EXECUTION COPY
(Depositor to Issuer)
SALE AGREEMENT
This SALE AGREEMENT (this "Agreement"), dated as of November 15,
2002, is by and among Bluegreen Receivables Finance Corporation VI, a Delaware
corporation (the "Depositor"), and BXG Receivables Note Trust 2002-A, a
statutory trust formed under the laws of the State of Delaware (the "Issuer"),
and their respective permitted successors and assigns.
WITNESSETH:
WHEREAS, on the Closing Date, (i) the Depositor intends to sell and
the Issuer intends to purchase the Timeshare Loans, and (ii) the Issuer intends
to pledge such Timeshare Loans to U.S. Bank National Association, a national
banking association, as Indenture Trustee (the "Indenture Trustee"), pursuant to
an indenture, dated as of November 15, 2002 (the "Indenture"), by and among the
Issuer, Bluegreen Corporation ("Bluegreen" or the "Club Originator"), a
Massachusetts corporation, in its capacity as Servicer (the "Servicer"),
Vacation Trust, Inc., a Florida corporation, as Club Trustee (the "Club
Trustee") and the Indenture Trustee, to secure the Issuer's 4.580% Timeshare
Loan-Backed Notes, Series 2002-A, Class A, 4.740% Timeshare Loan-Backed Notes,
Series 2002-A, Class B, 5.735% Timeshare LoanBacked Notes, Series 2002-A, Class
C and 7.750% Timeshare Loan-Backed Notes, Series 2002A, Class D (collectively,
the "Notes");
WHEREAS, the Depositor may, and in certain circumstances will be
required to cure, repurchase or substitute and provide Qualified Substitute
Timeshare Loans for Defective Timeshare Loans, 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 substitute
Upgraded Club Loans or Defaulted Timeshare Loans previously sold to the Issuer
hereunder 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) (i) Timeshare Loans. On the Closing Date, by execution of this
Agreement and in return for the Timeshare Loan Acquisition Price for each of the
Timeshare Loans, 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) the Timeshare Loans
listed on Schedule III hereto, (ii) the Receivables in respect of the 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 Timeshare
Loan, (v) the Depositor's rights and remedies under the related Purchase
Agreement and Transfer Agreements 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 Transfer Agreements and Purchase Agreement, 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 since the related Cut-Off Date and all other property
interests or rights conveyed pursuant to and referenced in this Section 2(a)(i)
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 any Timeshare Loans hereunder, the
Issuer hereby directs the Depositor and the Depositor hereby agrees to deliver
or cause to be delivered 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 the Timeshare Loans received by the
Depositor or its Affiliates (other than the Issuer) 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
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 the 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 Depositor's right,
title and interest in, to and under the Assets
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specified in Section 2 hereof 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 loans, 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 such Depositor's entire right, title and interest in and to the Assets.
Each of the Club Trustee, Club Trust, the Depositor and any of their
Affiliates hereby agrees to make the appropriate entries in its general
accounting records and to indicate that the Timeshare Loans have been
transferred to the Indenture Trustee and constitute 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) All representations and warranties of the Depositor contained in
Section 5 and in Schedule I hereof, and all information provided in the Schedule
of Timeshare Loans related thereto shall be true and correct as of the Closing
Date or Transfer Date, as applicable, and the Depositor shall have delivered to
the Issuer, the Indenture Trustee and the Initial Purchaser an Officer's
Certificate to such effect.
(b) On or prior to the Closing Date or a Transfer Date, as
applicable, 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 receipt therefore pursuant to the Custodial Agreement and (ii)
the Timeshare Loan Servicing Files to the Servicer.
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(c) The Depositor shall have delivered or cause to be delivered all
other information theretofore required or reasonably requested by the Issuer to
be delivered by the Depositor or performed or cause to be performed all other
obligations required to be performed as of the Closing Date or the Transfer
Date, as the case may be, 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 or before the Closing Date, the Issuer, the Servicer, the
Club Trustee, the Backup Servicer and the Indenture Trustee shall have entered
into the Indenture.
(e) The Notes shall be issued and sold on the Closing Date, the
Issuer shall receive the full consideration due it upon the issuance of the
Notes, and the Issuer shall have applied such consideration, to the extent
necessary, to pay the Timeshare Loan Acquisition Price for each Timeshare Loan.
(f) Each Timeshare Loan conveyed on a Transfer Date 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.
(g) The Issuer shall have received such other certificates and
opinions as it shall be 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, as of the Closing Date
(with respect to the Timeshare Loans transferred on the Closing Date) and on
each Transfer Date (with respect to Qualified Substitute Timeshare Loans
transferred on such Transfer Date) as follows:
(i) Due Incorporation; Valid Existence; Good Standing. The
Depositor is a corporation duly organized and validly existing in good
standing under the laws of the jurisdiction of 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 the
business of the Depositor 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.
(ii) Possession of Licenses, Certificates, Franchises and
Permits. The Depositor 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
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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
the Timeshare Loans.
(iii) Corporate Authority and Power. The Depositor 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 the 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 the 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 Document to which the Depositor is a party do not and will not
(A) violate any of the provisions of the articles of incorporation or
bylaws of the Depositor, (B) violate any provision of any law,
governmental rule or regulation currently in effect applicable to the
Depositor 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 the
Depositor 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
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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, (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 the Depositor 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 the Timeshare Loans and the creation of the
security interest of the Issuer therein pursuant to Section 3 hereof.
(vii) Defaults. The Depositor is not in default under any
material agreement, contract, instrument or indenture to which the
Depositor 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 the business,
operations, financial condition or assets of the Depositor, 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. The Depositor is solvent and will not be
rendered insolvent by the transfer of the Timeshare Loans hereunder. On
the Closing Date, the Depositor will not engage in any business or
transaction the result of which would cause the property remaining with
the Depositor to constitute an unreasonably small amount of capital.
(ix) Pending Litigation or Other Proceedings. Other than as
described in the Offering Circular, there is no pending or, to the
Depositor's Knowledge, threatened action, suit, proceeding or
investigation before any court, administrative agency, arbitrator or
governmental body against or affecting the Depositor which, if decided
adversely, would materially and adversely affect (A) the condition
(financial or otherwise), business or operations of the Depositor, (B) the
ability of the Depositor 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
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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. The Depositor 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 the
Depositor concerning a withholding or other foreign tax liability.
(xii) No Deficiency Accumulation. The Depositor has no
outstanding "accumulated funding deficiency" (as such term is defined
under ERISA and the Code) with respect to any "employee benefit plan" (as
such term is defined under ERISA) sponsored by the Depositor.
(xiii) Taxes. The Depositor 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 for the payment of all
taxes, assessments and other governmental charges due from the Depositor
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. The Depositor
knows of no basis for any material additional tax assessment for any
fiscal year for which adequate reserves have not been established. The
Depositor 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
the Timeshare Loans will be 0000 Xxxxxxxxxx Xxx Xxxxx, 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.
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(xv) Securities Laws. The Depositor 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 the Depositor 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;
(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 had all necessary corporate power
to execute and deliver, and has all necessary corporate power to
perform its obligations under this Agreement, the other Transaction
Documents to which it is a party, the Club Trust Agreement and the
Club Management Agreement. The Club Trustee possesses all requisite
franchises, operating rights, licenses, permits, consents,
authorizations, exemptions and orders as are necessary to discharge
its obligations under the Club Trust Agreement;
(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
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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 expected 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;
(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
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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 Transfer Agreements and
Purchase Agreement, that the Club Originator has made the representations and
warranties in the Transfer Agreements and 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 of the under the Transfer Agreements and
Purchase Agreement.
(c) The Transfer, Agreements and Purchase Agreement, including 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 Club
Originator under the Transfer Agreements and Purchase Agreement are true and
correct.
(d) In consideration of Sections 5(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 the Closing Date (with respect
to each Timeshare Loan transferred on the Closing Date) and as of each Transfer
Date (with respect to each Qualified Substitute Timeshare Loan transferred on
such Transfer 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 Loan 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 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 the 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.
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(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 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. It is understood and agreed that the Depositor shall have the right and
will enforce such right to require the Club Originator to repurchase or
substitute a Defective Timeshare Loan in the event of a breach of any of the
representations and warranties in Section 5 hereof 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) in accordance with the provisions of the Transfer
Agreements and Purchase Agreement.
(b) Optional Purchases or Substitutions of Upgraded Club Loans. The
Issuer acknowledges that pursuant to the Purchase Agreement and each Transfer
Agreement, the Depositor has irrevocably granted the Club Originator any options
to repurchase or substitute Upgraded Club Loans it has thereunder. With respect
to Upgraded Club Loans, on any date, the Club Originator shall have the option,
but not the obligation, to either (i) pay the Repurchase Price for an Upgraded
Club Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans
for an Upgraded Timeshare 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 Upgraded Club
Loan is limited on any date to (x) 20% o of the sum of the Cut-Off Date
Aggregate Loan Balance of the Timeshare Loans on the Closing Date less (y) the
Loan Balances of all Upgraded Club Loans previously substituted by the Club
Originator on the related substitution dates pursuant to this Agreement, the
Purchase Agreement or the Transfer Agreements.
