1
EXHIBIT 10.105
EXECUTION COPY
================================================================================
SALE AND CONTRIBUTION AGREEMENT
AMONG
THE PERSONS IDENTIFIED ON THE SIGNATURE PAGES HERETO AS SELLERS
AND
BLUEGREEN RECEIVABLES FINANCE CORPORATION IV,
AS THE TRUST DEPOSITOR
DATED AS OF SEPTEMBER 1, 2000
================================================================================
2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.......................................................................................................2
SECTION 1.01. GENERAL..................................................................................2
SECTION 1.02. OTHER INTERPRETIVE PROVISIONS............................................................2
ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT....................................................................2
SECTION 2.01. CLOSING OF PURCHASES.....................................................................2
SECTION 2.02. ASSIGNMENT OF RIGHTS UNDER AGREEMENT.....................................................3
SECTION 2.03. CONVEYANCE OF SUBSEQUENT AND SUBSTITUTE RECEIVABLES......................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES....................................................................................5
ARTICLE IV
SELLERS AFFIRMATIVE AND NEGATIVE COVENANTS.......................................................................10
SECTION 4.01. RECORDS.................................................................................10
SECTION 4.02. USE OF NOTEHOLDERS' NAMES...............................................................10
SECTION 4.03. OTHER DOCUMENTS.........................................................................11
SECTION 4.04. SELLERS' DUES REQUIREMENT...............................................................11
SECTION 4.05. CONSOLIDATION AND MERGER................................................................11
SECTION 4.06. RECEIVABLES.............................................................................11
SECTION 4.07. COMPLIANCE WITH LAWS....................................................................11
SECTION 4.08. ENVIRONMENTAL COMPLIANCE................................................................11
SECTION 4.09. NOTICES TO OBLIGORS.....................................................................13
SECTION 4.10. COMPLIANCE WITH COLLECTION POLICIES.....................................................13
SECTION 4.11. COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS..........................................13
ARTICLE V
PERFECTION OF TRANSFER AND PROTECTION OF BACK-UP SECURITY INTERESTS..............................................14
SECTION 5.01. CUSTODY OF RECEIVABLES..................................................................14
SECTION 5.02. FILING..................................................................................14
SECTION 5.03. NAME CHANGE OR RELOCATION...............................................................14
SECTION 5.04. CHIEF EXECUTIVE OFFICE..................................................................15
SECTION 5.05. COSTS AND EXPENSES......................................................................15
SECTION 5.06. SALE TREATMENT..........................................................................15
ARTICLE VI
REMEDIES UPON MISREPRESENTATION..................................................................................15
-i-
3
SECTION 6.01. REPURCHASES AND SUBSTITUTIONS OF RECEIVABLES FOR BREACH OF
REPRESENTATIONS AND WARRANTIES..........................................................15
SECTION 6.02. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED RECEIVABLES..................................16
ARTICLE VII
INDEMNITIES......................................................................................................16
SECTION 7.01. SELLERS INDEMNIFICATION.................................................................16
SECTION 7.02. LIABILITIES TO OBLIGORS.................................................................17
ARTICLE VIII
MISCELLANEOUS....................................................................................................17
SECTION 8.01. MERGER OR CONSOLIDATION.................................................................17
SECTION 8.02. TERMINATION.............................................................................17
SECTION 8.03. ASSIGNMENT OR DELEGATION BY THE SELLERS.................................................17
SECTION 8.04. AMENDMENT...............................................................................17
SECTION 8.05. NOTICES.................................................................................18
SECTION 8.06. MERGER AND INTEGRATION..................................................................18
SECTION 8.07. HEADINGS................................................................................19
SECTION 8.08. GOVERNING LAW...........................................................................19
SECTION 8.09. NO BANKRUPTCY PETITION..................................................................19
SECTION 8.10. SEVERABILITY OF PROVISIONS..............................................................19
SECTION 8.11. NO WAIVER; CUMULATIVE REMEDIES..........................................................19
SECTION 8.12. COUNTERPARTS............................................................................19
SECTION 8.13. INTENDED CHARACTERIZATION...............................................................19
SECTION 8.14. SELLERS.................................................................................20
EXHIBITS
Exhibit A Form of Sale Assignment
Exhibit B Form of Subsequent Purchase Agreement
Exhibit C Form of Allonge
Exhibit D Form of Substitute Receivables Purchase Agreement
SCHEDULES
Schedule I Seller Addresses
Schedule II Tradenames
-ii-
4
SALE AND CONTRIBUTION AGREEMENT
This Sale and Contribution Agreement, dated as of September 1, 2000, is
made by and among the Persons identified on the signature pages hereto as
Sellers, (together with their permitted successors and assigns, each a "SELLER"
and collectively, the "SELLERS") and Bluegreen Receivables Finance Corporation
IV, a Delaware corporation (together with its permitted successors and assigns,
the "TRUST DEPOSITOR").
WHEREAS, in the regular course of its business, the Sellers originate
and purchase Receivables;
WHEREAS, the Trust Depositor has been established as a
bankruptcy-remote entity owned by the Sellers for the purpose of the Sellers'
selling and/or contributing to it from time to time Receivables and related
assets owned by the Sellers in accordance with the terms of this Agreement;
WHEREAS, the Sellers and Trust Depositor wish to set forth the terms
and conditions pursuant to which Trust Depositor will acquire such Receivables
(including Subsequent Receivables) and related assets; and
WHEREAS, Trust Depositor intends concurrently with each transfer of
Assets hereunder to sell, transfer and otherwise absolutely convey all right,
title and interest in and to the Assets to the Trust pursuant to the Sale and
Servicing Agreement dated as of the date hereof by and among Trust Depositor,
the Trust, Bluegreen Corporation, in its capacity as Servicer, Concord Servicing
Corporation, as Back-up Servicer, Vacation Trust, Inc., as club trustee, Xxxxxx
Financial, Inc., as Facility Administrator, the Noteholders and U.S. Bank Trust
National Association, as Indenture Trustee and Custodian (as amended,
supplemented or otherwise modified from time to time, the "SALE AND SERVICING
AGREEMENT"), executed concurrently herewith;
WHEREAS, the Sellers and Trust Depositor wish to set forth the terms
and conditions pursuant to which (i) the Sellers will sell, transfer and
otherwise absolutely convey the Assets to Trust Depositor, and (ii) the
Receivables Files, deeds and other instruments, certificates, books, records and
information of any kind relating to the Assets referred to in the foregoing
clause (i) and from time to time sold and purchased hereunder and under the Sale
and Servicing Agreement and transferred to the Custodian (as custodian and agent
for the Indenture Trustee) under the Custodian Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the Sellers and Trust Depositor agree as
follows:
-1-
5
ARTICLE I
DEFINITIONS
SECTION 1.01 GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) have the
meanings assigned to them in the Definitions Annex to the Sale and Servicing
Agreement.
