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EXHIBIT 10.103
AMENDED AND RESTATED
SALE AND CONTRIBUTION AGREEMENT
DATED AS OF OCTOBER 1, 1999
AMONG
BLUEGREEN CORPORATION
AS SELLER
BLUEGREEN RECEIVABLES FINANCE CORPORATION III,
AS PURCHASER
AND
BRFC III DEED CORPORATION,
AS AGENT AND CUSTODIAN OF CERTAIN DEEDS FOR THE BENEFIT OF
XXXXXX FINANCIAL, INC.
OR ITS SUCCESSORS AND ASSIGNS
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.............................................................................2
SECTION 1.01. GENERAL.............................................................. 2
SECTION 1.02. OTHER INTERPRETIVE PROVISIONS........................................ 2
ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT..........................................2
SECTION 2.01. CLOSING OF PURCHASES................................................. 2
SECTION 2.02. ASSIGNMENT OF AGREEMENT.............................................. 4
SECTION 2.03. CONVEYANCE OF SUBSEQUENT RECEIVABLES................................. 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES..........................................................5
ARTICLE IIIA
ORIGINATOR AFFIRMATIVE AND NEGATIVE COVENANTS...........................................8
SECTION 3.01A. RECORDS............................................................. .8
SECTION 3.02A. USE OF PURCHASER NAME............................................... .8
SECTION 3.03A. OTHER DOCUMENTS..................................................... .9
SECTION 3.04A. ORIGINATOR'S DUES REQUIREMENT....................................... .9
SECTION 3.05A. CONSOLIDATION AND MERGER............................................ .9
SECTION 3.06A. RECEIVABLES......................................................... .9
SECTION 3.07A COMPLIANCE WITH LAWS................................................ .9
SECTION 3.08A. YEAR 2000........................................................... 10
SECTION 3.09A. AUTHORIZED SIGNATORY................................................ 10
SECTION 3.10A. ENVIRONMENTAL COMPLIANCE............................................ 10
SECTION 3.11A. SHARE TRANSFER...................................................... 11
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF BACK-UP SECURITY INTERESTS....................11
SECTION 4.01. CUSTODY OF RECEIVABLES............................................... 11
SECTION 4.02. FILING............................................................... 11
SECTION 4.03. NAME CHANGE OR RELOCATION............................................ 12
SECTION 4.04. CHIEF EXECUTIVE OFFICE............................................... 13
SECTION 4.05. COSTS AND EXPENSES................................................... 13
SECTION 4.06. SALE TREATMENT....................................................... 13
ARTICLE V
REMEDIES UPON MISREPRESENTATION........................................................13
SECTION 5.01. REPURCHASES AND SUBSTITUTIONS OF RECEIVABLES FOR BREACH
OF REPRESENTATIONS AND WARRANTIES.................................... 13
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SECTION 5.02. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED RECEIVABLES............... 13
ARTICLE VI
INDEMNITIES............................................................................14
SECTION 6.01. ORIGINATOR INDEMNIFICATION........................................... 14
SECTION 6.02. LIABILITIES TO OBLIGORS.............................................. 14
ARTICLE VII
MISCELLANEOUS..........................................................................14
SECTION 7.01. MERGER OR CONSOLIDATION...............................................14
SECTION 7.02. TERMINATION...........................................................15
SECTION 7.03. ASSIGNMENT OR DELEGATION BY THE SELLERS...............................15
SECTION 7.04. AMENDMENT.............................................................15
SECTION 7.05. NOTICES...............................................................15
SECTION 7.06. MERGER AND INTEGRATION................................................16
SECTION 7.07. HEADINGS..............................................................16
SECTION 7.08. GOVERNING LAW.........................................................16
SECTION 7.09. NO BANKRUPTCY PETITION................................................16
SECTION 7.10. OMITTED...............................................................16
SECTION 7.11. SEVERABILITY OF PROVISIONS............................................16
SECTION 7.12. NO WAIVER; CUMULATIVE REMEDIES........................................17
SECTION 7.13. COUNTERPARTS..........................................................17
SECTION 7.14. INTENDED CHARACTERIZATION.............................................17
SECTION 7.15. EFFECT OF AMENDMENT AND RESTATEMENT...................................17
EXHIBITS
Exhibit A Form of Sale Assignment
Exhibit B Form of Subsequent Purchase Agreement
Exhibit C Form of Allonge
Exhibit D Form of Master Assignment
Exhibit E Form of Substitute Receivables Purchase Agreement
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AMENDED AND RESTATED
SALE AND CONTRIBUTION AGREEMENT
This Amended and Restated Sale and Contribution Agreement, dated as of
October 1, 1999, is made by and among Bluegreen Corporation, a Massachusetts
corporation, (together with its permitted successors and assigns, the
"ORIGINATOR"), Bluegreen Receivables Finance Corporation III, a Delaware
corporation (together with its permitted successors and assigns, "FUNDING") and
BRFC III Deed Corporation, as the custodian of certain deeds (together with its
permitted successors and assigns, "DEED CORP").
