Loan has not been
satisfied, canceled, rescinded or subordinated, in whole or in part;
no portion of the
I-4
Timeshare Property has been released from the Lien of the related
Mortgage, in whole or in part; no instrument has been executed that
would effect any such satisfaction, cancellation, rescission,
subordination or release; the terms of the related Mortgage do not
provide for a release of any portion of the Timeshare Property from
the Lien of the related Mortgage except upon the payment of the
Timeshare Loan in full;
(z) the Depositor and any of its Affiliates and, to the Depositor's
Knowledge, each other party which has had an interest in the
Timeshare Loan is (or, during the period in which such party held
and disposed of such interest, was) in compliance with any and all
applicable filing, licensing and "doing business" requirements of
the laws of the state wherein the Timeshare Property is located to
the extent necessary to permit the Depositor to maintain or defend
actions or proceedings with respect to the Timeshare Loan in all
appropriate forums in such state without any further act on the part
of any such party;
(aa) there is no current obligation on the part of any other person
(including any buy down arrangement) to make payments on behalf of
the Obligor in respect of the Timeshare Loan;
(bb) the related Association was duly organized and is validly existing;
a manager (the "Manager") manages such Resort and performs services
for the Associations, pursuant to an agreement between the Manager
and the respective Associations, such contract being in full force
and effect; to the Depositor's Knowledge the Manager and the
Associations have performed in all material respects all obligations
under such agreement and are not in default under such agreement;
(cc) in the case of Bluegreen Owned Resorts (other than La Cabana Resort
and Casa Del Mar Resort) and to the Depositor's Knowledge with
respect to the Non-Bluegreen Owned Resorts and La Cabana Resort and
Casa Del Mar Resort, (i) the related Resort is insured in the event
of fire, earthquake, or other casualty for the full replacement
value thereof, and in the event that the Timeshare Property should
suffer any loss covered by casualty or other insurance, upon receipt
of any insurance proceeds, the Associations at the Resorts are
required, during the time such Timeshare Property is covered by such
insurance, under the applicable governing instruments either to
repair or rebuild the portions of the Timeshare Project in which the
Timeshare Property is located or to pay such proceeds to the holders
of any related Mortgage secured by a timeshare estate in the
portions of the Timeshare Project in which the Timeshare Property is
located; (ii) the related Resort, if located in a designated flood
plain, maintains flood insurance in an amount not less than the
maximum level available under the National Flood Insurance Act of
1968, as amended or any applicable laws; (iii) the related Resort
has business interruption insurance and general liability insurance
in such amounts generally acceptable in the industry; and (iv) the
related Resort's insurance policies are in full force and effect
with a generally acceptable insurance carrier;
I-5
(dd) the related Mortgage gives the obligee and its successors and
assigns the right to receive and direct the application of insurance
and condemnation proceeds received in respect of the related
Timeshare Property, except where the related condominium
declarations, timeshare declarations or applicable state law provide
that insurance and condemnation proceeds be applied to restoration
of the improvements;
(ee) each rescission period applicable to the related Timeshare Loan has
expired;
(ff) no selection procedures were intentionally utilized by the Depositor
in selecting the Timeshare Loan which the Depositor knew were
materially adverse to the Indenture Trustee or the Noteholders;
(gg) the Units related to the Timeshare Loan in the related Resort have
been completed in all material respects as required by applicable
state and local laws, free of all defects that could give rise to
any claims by the related Obligors under home warranties or
applicable laws or regulations, whether or not such claims would
create valid offset rights under the law of the State in which the
Resort is located; to the extent required by applicable law, valid
certificates of occupancy for such Units have been issued and are
currently outstanding; the Depositor or any of its Affiliates have
complied in all material respects with all obligations and duties
incumbent upon the developers under the related timeshare
declaration (each a "Declaration"), as applicable, or similar
applicable documents for the related Resort; no practice, procedure
or policy employed by the related Association in the conduct of its
business violates any law, regulation, judgment or agreement,
including, without limitation, those relating to zoning, building,
use and occupancy, fire, health, sanitation, air pollution,
ecological, environmental and toxic wastes, applicable to such
Association which, if enforced, would reasonably be expected to (a)
have a material adverse impact on such Association or the ability of
such Association to do business, (b) have a material adverse impact
on the financial condition of such Association, or (c) constitute
grounds for the revocation of any license, charter, permit or
registration which is material to the conduct of the business of
such Association; the related Resort and the present use thereof
does not violate any applicable environmental, zoning or building
laws, ordinances, rules or regulations of any governmental
authority, or any covenants or restrictions of record, so as to
materially adversely affect the value or use of such Resort or the
performance by the related Association of its obligations pursuant
to and as contemplated by the terms and provisions of the related
Declaration; there is no condition presently existing, and to the
Depositor's Knowledge, no event has occurred or failed to occur
prior to the date hereof, concerning the related Resort relating to
any hazardous or toxic materials or condition, asbestos or other
environmental or similar matters which would reasonably be expected
to materially and adversely affect the present use of such Resort or
the financial condition or business operations of the related
Association, or the value of the Notes;
I-6
(hh) [RESERVED];
(ii) payments with respect to the Timeshare Loan are to be in legal
