Exhibit 10.118
TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this "Agreement"), dated as of November 15,
2002, is by and among Bluegreen Corporation, a Massachusetts corporation
("Bluegreen"), BXG Receivables Note Trust 2001-A, a statutory trust formed under
the laws of the State of Delaware (the "Warehouse Issuer" or the "Seller") and
Bluegreen Receivables Finance Corporation VI, a Delaware corporation (the
"Securitization Depositor"), and their respective permitted successors and
assigns.
WITNESSETH:
WHEREAS, in connection with the transactions contemplated by (i)
that certain amended and restated sale and servicing agreement, dated as of
April 17, 2002 (the "Warehouse Sale and Servicing Agreement") by and among
Bluegreen Receivables Finance Corporation V, as depositor (the "Warehouse
Depositor"), the Warehouse Issuer, as issuer, Bluegreen, as seller and servicer
(in such capacity, the "Warehouse Servicer"), Concord Servicing Corporation, as
backup servicer (the "Backup Servicer"), Vacation Trust, Inc., as club trustee
(the "Club Trustee") and U.S. Bank National Association ("US Bank"), as
indenture trustee and custodian, (ii) that certain amended and restated
indenture, dated as of April 17, 2002 (the "Warehouse Indenture"), by and
between Warehouse Issuer and US Bank, as indenture trustee, and (iii) that
certain amended and restated note purchase agreement, dated as of April 17, 2002
(the "Warehouse Note Purchase Agreement") by and among the Warehouse Issuer,
Bluegreen, the Warehouse Depositor, ING Capital LLC, as agent (the "Warehouse
Agent") and the purchasers named therein (the "Warehouse Purchasers"), (A)
Bluegreen sold, transferred and conveyed, from time to time, all of its right,
title and interest in, to and under certain timeshare loans, receivables and
related security (the "Warehouse Timeshare Loans") to the Warehouse Depositor,
(B) the Warehouse Depositor sold the Warehouse Timeshare Loans to the Warehouse
Issuer and (C) the Warehouse Issuer issued a single class of notes (the
"Warehouse Notes") secured by the Warehouse Timeshare Loans to the Warehouse
Purchasers;
WHEREAS, in connection with each sale of the Warehouse Timeshare
Loans to the Warehouse Depositor under the Warehouse Sale and Servicing
Agreement, Bluegreen made certain representations and warranties with respect to
the Warehouse Timeshare Loans as of the related transfer dates;
WHEREAS, pursuant to Section 9.15 of the Warehouse Note Purchase
Agreement, the Warehouse Agent may, after delivery of notice (a "Sale Notice")
to the Warehouse Issuer, direct the Warehouse Issuer to sell, transfer and
convey to the Warehouse Agent's designee, all of its right, title and interest
in, to and under the Warehouse Timeshare Loans specified in such Sale Notice;
WHEREAS, on the date hereof, the Warehouse Agent has delivered such
notice to the Warehouse Issuer and, in such notice, has directed the Warehouse
Issuer to sell the
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Warehouse Timeshare Loans specified in such notice to the Securitization
Depositor and to enter into this Agreement and such other Transaction Documents
as are necessary to effectuate the sale of such Warehouse Timeshare Loans;
WHEREAS, the Securitization Depositor has been established as a
bankruptcy-remote entity owned by Bluegreen for the purpose of acquiring the
Warehouse Timeshare Loans and other Timeshare Loans sold and/or contributed to
it by Bluegreen and another seller of timeshare loans, as the case may be, in
accordance with the provisions of the Purchase Agreement and the Xxxxxx Facility
Transfer Agreement;
WHEREAS, on the Closing Date, (i) pursuant to the Sale Notice, the
Seller wishes to sell all of its right, title and interest in and to the
Warehouse Timeshare Loans to the Securitization Depositor in accordance with the
provisions of this Agreement, (ii) the Securitization Depositor intends,
concurrently with the purchase of the Warehouse Timeshare Loans from the Seller,
to sell, transfer and otherwise absolutely convey, and BXG Receivables Note
Trust 2002-A (the "Securitization Issuer") intends to purchase the Warehouse
Timeshare Loans and other timeshare loans, and (ii) the Securitization Issuer
intends to pledge such Warehouse Timeshare Loans and other timeshare loans
acquired thereby to US Bank, as indenture trustee (in such capacity, the
"Securitization Indenture Trustee") and custodian (in such capacity,
the "Securitization Custodian"), pursuant to an indenture, dated as of November