(c) Optional Purchases and Substitutions of Defaulted Timeshare
Loans. The Issuer acknowledges that pursuant to the Purchase Agreement and each
Transfer Agreement, the Depositor has irrevocably granted the Club Originator
any options to repurchase or substitute Defaulted Timeshare Loans it has
thereunder. With respect to any Defaulted Timeshare Loans, on any date, the Club
Originator will have the option, but not the obligation, to either (i) purchase
a Defaulted Timeshare Loan subject to the lien of the Indenture at the
Repurchase Price for such Defaulted Timeshare Loan or (ii) substitute one or
more Qualified Substitute Timeshare Loans for such Defaulted Timeshare Loan and
pay the related Substitution Shortfall Amounts, if any; provided, however, that
the Club Originator's option to purchase a Defaulted Timeshare Loan or to
substitute one or more Qualified Substitute Timeshare Loans for a 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 Defaulted Timeshare Loan by
delivering or causing to deliver to the Indenture Trustee a Waiver Letter in the
form of Exhibit A attached hereto.
11
(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 Transfer Date in accordance with the provisions of the Indenture. In the
event that more than one Timeshare Loan is substituted pursuant to Sections
6(a), (b) or (c) hereof on any Transfer 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 Transfer
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 Transfer
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 Trustee, in accordance with the provisions of the
Indenture. As of such related Transfer 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 Transfer 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 related Purchase Agreement and Transfer Agreement with
respect to such Qualified Substitute Timeshare Loan, 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.
(g) Officer's Certificate. The Depositor shall, on each related
Transfer 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
12
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 representation or warranty contained in Section 5, and such remedies are not
intended to and do not constitute "credit recourse" to the Depositor.
SECTION 7. Additional Covenants of the Depositor. The Depositor
hereby covenants and agrees with the Issuer as follows:
(a) The Depositor 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 the
business of the Depositor 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) The Depositor 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 the business of the Depositor 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 or prior to the Closing Date or a Transfer Date, as
applicable, the Depositor shall indicate in its and its Affiliates' computer
files and other records that each Timeshare Loan has been sold to the Issuer.
(d) The Depositor 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.
13
(e) On or prior to the Closing Date, the Depositor 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, meeting the requirements of state law in
such manner and in such jurisdictions as are necessary or appropriate to perfect
the acquisition of such Timeshare Loans by the Issuer from the Depositor, and
shall deliver file-stamped copies of such financing statements to the Issuer and
the Indenture Trustee on behalf of the Noteholders.
(f) The Depositor agrees from time to time, at its own expense, to
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. The Depositor 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 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, 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 Transfer 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) 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.
(k) 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.
(1) 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
14
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.
SECTION 8. Indemnification.
(a) The Depositor agrees to indemnify the Issuer, the Indenture
Trustee, the Noteholders and the Initial Purchaser (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 Initial Purchaser 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 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 Initial Purchaser, 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 Initial Purchaser 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 Initial
Purchaser 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.
15
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.
Depositor
Bluegreen Receivables Finance Corporation VI
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, President
Telecopier: (000) 000-0000
Issuer
BXG Receivables Note Trust 2002-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopier No: (000) 000-0000
SECTION 11. No Waiver; Remedies. No failure on the part of the
Depositor, the 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.
16
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 Indenture Trustee on behalf of the
Noteholders is given and confirmation from the Rating Agencies 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 Indenture
Trustee and the Rating Agencies 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.
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
17
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. Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 17. 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.
18
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 VI
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST
2002-A
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]
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 VI
By:
---------------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST
2002-A
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Financial Services Officer
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]
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 VI
By:
---------------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST
2002-A
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: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary/Treasurer
[Signature Page to the Sale Agreement]
Annex A
Standard Definitions
Annex A
EXECUTION COPY
STANDARD DEFINITIONS
"ACH Form" shall mean the ACH authorization form executed by
Obligors substantially in the form attached as Exhibit C to each of the Transfer
Agreement, the Sale Agreement and the Purchase Agreement.
"Act" shall have the meaning specified in Section 1.4 of the
Indenture.
"Additional Servicing Compensation" shall mean any late fees related
to late payments on the Timeshare Loans, any non-sufficient funds fees, any
processing fees and any Liquidation Expenses collected by the Servicer and any
unpaid out-of-pocket expenses incurred by the Servicer during the related Due
Period.
"Adjusted Note Balance" shall equal, for any Class of Notes, the
Outstanding Note Balance of such Class of Notes immediately prior to such
Payment Date, less any Note Balance Write-Down Amounts previously applied in
respect of such Class of Notes; provided, however, to the extent that for
purposes of consents, approvals, voting or other similar act of the Noteholders
under any of the Transaction Documents, "Adjusted Note Balance" shall exclude
Notes which are held by Bluegreen or any Affiliate thereof.
"Administration Agreement" shall mean the administration agreement,
dated as of November 15, 2002, by and among the Administrator, the Owner
Trustee, the Issuer and the Indenture Trustee, as amended from time to time in
accordance with the terms thereof.
"Administrator" shall mean Bluegreen or any successor under the
Administration Agreement.
"Administrator Fee" shall equal on each Payment Date an amount equal
to the product of (i) one-twelfth and (ii) (A) if Bluegreen or an affiliate
thereof is the Administrator, $1,000.00 and (B) if WTC is the Administrator,
$20,000.00.
"Adverse Claim" shall mean any claim of ownership or any lien,
security interest, title retention, trust or other charge or encumbrance, or
other type of preferential arrangement having the effect or purpose of
creating a lien or security interest, other than the interests created under
the Indenture in favor of the Indenture Trustee and the Noteholders.
"Affiliate" shall mean any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with such Person; (b)
which directly or indirectly beneficially owns or holds five percent (5%) or
more of the voting stock of such Person; or (c) for which five percent (5%) or
more of the voting stock of which is directly or indirectly beneficially owned
or held by such Person; provided, however, that under no circumstances shall the
Trust Company be deemed to be an Affiliate of the Issuer, the Depositor or the
Owner, nor shall any of such parties be deemed to be an Affiliate of the Trust
Company. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Initial Note Balance" is equal to the sum of the Initial
Note Balances for all Classes of Notes.
"Aggregate Loan Balance" means the sum of the Loan Balances for
all Timeshare Loans (except Defaulted Timeshare Loans).
"Aggregate Outstanding Note Balance" is equal to the sum of the
Outstanding Note Balances for all Classes of Notes.
"Aruba Assignment" shall mean the assignment, dated as of
November 15, 2002, between the Aruba Originator and Bluegreen pursuant to
which the Aruba Originator has assigned all right, title and interest in each
Aruba Loan (that is not an ING Facility Loan or Xxxxxx Facility Loan) to
Bluegreen.
"Aruba Loan" shall mean a Timeshare Loan originated by the Aruba
Originator and evidenced by a Finance Agreement.
"Aruba Originator" shall mean Bluegreen Properties, N.V., an Aruba
corporation.
"Aruba Share Certificate" shall mean a share certificate issued by
the timeshare cooperative association of La Cabana Beach Resort & Racquet Club
in Aruba, which entitles the owner thereof the right to use and occupy a fixed
Unit at a fixed period of time each year at the La Cabana Beach Resort & Racquet
Club in Aruba.
"Assignment of Mortgage" shall mean, with respect to a Club Loan, a
written assignment of one or more Mortgages from the related Originator or
Seller to the Indenture Trustee, for the benefit of the Noteholders, relating to
one or more Timeshare Loans in recordable form, and signed by an Authorized
Officer of all necessary parties, sufficient under the laws of the jurisdiction
wherein the related Timeshare Property is located to give record, notice of a
transfer of such Mortgage and its proceeds to the Indenture Trustee.
"Association" shall mean the not-for-profit corporation or
cooperative association responsible for operating a Resort.
"Assumption Date" shall have the meaning specified in the Backup
Servicing Agreement.
"Authorized Officer" shall mean, with respect to any corporation,
limited liability company or partnership, the Chairman of the Board, the
President, any Vice President, the Secretary, the Treasurer, any Assistant
Secretary, any Assistant Treasurer, Managing Member and each other officer of
such corporation or limited liability company or the general partner of such
partnership specifically authorized in resolutions of the Board of Directors of
such corporation or managing member of such limited liability company to sign
agreements,
-2-
instruments or other documents in connection with this Indenture on behalf of
such corporation, limited liability company or partnership, as the case may
be.
"Available Funds" shall mean for any Payment Date, (A) all funds on
deposit in the Collection Account after making all transfers and deposits
required from (i) the Lockbox Account pursuant to the Lockbox Agreement, (ii)
the General Reserve Account pursuant to Section 3.2(b) of the Indenture, (iii)
the Closing Date Delinquency Reserve Account pursuant to Section 3.2(d) of the
Indenture, (iv) the Club Originator or the Depositor, as the case may be,
pursuant to Section 4.4 of the Indenture, and (v) the Servicer pursuant to the
Indenture, plus (B) all investment earnings on funds on deposit in the
Collection Account from the immediately preceding Payment Date through such
Payment Date, less (C) amounts on deposit in the Collection Account related to
collections related to any Due Periods subsequent to the Due Period related to
such Payment Date, less (D) any Additional Servicing Compensation on deposit in
the Collection Account.