tender of the United States;
(jj) all monthly payments (as applicable) made on the Timeshare Loan have
been made by the Obligor and not by the Depositor or any Affiliate
of the Depositor on the Obligor's behalf;
(kk) the Timeshare Loan relates to an Approved Resort;
(ll) the Timeshare Loan constitutes either "chattel paper", a "general
intangible" or an "instrument" as defined in the UCC as in effect in
all applicable jurisdictions;
(mm) the sale, transfer and assignment of the Timeshare Loan and the
Related Security does not contravene or conflict with any law, rule
or regulation or any contractual or other restriction, limitation or
encumbrance, and the sale, transfer and assignment of the Timeshare
Loan and Related Security does not require the consent of the
Obligor;
(nn) each of the Timeshare Loan, the Related Security, related Assignment
of Mortgage, related Mortgage, related Mortgage Note, related
Finance Agreement and each other related Timeshare Loan Document are
in full force and effect, constitute the legal, valid and binding
obligation of the Obligor thereof enforceable against such Obligor
in accordance with its terms subject to the effect of bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization,
assignment, liquidation, conservatorship or moratorium, and is not
subject to any dispute, offset, counterclaim or defense whatsoever;
(oo) the Timeshare Loan relates to a Completed Unit and the Related
Security do not, and the origination of each Timeshare Loan did not,
contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, retail installment sales, truth in
lending, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which no party
thereto has been or is in violation of any such law, rule or
regulation in any material respect if such violation would impair
the collectibility of such Timeshare Loan and the Related Security;
no Timeshare Loan was originated in, or is subject to the laws of,
any jurisdiction under which the sale, transfer, conveyance or
assignment of such Timeshare Loan would be unlawful, void or
voidable;
(pp) to the Depositor's Knowledge, (i) no bankruptcy is currently
existing with respect to the Obligor, (ii) the Obligor is not
insolvent and (iii) the Obligor is not an Affiliate of the
Depositor;
(qq) the Timeshare Loan shall not have a Timeshare Loan Rate less than
8.25% per annum;
I-7
(rr) except for certain 50/50 Loans or if such Timeshare Loan is a
Qualified Substitute Timehsare Loan that is an Upgrade Loan
replacing its related Orignial Club Loan, the Obligor has made at
least two (2) month's aggregate required payments with respect to
the Timeshare Loan (not including any down payment);
(ss) if a Resort (other than the La Cabana Beach Resort & Racquet Club in
Aruba) is subject to a construction loan, the construction lender
shall have signed and delivered a non-disturbance agreement (which
may be contained in such lender's mortgage) pursuant to which such
construction lender agrees not to foreclose on any Timeshare
Properties relating to a Timeshare Loan which have been sold
pursuant to this Agreement;
(tt) the Timeshare Properties and the related Resorts are free of
material damage and waste and are in good repair and fully
operational; there is no proceeding pending or threatened for the
total or partial condemnation of or affecting any Timeshare Property
or taking of the Timeshare Property by eminent domain; the Timeshare
Properties and the Resorts in which the Timeshare Properties are
located are lawfully used and occupied under applicable law by the
owner thereof;
(uu) the portions of the Resorts in which the Timeshare Properties are
located which represent the common facilities are free of material
damage and waste and are in good repair and condition, ordinary wear
and tear excepted;
(vv) no foreclosure or similar proceedings have been instituted and are
continuing with respect to any Timeshare Loan or the related
Timeshare Property;
(ww) with respect to the Aruba Loans only, Bluegreen shall own, directly
or indirectly, 100% of the economic and voting interests of the
Aruba Originator.;
(xx) the Timeshare Loan does not have an original term to maturity in
excess of 120 months;
(yy) to the Depositor's Knowledge, the capital reserves and maintenance
fee levels of the Associations related to the Resorts are adequate
in light of the operating requirements of such Associations;
(zz) except as required by law, the Timeshare Loan may not be assumed
without the consent of the obligee;
(aaa) for each Club Loan, the Obligor under the Timeshare Loan has not had
its rights under the Club Trust Agreement suspended;
(bbb) the payments under the Timeshare Loan are not subject to withholding
taxes imposed by any foreign governments;
(ccc) each entry with respect to the Timeshare Loan as set forth in the
Schedule of Timeshare Loans is true and correct;
I-8
(ddd) if the Timeshare Loan relates to a Timeshare Property located in
Aruba, a notice has been mailed or will be mailed within 30 days of
the related Funding Date, as applicable, to the related Obligor
indicating that such Timeshare Loan has been transferred to the
Depositor and will ultimately be transferred to the Issuer and
pledged to the Indenture Trustee for the benefit of the Noteholders;
(eee) no broker is, or will be, entitled to any commission or compensation
in connection with the transfer of the Timeshare Loans hereunder;
(fff) if the related Obligor is paying its scheduled payments by
pre-authorized debit or charge, such Obligor has executed an ACH
Form substantially in the form attached hereto as Exhibit C;
(ggg) such Timeshare Loan is not an RDI Loan, an Oasis Lakes Loan, a
Conversion Loan or a Sampler Loan;
(hhh) if such Timeshare Loan is a 50/50 Loan, the related Obligor has made
a downpayment of at least 50%, the balance of the 50/50 Loan is due
no later than the one year anniversary of the origination date of
such 50/50 Loan and the coupon rate is 8.25% per annum; and
(iii) if such Timeshare Loan relates to a Timeshare Property located in
the State of Michigan and was originated prior to Bluegreen
obtaining a license under the Michigan Mortgage Brokers, Lenders and
Servicers Licensing Act, Bluegreen shall have confirmed that the
interest rate on such Timeshare Loan is enforceable in the manner
specified as effective in an opinion of counsel by Michigan local
counsel.
I-9
III-1
Exhibit A
Waiver Letter
Exhibit A
Exhibit B
Club Trust Agreement
Exhibit B
Exhibit C
ACH Form
Exhibit D