SECTION 1.02 OTHER INTERPRETIVE PROVISIONS. Except to the extent
otherwise specified in the particular term or provision at issue, this Agreement
shall be interpreted and construed in accordance with the Document Conventions.
ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT
SECTION 2.01 CLOSING OF PURCHASES. During the Purchase Period, no later
than twenty (20) days prior to each Purchase Date (or such shorter period to
which Trust Depositor shall agree), the Sellers shall notify the Trust Depositor
of the intent to effect a Purchase and the proposed Purchase Date thereof.
During the Purchase Period, no later than two (2) Business Days prior to each
Purchase Date (or such shorter period to which Trust Depositor shall agree), the
Sellers will deliver or cause to be delivered to Trust Depositor a notice
specifying all outstanding Eligible Receivables currently owned by the Sellers
which the Sellers wish to sell, transfer and absolutely assign pursuant to this
Agreement, together with the information described in Exhibit A to the Sale and
Servicing Agreement with respect thereto through such day. On or prior to the
Purchase Date, Trust Depositor will notify the Sellers of the Eligible
Receivables it will purchase (the "PURCHASED RECEIVABLES") on such date and the
cash purchase price (the "SALE PRICE") it will pay for such purchase. To the
extent that there is no Sale Price or the cash portion of the Sale Price for the
Purchased Receivables is less than the fair market value thereof, the difference
shall be deemed a capital contribution by the Sellers to the Trust Depositor.
The Sellers and Trust Depositor shall enter into a certificate of assignment
(the "SALE ASSIGNMENT"), dated as of each Purchase Date, substantially in the
form of EXHIBIT A hereto, identifying all Purchased Receivables being conveyed
on such date and the Sellers shall execute an allonge (or other assignment in
the case of Aruba Receivables) in the form of EXHIBIT C attached hereto with
respect to Purchased Receivables sold hereunder. The Sale Price shall be payable
by Trust Depositor in full by wire transfer on the Purchase Date to an account
designated by the Sellers to Trust Depositor on or before the Purchase Date.
Concurrent with the payment of the Sale Price, if any, for Purchased
Receivables and execution of the Sale Assignment, the Sellers shall have, and
shall be deemed for all purposes to have sold, transferred, assigned, set over
and otherwise conveyed to Trust Depositor, in consideration therefor without
recourse, representation or warranty other than as expressly provided in the
Transaction Documents, all the Sellers' rights, title and interest in and to the
following (items (i) - (vi) below, collectively, being referred to as the
"ASSETS"):
-2-
6
(i) the Purchased Receivables identified by Trust Depositor to
the Sellers as described above, and all payments of interest and
principal, other Collections thereon and monies received, due or to
become due in payment of such Purchased Receivables, after the
applicable Cutoff Date;
(ii) the Mortgages and other instruments or documents, if any,
securing such Receivables;
(iii) the related Receivable Files;
(iv) all payments made or to be made after the Cutoff Date
with respect to such Purchased Receivables or the Obligor thereunder
under any guarantee or similar credit enhancement with respect to such
Purchased Receivables;
(v) all Insurance Proceeds with respect to each such Purchased
Receivable; and
(vi) all income from and proceeds of the foregoing arising
after the applicable Cutoff Date.
The foregoing sale, transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an assumption by
Trust Depositor (or any assignee thereof) of any obligation of the Sellers in
connection with the Assets, or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligor or any other
Person, or (i) any taxes, fees, or other charges imposed by any Governmental
Authority and (ii) any insurance premiums which remain owing with respect to any
Receivable at the time such Receivable is sold hereunder.
SECTION 2.02. ASSIGNMENT OF RIGHTS UNDER AGREEMENT. Trust Depositor has
the right to assign its interest under this Agreement to the Trust, which shall
in turn assign its interest under this Agreement to the Indenture Trustee for
the benefit of the Noteholders as may be required to effect the purposes of the
Sale and Servicing Agreement and the Indenture, without further notice to, or
consent of, the Sellers, and the Trust and the Indenture Trustee for the benefit
of the Noteholders shall succeed to such of the rights of Trust Depositor
hereunder as shall be so assigned. The Sellers acknowledge that, pursuant to the
Sale and Servicing Agreement, Trust Depositor will sell and assign all of its
right, title and interest in and to the Assets conveyed hereunder, including but
not limited to, its right to exercise the remedies created by Section 6.01
hereof for breaches of representations and warranties of the Sellers contained
in Article III hereof to the Trust, which shall in turn assign such right, title
and interest to the Indenture Trustee for the benefit of the Noteholders as well
as any other covenants or representations or warranties made by the Sellers
hereunder. The Sellers agree that, upon such assignment to the Trust and the
Indenture Trustee for the benefit of the Noteholders, such remedies, covenants
and representations, including the repurchase obligations of Sellers with
-3-
7
respect to breaches of such representations set forth herein and in Section 6.5
of the Sale and Servicing Agreement, will run to and be for the benefit of the
Trust and the Indenture Trustee for the benefit of the Noteholders and their
respective assignees and the Trust, the Indenture Trustee or such assignee may
enforce the same directly without joinder of Trust Depositor.
SECTION 2.03. CONVEYANCE OF SUBSEQUENT AND SUBSTITUTE RECEIVABLES.