"Backup Servicer" shall mean Concord Servicing Corporation, an
Arizona corporation, and its permitted successors and assigns.
"Backup Servicing Agreement" shall mean the backup servicing
agreement, dated as of November 15, 2002, by and among the Issuer, the
Depositor, the Servicer, the Backup Servicer and the Indenture Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Backup Servicing Fee" shall on each Payment Date (so long as
Concord Servicing Corporation is the Backup Servicer), be equal to (A) prior to
the removal or resignation of Bluegreen, as Servicer, the greater of (i) $750.00
and (ii) the product of (x) $0.075 and (y) the number of Timeshare Loans in the
Trust Estate and (B) after the removal or resignation of Bluegreen, as Servicer,
an amount equal to the product of (i) one-twelfth of 2.00% and (ii) the
Aggregate Loan Balance as of the first day of the related Due Period.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended
(Title 11 of the United States Code).
"Beneficiary" shall be as defined in the Club Trust Agreement.
"Benefit Plan" shall mean an "employee benefit plan" as defined in
Section 3(3) of ERISA, or any other "plan" as defined in Section 4975(e)(1) of
the Code, that is subject to the prohibited transaction rules of ERISA or of
Section 4975 of the Code or any plan that is subject to any substantially
similar provision of federal, state or local law.
"Bluegreen" shall mean Bluegreen Corporation, a Massachusetts
corporation, and its permitted successors and assigns.
"Bluegreen Loans" shall mean certain Timeshare Loans that were sold
by Bluegreen to the Depositor pursuant to the Purchase Agreement.
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"Book-Entry Note" shall mean a beneficial interest in the Notes,
ownership and transfers of which shall be made through book-entries by the
Depository.
"Business Day" shall mean any day other than (i) a Saturday, a
Sunday, or (ii) a day on which banking institutions in New York City,
Wilmington, Delaware, the State of Florida, the city in which the Servicer is
located or the city in which the Corporate Trust Office of the Indenture Trustee
is located are authorized or obligated by law or executive order to be closed.
"BXG Trust 2000" shall mean the BXG Receivables Owner Trust 2000, a
Delaware statutory trust formed to purchase and finance the Xxxxxx Facility
Loans.
"BXG Trust 2000 Transfer Agreement" shall mean the transfer
agreement, dated as of November 15, 2002, by and among Bluegreen, the Depositor
and BXG Trust 2000 pursuant to which the Xxxxxx Facility Loans are sold to the
Depositor.
"BXG Trust 2001-A" shall mean the BXG Receivables Note Trust 2001-A,
a Delaware statutory trust formed to purchase and finance the ING Facility
Loans.
"BXG Trust 2001-A Transfer Agreement" shall mean the transfer
agreement, dated as of November 15, 2002, by and among Bluegreen, the Depositor
and BXG Trust 2001-A pursuant to which the ING Facility Loans are sold to the
Depositor.
"Cash Accumulation Event" shall exist on any Determination Date, if
(A) for the last three Due Periods, the average Delinquency Level for Timeshare
Loans that are 61 days or more delinquent is equal to or greater than 6%, or (B)
for the last six Due Periods, the average Default Level is equal to or greater
than 12%, or (C) the Cumulative Default Level is equal to or greater than the
applicable Cumulative Default Percentage, or (D) four or more of the Bluegreen
Developed Resorts have their respective ratings from RCI or II, as applicable,
downgraded below the related rating that was assigned thereto on the Closing
Date, or (E) the Servicer (if Bluegreen) fails to have at least $75,000,000 in
financing facilities in place. A Cash Accumulation Event shall be deemed to be
continuing until the earlier of (A) the immediately following Determination Date
upon which none of the events described in this paragraph exists and (B) the day
on which the Outstanding Note Balance of each Class of Notes has been reduced to
zero.
"Cede & Co." shall mean the initial registered holder of the Notes,
acting as nominee of The Depository Trust Company.
"Certificate" shall mean a Trust Certificate or a Residual Interest
Certificate, as applicable.
"Certificate Distribution Account" shall have the meaning specified
in Section 5.01 of the Trust Agreement.
"Certificate of Trust" shall mean the Certificate of Trust in the
form attached as Exhibit A to the Trust Agreement.
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"Certificateholders" shall mean the holders of the Trust Certificate
and Residual Interest Certificate.
"Class" shall mean, as the context may require, any of the Class A
Notes, Class B Notes, Class C Notes or Class D Notes.
"Class A Notes" shall have the meaning specified in the Recitals of
the Issuer in the Indenture.
"Class B Notes" shall have the meaning specified in the Recitals of
the Issuer in the Indenture.
"Class C Notes" shall have the meaning specified in the Recitals of
the Issuer in the Indenture.
"Class D Notes" shall have the meaning specified in the Recitals of
the Issuer in the Indenture.
"Class D Reserve Account" shall mean the account maintained by the
Indenture Trustee pursuant to Section 3.2(c) of the Indenture.
"Class D Reserve Account Required Balance" shall mean for any
Payment Date, the lesser of (A) 1.00% of the Cut-Off Date Aggregate Loan Balance
and (B) the Outstanding Note Balance of the Class D Notes on such Payment Date.
"Closing Date" shall mean December 13, 2002.
"Closing Date Delinquency Reserve Account" shall mean the account
maintained by the Indenture Trustee pursuant to Section 3.2(d) of the Indenture.
"Closing Date Delinquency Reserve Account Initial Deposit" shall
mean an amount equal to the product of (i) 50% and (ii) the sum of the Loan
Balances of all Timeshare Loans which were 31 days or more delinquent on the
Initial Cut-Off Date that are still delinquent on the Closing Date.
"Club" shall mean Bluegreen Vacation Club Trust, doing business as
Bluegreen Vacation Club, formed pursuant to the Club Trust Agreement.
"Club Loan" shall mean a Timeshare Loan originated by the Club
Originator and evidenced by a Mortgage Note and secured by a first Mortgage on a
fractional fee simple timeshare interest in a Unit.
"Club Management Agreement" shall mean that certain Amended and
Restated Management Agreement between the Club Managing Entity and the Club
Trustee, dated as of May 18, 1994, as amended from time to time.
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"Club Managing Entity" shall mean Bluegreen Resorts Management,
Inc., a Delaware corporation, in its capacity as manager of the Club and owner
of the Club's reservation system, and its permitted successors and assigns.
"Club Originator" shall mean Bluegreen, in its capacity as an
Originator.
"Club Trust Agreement" shall mean, collectively, that certain
Bluegreen Vacation Club Trust Agreement, dated as of May 18, 1994, by and
between the Developer and the Club Trustee, as amended, restated or otherwise
modified from time to time, together with all other agreements, documents and
instruments governing the operation of the Club.
"Club Trustee" shall mean Vacation Trust, Inc., a Florida
corporation, in its capacity as trustee under the Club Trust Agreement, and its
permitted successors and assigns.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and any successor statute, together with the rules and regulations
thereunder.
"Collection Account" shall mean the account established and
maintained by the Indenture Trustee pursuant to Section 3.2(a) of the Indenture.
"Collection Policy" shall mean the collection policies of the
initial servicer in effect on the Closing Date, as may be amended from time to
time in accordance with the Servicing Standard.
"Completed Unit" shall mean a Unit at a Resort which has been fully
constructed and furnished, has received a valid permanent certificate of
occupancy, is ready for occupancy and is subject to a time share declaration.
"Confidential Information" means information obtained by any
Noteholder including, without limitation, the Preliminary Confidential Offering
Circular dated October 23, 2002 or the Confidential Offering Circular dated
December 3, 2002 related to the Notes and the Transaction Documents, that is
proprietary in nature and that was clearly marked or labeled as being
confidential information of the Issuer, the Servicer or their Affiliates,
provided that such term does not include information that (a) was publicly known
or otherwise known to the Noteholder prior to the time of such disclosure, (b)
subsequently becomes publicly known through no act or omission by such
Noteholder or any Person acting on its behalf, (c) otherwise becomes known to
the Noteholder other than through disclosure by the Issuer, the Servicer or
their Affiliates or (d) any other public disclosure authorized by the Issuer or
the Servicer.
"Continued Errors" shall have the meaning specified in Section 5.4
of the Indenture.
"Corporate Trust Office" shall mean the office of the Indenture
Trustee located in the State of Minnesota, which office is at the address set
forth in Section 13.3 of the Indenture.
"Credit Policy" shall mean the credit and underwriting policies of
the Originators in effect on the Closing Date.
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"Cumulative Default Level" shall mean for any Determination Date, an
amount equal to the sum of the Loan Balances of all Timeshare Loans that became
Defaulted Timeshare Loans since the Closing Date (other than Defaulted Timeshare
Loans that subsequently become current) divided by the Cut-Off Date Aggregate
Loan Balance (expressed as a percentage). For purposes of this definition
"Timeshare Loan" shall include those timeshare loans that have been released
from the Lien of the Indenture pursuant to Section 4.5(c) of the Indenture.