15, 2002 (the "Securitization Indenture"), by and among the Securitization
Issuer, Bluegreen, as servicer (the "Securitization Servicer"), the Club Trustee
and the Securitization 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 Loan-Backed Notes,
Series 2002-A, Class C and 7.750% Fixed Rate Timeshare Loan-Backed Notes, Series
2002-A, Class D (collectively, the "Securitization Notes");
WHEREAS, Bluegreen originated the Warehouse Timeshare Loans, is
familiar with the terms of the Warehouse Timeshare Loans and is the Warehouse
Servicer and has been servicing each of the Warehouse Timeshares Loans on behalf
of the Warehouse Agent and Warehouse Purchasers in accordance with the Servicing
Standard and the applicable provisions of the Warehouse Sale and Servicing
Agreement and it has not taken or failed to take any action to cause a breach of
the representations and warranties set forth in Section 2.1 and 2.2 of Warehouse
Sale and Servicing Agreement;
WHEREAS, in consideration for providing the representations and
warranties set forth in Section 5 of this Agreement and having the obligation to
cure any material breaches thereof, or to repurchase or substitute any Defective
Timeshare Loans, and to provide the indemnities set forth hereunder, Bluegreen
desires: (i) to act as Securitization Servicer on behalf of the Holders of the
Securitization Notes, for which Bluegreen shall be entitled to receive a
Servicing Fee and Additional Servicing Compensation in accordance with the
provisions of the Securitization Indenture, (ii) to act as Administrator on
behalf of the Securitization Issuer and the Owner Trustee, for which Bluegreen
shall be entitled to an Administrator Fee, (iii) to have the option, but not the
obligation, to purchase or substitute Upgraded Club Loans pursuant to the terms
and conditions set forth in this Agreement and the Transaction Documents and
(iv) to have the option, but not the obligation, to purchase or substitute
Defaulted Timeshare Loans, which
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such option may be waived with respect to any Defective Timeshare Loan, in each
case, pursuant to the terms and conditions set forth herein; and
WHEREAS, Bluegreen, as the residual interest owner with respect to
the BXG Receivables Note Trust 2001-A, will derive an economic benefit from the
sale hereunder of the Warehouse Timeshare Loans to the Securitization Depositor.
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, in return for the
Timeshare Loan Acquisition Price for each of the Warehouse Timeshare Loans, the
Seller does hereby transfer, assign, sell and grant to the Securitization
Depositor, without recourse (except as provided in Section 6 and Section 8
hereof), any and all of the Seller's right, title and interest in and to (i) the
Warehouse Timeshare Loans listed on Schedule III hereto, (ii) the Receivables in
respect of such Warehouse Timeshare Loans due after the related Cut-Off Date,
(iii) the related Timeshare Loan Documents (excluding any rights as developer or
declarant under the Timeshare Declaration, the Timeshare Program Consumer
Documents or the Timeshare Program Governing Documents), (iv) all Related
Security in respect of each such Warehouse Timeshare Loan, (v) the Seller's
rights and remedies under the Warehouse Sale and Servicing Agreement (including,
but not limited to, repurchase and substitution rights with respect to breaches
of representations and warranties made by Bluegreen therein in respect of the
Warehouse Timeshare Loans) 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 Warehouse 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 Securitization Depositor, its successors and assigns
(including the Securitization Issuer and the Securitization Indenture Trustee).
The Seller shall not take any action inconsistent with such ownership nor claim
any ownership interest in any Warehouse 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
Warehouse Timeshare Loans conveyed hereunder shall be borne by the
Securitization Issuer and its subsequent assignees.
(b) Delivery of Timeshare Loan Documents. In connection with the
sale, transfer, assignment and conveyance of any Warehouse Timeshare Loans
hereunder, the Securitization Depositor hereby directs the Seller and the Seller
hereby agrees to deliver or cause to be delivered to the U.S. Bank, as
Custodian, all related Timeshare Loan Files and to the Securitization Servicer
all related Timeshare Loan Servicing Files.