Subject to the satisfaction of the conditions set forth in Section 2.7 of the
Sale and Servicing Agreement, the Sellers may at their option (but shall not be
obligated to) sell, transfer, assign, set over and otherwise convey to Trust
Depositor (by delivery of an executed Subsequent Transfer Agreement
substantially in the form attached as EXHIBIT B hereto or, in the case of
Substitute Receivables, by delivery of an executed Substitute Transfer Agreement
substantially in the form attached as EXHIBIT D hereto), without recourse,
representation or warranty other than as expressly provided in the Transaction
Documents (and in consideration of Trust Depositor's concurrent transfer of
property, by exchange of one or more related Receivables released by the Trust
to Trust Depositor on the Subsequent Transfer Date, in the case of a Subsequent
Receivable which is a Substitute Receivable) all the right, title and interest
of the Sellers in and to the following (the property in clauses (i) - (vi)
below, collectively upon such transfer, becoming part of the "ASSETS"):
(i) the Subsequent Receivables (or Substitute Receivables)
identified in the related Addition Notice, all payments of interest and
principal, other Collections thereon and monies received, due or to
become due in payment of such Subsequent Receivables (or Substitute
Receivables) after the applicable Cutoff Date;
(ii) the Mortgages and other instruments or documents, if any,
securing such Subsequent Receivables (or Substitute Receivables);
(iii) the related Receivable Files;
(iv) all payments made or to be made after the Cutoff Date
with respect to such Subsequent Receivables (or Substitute Receivables)
or the Obligor thereunder under any guarantee or similar credit
enhancement with respect to such Subsequent Receivables (or Substitute
Receivables);
(v) all Insurance Proceeds with respect to each such
Subsequent Receivable (or Substitute Receivable); and
(vi) all income from and proceeds of the foregoing arising
after the applicable Cutoff Date.
To the extent that the property delivered by Trust Depositor to the Sellers in
exchange for the Subsequent Receivables (or Substitute Receivables) and related
Assets being conveyed has a value less than the fair market value of such
Subsequent Receivables (or Substitute Receivables) and related Assets, the
difference, shall be deemed a capital contribution by the Sellers to Trust
Depositor in respect of such Subsequent Receivables (or Substitute Receivables).
-4-
8
Any such sale, transfer, assignment, set-over and conveyance shall not
constitute and is not intended to result in a creation or an assumption by Trust
Depositor (or any assignee thereof) of any obligation of the Sellers in
connection with such Assets, or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligor or any other
Person, or (i) any taxes, fees, or other charges imposed by any Governmental
Authority and (ii) any insurance premiums which remain owing with respect to any
such Receivable at the time such Receivable is conveyed hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Pursuant to each Sale Assignment, the Sellers will make, and upon
execution of each Subsequent Purchase Agreement or Substitute Purchase Agreement
will be deemed to remake, the representations and warranties set forth herein
for the benefit of Trust Depositor, the Indenture Trustee and the Noteholders;
provided, however, with respect to the representations and warranties relating
to the Receivables, such representations and warranties shall be made only on
their date of purchase hereunder. It is understood and agreed that the
representations and warranties in this Article III shall survive the conveyance
of the Purchased Receivables to Trust Depositor, any conveyance of the Purchased
Receivables by Trust Depositor to the Trust and any conveyance of any interest
therein to the Indenture Trustee for the benefit of the Noteholders and shall
continue so long as any Purchased Receivable shall remain outstanding. The
repurchase (or, in the alternative, substitution) obligation of the Sellers set
forth in Section 6.01 below constitutes the sole remedy available for a breach
of a representation or warranty of the Sellers. The Sellers are not responsible
for and shall have no obligation with respect to the Obligors' payment
obligations under the Purchased Receivables, except with respect to Servicer
Advances as and to the extent provided in the Transaction Documents and
obligations under Section 6.01 hereof with respect to breaches of
representations and warranties, when made, relating to the Receivables;
provided, however, this sentence shall not be construed to limit, in any manner,
any other Seller obligation under the Transaction Documents.
On the Closing Date, upon the effectiveness of each conveyance of
Assets hereunder each Seller makes, upon each conveyance of Subsequent
Receivables under a Subsequent Purchase Agreement and upon each conveyance of
Substitute Receivables under a Substitute Purchase Agreement, each Seller will
be deemed to remake, the following representations and warranties:
(a) ORGANIZATION AND GOOD STANDING. Each Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement and each other
Transaction Document to which it is a party.
-5-
9
(b) DUE QUALIFICATION. Each Seller is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals, in
each jurisdiction in which failure to so qualify or to obtain such licenses and
approvals would have a material adverse effect on its ability to perform its
obligations hereunder.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement and each other Transaction Document to which it is a party, and the
consummation of the transactions provided for herein and therein, have been duly
authorized by each Seller by all necessary corporate action on the part of such
Seller.
(d) NO CONFLICT. The execution and delivery of this Agreement
and each other Transaction Document to which such Seller is a party, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
material indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which any Seller is a party (or by which they or any of their
property are bound).
(e) NO VIOLATION. The execution and delivery by the Sellers of
this Agreement and each other Transaction Document to which it is a party, the
performance of the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof (including, without limitation, the
sale of Assets by the Sellers in accordance with the provisions of this
Agreement) will not conflict with or violate, in any material respect, any
Requirements of Law applicable to any Seller.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Sellers, threatened against any Seller,
before any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement or
any other Transaction Document, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or any other Transaction
Document or (iii) seeking any determination or ruling that could reasonably be
expected to be adversely determined, and if adversely determined, would
materially and adversely affect the performance by the Sellers of their
obligations under this Agreement or any other Transaction Document.
(g) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
required in connection with the Sellers' execution and delivery of this
Agreement and the other Transaction Documents to which it is a party, the
performance of the transactions contemplated hereby and thereby, and the
fulfillment of the terms hereof and thereof, have been obtained.
(h) BULK SALES. The execution, delivery and performance of
this Agreement do not require compliance with any "bulk sales" law by the
Sellers.
-6-
10
(i) SOLVENCY. After giving effect to the transactions under
this Agreement, each Seller will be Solvent.