"Cumulative Default Percentage" shall equal 10% on or before
December 1, 2003; 14% on or before December 1, 2004; 18% on or before December
1, 2005; 20% on or before December 1, 2006 and 22% thereafter.
"Custodial Agreement" shall mean the custodial agreement, dated as
of November 15, 2002 by and among the Issuer, the Depositor, the Servicer, the
Backup Servicer, and the Indenture Trustee and Custodian, as the same may be
amended, supplemented or otherwise modified from time to time providing for the
custody and maintenance of the Timeshare Loan Documents relating to the
Timeshare Loans.
"Custodian" shall mean U.S. Bank National Association, a national
banking association, or its permitted successors and assigns.
"Custodian Fees" shall mean for each Payment Date, the fee payable
by the Issuer to the Custodian in accordance with the Custodial Agreement.
"Cut-Off Date" shall mean, with respect to (i) the Initial Timeshare
Loans, the Initial Cut-Off Date, and (ii) any Qualified Substitute Timeshare
Loan, the related Subsequent Cut-Off Date.
"Cut-Off Date Aggregate Loan Balance" shall mean the aggregate of
the Loan Balances of all Timeshare Loans as of the Initial Cut-Off Date.
"Cut-Off Date Loan Balance" shall mean the Loan Balance of a
Timeshare Loan on the related Cut-Off Date.
"Default" shall mean an event which, but for the passage of time,
would constitute an Event of Default under the Indenture.
"Default Level" shall mean for any Due Period, the product of (i) 12
and (ii) the sum of the Loan Balances of Timeshare Loans that became Defaulted
Timeshare Loans during such Due Period less the Loan Balances of Defaulted
Timeshare Loans that subsequently became current during such Due Period divided
by the Aggregate Loan Balance on the first day of such Due Period (expressed as
a percentage).
"Defaulted Timeshare Loan" is any Timeshare Loan for which any of
the earliest following events may have occurred: (i) the Servicer has commenced
cancellation or forfeiture or deletion actions on the related Timeshare Loan
after collection efforts have failed in accordance with its credit and
collection policies, (ii) as of the last day of any Due Period, all or part of a
scheduled payment under the Timeshare Loan is more than 120 days delinquent from
the due
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date, (iii) the related Timeshare Loan otherwise ceases to be an Eligible
Timeshare Loan or (iv) the Servicer obtains actual knowledge that a
bankruptcy event has occurred with respect to the related Obligor.
"Defective Timeshare Loan" shall have the meaning specified in
Section 4.4 of the Indenture.
"Deferred Interest Amount" shall mean, with respect to a Class of
Notes and a Payment Date, the sum of (i) interest accrued at the related Note
Rate during the related Interest Accrual Period on such Note Balance Write-Down
Amounts applied in respect of such Class and (ii) any unpaid Deferred Interest
Amounts from any prior Payment Date, together with interest thereon at the
applicable Note Rate from the date any such Note Balance Write-Down Amount was
applied in respect of such Class, to the extent permitted by law.
"Definitive Note" shall have the meaning specified in Section 2.2 of
the Indenture.
"Delinquency Event" shall have occurred if the average Delinquency
Level over the last five Due Periods for Timeshare Loans that are 31 days or
more delinquent is equal to or greater than 7%. A Delinquency Event shall be
deemed to exist and be continuing until the average Delinquency Level over the
last five Due Periods for Timeshare Loans that are 31 days or more delinquent is
less than 7% for three consecutive Due Periods.
"Delinquency Level" shall mean for any Due Period, an amount equal
to the sum of the Loan Balances of Timeshare Loans (other than Defaulted
Timeshare Loans) that are the specified number of days delinquent on the last
day of such Due Period divided by the Aggregate Loan Balance on the first day of
such Due Period (expressed as a percentage).
"Delinquency Reserve Amount" shall mean, for any Payment Date, the
product of (i) if (A) no Delinquency Event exists and is continuing, 3.00% or
(B) a Delinquency Event exists and is continuing, 5.00%, and (ii) the aggregate
of the Loan Balances of all Timeshare Loans subject to the lien of the Indenture
(as of the end of the related Due Period).
"Depositor" shall mean Bluegreen Receivables Finance Corporation VI,
a Delaware Corporation, and its permitted successors and assigns.
"Depository" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The initial Depository shall be The Depository Trust Company.
"Depository Agreement" shall mean the letter of representations
dated as of December 13, 2002, by and among the Issuer, the Indenture Trustee
and the Depository.
"Depository Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges securities deposited with the
Depository.
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"Determination Date" shall mean the day that is five Business Days
prior to such Payment Date.
"Developer" shall mean Bluegreen Vacations Unlimited, Inc., a
Florida corporation, and its permitted successors and assigns.
"DTC" shall mean The Depository Trust Company, and its permitted
successors and assigns.
"Due Period" shall mean with respect to any Payment Date, the period
from the 16th day of the second preceding calendar month to the 15th day of the
preceding calendar month; for the Initial Payment Date, the period from and
including November 16, 2002 to December 15, 2002.
"Eligible Bank Account" shall mean a segregated account, which may
be an account maintained with the Indenture Trustee, which is either (a)
maintained with a depositary institution or trust company whose long-term
unsecured debt obligations are rated at least "A" by Fitch and "A2" by Moody's
and whose short-term unsecured obligations are rated at least "A-1" by Fitch and
"P-1" by Moody's; or (b) a trust account or similar account maintained at the
corporate trust department of the Indenture Trustee.
"Eligible Investments" shall mean one or more of the following:
(a) obligations of, or guaranteed as to timely payment of
principal and interest by, the United States or any agency or
instrumentality thereof when such obligations are backed by the full
faith and credit of the United States;
(b) federal funds, certificates of deposit, time deposits and
bankers' acceptances, each of which shall not have an original
maturity of more than 90 days, of any depository institution or
trust company incorporated under the laws of the United States or
any state; provided that the long-term unsecured debt obligations of
such depository institution or trust company at the date of
acquisition thereof have been rated by each Rating Agency in one of
the three highest rating categories available from S&P and no lower
than A2 by Moody's; and provided, further, that the short-term
obligations of such depository institution or trust company shall be
rated in the highest rating category by such Rating Agency;
(c) commercial paper or commercial paper funds (having
original maturities of not more than 90 days) of any corporation
incorporated under the laws of the United States or any state
thereof, provided that any such commercial paper or commercial paper
funds shall be rated in the highest short-term rating category by
each Rating Agency; and
(d) any no-load money market fund rated (including money
market funds managed or advised by the Indenture Trustee or an
Affiliate thereof) in the highest short-term rating category or
equivalent highest long-term rating category
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by each Rating Agency; provided that, Eligible Investments purchased
from funds in the Eligible Bank Accounts shall include only such
obligations or securities that either may be redeemed daily or
mature no later than the Business Day next preceding the next
Payment Date;
(e) demand and time deposits in, certificates of deposit of,
bankers' acceptances issued by, or federal funds sold by any
depository institution or trust company (including the Indenture
Trustee or any Affiliate of the Indenture Trustee, acting in its
commercial capacity) incorporated under the laws of the United
States of America or any State thereof and subject to supervision
and examination by federal and/or state authorities, so long as, at
the time of such investment, the commercial paper or other
short-term deposits of such depository institution or trust company
are rated at least P-1 by Moody's and at least A-1 by S&P;
and provided, further, that (i) no instrument shall be an Eligible Investment
if such instrument evidences a right to receive only interest payments with
respect to the obligations underlying such instrument, and (ii) no Eligible
Investment may be purchased at a price in excess of par. Eligible Investments
may include those Eligible Investments with respect to which the Indenture
Trustee or an Affiliate thereof provides services.
"Eligible Owner Trustee" shall have the meaning specified in Section
10.01 of the Trust Agreement.
"Eligible Timeshare Loan" shall mean a Timeshare Loan which meets
all of the criteria set forth in Schedule I of the Sale Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Errors" shall have the meaning specified in Section 5.4 of the
Indenture.
"Event of Default" shall have the meaning specified in Section 6.1
of the Indenture.
"Finance Agreement" shall mean a purchase and finance agreement
between an Obligor and the Aruba Originator pursuant to which such Obligor
finances the purchase of Aruba Share Certificates.
"Foreclosure Properties" shall have the meaning specified in Section
5.3(b) of the Indenture.
"General Reserve Account" shall mean the account maintained by the
Indenture Trustee pursuant to Section 3.2(b) of the Indenture.
"General Reserve Account Initial Deposit" shall mean an amount
equal to 1.00% of the Cut-Off Date Aggregate Loan Balance.
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"General Reserve Account Required Balance" shall mean (a) if no Cash
Accumulation Event has occurred, the greater of (i) 3.00% of the sum of the
Aggregate Loan Balance and the aggregate Loan Balance of Defaulted Timeshare
Loans subject to the lien of the Indenture (as of the end of the related Due
Period) and (ii) 1.50% of the Cut-Off Date Aggregate Loan Balance or (b) if a
Cash Accumulation Event has occurred, 3.00% of the Cut-Off Date Aggregate Loan
Balance.