WHEREAS, Bluegreen, Deed Corp and Funding are parties to that certain
Sale and Contribution Agreement dated as of June 26, 1998 (as heretofore
amended, restated, supplemented or otherwise modified, the "Prior Sale
Agreement");
WHEREAS, the parties hereto desire to amend and restate the Prior Sale
Agreement for the purpose of accommodating Additional Resorts and the Club and
clarifying the status of the Receivables and related Intervals with respect
thereto, subject to the terms and conditions set forth herein;
WHEREAS, in the regular course of its business, the Originator
originates and purchases Receivables;
WHEREAS, Funding has been established as a wholly-owned
bankruptcy-remote subsidiary of the Originator for the purpose of the
Originator's selling and/or contributing to it from time to time in accordance
with the terms of this Agreement Receivables and related Assets owned by the
Originator;
WHEREAS, Deed Corp has been established as a wholly-owned
bankruptcy-remote subsidiary of the Originator for the purpose of holding deeds
relating to Receivables which are in the form of conditional sales contracts the
Receivables of which are sold to Funding and simultaneously therewith sold to
Xxxxxx Financial, Inc. (together with its permitted successors and assigns,
"HFI") under the Asset Purchase Agreement (as hereinafter defined), such deeds
to be held by Deed Corp solely as agent of and custodian for the Purchaser (as
hereinafter defined);
WHEREAS, the Originator and Funding wish to set forth the terms and
conditions pursuant to which Funding will acquire such Receivables (including
Subsequent Receivables) and related Assets (such Receivables, including
Subsequent Receivables, together with such related Assets as more fully
described herein, being the "RECEIVABLES AND RELATED ASSETS" (as hereinafter
defined)); and
WHEREAS, Funding intends concurrently with each transfer of Receivables
and related Assets hereunder to sell, transfer and otherwise absolutely convey
all right, title and interest in and to the Receivables and related Assets to
Purchaser pursuant to the Amended and Restated Asset Purchase Agreement dated as
of the date hereof by and among Funding, as Seller thereunder, HFI, as Purchaser
thereunder (the "PURCHASER"), the Originator, Bluegreen Corporation, in its
separate capacity as Servicer (the "SERVICER"), Deed Corp, as custodian and
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agent for HFI under the Deed Custodian Agreement and the Cash Administrator
named therein (as amended, supplemented or otherwise modified from time to time,
the "ASSET PURCHASE AGREEMENT"), executed concurrently herewith;
WHEREAS, in connection with the execution and delivery of this
Agreement and the Asset Purchase Agreement, the Servicer, the Originator,
Funding, Deed Corp and Purchaser have entered into the Amended and Restated
Servicing Agreement Re Asset Purchase Agreement dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "SERVICING
AGREEMENT"); and
WHEREAS, the Originator, Deed Corp, Funding and HFI wish to set forth
the terms and conditions pursuant to which (i) the Originator will sell,
transfer and otherwise convey all Receivables and related Assets to Funding, and
(ii) the Receivables Files, deeds and other instruments, certificates, books,
records and information of any kind relating to the Receivables and related
Assets referred to in the foregoing clause (i) and from time to time sold and
purchased hereunder and under the Asset Purchase Agreement will be transferred
to the Originator and Deed Corp (as custodian and agent for HFI) under the Deed
Custodian Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Originator and Funding agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) have the
meanings assigned to them in the Definitions Annex to the Asset Purchase
Agreement.
SECTION 1.02. OTHER INTERPRETIVE PROVISIONS. Except to the extent
otherwise specified in the particular term or provision at issue, this Agreement
shall be interpreted and construed in accordance with the Document Conventions.
ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT
SECTION 2.01. CLOSING OF PURCHASES. No later than five (5) Business
Days prior to each Purchase Date (or such shorter period to which Funding shall
agree), the Originator will deliver or cause to be delivered to Funding a notice
specifying all outstanding Eligible Receivables currently owned by the
Originator which the Originator wishes to transfer and assign pursuant to this
Agreement, together with the information described in EXHIBIT B to the Asset
Purchase Agreement with respect thereto through such day. On or prior to the
Purchase Date, Funding
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will notify the Originator of the Eligible Receivables it will purchase (the
"PURCHASED RECEIVABLES") on such date and the cash purchase price (the "SALE
PRICE") it will pay for such purchase. To the extent that there is no Sale Price
or the cash portion of the Sale Price for the Purchased Receivables is less than
the fair market value thereof, the difference shall be deemed a capital
contribution by the Originator to Funding. The Originator and Funding shall
enter into a certificate of assignment (the "SALE ASSIGNMENT"), dated as of each
Purchase Date, substantially in the form of EXHIBIT A hereto, identifying all
Purchased Receivables being conveyed on such date and the Originator shall
either execute an Allonge (with respect to notes or instruments) in the form of
EXHIBIT C attached hereto or a Master Assignment (with respect to Receivables
which take the form of conditional sales contracts) in the form of EXHIBIT D
attached hereto. The Sale Price shall be payable by Funding in full by wire
transfer on the Purchase Date to an account designated by the Originator to
Funding on or before the Purchase Date.
Concurrent with the payment of the Sale Price, if any, for Purchased
Receivables and execution of the Sale Assignment, the Originator shall have, and
shall be deemed for all purposes to have, sold, transferred, assigned, set over
and otherwise conveyed to Funding, in consideration therefor, all the
Originator's right, title and interest in and to the following (items (i) -
(vii) below, collectively, being referred to as the "RECEIVABLES AND RELATED
ASSETS"):
(i) the Purchased Receivables identified by Funding
to the Originator as described above, and all Collections
thereon and monies due or to become due in payment of such
Purchased Receivables after the applicable Cutoff Date;
(ii) with respect to Receivables that take the form
of conditional sales contracts, the Intervals related to such
Purchased Receivables subject to the Obligors' rights
thereunder, including all net proceeds from any sale or other
disposition of such Interval;
(iii) with respect to Club Receivables, the Purchase
Money Mortgages related to such Receivables;
(iv) the related Receivable Files;
(v) all payments made or to be made in the future
with respect to such Purchased Receivables or the Obligor
thereunder under any guarantee or similar credit enhancement
with respect to such Purchased Receivables;
(vi) all Insurance Proceeds with respect to each such
Purchased Receivable; and
(vii) all income from and proceeds of the foregoing.
The foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in a creation or an assumption by
Funding (or any assignee thereof) of any
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obligation of the Originator in connection with the Receivables and related
Assets, or any agreement or instrument relating thereto, including, without
limitation, any obligation to any Obligor or any other Person, or (i) any taxes,
fees, or other charges imposed by any Governmental Authority and (ii) any
insurance premiums which remain owing with respect to any Receivable at the time
such Receivable is sold hereunder; PROVIDED THAT Funding (or any assignee
thereof) shall be required to deliver (or cause to be delivered) to the
applicable Obligor the deed evidencing such Obligor's Interval upon payment in
full of the conditional sales contract, if applicable.
SECTION 2.02. ASSIGNMENT OF AGREEMENT. Funding has the right to assign
its interest under this Agreement to the Purchaser as may be required to effect
the purposes of the Asset Purchase Agreement, without further notice to, or
consent of, the Originator, and the Purchaser shall succeed to such of the
rights of Funding hereunder as shall be so assigned. The Originator acknowledges
that, pursuant to the Asset Purchase Agreement, Funding will assign all of its
right, title and interest in and to the Receivables and related Assets conveyed
hereunder, including but not limited to, its right to exercise the remedies
created by Section 5.01 hereof for breaches of representations and warranties of
the Originator contained in Article III hereof, to the Purchaser as well as any
other covenants or representations or warranties made by the Originator
hereunder. The Originator agrees that, upon such assignment to the Purchaser,
such remedies, covenants and representations will run to and be for the benefit
of the Purchaser and its assignees and the Purchaser or such assignee may
enforce the same directly without joinder of Funding.
SECTION 2.03. CONVEYANCE OF SUBSEQUENT RECEIVABLES. Subject to the
satisfaction of the conditions set forth in Section 2.11 of the Asset Purchase
Agreement, the Originator may at its option (but shall not be obligated to)
sell, transfer, assign, set over and otherwise convey to Funding (by delivery of
an executed Subsequent Purchase Agreement substantially in the form attached as
EXHIBIT B hereto or, in the case of Substitute Receivables, by delivery of an
executed Substitute Receivables Purchase Agreement substantially in the form
attached as EXHIBIT E hereto), without recourse other than as expressly provided
in the Transaction Documents (and in consideration of Funding's concurrent
transfer of property, by exchange of one or more related Receivables released by
the Purchaser to Funding on the Subsequent Transfer Date, in the case of a
Subsequent Receivable which is a Substitute Receivable) all the right, title and
interest of the Originator in and to the following (the property in clauses (i)
- (vii) below, collectively upon such transfer, becoming part of the
"RECEIVABLES AND RELATED ASSETS"):
(i) the Subsequent Receivables identified in the related
Addition Notice, and all Collections thereon and monies due or to
become due in payment of such Subsequent Receivables after the
applicable Cutoff Date;
(ii) with respect to Receivables that take the form of
conditional sales contracts, the Intervals related to such Subsequent
Receivables, including all net proceeds from any sale or other
disposition of such Interval;
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(iii) with respect to Club Receivables, the Purchase Money
Mortgages related to such Subsequent Receivables;
(iv) the related Receivable Files;
(v) all payments made or to be made in the future with respect
to such Receivables or the Obligor thereunder under any guarantee or
similar credit enhancement with respect to such Receivables;
(vi) all Insurance Proceeds with respect to each such
Subsequent Receivable; and
(vii) all income from and proceeds of the foregoing.
To the extent that the property delivered by Funding to the Originator in
exchange for the Subsequent Receivables and related Receivables and related
Assets being conveyed has a value less than the fair market value of such
Subsequent Receivables and related Receivables and related Assets, the
difference shall be deemed a capital contribution by the Originator to Funding
in respect of such Subsequent Receivables.
Any such sale, transfer, assignment, set-over and conveyance shall not
constitute and is not intended to result in a creation or an assumption by
Funding (or any assignee thereof) of any obligation of the Originator in
connection with such Receivables and related Assets, or any agreement or
instrument relating thereto, including, without limitation, any obligation to
any Obligor or any other Person, or (i) any taxes, fees, or other charges
imposed by any Governmental Authority and (ii) any insurance premiums which
remain owing with respect to any such Receivable at the time such Receivable is
conveyed hereunder; PROVIDED THAT Funding (or any assignee thereof) shall be
required to deliver (or cause to be delivered) to the applicable Obligor the
deed evidencing such Obligor's Interval upon payment in full of the conditional
sales contract, if applicable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Pursuant to each Sale Assignment, the Originator will make, and upon
execution of each Subsequent Purchase Agreement will be deemed to remake, the
representations and warranties set forth in Sections 5.1 and 5.2 of the Asset
Purchase Agreement for the benefit of Funding; provided, however, with respect
to the representations and warranties relating to the Receivables, such
representation and warranty shall be made only on their date of purchase
hereunder. Such representations and warranties are incorporated by reference in
this Article III, and Funding may rely thereon as if such representations and
warranties were fully set forth herein. It is understood and agreed that the
representations and warranties incorporated by reference in this Article III
shall survive the conveyance of the Purchased Receivables to Funding and any
conveyance of the Purchased Receivables by Funding to Purchaser and shall
continue so long as any Purchased
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Receivable shall remain outstanding. The repurchase (or, in the alternative,
substitution) obligation of the Originator set forth in Section 5.01 below and
in Section 6.3 of the Asset Purchase Agreement constitutes the sole remedy
available for a breach of a representation or warranty of the Originator
incorporated by reference through this Article III. The Originator is not
responsible for and shall have no obligation with respect to the Obligors'
payment obligations under the Purchased Receivables, except with respect to
Servicer Advances and obligations hereunder with respect to breaches of
representations and warranties relating to the Receivables; provided, however,
this sentence shall not be construed to limit, in any manner, any other
Originator obligation under the Transaction Documents.