(j) SELECTION PROCEDURES. No selection procedures believed by
the Sellers to be materially adverse to the interests of Trust Depositor, the
Trust or the Noteholders were utilized by the Sellers in selecting the
Receivables constituting part of the Assets being sold hereunder.
(k) TAXES. The Sellers have filed or caused to be filed all
tax returns which, to their knowledge, are required to be filed and have paid
all taxes shown to be due and payable on such returns or on any assessments made
against them or any of their or their subsidiaries property and all other taxes,
fees or other charges imposed on them or any of their property by any
Governmental Authority (other than any amount of tax due the validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in accordance with generally accepted accounting
principles have been provided on the books of the Sellers); no tax lien has been
filed and, to the Sellers' knowledge, no claim is being asserted, with respect
to any such tax, fee or other charge, except for such liens, fees or other
charges which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the Receivables or any Seller's
ability to perform its obligations under this Agreement or the other Transaction
Documents.
(l) MARGIN STOCK. No Seller is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any Margin Stock. No Seller
owns any Margin Stock, and none of the proceeds of any Purchase will be used,
directly or indirectly, for the purpose of purchasing or carrying any Margin
Stock, for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any portion of such proceeds to be a "purpose credit"
within the meaning of Regulations T, U or X of the Federal Reserve Board. No
Seller will take or permit to be taken any action which might cause any
Transaction Document to violate any regulation of the Federal Reserve Board.
Notwithstanding the foregoing, this Agreement shall not limit Bluegreen's
ability to repurchase shares of its common stock so long as it is otherwise done
in compliance with the terms hereof.
(m) TITLE; PRIOR LIENS WITH RESPECT TO THE RESORTS AND
ADDITIONAL RESORTS. Sellers and their Subsidiaries have good and marketable
title to the Resorts or Additional Resorts (excluding sold Intervals and any
equitable rights of Obligors under applicable state law to the Units under any
conditional land sales contracts which relate to any Assets).
(n) ACCESS. The Resorts and Additional Resorts relating to the
Assets, have direct access to a publicly dedicated road over a recorded easement
and all roadways, if any, inside the Resorts and Additional Resorts are or will
be common areas under the declaration after the first purchase of Receivables
originated at such Resort or Additional Resort.
(o) UTILITIES. Electric, gas, sewer, water facilities and
other necessary utilities are lawfully available in sufficient capacity to
service the Units relating to the Intervals in the Resorts and Additional
-7-
11
Resorts relating to the Receivables and any easements necessary to the
furnishing of such utility service have been obtained and duly recorded.
(p) AMENITIES. All amenities described in the sales prospectus
and the "PUBLIC REPORTS" for the Resorts and Additional Resorts relating to the
Receivables are completed, or will be completed in all material respects, in the
time periods described in the "PUBLIC REPORTS", or a bond insuring their
completion has been posted. Each Obligor has or will have in the time period
described in the applicable "PUBLIC REPORTS" access to and the use of all of the
amenities and public utilities of the Resorts and the Additional Resorts
relating to the Receivables as and to the extent provided in the Declaration and
the "PUBLIC REPORTS".
(q) LOCATION OF OFFICES. The principal place of business and
chief executive office of each Seller, and the office where each Seller keeps
all the Records, are located at the addresses of such Seller referred to on
SCHEDULE I hereof (or at such other locations as to which the notice and other
requirements specified herein shall have been satisfied).
(r) TRADENAMES. Except as described in SCHEDULE II, no Seller
has trade names, fictitious names, assumed names or "DOING BUSINESS AS" names or
other names under which either has done or is doing business.
(s) ACCOUNTING. Each Seller accounts for the transfer from
such Seller of interests in the Assets hereunder as sales of such Assets in its
books, records and financial statements, in each case consistent with GAAP and
with the requirements set forth herein.
(t) INVESTMENT COMPANY AND PUBLIC UTILITY HOLDING COMPANY. No
Seller is an "INVESTMENT COMPANY" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended, or a "HOLDING
COMPANY" or a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(u) REPRESENTATIONS AND WARRANTIES OF THE SELLERS RELATING TO
THE AGREEMENT AND THE RECEIVABLES.
The Sellers hereby represent and warrant to the Trust Depositor that,
as of the Closing Date, each Purchase Date and as of each Subsequent Transfer
Date:
(i) BINDING OBLIGATION; VALID SALE AND TRANSFER OF OWNERSHIP;
PRECAUTIONARY GRANT OF SECURITY INTEREST.
(A) This Agreement and each other Transaction
Document to which any Seller is a party constitutes a legal,
valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general
-8-
12
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
law).
(B) The Sellers have good and marketable title to
each Asset free and clear of any Lien, except Permitted Liens,
of any Person and are the sole owners thereof and have full
right to transfer the Assets to the Trust Depositor and to
permit the Trust Depositor to transfer the same to the Trust.
(C) It is the expressed intention of Sellers and
Trust Depositor that this Agreement constitutes an irrevocable
true sale and absolute transfer of ownership from Sellers to
Trust Depositor of all right, title and interest of Sellers to
Trust Depositor in, to and under the Assets, and that such
transfer be free and clear of any Lien of any Person claiming
through or under the Sellers or their Affiliates, except for
Permitted Liens. Nevertheless, in the event a court of
competent jurisdiction were to determine that the transactions
contemplated by this Agreement constitute a secured financing
rather than a true sale, each Seller hereby grants, as a
precautionary measure, a security interest in such Assets to
the Trust Depositor. Upon the filing of the financing
statements described in Section 13.12 of the Sale and
Servicing Agreement, the Trust shall have a first priority
perfected security interest in such property, subject only to
Permitted Liens. Neither the Sellers nor any Person claiming
through or under Sellers or their Affiliates shall have any
claim to or interest in any of the Trust Accounts, except to
the extent set forth in Sections 2.11(a) and (b) of the Sale
and Servicing Agreement, as applicable, and, if,
notwithstanding the expressed intention of the parties hereto,
this Agreement constitutes the grant of a security interest
(for collateral purposes) in such property, except for the
interest of Sellers in such property as a debtor for purposes
of the UCC.