"Global Note" shall have the meaning specified in Section 2.2 of the
Indenture.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Grant" shall mean to grant, bargain, convey, assign, transfer,
mortgage, pledge, create and grant a security interest in and right of set-off
against, deposit, set over and confirm.
"Xxxxxx Assignment Agreement" shall mean the assignment agreement,
dated as of November 15, 2002, by and among BXG Trust 2000 and Bluegreen.
"Xxxxxx Facility Loans" shall mean certain Timeshare Loans that were
previously sold to BXG Trust 2000 pursuant to that certain Sale and Servicing
Agreement, dated as of September 1, 2000, by and among BXG Trust 2000, Bluegreen
Receivables Finance Corporation IV, Bluegreen, Concord Servicing Corporation,
Vacation Trust, Inc., U.S. Bank Trust National Association, Xxxxxx Financial,
Inc. and Barclays Bank PLC.
"Xxxxxx Loan Agreement" shall mean the Amended and Restated Loan and
Security Agreement, dated as of June 30, 1999, by and between Bluegreen, the
Developer and Xxxxxx Financial, Inc., as amended from time to time.
"Highest Lawful Rate" shall have the meaning specified in Section 3
of the Sale Agreement.
"Holder" or "Noteholder" shall mean a holder of a Class A Note, a
Class B Note, a Class C Note or a Class D Note.
"II" shall mean Interval International, Inc.
"Indenture" shall mean the indenture, dated as of November 15, 2002,
by and among the Issuer, the Club Trustee, the Servicer, the Backup Servicer and
the Indenture Trustee.
"Indenture Trustee" shall mean U.S. Bank National Association, a
national banking association, not in its individual capacity but solely as
Indenture Trustee under the Indenture, and any successor as set forth in Section
7.9 of the Indenture.
"Indenture Trustee Fee" shall mean for each Payment Date, the sum of
(A) $875.00 and (B) until the Indenture Trustee shall become the successor
Servicer, the greater of
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(A) the product of one-twelfth of 0.0175% and the Aggregate Loan Balance as
of the first day of the related Due Period and (B) $1,500.00.
"ING Assignment Agreement' shall mean the assignment agreement,
dated as of November 15, 2002 by and among BXG Trust 2001-A and Bluegreen.
"ING Facility Loans" shall mean certain Timeshare Loans that were
previously sold to BXG Trust 2001-A pursuant to that certain Amended and
Restated Sale and Servicing Agreement dated as of April 17, 2002, by and among
Bluegreen Receivables Finance Corporation V, BXG Trust 0000-X, Xxxxxxxxx,
Xxxxxxx Servicing Corporation, Vacation Trust, Inc. and U.S. Bank National
Association.
"Initial Cut-Off Date" shall mean the close of business on November
15, 2002.
"Initial Note Balance" shall mean with respect to the Class A Notes,
the Class B Notes, the Class C Notes and the Class D Notes, $86,899,000,
$21,724,000, $23,535,000 and $38,018,000, respectively.
"Initial Payment Date" shall mean the Payment Date occurring in
January 2003.
"Initial Purchaser" shall mean ING Financial Markets LLC.
"Intended Tax Characterization" shall have the meaning specified
in Section 4.2(b) of the Indenture.
"Interest Accrual Period" shall mean with respect to (i) any Payment
Date other than the Initial Payment Date, the period from the 16th day of the
second preceding calendar month to the 15th day of the preceding calendar month
and (ii) the Initial Payment Date, the period from and including the Closing
Date through December 15, 2002.
"Interest Distribution Amount" shall equal, for a Class of Notes and
on any Payment Date, the sum of (i) interest accrued during the related Interest
Accrual Period at the related Note Rate on the Outstanding Note Balance of such
Class of Notes immediately prior to such Payment Date (or, if any Note Balance
Write-Down Amounts have been applied to such Class of Notes, the Adjusted Note
Balance of such Class of Notes) and (ii) the amount of unpaid Interest
Distribution Amounts from prior Payment Dates for such Class of Notes, plus, to
the extent permitted by applicable law, interest on such unpaid amount at the
related Note Rate. The Interest Distribution Amount shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"Issuer" shall mean BXG Receivables Note Trust 2002-A, a
statutory trust formed under the laws of the State of Delaware pursuant to
the Trust Agreement.
"Issuer Order" shall mean a written order or request delivered to
the Indenture Trustee and signed in the name of the Issuer by an Authorized
Officer of the Issuer or Administrator.
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"Knowledge" shall mean (a) as to any natural Person, the actual
awareness of the fact, event or circumstance at issue or receipt of notification
by proper delivery of such fact, event or circumstance and (b) as to any Person
that is not a natural Person, the actual awareness of the fact, event or
circumstance at issue by a Responsible Officer of such Person or receipt, by a
Responsible Officer of such Person, of notification by proper delivery of such
fact, event or circumstance.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment
for security, security interest, claim, participation, encumbrance, xxxx, xxxx
or charge.
"Liquidation" means with respect to any Timeshare Loan, the sale
or compulsory disposition of the related Timeshare Property, following
foreclosure, forfeiture or other enforcement action or the taking of a
deed-in-lieu of foreclosure, to a Person other than the Servicer or an
Affiliate thereof.
"Liquidation Expenses" shall mean, with respect to a Defaulted
Timeshare Loan, as of any date of determination, any out-of-pocket expenses
(exclusive of overhead expenses) incurred by the Servicer in connection with
the performance of its obligations under Section 5.3(b) in the Indenture,
including, but not limited to, (i) any foreclosure or forfeiture and other
repossession expenses incurred with respect to such Timeshare Loan, (ii)
actual commissions and marketing and sales expenses incurred by the Servicer
with respect to the remarketing of the related Timeshare Property and (iii)
any other fees and expenses reasonably applied or allocated in the ordinary
course of business with respect to the Liquidation of such Defaulted
Timeshare Loan (including any assessed and unpaid Association fees and real
estate taxes).
"Liquidation Proceeds" means with respect to the Liquidation of
any Timeshare Loan, the amounts actually received by the Servicer in
connection with such Liquidation.
"Loan Balance" shall mean, for any date of determination, the
outstanding principal balance due under or in respect of a Timeshare Loan
(including a Defaulted Timeshare Loan).
"Lockbox Account" shall mean the account maintained pursuant to
the Lockbox Agreement, which shall be a non-interest bearing account.
"Lockbox Agreement" shall mean the lockbox agreement, dated as of
November 15, 2002, by and among the Issuer, the Indenture Trustee and the
Lockbox Bank.
"Lockbox Bank" shall mean Fleet National Bank, a national banking
association.
"Lockbox Fee" shall mean on each Payment Date, the fee payable by
the Issuer to the Lockbox Bank in accordance with the Lockbox Agreement.
"Misdirected Deposits" shall mean such payments that have been
deposited to the Collection Account in error.
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"Monthly Servicer Report" shall have the meaning specified in
Section 5.5 of the Indenture.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage" shall mean, with respect to a Club Loan, any purchase
money mortgage, deed of trust, purchase money deed of trust or mortgage deed
creating a first lien on a Timeshare Property to secure debt granted by the Club
Trustee on behalf of an Obligor to the Club Originator with respect to the
purchase of such Timeshare Property and/or the contribution of the same to the
Club and otherwise encumbering the related Timeshare Property to secure payments
or other obligations under such Timeshare Loan.
"Mortgage Note" shall mean, with respect to a Club Loan, the
original, executed promissory note evidencing the indebtedness of an Obligor
under a Club Loan, together with any rider, addendum or amendment thereto, or
any renewal, substitution or replacement of such note.
"Net Liquidation Proceeds" shall mean with respect to a Liquidation,
the positive difference between Liquidation Proceeds and Liquidation Expenses.
"New Servicing Fee Proposal" shall have the meaning specified in
Section 5.4 of the Indenture.
"Note Balance Write-Down Amount" shall mean with respect to any
Payment Date, an amount equal to the excess, if any, of the Aggregate
Outstanding Note Balance (immediately after the distribution of Available Funds
and any amounts paid to the Class D Noteholders from the Class D Reserve Account
on such Payment Date) over the Aggregate Loan Balance as of the end of the Due
Period related to such Payment Date.
"Note Owner" shall mean, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on
the books of the Depository or on the books of a Person maintaining an
account with such Depository (directly or as an indirect participant, in
accordance with the rules of such Depository).
"Note Purchase Agreement" shall mean that certain note purchase
agreement dated the Closing Date, between the Initial Purchaser and the
Issuer.
"Note Rate" shall mean with respect to the Class A Notes, the Class
B Notes, the Class C Notes and the Class D Notes, 4.580%, 4.740%, 5.735% and
7.750%, respectively.
"Note Register" shall have the meaning specified in Section 2.4(a)
of the Indenture.
"Note Registrar" shall have the meaning specified in Section 2.4(a)
of the Indenture.
"Noteholder" shall mean any holder of a Note of any Class.
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"Notes" shall mean collectively, the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes.
"Obligor" shall mean the related obligor under a Timeshare Loan.
"Officer's Certificate" shall mean a certificate executed by a
Responsible Officer of the related party.