In addition, on the Closing Date, and upon the effectiveness of each
conveyance of Receivables and related Assets hereunder the Originator makes, and
upon each conveyance of Subsequent Receivables under a Subsequent Purchase
Agreement the Originator will be deemed to remake, the following representations
and warranties:
(a) ORGANIZATION AND GOOD STANDING. The Originator is a
corporation duly organized and validly existing in good standing under
the laws of the State of Massachusetts, and has full corporate power,
authority and legal right to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Agreement and each other Transaction Document to
which it is a party.
(b) DUE QUALIFICATION. The Originator is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements), and has obtained or will obtain all necessary
licenses and approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would have a material
adverse effect on its ability to perform its obligations hereunder.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party,
and the consummation of the transactions provided for herein and
therein, have been duly authorized by the Originator by all necessary
corporate action on the part of the Originator.
(d) NO CONFLICT. The execution and delivery of this Agreement
and each other Transaction Document to which it is a party, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any material indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which the Originator is a party
(or by which it or any of its property is bound).
(e) NO VIOLATION. The execution and delivery by the Originator
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 Receivables and related
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Assets by the Originator 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 Originator.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Originator, threatened against
the Originator, before any court, regulatory body, administrative
agency, or other tribunal or governmental instrumentality (i) asserting
the invalidity of this Agreement or any other Transaction Document,
(ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any other Transaction Document or
(iii) seeking any determination or ruling that could reasonably be
expected to be adversely determined, and if adversely determined, would
materially and adversely affect the performance by the Originator of
its obligations under this Agreement or any other Transaction Document.
(g) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority required in connection with the Originator'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 "bulk sales" law by
the Originator.
(i) SOLVENCY. After giving effect to the transactions under
this Agreement, the Originator will be Solvent.
(j) SELECTION PROCEDURES. No selection procedures believed by
the Originator to be materially adverse to the interests of Funding or
the Purchaser were utilized by the Originator in selecting the
Receivables constituting part of the Receivables and related Assets
being sold hereunder.
(k) TAXES. The Originator has filed or caused to be filed all
tax returns which, to its knowledge, are required to be filed and has
paid all taxes shown to be due and payable on such returns or on any
assessments made against it or any of its or its subsidiaries property
and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any amount of tax
due the validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
accordance with generally accepted accounting principles have been
provided on the books of the Originator); no tax lien has been filed
and, to the Originator'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 Originator is a party constitute the
legal, valid and binding
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obligation of the Originator enforceable against the Originator in
accordance with their respective terms, except as such enforceability
may be limited by (i) applicable Insolvency Laws and (ii) general
principles of equity (whether considered as a suit at law or in
equity).
(m) EXCHANGE ACT COMPLIANCE. No proceeds of any conveyance
hereunder will be used by the Originator to acquire any security in any
transaction which is subject to Section 13 or 14 of the Securities
Exchange Act of 1934, as amended.
(n) TITLE; PRIOR LIENS WITH RESPECT TO THE RESORTS AND
ADDITIONAL RESORTS. Originator and its Subsidiaries have good and
marketable title to the Resorts or Additional Resorts (excluding sold
Intervals and any equitable rights of Obligors under applicable state
law to the Units under any conditional land sales contracts which are
the subject of any Receivables and related Assets).
(o) ACCESS. The Resorts and Additional Resorts relating to the
Receivables and related Assets, have direct access to a publicly
dedicated road over a recorded easement and all roadways, if any,
inside the Resorts and Additional Resorts are or will be common areas
under the declaration after the first purchase of Receivables
originated at such Resort or Additional Resort.
(p) UTILITIES. Electric, gas, sewer, water facilities and
other necessary utilities are lawfully available in sufficient capacity
to service the Units relating to the Intervals in the Resorts and
Additional Resorts relating to the Receivables and any easements
necessary to the furnishing of such utility service have been obtained
and duly recorded.
(q) AMENITIES. All amenities described in the sales prospectus
and the "PUBLIC REPORTS" for the Resorts and Additional Resorts
relating to the Receivables are completed, or will be completed, in the
time periods described in the "PUBLIC REPORTS", or a bond insuring
their completion has been posted. Each Obligor has or will have in the
time period described in the Public Reports access to and the use of
all of the amenities and public utilities of the Resorts and the
Additional Resorts relating to the Receivables as and to the extent
provided in the Declaration and the "PUBLIC REPORTS".