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(c) Collections. The Seller shall deposit or cause to be deposited
all collections in respect of the Warehouse Timeshare Loans received by the
Seller, the Warehouse Servicer or any of its Affiliates after the related
Cut-Off Date in the Lockbox Account.
(d) Limitation of Liability. None of the Securitization Depositor,
the Seller or any subsequent assignee of the Securitization Depositor shall have
any obligation or liability with respect to any Warehouse Timeshare Loan nor
shall the Securitization Depositor, the Seller or any subsequent assignee have
any liability to any Obligor in respect of any Warehouse Timeshare Loan. No such
obligation or liability is intended to be assumed by the Securitization
Depositor, the Seller 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 the transfer of Warehouse Timeshare
Loans to be made pursuant to the terms hereof shall constitute a sale by the
Seller to the Securitization Depositor and not a loan secured by the Warehouse
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 Seller shall be deemed to have granted
to the Securitization Depositor as of the date hereof a first priority perfected
security interest in all of Seller's right, title and interest in, to and under
the Assets 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 loan, and the provisions thereof
immediately be deemed reformed and the amounts thereafter collectible thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for thereunder and (b) to the extent that the
reduction of the principal balance of, and the amounts collectible under, such
loan and the reformation of the provisions thereof described in the immediately
preceding clause (a) is not possible given the term of such loan, such excess
amount will be deemed to have been paid with respect to such loan as a result of
an error and upon discovery of such error or upon notice thereof by any party
hereto such amount shall be refunded by the recipient thereof.
The characterization of the Seller as "debtor" and the
Securitization Depositor 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 Securitization Depositor of such Seller's entire
right, title and interest in and to the Assets.
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Each of the Seller, Bluegreen, the Club Trust, the Club Trustee, the
Securitization Depositor and any of its Affiliates hereby agrees to make the
appropriate entries in its general accounting records and to indicate that the
Warehouse Timeshare Loans have been transferred to the Securitization Depositor.
SECTION 4. Conditions Precedent to Acquisition of Warehouse
Timeshare Loans by the Securitization Depositor. The obligations of the
Securitization Depositor to purchase any Warehouse Timeshare Loans hereunder
shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of Bluegreen 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 Bluegreen shall have delivered to the
Securitization Depositor, the Securitization 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 Seller shall have delivered or shall have caused the delivery of
(i) the related Timeshare Loan Files to the Securitization Custodian and the
Securitization Custodian shall have delivered a receipt therefore pursuant to
the Custodial Agreement and (ii) the Timeshare Loan Servicing Files to the
Securitization Servicer.
(c) The Seller shall have delivered or shall have caused to be
delivered all other information theretofore required or reasonably requested by
the Securitization Depositor to be delivered by the Seller or performed or
caused to be performed all other obligations required to be performed as of the
Closing Date or Transfer Date, as the case may be, including all filings,
recordings and/or registrations as may be necessary in the reasonable opinion of
the Securitization Depositor, the Securitization Issuer, or the Securitization
Indenture Trustee to establish and preserve the right, title and interest of the
Securitization Depositor, the Securitization Issuer, or the Securitization
Indenture Trustee, as the case may be, in the related Warehouse Timeshare Loans.
(d) On or before the Closing Date, the Securitization Depositor, the
Securitization Servicer, the Club Trustee, the Backup Servicer and the Indenture
Trustee shall have entered into the Securitization Indenture.
(e) The Securitization Notes shall be issued and sold on the Closing
Date, and each of the Securitization Issuer and the Securitization Depositor
shall receive the full consideration due it upon the issuance of the
Securitization Notes, and the Securitization Issuer and the Securitization
Depositor shall have applied their respective consideration to the extent
necessary, to pay the Timeshare Loan Acquisition Price for each Warehouse
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 Securitization
Indenture for substitution of Warehouse Timeshare Loans shall have been
satisfied.
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(g) The Securitization Depositor shall have received such other
certificates and opinions as it shall reasonably request.
SECTION 5. Representations and Warranties and Certain Covenants of
Bluegreen.