"Opinion of Counsel" shall mean a written opinion of counsel, in
each case acceptable to the addressees thereof.
"Optional Purchase Limit" shall mean, on any date, an amount equal
to (x) 15% of the Cut-Off Date Aggregate Loan Balance less (y) the aggregate
Loan Balances (as of the related purchase dates or release dates, as applicable)
of all Defaulted Timeshare Loans (a) previously purchased by the Club Originator
pursuant to the Sale Agreement, the Purchase Agreement or any of the Transfer
Agreements and (b) previously released pursuant to Section 4.5(c) of the
Indenture.
"0ptional Redemption Date" shall mean the first date in which the
Aggregate Outstanding Note Balance is less than or equal to 10% of the Aggregate
Initial Note Balance of all Classes of Notes.
"Optional Substitution Limit" shall mean, on any date, an amount
equal to (x) 20% of the Cut-Off Date Aggregate Loan Balance less (y) the
aggregate Loan Balances (as of the related Transfer Dates) of all Defaulted
Timeshare Loans previously substituted by the Club Originator pursuant to the
Sale Agreement, the Purchase Agreement or the any of the Transfer Agreements.
"Originator" shall mean either the Club Originator or the Aruba
Originator.
"Outstanding" shall mean, with respect to the Notes, as of any date
of determination, all Notes theretofore authenticated and delivered under the
Indenture except:
(a) Notes theretofore canceled by the Indenture Trustee or delivered
to the Indenture Trustee for cancellation;
(b) Notes or portions thereof for whose payment money in the
necessary amount has been theretofore irrevocably deposited with the Indenture
Trustee in trust for the holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a Person
in whose hands the Note is a valid obligation; provided, however, that in
determining whether the holders of the requisite percentage of the Outstanding
Note Balance of the Notes have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder, Notes owned by the Issuer or
any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that, in
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determining whether the Indenture Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Indenture Trustee
actually has notice are so owned shall be so disregarded.
"Outstanding Note Balance" shall mean as of any date of
determination and Class of Notes, the Initial Note Balance of such Class of
Notes less the sum of Principal Distribution Amounts actually distributed to the
Holders of such Class of Notes as of such date; provided, however, to the extent
that for purposes of consents, approvals, voting or other similar act of the
Noteholders under any of the Transaction Documents, "Outstanding Note Balance"
shall exclude Notes which are held by Bluegreen or any Affiliate thereof.
"Owner" shall mean the owner of the Trust Certificate issued by the
Issuer pursuant to the Trust Agreement, which shall be GSS Holdings, Inc.
"Owner Beneficiary" shall have the meaning specified in the Club
Trust Agreement.
"Owner Beneficiary Agreement" shall mean the purchase agreement
entered into by each obligor and the Developer with respect to the Club Loans.
"Owner Beneficiary Rights" shall have the meaning specified in the
Club Trust Agreement.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware
banking corporation, or any successor thereof, acting not in its individual
capacity but solely as owner trustee under the Trust Agreement.
"Owner Trustee Corporate Trust Office" shall mean Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Owner Trustee Fee" shall mean for each Payment Date an amount equal
to the product of (i) one-twelfth and (ii)(A) prior to the Owner Trustee
becoming successor Administrator, $6,000.00 and (B) upon the Owner Trustee
becoming successor Administrator, $5,000.00.
"Paying Agent" shall mean any Person authorized under the Indenture
to make the distributions required under Sections 3.4 of the Indenture, which
such Person initially shall be the Indenture Trustee.
"Payment Date" shall mean the 1st day of each month, or, if such
date is not a Business Day, then the next succeeding Business Day, commencing
on the Initial Payment Date.
"Payment Default Event" shall have occurred if (i) each Class of
Notes shall become due and payable pursuant to Section 6.2(a) of the Indenture
or (ii) each Class of Notes shall otherwise become due and payable following an
Event of Default under the Indenture and the Indenture Trustee has, in its good
faith judgment, determined that the value of the assets comprising the Trust
Estate is less than the Aggregate Outstanding Note Balance.
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"Percentage Interest" shall mean with respect to the Class A Notes,
the Class B Notes, the Class C Notes and the Class D Notes, 48%, 12%, 13% and
21%, respectively.
"Permitted Liens" shall mean (a) with respect to Timeshare Loans in
the Trust Estate, Liens for state, municipal or other local taxes if such taxes
shall not at the time be due and payable, (ii) Liens in favor of the Depositor
and the Issuer created pursuant to the Transaction Documents, and (iii) Liens in
favor of the Trust and the Indenture Trustee created pursuant to the Indenture;
(b) with respect to the related Timeshare Property, materialmen's,
warehousemen's, mechanic's and other Liens arising by operation of law in the
ordinary course of business for sums not due, (ii) Liens for state, municipal or
other local taxes if such taxes shall not at the time be due and payable, (iii)
Liens in favor of the Depositor pursuant to Transfer Agreements and the Purchase
Agreement, and (iv) the Obligor's interest in the Timeshare Property under the
Timeshare Loan whether pursuant to the Club Trust Agreement or otherwise; and
(c) with respect to Timeshare Loans and Related Security in the Trust Estate,
any and all rights of the Beneficiaries referred to in the Club Trust Agreement
under such Club Trust Agreement.
"Person" means an individual, general partnership, limited
partnership, limited liability partnership, corporation, business trust, joint
stock company, limited liability company, trust, unincorporated association,
joint venture, Governmental Authority, or other entity of whatever nature.
"Predecessor Servicer Work Product" shall have the meaning specified
in Section 5.4(b) of the Indenture.
"Principal Distribution Amount" shall equal for any Payment Date and
Class of Notes, the sum of the following:
(i) the product of (a) such Class' Percentage Interest and (b) the
amount of principal collected in respect of each Timeshare
Loan during the related Due Period (including, but not limited
to, principal in respect of scheduled payments, partial
prepayments, prepayments in full, liquidations, Substitution
Shortfall Amounts and Repurchase Prices, if any, but excluding
principal received in respect of Timeshare Loans that became
Defaulted Timeshare Loans during prior Due Periods that have
not been released from the lien of the Indenture) or, if the
Cut-Off Date for a Timeshare Loan shall have occurred during
the related Due Period, the amount of principal collected in
respect of such Timeshare Loan after such Cut-Off Date, and
(ii) the product of (a) such Class' Percentage Interest and (b) the
aggregate Loan Balance of all Timeshare Loans which became
Defaulted Timeshare Loans during the related Due Period, less
the sum of (x) the aggregate Loan Balance of all Qualified
Substitute Timeshare Loans which were conveyed to the Trust
Estate in respect of Defaulted Timeshare Loans during the
related Due Period, (y) the principal portion of Repurchase
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Prices paid in respect of Defaulted Timeshare Loans during the
related Due Period, and (z) the principal portion of Net
Liquidation Proceeds received during the related Due Period,
and
(iii) any unpaid Principal Distribution Amounts for such Class from
prior Payment Dates.
"Purchase Agreement" shall mean the purchase and contribution
agreement, dated as of November 15, 2002, between the Club Originator and the
Depositor pursuant to which such Club Originator sells Timeshare Loans to the
Depositor.
"Qualified Substitute Timeshare Loan" shall mean a Timeshare Loan
(i) that, when aggregated with other Qualified Substitute Timeshare Loans being
substituted on such Transfer Date, has a Loan Balance, after application of all
payments of principal due and received during or prior to the month of
substitution, not in excess of the Loan Balance of the Timeshare Loan being
substituted on the related Transfer Date, (ii) that complies, as of the related
Transfer Date, with each of the representations and warranties contained in the
Transfer Agreements and Purchase Agreement, including that such Qualified
Substitute Timeshare Loan is an Eligible Timeshare Loan, (iii) that shall not
cause the weighted average coupon rate of the Timeshare Loans to be less than
15.25% after such substitution, (iv) that shall not cause the weighted average
months of seasoning on the Timeshare Loans to be less than 16 months after such
substitution, and (v) that does not have a stated maturity greater than 12
months prior to the Stated Maturity.
"Rating Agency" shall mean Moody's and S&P.
"RCI" shall mean Resorts Condominium International, Inc.
"Receivables" means the payments required to be made pursuant to a
Timeshare Loan.
"Receivables Collateral" shall have the meaning specified in Section
3 of the Sale Agreement.
"Record Date" shall mean, with respect to any Payment Date, the
close of business on the last Business Day of the calendar month immediately
preceding the month such Payment Date occurs.
"Redemption Date" shall mean with respect to the redemption of
the Notes on or after the Optional Redemption Date, the date fixed pursuant
to Section 10.1 of the Indenture.
"Redemption Price" shall mean, with respect to each Class of Notes,
the sum of the Outstanding Note Balance of such Class of Notes, together with
interest accrued thereon at the applicable Note Rate up to and including the
Redemption Date.
"Related Security" shall mean with respect to any Timeshare Loan,
(i) all of the Issuer's interest in the Timeshare Property arising under or in
connection with the related
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Mortgage, Owner Beneficiary Rights, Vacation Points and the related Timeshare
Loan Files, (ii) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such Timeshare
Loan, together with all mortgages, assignments and financing statements
signed by the Club Trustee on behalf of an Obligor describing any collateral
securing such Timeshare Loan, (iii) all guarantees, insurance and other
agreements or arrangements of whatever character from time to time supporting
or securing payment of such Timeshare Loan, and (iv) all other security and
books, records and computer tapes relating to the foregoing.