ARTICLE IIIA
ORIGINATOR AFFIRMATIVE AND NEGATIVE COVENANTS
SECTION 3.01A. RECORDS. Originator shall keep adequate records and
books of account reflecting all financial transactions of Originator and (to the
extent available to the Originator) the Time Share Associations, including sales
of Intervals, in which complete entries will be made in accordance with GAAP.
SECTION 3.02A. USE OF PURCHASER NAME. Originator will not, and will not
permit any Affiliate to, without the prior written consent of Purchaser, use the
name of Purchaser or the
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name of any affiliates of Purchaser in connection with any of their respective
businesses or activities, except in connection with internal business matters,
administration of the Purchase Agreement and as required in dealings with
governmental agencies including any reports required to be filed with the
Securities and Exchange Commission.
SECTION 3.03A. OTHER DOCUMENTS. To the extent not maintained by the
Custodian or Servicer, Originator will maintain accurate and complete files
relating to the Receivables and the related Assets to the satisfaction of
Funding and Purchaser, and such files (to the extent not computerized) will
contain copies of each Originator Receivable and the related Assets together
with the purchase agreements, truth-in-lending statements, all relevant credit
memoranda and all collection information and correspondence relating to such
Receivables.
SECTION 3.04A. ORIGINATOR'S DUES REQUIREMENT. The Originator shall be
obligated to pay the Time Share Association dues relating to Intervals which are
owned by the Originator or one of its Affiliates and do not relate to
Receivables and for as long as the Originator or one of its Subsidiaries
controls the Resorts or Additional Resorts, shall provide such monies as are
necessary to maintain services for a Resort or an Additional Resort which is
equal to or greater than one hundred percent (100%) of such Resorts or
Additional Resorts total operating expenses, taxes, utilities and associated
reserve fund requirements.
SECTION 3.05A. CONSOLIDATION AND MERGER. The Originator will not
consolidate with or merge into any other Person or permit any other Person to
consolidate with or merge into it or convey all or substantially all of its
assets to any Person, unless (i) either the Originator shall be the continuing
corporation or the successor corporation or the person which acquires by sale or
conveyance substantially all the assets of the Originator shall be a corporation
organized under the laws of the United States of America or any State thereof
and shall expressly assume the due and punctual performance and observance of
all of the covenants and conditions of this Agreement to be performed or
observed by the Originator , by an amendment hereto in form satisfactory to the
Purchaser, and (ii) the Originator or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in breach in the performance of any such covenant or
condition.
SECTION 3.06A. RECEIVABLES. The Originator shall not take any action
(nor permit or consent to the taking of any action) which might reasonably be
anticipated to impair the value of the Receivables or related Assets or any of
the rights of Purchaser in the Receivables or related Assets; provided, however,
nothing contained in this Section 3.06A shall be construed as requiring the
Originator to guarantee or otherwise become liable for the payment of the
Obligors' payments under the Receivables.
SECTION 3.07A. COMPLIANCE WITH LAWS. Originator, and each of the Units
in which Intervals are being sold, shall comply with, conform to and obey each
and every judgment, law, statute, rule and governmental regulation applicable to
it and each indenture, order, instrument, agreement or document to which it is a
party or by which it is bound except where the failure to comply would not have
a material adverse effect on the Receivables.
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SECTION 3.08A. YEAR 2000. Originator has made an assessment of the
microchip and computer-based systems and the software used in its businesses and
based upon such assessment believes that it will be "YEAR 2000 COMPLIANT" by
January 1, 2000. For purposes of this Section 3.08A, "YEAR 2000 COMPLIANT" means
that all software, embedded microchips and other processing capabilities
utilized by, and material to the business operations or financial condition of,
the Originator are able to interpret, store, transmit, receive and manipulate
data on and involving all calendar dates correctly and without causing any
abnormal ending scenarios in relation to dates in and after the year 2000. From
time to time, at the request of the Purchaser, Originator shall provide to
Purchaser such updated information as is requested regarding the status of its
effort to become Year 2000 Compliant.
SECTION 3.09A. AUTHORIZED SIGNATORY. Any person signing an Advance
Request on behalf of Originator, as provided in Schedule 3.24A hereof shall have
the requisite power and authority to sign the same on behalf of such Originator.
SECTION 3.10A. ENVIRONMENTAL COMPLIANCE.
(a) The operations of Originator comply in all material
respects with all applicable Environmental Laws.
(b) There are no claims, investigations, litigation,
administrative proceedings, whether pending or, to Originator's best
knowledge, threatened, or judgments or orders, relating to any
Hazardous Materials or alleging the violation of any Environmental Laws
(collectively "ENVIRONMENTAL MATTERS") relating in any way to any
operations of Originator on any real property leased or owned by
Originator or to the operations of Originator the result of which, if
adversely determined, would have a Material Adverse Effect.
(c) To Originators' knowledge, no Hazardous Materials are
presently stored or otherwise located on, in or under any real property
leased, owned or operated by Originator except in material compliance
with all applicable Environmental Laws, and, no part of any real
property leased, owned or operated by Originator or to Originators'
best knowledge, adjacent parcels, including the groundwater located
thereon, is presently contaminated by any such Hazardous Material.
(d) Originator has not filed any notice under any
international, federal, state, regional, provincial or local law
indicating past or present treatment, storage or disposal of a
Hazardous Material or reporting a spill or release of a Hazardous
Material into the environment the result of which, if adversely
determined, would have a material adverse effect.