(ii) RECEIVABLES. On each Purchase Date, the Sellers shall be
deemed to represent and warrant as of the applicable Cutoff Date solely
with respect to the Receivables being sold on such date:
(A) the List of Receivables and the Asset Report
delivered in connection therewith is an accurate and complete
listing in all material respects of all the Receivables in and
to become part of the Asset Pool as of the applicable Cutoff
Date and the information contained therein (including with
-9-
13
respect to the identity of such Receivables, Obligors thereon,
and the amounts owing thereunder) is true and correct in all
material respects as of the applicable Cutoff Date,
(B) each Receivable is evidenced by one original and
was originated in compliance in all material respects with all
Requirements of Law;
(C) each Receivable is an Eligible Receivable,
(D) each Receivable and the related Assets have been
transferred to the Trust Depositor free and clear of any Lien
of any Person (other than Permitted Liens) and in compliance,
in all material respects, with all Requirements of Law
applicable to any Seller, and
(E) with respect to each Receivable, all material
consents, licenses, approvals or authorizations of or
registrations or declarations with any Governmental Authority
required to be obtained, effected or given by any Seller in
connection with the transfer of such Receivable and the
related Assets to the Trust Depositor have been duly obtained,
effected or given and are in full force and effect.
(iii) NOTICE OF BREACH. Upon discovery by the Sellers or the
Trust Depositor of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written
notice to the other, the Indenture Trustee and the Facility
Administrator.
ARTICLE IV
SELLERS AFFIRMATIVE AND NEGATIVE COVENANTS
SECTION 4.01. RECORDS. Sellers shall keep adequate records and books of
account reflecting all financial transactions of Sellers relating to the Assets
and (to the extent available to the Sellers) the Time Share Associations,
including sales of Intervals, all in accordance with GAAP.
SECTION 4.02. USE OF NOTEHOLDERS' NAMES. Sellers will not, and will not
permit any Affiliate to, without the prior written consent of any Noteholder,
use the name of any Noteholder or the name of any Affiliates of any Noteholder
in connection with any of their respective businesses or activities, except in
connection with internal business matters, administration of the Transaction
-10-
14
Documents and as required in dealing with governmental agencies or any
applicable stock exchange including any reports required to be filed with the
Securities and Exchange Commission.
SECTION 4.03. OTHER DOCUMENTS. To the extent not maintained by the
Custodian or Servicer, Sellers will maintain accurate and complete files
relating to the Receivables and the related Assets to the satisfaction of Trust
Depositor and the Trust, and such files (to the extent not computerized) will
contain copies of each Receivable and the related assets together with the
purchase agreements, truth-in-lending statements, all relevant credit memoranda
and all collection information and correspondence relating to such Receivables.
SECTION 4.04. SELLERS' DUES REQUIREMENT. The Sellers for as long as any
Seller or one of its Subsidiaries controls the Resorts or Additional Resorts,
shall provide such monies as are necessary to maintain services for a Resort or
an Additional Resort which are equal to or greater than one hundred percent
(100%) of such Resorts' or Additional Resorts' total operating expenses, taxes,
utilities and associated reserve fund requirements.
SECTION 4.05. CONSOLIDATION AND MERGER. No Seller will consolidate with
or merge into any other Person or permit any other Person to consolidate with or
merge into them or convey all or substantially all of their respective assets to
any Person, unless (i) either such Seller shall be the surviving corporation or
the successor corporation or the Person which is the surviving or successor
corporation or which acquires by sale or conveyance substantially all the assets
of such Seller shall be a corporation organized under the laws of the United
States of America or any State thereof and shall expressly assume the due and
punctual performance and observance of all of the covenants and conditions of
this Agreement to be performed or observed by such Seller, by an amendment
hereto in form reasonably satisfactory to the Indenture Trustee and the Facility
Administrator, and (ii) such Seller or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in breach in the performance of any such covenant or condition
of this Agreement.
SECTION 4.06. RECEIVABLES. The Sellers shall not take any action (nor
permit or consent to the taking of any action) which might reasonably be
anticipated to impair the value of the Receivables or related Assets or any of
the rights of the Trust in the Receivables or related Assets; provided, however,
nothing contained in this Section 4.06 shall be construed as requiring the
Sellers to guarantee or otherwise become liable for the payment of the Obligors'
payments under the Receivables.
SECTION 4.07. COMPLIANCE WITH LAWS. Sellers and, to the extent within
the control of Bluegreen or an Affiliate thereof, each of the Units in which
Intervals are being sold, shall comply with, conform to and obey each and every
judgment, law, statute, rule and governmental regulation applicable to it and
each indenture, order, instrument, agreement or document to which it is a party
or by which it is bound except where the failure to comply would not have a
material adverse effect on the Receivables.
SECTION 4.08. ENVIRONMENTAL COMPLIANCE.
-11-
15
(a) The operations of Sellers comply in all material respects
with all applicable Environmental Laws.
(b) There are no claims, investigations, litigation,
administrative proceedings, whether pending or, to Sellers' best
knowledge, threatened, or judgments or orders, relating to any
Hazardous Materials or alleging the violation of any Environmental Laws
(collectively "ENVIRONMENTAL MATTERS") relating in any way to any
operations of Sellers on any real property leased or owned by Sellers
or to the operations of Sellers the result of which, if adversely
determined, would reasonably be expected to have a material adverse
effect on the Receivables or any Seller's ability to perform its
obligations hereunder or under the other Transaction Documents.
(c) To Sellers' knowledge, no Hazardous Materials are
presently stored or otherwise located on, in or under any real property
leased, owned or operated by Sellers except in material compliance with
all applicable Environmental Laws, and, no part of any real property
leased, owned or operated by Sellers or to Sellers' best knowledge,
adjacent parcels, including the groundwater located thereon, is
presently contaminated by any such Hazardous Material in any manner
which could reasonably by expected to have a material adverse effect on
the Receivables or any Seller's ability to perform its obligations
hereunder or under the other Transaction Documents.