"Repurchase Price" shall mean with respect to any Timeshare Loan to
be purchased by the Club Originator pursuant to the Transfer Agreements, the
Sale Agreement or the Purchase Agreement, an amount equal to the Loan Balance of
such Timeshare Loan as of the date of such purchase or repurchase, together with
all accrued and unpaid interest on such Timeshare Loan at the related Timeshare
Loan Rate to, but not including, the due date in the then current Due Period.
"Request for Release" shall be a request for release of Timeshare
Loan Documents in the form required by the Custodial Agreement.
"Required Payments" shall mean each of the items described in (i)
through (xv) of Section 3.4 of the Indenture.
"Reservation System": The reservation system utilized by the Club
and owned by the Club Managing Entity and operated by Resort Condominium
International, Inc. or the services contracted by the Club Managing Entity
with a third party.
"Residual Interest Certificate" shall mean the certificate issued
under the Trust Agreement, which represents the economic residual interest of
the Trust formed thereunder.
"Residual Interest Owner" shall mean the owner of the Residual
Interest Certificate issued by the Issuer pursuant to the Trust Agreement, which
shall initially be the Depositor.
"Resort" shall mean any of the following resorts: MountainLoft(TM),
Laurel Crest(TM), Shore Crest(TM) Vacation Villas, Harbour Lights(TM), The Lodge
Alley Inn (TM), The Falls Village(TM), Christmas Mountain Village(TM), Orlando's
Sunshine(TM) Resort, Solara Surfside(TM) Condominium, Shenendoah Crossing(TM)
Farm & Country Club and La Cabana Beach Resort & Racquet Club.
"Resort Interests" shall mean as defined in the Club Trust
Agreement.
"Responsible Officer" shall mean (a) when used with respect to the
Owner Trustee or the Indenture Trustee, any officer assigned to the Owner
Trustee Corporate Trust Office or the Corporate Trust Office, respectively,
including any Managing Director, Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Assistant Treasurer, any trust officer or any
other officer such Person customarily performing functions similar to those
performed by any of the above designated officers, and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and
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familiarity with the particular subject; (b) when used with respect to the
Servicer, the Chief Financial Officer, a Vice President, an Assistant Vice
President, the Chief Accounting Officer or the Secretary of the Servicer; and
(c) with respect to any other Person, the chairman of the board, chief financial
officer, the president, a vice president, the treasurer, an assistant treasurer,
the secretary, an assistant secretary, the controller, general partner, trustee
or the manager of such Person.
"S&P" shall mean Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Sale Agreement" shall mean that certain sale agreement, dated as
of November 15, 2002, between the Depositor and the Issuer pursuant to which
the Depositor sells Timeshare Loans to the Issuer.
"Schedule of Timeshare Loans" shall mean the list of Timeshare Loans
delivered pursuant to the Sale Agreement, as amended from time to time to
reflect repurchases, substitutions and Qualified Substitute Timeshare Loans
conveyed pursuant to the terms of the Indenture, which list shall set forth the
following information with respect to each Timeshare Loan as of the related
Cut-Off Date, as applicable, in numbered columns:
1 Name of Obligor
2 Condo Ref/Loan Number
3 Interest Rate Per Annum
4 Date of Origin
5 Maturity
6 Sales Price
7 Monthly Payment
8 Original Loan Balance
9 Original Term
10 Outstanding Loan Balance
11 Down Payment
12 First payment date
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sellers" shall mean with respect to (i) the Purchase Agreement,
Bluegreen, (ii) the BXG Trust 2001-A Transfer Agreement, BXG Trust 2001-A and
(iii) the BXG Trust 2000 Transfer Agreement, BXG Trust 2000.
"Sequential Pay Event" shall mean either a Payment Default Event
or a Trust Estate Liquidation Event.
"Servicer" shall mean Bluegreen in its capacity as servicer under
the Indenture, the Backup Servicing Agreement and the Custodial Agreement,
and its permitted successors and assigns.
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"Servicer Event of Default" shall have the meaning specified in
Section 5.4 of the Indenture.
"Servicing Fee" shall mean for any Payment Date, the product of
(i)(A) if Bluegreen or an affiliate thereof is Servicer, one-twelfth of 1.50%
and (B) if the Indenture Trustee is the successor Servicer, one-twelfth of
2.05%, and (ii) the Aggregate Loan Balance as of the first day of the related
Due Period; provided that if the Indenture Trustee is the successor Servicer,
it shall, after payment of the Backup Servicing Fee, be entitled to a minimum
monthly payment of $5,500.00.
"Servicing Officer" shall mean those officers of the Servicer
involved in, or responsible for, the administration and servicing of the
Timeshare Loans, as identified on the list of Servicing Officers furnished by
the Servicer to the Indenture Trustee and the Noteholders from time to time.
"Servicing Standard" shall mean, with respect to the Servicer and
the Backup Servicer, a servicing standard which complies with applicable law,
the terms of the respective Timeshare Loans and, to the extent consistent with
the foregoing, in accordance with the customary standard of prudent servicers of
loans secured by timeshare interests similar to the Timeshare Properties, but in
no event lower than the standards employed by it when servicing loans for its
own account or other third parties, but, in any case, without regard for (i) any
relationship that it or any of its Affiliates may have with the related Obligor,
and (ii) its right to receive compensation for its services hereunder or with
respect to any particular transaction.
"Servicer Termination Costs" shall mean any extraordinary
out-of-pocket expenses incurred by the Indenture Trustee associated with the
transfer of servicing.
"Similar Law" shall mean the prohibited transaction rules under
ERISA or section 4975 of the Code or any substantially similar provision of
federal, state or local law.
"Stated Maturity" shall mean the Payment Date occurring in September
2014.
"Statutory Trust Statute" shall mean the Delaware Statutory Trust
Act, Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.[Section]3801, et
seq., as the same may be amended from time to time.
"Subsequent Cut-Off Date" shall mean with respect to any Transfer
Date, (i) the close of business on the last day of the Due Period immediately
preceding such Transfer Date or (ii) such other date designated by the Servicer.
"Substitution Shortfall Amount" shall mean with respect to any
Transfer Date, an amount equal to the excess of the aggregate Loan Balances of
the substituted Timeshare Loans over the aggregate Loan Balances of the
Qualified Substitute Timeshare Loans.
"Timeshare Declaration" shall mean the declaration or other document
recorded in the real estate records of the applicable municipality or government
office where a Resort is
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located for the purpose of creating and governing the rights of owners of
Timeshare Properties related thereto, as it may be in effect from time to
time.
"Timeshare Loan" shall mean a Club Loan, Aruba Loan, or a Qualified
Substitute Timeshare Loan, subject to the lien of the Indenture. As used in the
Transaction Documents, the term "Timeshare Loan" shall include the related
Mortgage Note, Mortgage, the Finance Agreement and other Related Security
contained in the related Timeshare Loan Documents.
"Timeshare Loan Acquisition Price" shall mean with respect to any
Timeshare Loan, an amount equal to the Loan Balance of such Timeshare Loan
plus accrued and unpaid interest thereon up to and including the Initial
Cut-Off Date.
"Timeshare Loan Documents" shall mean with respect to each Timeshare
Loan and each Obligor, the related (i) Timeshare Loan Files, and (ii) Timeshare
Loan Servicing Files.
"Timeshare Loan Files" shall mean, with respect to a Timeshare Loan,
the Timeshare Loan and all documents related to such Timeshare Loan, including:
1. with respect to a Club Loan, the original Mortgage Note with
the related allonge or other assignment attached as required
by the Custodial Agreement, signed (which may be by facsimile)
by an Authorized Officer of the Club Originator or the
Indenture Trustee or other party as appropriate and showing a
complete chain of endorsements from the original payee of the
Mortgage Note to the Indenture Trustee: "Pay to the order of
__________, without recourse representation or warranty";
2. with respect to a Club Loan, the original recorded or
unrecorded Mortgage with evidence of delivery for filing (or,
if the original of the recorded or unrecorded Mortgage is not
available, a copy of such recorded or unrecorded Mortgage
(with evidence of delivery for filing), in each case certified
by an Authorized Officer of the Club Originator to be a true
and correct copy);
3. with respect to a Club Loan, an original recorded or
unrecorded Assignment of Mortgage (which may be a part of a
blanket assignment of more than one Club Loan), from the Club
Originator to the Indenture Trustee, with evidence of proper
recordation, if applicable, signed by an Authorized Officer of
the Club Originator (or evidence from a third party that such
assignment has been submitted for recordation);
4. with respect to a Club Loan, the UCC financing statement, if
any, evidencing that the security interest granted under such
Timeshare Loan, if any, has been perfected under applicable
state law;
5. with respect to a Club Loan, a copy of any recorded or
unrecorded warranty deed transferring legal title to the
related Timeshare Property to the Club Trustee;
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6. with respect to a Club Loan, an original lender's title
insurance policy or title commitment or master policy
referencing such Timeshare Loan and covering the Indenture
Trustee for the benefit of the Noteholders;
7. the original of any related assignment or guarantee or, if
such original is unavailable, a copy thereof certified by an
Authorized Officer of the Club Originator to be a true and
correct copy, current and historical computerized data files;
8. the original of any assumption agreement or any refinancing
agreement;
9. all related owner beneficiary agreements, finance applications
(including related Finance Agreements, if applicable), ACH
forms, sale and escrow documents executed and delivered by the
related Obligor with respect to the purchase of a Timeshare
Property;
10. all other papers and records of whatever kind or description,
whether developed or originated by an Originator or another
Person, required to document, service or enforce a Timeshare
Loan; and
11. any additional amendments, supplements, extensions,
modifications or waiver agreements required to be added to the
Timeshare Loans Files pursuant to the Indenture, the Credit
Policy or the other Transaction Documents.