(e) Originator does not have any known material liability,
contingent or otherwise, in connection with any release of any
Hazardous Material into the environment.
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(f) Originator hereby indemnifies Funding and agrees to hold
Funding harmless from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims of any and every kind
whatsoever (including, without limitation, court costs and reasonable
attorneys' fees and legal expenses) which at any time or from time to
time may be paid, incurred or suffered by, or asserted against, Funding
arising directly or indirectly from the violation by the Originator of
any Environmental Law with respect to any Resort or Additional Resort;
or with respect to, or as a direct or indirect result of the presence
on or under, or the escape, seepage, leakage, spillage, discharge,
emission or release from, properties utilized, owned or operated by
Originator in the conduct of its business into or upon any land, the
atmosphere, or any watercourse, body of water or wetland, of any
Hazardous Material (including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under the Environmental Laws); PROVIDED that to the extent that
Originator is strictly liable under any Environmental Laws, the
Originator's obligations to indemnify Funding hereunder shall likewise
be without regard to fault on the part of Originator and with respect
to the violation of law which results in liability to Originator;
PROVIDED, FURTHER, that this Section 3.10A shall not apply with respect
to any liability, release, violation or other matter that arises solely
from Originator's gross negligence or wilful misconduct after
Originator loses possession of any property due to foreclosure or other
exercises of remedies by Funding. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in this Section 3.10A may be
unenforceable because it is violative of any law or public policy,
Originator shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of
all indemnifications set forth in this Section 3.10A.
SECTION 3.11A. SHARE TRANSFER. Funding shall not transfer any shares of
capital stock of Deed Corp.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION
OF BACK-UP SECURITY INTERESTS
SECTION 4.01. CUSTODY OF RECEIVABLES. Subject to the terms and
conditions of this Section 4.01, and except as provided in the Custodial
Agreement (i) the contents of each Receivable File shall be held in the custody
of the Originator in its capacity as Servicer under the Servicing Agreement for
the benefit of the owner thereof and (ii) each deed relating to any Interval
subject to a contract for deed included in the Receivables and related Assets
shall be transferred to Deed Corp, in its capacity as Deed Custodian. The
Originator agrees to cooperate with the Servicer in its efforts to comply with
its respective obligations under the Asset Purchase Agreement and the Servicing
Agreement in respect of the Receivables and related Assets, and acknowledges and
consents to the transactions contemplated therein.
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SECTION 4.02. FILING.
(a) On or as soon as practicable following each Purchase Date,
the Originator shall cause the UCC financing statement(s) referred to
in Section 5.1(x) of the Asset Purchase Agreement to be filed and from
time to time the Originator shall take and cause to be taken such
actions and execute such documents as are necessary or desirable or as
Funding or HFI may reasonably request to perfect and protect
Purchaser's ownership interest in the Receivables and related Assets
against all other persons, including, without limitation, the filing of
financing statements, amendments thereto and continuation statements,
the execution of transfer instruments and the making of notations on or
taking possession of all records or documents of title.
(b) On or as soon as practicable following each Purchase Date,
the Originator will deliver an assignment of the Deed in recordable
form, endorse and transfer to Deed Corp, as custodian and agent for
HFI, all deeds, as well as transfer to the Custodian the Receivables
File relating to the Purchased Receivables or Subsequent Receivables
(as the case may be) transferred on such Purchase Date. Pursuant to the
Servicing Agreement, Servicer will record all deeds included within the
Receivables and related Assets in the appropriate records depository in
the jurisdictions in which the real property conveyed by such deeds are
located. Each deed so recorded shall state that it has been transferred
and conveyed to Deed Corp of the Obligor on the Purchased Receivable
relating to such deed and the Purchaser of the related Receivable and
shall further state that Deed Corp shall hold such deed solely as agent
and custodian for the Purchaser.
SECTION 4.03. NAME CHANGE OR RELOCATION.
(a) During the term of this Agreement, the Originator agrees
not to change its name, identity or structure or relocate its chief
executive office, or relocate or establish a new location where
Receivable Files are maintained, without first giving at least 30 days'
prior written notice to Funding and HFI.
(b) If any change in the Originator's name, identity or
structure or other action would make any financing or continuation
statement or notice of ownership interest or lien filed under this
Agreement seriously misleading within the meaning of applicable
provisions of the UCC or any title statute, the Originator, no later
than five days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Purchaser's
interests in the Receivables and related Assets and proceeds thereof.
In addition, the Originator agrees not to change its principal place of
business or its chief executive office (within the meaning of Article 9
of the UCC) from the location specified in Section 12.2 of the Asset
Purchase Agreement, or relocate or establish a location where it
maintains Receivable Files which is other than in one of the UCC Filing
Locations, unless it has first taken such action as is advisable or
necessary to preserve and protect Funding's and HFI's interest in the
Receivables and related Assets. Promptly after taking any of the
foregoing actions, the Originator shall deliver to Funding and HFI an
Opinion of Counsel stating that, in the opinion of such counsel, all
financing statements or amendments necessary to preserve and protect
the interests of HFI in the Receivables and related Assets have been
filed, and reciting the details of such filing.
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SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, and subject to the other terms and provisions herein relating to
changes in location, the Originator will maintain its chief executive office in
one of the States of the United States, except Louisiana, Tennessee, Colorado,
Kansas, New Mexico, Oklahoma, Utah or Wyoming.