(a) Bluegreen represents and warrants to the Securitization
Depositor, the Securitization Issuer and the Securitization Indenture Trustee
for the benefit of the Securitization 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. It 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 its business or its ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of the Warehouse
Timeshare Loans. To Bluegreen's Knowledge, the Seller is, and so long as
the Warehouse Notes are outstanding, will be a business trust duly
organized and validly existing in good standing under the laws of the
jurisdiction of its formation and is duly qualified to do business as a
foreign corporation and in good standing under the laws of each
jurisdiction where the performance of its obligations under this Agreement
makes such qualification necessary, except where the failure to be so
qualified will not have a material adverse effect on its 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 Warehouse
Timeshare Loans.
(ii) Possession of Licenses, Certificates, Franchises and Permits.
Each of Bluegreen and the Seller holds (and Bluegreen at all times during
the term of this Agreement and the Seller so long as the Warehouse Notes
are outstanding, will hold) all material licenses, certificates,
franchises and permits from all governmental authorities necessary for the
conduct of its business, and has received no notice of proceedings
relating to the revocation of any such license, certificate, franchise or
permit, which singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect its
ability to perform its obligations under this Agreement or any other
Transaction Document to which it is a party or under the transactions
contemplated hereunder or thereunder or the validity or enforceability of
the Warehouse Timeshare Loans.
(iii) Corporate Authority and Power. It has, and at all times during
the term of this Agreement will have, all requisite corporate power and
authority to own its
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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. To Bluegreen's Knowledge, the Seller has, and so
long as the Warehouse Notes are outstanding, 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. To
Bluegreen's Knowledge, the Seller has all requisite power and authority to
acquire, own, transfer and convey the Warehouse Timeshare Loans to the
Securitization Depositor.
(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 Bluegreen have been
duly authorized, executed and delivered by Bluegreen and, assuming the due
execution and delivery by, the other party or parties hereto and thereto,
constitute legal, valid and binding agreements enforceable against
Bluegreen 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 Bluegreen and to general principles of equity, regardless
of whether such enforceability shall be considered in a proceeding in
equity or at law. To Bluegreen's Knowledge, this Agreement and all other
Transaction Documents and instruments required or contemplated hereby to
be executed and delivered by the Seller have been duly authorized,
executed and delivered by the Seller 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 Seller 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 reorganization as applicable,
of the Seller and to general principles of equity, regardless of whether
such enforceability shall be considered in a proceeding in equity or at
law. To Bluegreen's Knowledge, this Agreement constitutes a valid transfer
of the Seller's interest in the Warehouse Timeshare Loans to the
Securitization Depositor 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 Warehouse Timeshare Loans in favor of the
Securitization Depositor.
(v) No Violation of Law, Rule, Regulation, etc. The execution,
delivery and performance by Bluegreen of this Agreement and any other
Transaction Document to which it is a party do not and will not (A)
violate any of the provisions of its articles of incorporation or bylaws,
(B) violate any provision of any law, governmental rule or regulation
currently in effect applicable to it or its properties or by which it or
its
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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 Warehouse Timeshare Loans, (C) violate any judgment,
decree, writ, injunction, award, determination or order currently in
effect applicable to it or its properties or by which it or its properties
are bound or affected, where such violation would have a material adverse
effect on its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans, (D) conflict with, or
result in a breach of, or constitute a default under, any of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which it is a party or by which it is bound where such
violation would have a material adverse effect on its ability to perform
its obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of the Warehouse 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. To Bluegreen's Knowledge, the
execution, delivery and performance by the Seller of this Agreement and
any other Transaction Document to which the Seller is a party do not and
will not (1) violate any of the provisions of its certificate of trust,
trust agreement or other related organizational document, (2) violate any
provision of any law, governmental rule or regulation currently in effect
applicable to the Seller or its properties by which the Seller 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 the Seller's ability to perform its obligations under this
Agreement or any other Transaction Document to which the Seller is a party
or under the transactions contemplated hereunder or thereunder or the
validity or enforceability of the Warehouse Timeshare Loans, (3) violate
any judgment, decree, writ, injunction, award, determination or order
currently in effect applicable to the Seller or its properties or by which
the Seller or its properties are bound or affected, where such violation
would have a material adverse effect on the Seller's ability to perform
its obligations under this Agreement or any other Transaction Document to
which the Seller is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of the related
Warehouse Timeshare Loans or (4) conflict with, or result in a breach of,
or constitute a default under, any of the provisions of any sale and
servicing agreement, indenture, mortgage, deed of trust, contract or other
instrument to which the Seller is a party or by which it is bound where
such violation would have a material adverse effect on the Seller's
ability to perform its obligations under this Agreement or any other
Transaction Document to which the Seller is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(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
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Bluegreen is required which has not been obtained in connection with the
authorization, execution, delivery or performance by Bluegreen of this
Agreement or any of the other Transaction Documents to which Bluegreen is
a party or under the transactions contemplated hereunder or thereunder,
including, without limitation, the transfer of the Warehouse Timeshare
Loans and the creation of the security interest of the Securitization
Depositor therein pursuant to Section 3 hereof. To Bluegreen's Knowledge,
no consent, approval, order or authorization of, and no filing with or
notice to, any court or other Governmental Authority in respect of the
Seller is required which has not been obtained in connection with the
authorization, execution, delivery or performance by the Seller of this
Agreement or any of the other Transaction Documents to which the Seller is
a party or under the transactions contemplated hereunder or thereunder,
including, without limitation, the transfer of the Warehouse Timeshare
Loans and the creation of the security interest of the Securitization
Depositor therein pursuant to Section 3 hereof.