(d) No Seller has filed any notice under any international,
federal, state, regional, provincial or local law indicating past or
present treatment, storage or disposal of a Hazardous Material or
reporting a spill or release of a Hazardous Material into the
environment the result of which, if adversely determined, would
reasonably be expected to have a material adverse effect on the
Receivables or any Seller's ability to perform its obligations
hereunder or under the other Transaction Documents.
(e) Sellers do not have any known material liability,
contingent or otherwise, in connection with any release of any
Hazardous Material into the environment which would reasonably be
expected to have a material adverse effect on the Receivables or any
Seller's ability to perform its obligations hereunder or under the
other Transaction Documents.
(f) Sellers hereby indemnify the Trust Depositor and agree to
hold Trust Depositor harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses and claims of any and
every kind whatsoever (including, without limitation, court costs and
reasonable attorneys' fees and legal expenses) which at any time or
from time to time may be paid, incurred or suffered by, or asserted
against, Trust Depositor arising directly or indirectly from the
violation by any Seller of any Environmental Law with respect to any
Resort or Additional Resort; or with respect to, or as a direct or
indirect result of the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission or release from, properties
utilized, owned or operated by Sellers in the conduct of their business
into or upon any land, the atmosphere, or any watercourse, body of
water or wetland, of any Hazardous Material with respect to any Resort
or Additional Resort (including, without limitation, any losses,
-12-
16
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under the Environmental Laws); PROVIDED that to the extent that
Sellers are strictly liable under any Environmental Laws, the Sellers'
obligations to indemnify Trust Depositor hereunder shall likewise be
without regard to fault on the part of Sellers and with respect to the
violation of law which results in liability to Sellers; PROVIDED,
FURTHER, that this SECTION 4.08 shall not apply with respect to any
liability, release, violation or other matter that arises solely from
the Trust Depositor's gross negligence or willful misconduct or after
any Seller loses possession of any property due to foreclosure or other
exercises of remedies by Trust Depositor. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in this
SECTION 4.08 may be unenforceable because it is violative of any law or
public policy, Sellers shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all indemnifications set forth in this SECTION 4.08.
SECTION 4.09. NOTICES TO OBLIGORS. Each Seller will direct its related
Obligors, and shall instruct all future Obligors, to remit all payments with
respect to such Receivables only (i) by check, money order, phone payment, or
Western Union Quick Collect mailed to, or generated by, an office of the
Servicer, (ii) by check, money order, wire transfer or moneygram to the Lockbox
or Lockbox Account or (iii) by pre-authorized checking or credit card payment
for deposit into the Lockbox Account. Each Seller shall send to the Lockbox Bank
for deposit into the Lockbox Account all Collections it may receive in respect
of Purchased Receivables no later than the next Business Day following the date
of receipt thereof. Any Collections in respect of Purchased Receivables held by
any Seller pending transfer to the Lockbox Account shall be held in trust for
the benefit of the Indenture Trustee and the Noteholders until such amounts are
deposited into the Lockbox Account as set forth above.
SECTION 4.10. COMPLIANCE WITH COLLECTION POLICIES. Each Seller shall
comply in all material respects with the terms of the Purchased Receivables and
its collection policies in effect on the Closing Date; PROVIDED that the Sellers
may modify and/or amend their collection policies with the prior written consent
of the Facility Administrator.
SECTION 4.11. COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS. Each
Seller shall perform each of its obligations under this Agreement and the other
Transaction Documents and comply with all federal, state and local laws and
regulations applicable to it and the Receivables, including those relating to
truth in lending, time share, real estate, retail installment sales, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt collection
practices, privacy, licensing, taxation, ERISA and labor matters and
Environmental Laws, except to the extent that the failure to so comply,
individually or in the aggregate, could not reasonably be expected to have a
material adverse effect on its ability to perform its obligations hereunder or
on its business, properties, assets, or condition (financial or otherwise).
-13-
17
ARTICLE V
PERFECTION OF TRANSFER AND PROTECTION
OF BACK-UP SECURITY INTERESTS
SECTION 5.01. CUSTODY OF RECEIVABLES. Subject to the terms and
conditions of this Section 5.01, and except as provided in the Custodial
Agreement the contents of each Receivable File shall be held in the custody of
Bluegreen in its capacity as Servicer under the Sale and Servicing Agreement for
the benefit of the owner thereof. The Sellers agree to cooperate with the
Servicer in its efforts to comply with its obligations under the Sale and
Servicing Agreement in respect of the Assets, and acknowledges and consents to
the transactions contemplated therein.
SECTION 5.02. FILING.
(a) On or as soon as practicable following each Purchase Date,
the Sellers shall cause the UCC financing statement(s) referred to in
Section 13.12 of the Sale and Servicing Agreement to be filed and from
time to time the Sellers shall take and cause to be taken such actions
and execute such documents as are necessary or desirable or as Trust
Depositor may reasonably request to perfect and protect the Trust
Depositor's, the Trust's and the Indenture Trustee's interests in the
Assets against all other persons, including, without limitation, the
filing of financing statements, amendments thereto and continuation
statements, the execution of transfer instruments and the making of
notations on or taking possession of all records or documents of title.
(b) On or as soon as practicable following each Purchase Date,
the Sellers will deliver to the Custodian the Receivables File relating
to the Purchased Receivables or Subsequent Receivables (as the case may
be) transferred on such Purchase Date.
SECTION 5.03. NAME CHANGE OR RELOCATION.
(a) During the term of this Agreement, each Seller agrees not
to change its respective name or identity or relocate its respective
chief executive office, or relocate or establish a new location where
Receivables Files are maintained, without first giving at least 30
days' prior written notice to the Trust Depositor, the Facility
Administrator and the Indenture Trustee.