SECTION 4.05. COSTS AND EXPENSES. The Originator agrees to pay all
reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of Funding's and the
Purchaser's right, title and interest in and to the Receivables and related
Assets (including, without limitation, the interest in the Interval related
thereto).
SECTION 4.06. SALE TREATMENT. The Originator and Funding each shall
treat the transfer of Receivables and related Assets made hereunder for
financial accounting purposes as a sale and purchase on all of its relevant
books, records, financial statements and other applicable documents.
ARTICLE V
REMEDIES UPON MISREPRESENTATION
SECTION 5.01. REPURCHASES AND SUBSTITUTIONS OF RECEIVABLES FOR BREACH
OF REPRESENTATIONS AND WARRANTIES. The Originator hereby agrees, for the benefit
of Funding and its assignees including the Purchaser, that it shall repurchase
an Ineligible Receivable and any Receivable with respect to which there has been
a breach of a representation or warranty under Article III of this Agreement
(together with all related Receivables and related Assets), at a repurchase
price equal to the Transfer Deposit Amount, not later than the next
Determination Date which is at most thirty (30) days after the earlier of (i)
the date the Originator becomes aware of, or (ii) receives written notice from
the Purchaser, the Servicer or Funding of, the related breach or inaccuracy of
representation. Originator's obligation hereunder shall relate solely to a
breach or inaccurate representation which materially adversely affects a
Receivable or with respect to Receivables for which the breach of a
representation or warranty in the aggregate materially adversely affects the
Purchaser. If the Originator is able to effect a substitution for any such
Ineligible Receivable in compliance with Section 2.03, the Originator may, in
lieu of repurchasing such Receivable, effect a substitution for such affected
Receivable with a Substitute Receivable not later than the date a repurchase of
such Ineligible Receivable would be required hereunder; provided further, in the
event the Originator can cure, and in fact cures, the condition which created
the "Ineligible Receivable" in the above described 30 day period the Originator
shall not be obligated to substitute or repurchase such Receivable.
SECTION 5.02. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED RECEIVABLES.
Upon receipt by the Cash Administrator for deposit in the Collection Account of
the repurchase price as described in Section 5.01 (or upon the Subsequent
Transfer Date related to a Substitute Receivable described in Section 5.01),
Funding shall assign to the Originator all of Funding's right, title and
interest in the repurchased or Replaced Receivable and related Assets, in each
case received by release from the Purchaser in accordance with Section 6.2 of
the Asset Purchase Agreement, without recourse, representation or warranty.
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ARTICLE VI
INDEMNITIES
SECTION 6.01. ORIGINATOR INDEMNIFICATION. The Originator will defend
and indemnify Funding and its assignees (including the Purchaser) (any of which,
an "INDEMNIFIED PARTY") against any and all costs, expenses, losses, damages,
claims and liabilities, joint or several, including reasonable fees and expenses
of counsel and expenses of litigation (collectively, "COSTS") arising out of or
resulting from any acts, omissions or alleged acts or omissions of the
Originator arising out of or relating to this Agreement or any other Transaction
Document which are in violation or contravention of the terms of this Agreement
or any other Transaction Document or the use, ownership or operation of any
Interval by the Originator or the Servicer or any Affiliate of either or any
representation or warranty or covenant made by the Originator in this Agreement
being untrue or incorrect (subject to the third sentence of the preamble to
Article III of this Agreement above); PROVIDED, HOWEVER, that the Originator
shall not be required to so indemnify any such Indemnified Party for such Costs
to the extent that such Cost shall be due to or arise from the willful
misfeasance, bad faith or gross negligence of such Indemnified Party, or the
failure of such Indemnified Party to comply with any express undertaking,
agreement or covenant made by such Indemnified Party in a Transaction Document
to which it is a party; PROVIDED FURTHER that nothing contained in this Section
6.01 shall be construed to obligate the Originator to indemnify an Indemnified
Party with respect to losses, claims, damages and liabilities incurred solely as
a result of the payment performance of the Receivables and the related Assets.
Notwithstanding any other provision of this Agreement, the obligations of the
Originator under this Section 6.01 shall not terminate upon a Service Transfer
pursuant to Section 3.3 of the Servicing Agreement and shall survive any
termination of that agreement, the Asset Purchase Agreement or this Agreement.
SECTION 6.02. LIABILITIES TO OBLIGORS. No obligation or liability to
any Obligor under any of the Receivables is intended to be assumed by Funding or
the Purchaser under or as a result of this Agreement and the transactions
contemplated hereby except the obligation to deliver the deed upon payment in
full.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. MERGER OR CONSOLIDATION.
(a) Except as otherwise provided in this Section 7.01, the
Originator will keep in full force and effect its existence, rights and
franchises as a Massachusetts corporation, and the Originator will
obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this
Agreement and of any of the Receivables and to perform its duties under
this Agreement.
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(b) Any person into which the Originator may be merged or
consolidated, or any corporation resulting from such merger or
consolidation to which the Originator is a party, or any person
succeeding to the business of the Originator, shall be the successor to
the Originator hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 7.02. TERMINATION. This Agreement shall terminate (after
distribution of all amounts distributable pursuant to Section 2.7 of the Asset
Purchase Agreement) on the Payment Date on which the Aggregate Unpaids have been
reduced to zero; PROVIDED, that the Originator's indemnities by the Originator
shall survive termination.