"Timeshare Loan Rate" shall mean with respect to any Timeshare Loan,
the specified coupon rate thereon.
"Timeshare Loan Servicing Files" shall mean with respect to each
Timeshare Loan and each Obligor, the portion of the Timeshare Loan Files
necessary for the Servicer to service such Timeshare Loan including but not
limited to (i) the original truth-in-lending disclosure statement executed by
such Obligor, as applicable, (ii) all writings pursuant to which such
Timeshare Loan arises or which evidences such Timeshare Loan and not
delivered to the Custodian, (iii) all papers and computerized records
customarily maintained by the Servicer in servicing timeshare loans
comparable to the Timeshare Loans in accordance with the Servicing Standard
and (iv) each Timeshare Program Consumer Document and Timeshare Program
Governing Document Declaration, if applicable, related to the applicable
Timeshare Property.
"Timeshare Program" shall mean the program under which (1) an
Obligor has purchased a Timeshare Property and (2) an Obligor shares in the
expenses associated with the operation and management of such program.
"Timeshare Program Consumer Documents" shall mean, as applicable,
the Owner Beneficiary Agreement, Finance Agreement, Mortgage Note, Mortgage,
credit disclosures, rescission right notices, final subdivision public
reports/prospectuses/public offering statements, the Timeshare Project
exchange affiliation agreement and other documents, disclosures and
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advertising materials used or to be used by an Originator in connection with
the sale of Timeshare Properties.
"Timeshare Program Governing Documents" shall mean the articles of
organization or articles of incorporation of each Association, the rules and
regulations of each Association, the Timeshare Program management contract
between each Association and a management company, and any subsidy agreement by
which an Originator is obligated to subsidize shortfalls in the budget of a
Timeshare Program in lieu of paying assessments, as they may be from time to
time in effect and all amendments, modifications and restatements of any of the
foregoing.
"Timeshare Projects" shall mean the part of the Resorts described in
Exhibit C to the Sale Agreement related to any Timeshare Loan.
"Timeshare Property" shall mean (i) with respect to a Club Loan,
a fractional fee simple timeshare interest in a Unit in a Resort entitling
the related Obligor to the use and occupancy of a Unit at the Resort for a
specified period of time each year or every other year in perpetuity and (ii)
with respect to an Aruba Loan, shares in the related Association at the La
Cabana Beach Resort & Racquet Club in Aruba entitling the related Obligor to
the use and occupancy of a fixed Unit at such Resort for a fixed period of
time each year or every other year for the duration of the long-term lease of
such resort.
"Transaction Documents" shall mean the Indenture, the Purchase
Agreement, the Transfer Agreements, the Sale Agreement, the Lockbox Agreement,
the Backup Servicing Agreement, the Administration Agreement, the Custodial
Agreement, the Note Purchase Agreement and all other agreements, documents or
instruments delivered in connection with the transactions contemplated thereby.
"Transfer Agreements" shall mean the BXG Trust 2000 Transfer
Agreement and the BXG Trust 2001-A Transfer Agreement.
"Transfer Date" shall mean the date on which the Club Originator or
the Depositor, as the case may be, substitutes one or more Timeshare Loans in
accordance with Section 4.4 of the Indenture.
"Treasury Regulations" shall mean the regulations, included proposed
or temporary regulations, promulgated under the Code. References herein to
specific provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean the Issuer.
"Trust Accounts" shall mean collectively, the Lockbox Account, the
Collection Account and the General Reserve Account, the Class D Reserve Account
and the Closing Date Delinquency Reserve Account.
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"Trust Agreement" shall mean the trust agreement, dated as of
November 15, 2002, by and among Bluegreen Receivables Finance Corporation VI,
GSS Holdings, Inc. and Wilmington Trust Company.
"Trust Certificate" shall mean the certificate issued under the
Trust Agreement, which represents the sole equity interest in the Trust
formed hereunder.
"Trust Company" shall have the meaning specified in the Trust
Agreement.
"Trust Estate" shall have the meaning specified in the Granting
Clause of the Indenture.
"Trust Estate Liquidation Event" shall have the meaning specified in
Section 6.6(b) of the Indenture.
"Trust Paying Agent" shall have the meaning specified in Section
3.13 of the Trust Agreement.
"UCC" shall mean the Uniform Commercial Code as from time to time
in affect in the applicable jurisdiction or jurisdictions.
"Unit(s)": One individual air-space condominium unit, cabin,
villa, cottage or townhome within a Resort, together with all furniture,
fixtures and furnishings therein, and together with any and all interests in
common elements appurtenant thereto, as provided in the related Timeshare
Program Governing Documents.
"Upgraded Club Loan" shall mean either (A) a Club Loan for which the
related Obligor has elected to (i) reconvey the existing Club Property to the
Developer in exchange for a new Club property, and (ii) cancel such Club Loan in
exchange for a new Timeshare Loan from the Club Originator secured by such new
Club Property, or (B) a Club Loan for which the related Obligor has elected to
(i) acquire additional Club Property and (ii) cancel such Club Loan in exchange
for a new Timeshare Loan secured by the existing Club Property and the
additional Timeshare Property.
"Vacation Points" shall have the meaning specified in the Club Trust
Agreement.
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Schedule I
Representations and Warranties of the Depositor Regarding the Timeshare Loans
With respect to each Timeshare Loan, as of the related Closing Date or Transfer
Date, as applicable:
(a) except if such Timeshare Loan is listed on Schedule 11(a) hereof,
payments due under the Timeshare Loan are fully-amortizing and
payable in level monthly installments;
(b) payment obligations under the Timeshare Loan bears 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, the Depositor or an Affiliate thereof;
(d) as of the related Cut-Off Date, no principal or interest due with
respect to the Timeshare Loan is sixty (60) 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";
(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, 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 create a valid, binding and enforceable first Lien on
the related Timeshare Property and such Mortgage
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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 related 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, and, only one Finance
Agreement, in the case of an Aruba Loan; all parties to the related
Mortgage and the related Mortgage Note (and, in the case of an Aruba
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 a Depositor, in the case of the 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 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, 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;
(l) the related Mortgage Note is not and has not been secured by any
collateral except the Lien of the related Mortgage;
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(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 assignee 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 has 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 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,
maintain and continue a valid first priority Lien of the related
Mortgage, subject only to Permitted Liens;
I-3
(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; to the Depositor's
Knowledge, 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 60 (sixty) 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) the Timeshare Loan has not been satisfied, canceled, rescinded or
subordinated, in whole or in part; no portion of the 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
I-4
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 are 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) 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 (other than at the La Cabana Beach
Resort & Racquet Club in Aruba) 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; the
Resort (other than the La Cabana Beach Resort & Racquet Club in
Aruba), 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; each
Resort has business interruption insurance and general liability
insurance in such amounts generally acceptable in the industry; each
Resort's insurance policies are in full force and effect with a
generally acceptable insurance carrier;
(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
I-5
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;
(hh) except if such Timeshare Loan is listed on Schedule II(hh) hereof,
the original Loan Balance of such Timeshare Loan does not exceed
$25,000;
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(ii) payments with respect to the Timeshare Loan are to be in legal
tender of the United States;
(jj) all monthly payments 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 a Resort;
(11) 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 off 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 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) except if such Timeshare Loan is listed on Schedule II(qq) hereof,
the Timeshare Loan shall not have a Timeshare Loan Rate less than
12.90% per annum;
I-7
(rr) except if such Timeshare Loan is listed on Schedule II(rr) hereof,
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 the 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 on
Schedule II and Schedule III hereof is true and correct. Each entry
with respect to a Qualified
I-8
Substitute Timeshare Loan as set forth on Schedule II and Schedule
III hereof, as revised, is true and correct;
(ddd) if the Timeshare Loan relates to a Timeshare Property located in
Aruba, a notice has been mailed or will be mailed by December 31,
2002 (with respect to Timeshare Loans sold on the Closing Date) or
within 30 days of the Transfer Date, as applicable, to the related
Obligor indicating that such Timeshare Loan has been transferred to
the Purchaser and will ultimately be transferred to the Issuer and
pledged to the Indenture Trustee for the benefit of the Noteholders;
and
(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, and
such ACH Form is included in the related Timeshare Loan File.
I-9