(b) If any change in any Seller's name or identity or other
action would make any financing or continuation statement or notice of
ownership interest or lien filed under this Agreement seriously
misleading within the meaning of applicable provisions of the UCC or
any title statute, such Seller, no later than five days after the
effective date of such change, shall file such amendments as may be
required to preserve and protect the Trust Depositor's, the Trust's and
the Indenture Trustee's interests in the Assets. In addition, each
Seller agrees not to change its respective principal place of business
or its respective chief executive office (within the meaning of Article
9 of the UCC) from the location specified in Section 13.3 of the Sale
and Servicing Agreement, or relocate or establish a location where it
maintains Receivable Files which is other than in one of the UCC Filing
Locations, unless it has first taken such action as is advisable or
-14-
18
necessary to preserve and protect Trust Depositor's, the Facility
Administrator and the Indenture Trustee's interest in the Assets.
Promptly after taking any of the foregoing actions, such Seller shall
deliver to Trust Depositor, the Facility Administrator and the
Indenture Trustee an Opinion of Counsel stating that, in the opinion of
such counsel, all financing statements or amendments necessary to
preserve and protect the interests of the Trust, the Trust Depositor
and the Indenture Trustee in the Assets have been filed, and reciting
the details of such filing.
SECTION 5.04. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, and subject to the other terms and provisions herein relating to
changes in location, the Sellers will maintain their respective chief executive
offices in one of the States of the United States, except Louisiana, Tennessee,
Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming.
SECTION 5.05. COSTS AND EXPENSES. The Sellers jointly and severally
agree to pay all reasonable costs and disbursements in connection with the
perfection and the maintenance of perfection, as against all third parties, of
Trust Depositor's, the Trust's and the Indenture Trustee's right, title and
interest in and to the Assets (including, without limitation, the interest in
the Interval related thereto).
SECTION 5.06. SALE TREATMENT. The Sellers and Trust Depositor each
shall treat the transfer of Assets made hereunder for financial accounting
purposes as a sale and purchase and/or contribution of capital on all of its
relevant books, records, financial statements and other applicable documents.
ARTICLE VI
REMEDIES UPON MISREPRESENTATION
SECTION 6.01. REPURCHASES AND SUBSTITUTIONS OF RECEIVABLES FOR BREACH
OF REPRESENTATIONS AND WARRANTIES. The Sellers hereby jointly and severally
agree, for the benefit of Trust Depositor and its assignees including the Trust,
the Indenture Trustee and the Noteholders that they shall repurchase any
Ineligible Receivable and any Receivable (together with all related Assets) with
respect to which there has been a breach of a representation or warranty under
Article III of this Agreement at a repurchase price equal to the Transfer
Deposit Amount, not later than the Business Day preceding the next Payment Date
which is at most thirty (30) days after the earlier of (i) the date the any
Seller becomes aware of, or (ii) receives written notice from the Indenture
Trustee, the Facility Administrator, the Servicer or Trust Depositor of, the
related breach or inaccuracy of representation. In the event the Sellers can
cure, and in fact cure, the condition which created the "Ineligible Receivable"
in the above described 30 day period the Sellers shall not be obligated to
substitute or repurchase such Receivable. Notwithstanding the foregoing,
Sellers' obligations hereunder shall relate solely to a breach or inaccurate
representation which, in the Facility Administrator's reasonable determination,
materially adversely affects a Receivable or with respect to Receivables for
which, in the Facility Administrator's reasonable determination, the breach of a
representation or warranty in the aggregate materially adversely affects the
-15-
19
Trust Depositor, the Trust the Indenture Trustee and the Noteholders. If the
Sellers are able to effect a substitution for any such Ineligible Receivable in
compliance with Section 2.03, the Sellers may, in lieu of repurchasing such
Receivable and subject to the limitations set forth in Section 2.7 of the Sale
and Servicing Agreement, effect a substitution for such affected Receivable with
a Substitute Receivable not later than the date a repurchase of such Ineligible
Receivable would be required hereunder. It is understood and agreed by the
parties hereto that the payment obligations of the Obligors' in respect of the
Receivables purchased hereunder shall not be the obligation of the Sellers or
the Trust Depositor, except with respect to Servicer Advances as and to the
extent provided in the Sale and Servicing Agreement and remedies associated with
breaches of representations and warranties set forth above. The Issuer and the
Noteholders shall bear the economic risk of the Obligors' failure to make
payments on the Receivables.
SECTION 6.02. REASSIGNMENT OF REPURCHASED OR SUBSTITUTED RECEIVABLES.
Upon deposit in the Collection Account of the repurchase price as described in
Section 6.01 (or upon the Subsequent Transfer Date related to a Substitute
Receivable described in Section 6.01), Trust Depositor shall assign to the
Sellers all of Trust Depositor's right, title and interest in the repurchased or
Replaced Receivable and related Assets, in each case received by release from
the Trust in accordance with Section 6.5 of the Sale and Servicing Agreement,
without recourse, representation or warranty.
ARTICLE VII
INDEMNITIES
SECTION 7.01. SELLERS INDEMNIFICATION. Each Seller will defend and
indemnify Trust Depositor and its assignees (including the Trust, the Indenture
Trustee and the Noteholders) (any of which, an "INDEMNIFIED PARTY") against any
and all costs, expenses, losses, damages, claims and liabilities, joint or
several, including reasonable fees and expenses of counsel and expenses of
litigation (collectively, "COSTS") arising out of or resulting from any acts,
omissions or alleged acts or omissions of a Seller arising out of or relating to
this Agreement or any other Transaction Document which are in violation or
contravention of the terms of this Agreement or any other Transaction Document
or the use, ownership or operation of any Interval by any Seller or the
Servicer, to the extent the Servicer is Bluegreen or any Affiliate thereof, or
any Affiliates of the foregoing or any representation or warranty or covenant
made by any Seller in this Agreement being untrue or incorrect (subject to the
preamble to Article III and to Section 6.01 of this Agreement); PROVIDED,
HOWEVER, that the Sellers shall not be required to so indemnify any such
Indemnified Party for such Costs to the extent that such Cost shall be due to or
arise from the willful misfeasance, bad faith or gross negligence of such
Indemnified Party, or the failure of such Indemnified Party to comply with any
material undertaking, agreement or covenant made by such Indemnified Party in a
-16-
20
Transaction Document to which it is a party; PROVIDED FURTHER that nothing
contained in this SECTION 7.01 shall be construed to obligate the Sellers to
indemnify an Indemnified Party with respect to losses, claims, damages and
liabilities incurred as a result of the payment performance of the Assets.