SECTION 7.03. ASSIGNMENT OR DELEGATION BY THE SELLERS. Except as
specifically authorized hereunder, the Originator may not convey and assign or
delegate any of its rights or obligations hereunder absent the prior written
consent of Funding and the Purchaser, and any attempt to do so without such
consent shall be void.
SECTION 7.04. AMENDMENT. This Agreement may not be amended without the
prior written consent of the Purchaser. Any such amendment shall be in writing
and executed by the parties hereto (including in counterparts). Upon the
execution of any amendment in compliance with this Section 7.04, this Agreement
shall be modified in accordance therewith, and such amendment shall form a part
of this Agreement for all purposes.
SECTION 7.05. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telefax transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
If to the Originator/Servicer: Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
If to Funding: Bluegreen Receivables Finance
Corporation III
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
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If to Deed Corp: Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy: (000) 000-0000
If to Purchaser: Xxxxxx Financial, Inc.
28th Floor - Xxxxxx Sales
Finance
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Portfolio Manager,
Vacation Ownership
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Financial, Inc.
28th Floor - Xxxxxx Sales
Finance
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Group General Counsel -
Vacation Ownership
Facsimile: (000) 000-0000
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 7.06. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.07. HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 7.08. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Illinois.
SECTION 7.09. NO BANKRUPTCY PETITION. The Originator covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all Aggregate Unpaids, it will not institute against Funding, or join
any other Person in instituting against Funding, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceedings
under the laws of the United States or any state of the United States, or take
any action in contemplation or furtherance of any of the foregoing. This Section
7.09 will survive the termination of this Agreement.
SECTION 7.10. OMITTED.
SECTION 7.11. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreement, provisions or
terms shall be deemed severable from the
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remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
SECTION 7.12. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of Funding (or any assignee thereof) or
the Originator, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exhaustive (except to the extent specifically provided herein) of any other
rights, remedies, powers or privileges provided by law.
SECTION 7.13. COUNTERPARTS. This Agreement may be executed in two or
more counterparts including by telefax transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 7.14. INTENDED CHARACTERIZATION. The Originator, Funding and
the Purchaser agree that any conveyance hereunder or under the Asset Purchase
Agreement is intended to be a sale and conveyance of ownership of the
Receivables and related Assets, rather than the mere granting of a security
interest to secure a borrowing. If, notwithstanding such expressed interest, any
such transfer is deemed to be of a mere security interest to secure
indebtedness, the Originator shall be deemed to have granted (and hereby grants
to) each of Funding and the Custodian, as agent for Funding, a perfected first
priority security interest in such Receivables and related Assets and this
Agreement shall constitute a security agreement under applicable law, securing
the repayment of the purchase price paid hereunder and the obligations and/or
interests provided for in this Agreement and in the order and priorities, and
subject to the other terms and conditions of, the Asset Purchase Agreement,
together with such other obligations or interests as may arise hereunder and
thereunder in favor of the parties hereto and thereto. If such transfer is
deemed to be the mere granting of a security interest to secure a borrowing,
Funding may, to secure Funding's own obtainment of funds under the Asset
Purchase Agreement (to the extent that the conveyance of the Receivables and
related Assets thereunder is deemed to be a mere granting of a security interest
to secure a borrowing) repledge and reassign (i) all or a portion of the
Receivables and related Assets pledged to Funding and not released from the
security interest of this Agreement at the time of such pledge and assignment,
and (ii) all proceeds thereof. Such repledge and reassignment may be made by
Funding with or without a repledge and reassignment by Funding of its rights
under this Agreement, and without further notice to or acknowledgment from the
Originator. The Originator waives, to the extent permitted by applicable law,
all claims, causes of action and remedies, whether legal or equitable (including
any right of setoff), against Funding or any assignee of Funding relating to
such action by Funding in connection with the transactions contemplated by the
Asset Purchase Agreement.
SECTION 7.15. EFFECT OF AMENDMENT AND RESTATEMENT. This Agreement
amends and restates in its entirety the Prior Sale Agreement and, upon
effectiveness of this Agreement, the terms and provisions of the Prior Sale
Agreement shall, subject to this SECTION 7.15, be
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superseded hereby. All references to "Sale and Contribution Agreement" contained
in the Transaction Documents shall be deemed to refer to this Agreement.
Notwithstanding the amendment and restatement of the Prior Sale Agreement by
this Agreement, the obligations and indemnities outstanding under the Prior Sale
Agreement as of the Closing Date shall remain outstanding and constitute
continuing obligations hereunder. Such outstanding obligations shall in all
respects be continuing, and this Agreement shall not be deemed to evidence or
result in a novation of such obligations. In furtherance of and without limiting
the foregoing, from and after the Closing Date and except as expressly specified
herein, the terms, conditions, and covenants governing the rights and
obligations outstanding under the Prior Sale Agreement shall be solely as set
forth in this Agreement, which shall supersede the Prior Sale Agreement in its
entirety.
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION III
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Printed Name: XXXX X. XXXXXX
Title: TREASURER
BLUEGREEN CORPORATION
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Printed Name: XXXX X. XXXXXX
Title: SR. VICE PRESIDENT, TREASURER & CFO
BRFC III DEED CORPORATION
By: /s/ XXXX X. XXXXXX
-------------------------------------------
Printed Name: XXXX X. XXXXXX
Title: TREASURER
Acknowledged and Agreed to:
XXXXXX FINANCIAL, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Printed Name: Xxxx X. Xxxxxx
-------------------------
Title: Vice President
---------------------------------
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