Notwithstanding any other provision of this Agreement, the obligations of the
Sellers under this SECTION 7.01 shall not terminate upon a Service Transfer
pursuant to Section 8.2 of the Sale and Servicing Agreement and shall survive
any termination of the Sale and Servicing Agreement or this Agreement.
SECTION 7.02. LIABILITIES TO OBLIGORS. No obligation or liability to
any Obligor under any of the Receivables is intended to be assumed by the Trust
Depositor, the Indenture Trustee, the Noteholders or the Trust under or as a
result of this Agreement and the transactions contemplated hereby.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. MERGER OR CONSOLIDATION.
(a) Except as otherwise provided in this Section 8.01, the
Sellers will keep in full force and effect their respective existence,
rights and franchises as corporations in their respective jurisdictions
of incorporation, and the Sellers will obtain and preserve their
qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement and of any of
the Receivables and to perform its duties under this Agreement.
(b) Any person into which a Seller may be merged or
consolidated, or any corporation resulting from such merger or
consolidation to which any Seller is a party, or any person succeeding
to the business of such Seller, shall be the successor to such Seller
hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
SECTION 8.02. TERMINATION. This Agreement shall terminate (after
distribution of all amounts distributable pursuant to Section 2.11 of the Sale
and Servicing Agreement) on the Payment Date on which the Aggregate Outstandings
have been reduced to zero; PROVIDED, that the Sellers' indemnities under Section
7.01 hereof shall survive termination.
SECTION 8.03. ASSIGNMENT OR DELEGATION BY THE SELLERS. Except as
specifically authorized hereunder, no Seller may convey and assign or delegate
any of its rights or obligations hereunder absent the prior written consent of
the Trust Depositor, Facility Administrator and the Noteholders, and any attempt
to do so without such consent shall be void.
SECTION 8.04. AMENDMENT. This Agreement may be amended by the parties
hereto only with the prior written consent of the Facility Administrator. Any
such amendment shall be in writing and executed by the parties hereto (including
-17-
21
in counterparts). Upon the execution of any amendment in compliance with this
Section 8.04, this Agreement shall be modified in accordance therewith, and such
amendment shall form a part of this Agreement for all purposes.
SECTION 8.05. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date (which shall
be a Business Day) transmitted by legible telefax transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
If to any Seller: c/o Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to Trust Depositor: Bluegreen Receivables Finance Corporation IV
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Trust: 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
with a copy to
the Facility Administrator: Xxxxxx Financial, Inc.
28th Floor - Xxxxxx Sales Finance
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Manager - Client Services
Vacation Ownership
Telecopier No.: (000) 000-0000
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
SECTION 8.06. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
-18-
22
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 8.07. HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 8.08. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Illinois.
SECTION 8.09. NO BANKRUPTCY PETITION. Each Seller covenants and agrees
that, prior to the date that is one year and one day after the payment in full
of all Aggregate Outstandings, it will not institute against Trust Depositor, or
join any other Person in instituting against the Trust Depositor, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of the United States or any state of
the United States, or take any action in contemplation or furtherance of any of
the foregoing. This Section 8.09 will survive the termination of this Agreement.
SECTION 8.10. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreement, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 8.11. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trust Depositor (or any assignee
thereof) or the Sellers, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
To the extent permitted by law, the rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive (except to the extent
specifically provided herein) of any other rights, remedies, powers or
privileges provided by law.
SECTION 8.12. COUNTERPARTS. This Agreement may be executed in two or
more counterparts including by telefax transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 8.13. INTENDED CHARACTERIZATION. The Sellers and the Trust
Depositor agree that any conveyance hereunder or under the Sale and Servicing
Agreement is intended to be a sale and absolute conveyance of ownership of the
Assets, rather than the mere granting of a security interest to secure a
borrowing. If, notwithstanding such expressed interest, any such transfer is
deemed to be of a mere security interest to secure indebtedness, each Seller
shall be deemed to have granted (and hereby grants to) the Trust Depositor a
perfected first priority security interest in such Assets and this Agreement
-19-
23
shall constitute a security agreement under applicable law, securing the
repayment of the purchase price paid hereunder and the obligations and/or
interests provided for in this Agreement and in the order and priorities, and
subject to the other terms and conditions of, the Sale and Servicing Agreement,
together with such other obligations or interests as may arise hereunder and
thereunder in favor of the parties hereto and thereto. If such transfer is
deemed to be the mere granting of a security interest to secure a borrowing,
Trust Depositor may, to secure Trust Depositor's own obtainment of funds under
the Sale and Servicing Agreement (to the extent that the conveyance of the
Assets thereunder is deemed to be a mere granting of a security interest to
secure a borrowing) repledge and reassign (i) all or a portion of the Assets
pledged to Trust Depositor and not released from the security interest of this
Agreement at the time of such pledge and assignment, and (ii) all proceeds
thereof. Such repledge and reassignment may be made by Trust Depositor with or
without a repledge and reassignment by Trust Depositor of its rights under this
Agreement, and without further notice to or acknowledgment from any Seller. Each
Seller waives, to the extent permitted by applicable law, all claims, causes of
action and remedies, whether legal or equitable (including any right of setoff),
against Trust Depositor or any assignee of Trust Depositor relating to such
action by Trust Depositor in connection with the transactions contemplated by
the Sale and Servicing Agreement.
SECTION 8.14. SELLERS. Notwithstanding anything contained in this
Agreement or any other Transaction Document to the contrary, as of the Closing
Date, Bluegreen Corporation is the only "Seller" hereunder.
[remainder of page intentionally blank]
-20-
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
BLUEGREEN RECEIVABLES FINANCE
CORPORATION IV
By: /s/ XXXX X. XXXXXX
------------------------------
Printed Name: XXXX X. XXXXXX
Title: TREASURER
BLUEGREEN CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------
Printed Name: XXXX X. XXXXXX
Title: TREASURER
-21-