(vii) Defaults. It is not in default under any material agreement,
contract, instrument or indenture to which it is a party or by which it or
its properties is or are bound, or with respect to any order of any court,
administrative agency, arbitrator or governmental body, in each case,
which would have a material adverse effect on the transactions
contemplated hereunder or on its business, operations, financial condition
or assets, and no event has occurred which with notice or lapse of time or
both would constitute such a default with respect to any such agreement,
contract, instrument or indenture, or with respect to any such order of
any court, administrative agency, arbitrator or governmental body. To
Bluegreen's Knowledge, on the Closing Date the Seller is not in default
under any material agreement, contract, instrument or indenture to which
it is a party or by which it or its properties is or are bound, or with
respect to any order of any court, administrative agency, arbitrator or
governmental body, in each case, which would have a material adverse
effect on the transactions contemplated hereunder, and no event has
occurred which with notice or lapse of time or both would constitute such
a default with respect to any such agreement, contract, instrument or
indenture, or with respect to any such order of any court, administrative
agency, arbitrator or governmental body.
(viii) Insolvency. It is solvent and will not be rendered insolvent
by the transfer of Warehouse Timeshare Loans hereunder. On the Closing
Date, it will not engage in any business or transaction the result of
which would cause the property remaining with it to constitute an
unreasonably small amount of capital. To Bluegreen's Knowledge, on the
Closing Date the Seller is solvent and will not be rendered insolvent by
the transfer of the Warehouse Timeshare Loans hereunder. To Bluegreen's
Knowledge, on the Closing Date, the Seller will not engage in any business
or transaction, the result of which would cause the property remaining
with it to constitute an unreasonably small amount of capital.
(ix) Pending Litigation or Other Proceedings. Other than as
described in the Offering Circular, there is no pending or, to its
Knowledge, threatened action, suit, proceeding or investigation before any
court, administrative agency, arbitrator or governmental body against or
affecting it which, if decided adversely, would materially and adversely
affect (A) its condition (financial or otherwise), its business or
operations,
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(B) its ability to perform its obligations under, or the validity or
enforceability of, this Agreement or any other documents or transactions
contemplated under this Agreement, (C) any Warehouse Timeshare Loan or
title of any Obligor to any related Timeshare Property, or (D) the
Securitization Depositor's or any of its assigns' ability to foreclose or
otherwise enforce the liens of the related Mortgage Notes and the rights
of the Obligors to use and occupy the related Timeshare Properties. To
Bluegreen's Knowledge, there is no pending or threatened action, suit,
proceeding or investigation before any court, administrative agency,
arbitrator or governmental body against or affecting the Seller which, if
decided adversely, would materially and adversely affect (A) the Seller's
ability to perform its obligations under, or the validity or
enforceability of, this Agreement or any other documents or transactions
contemplated under this Agreement, (B) any Warehouse Timeshare Loan or
title of any Obligor to any related Timeshare Property or (C) the
Securitization Depositor's or any of its assigns' ability to foreclose or
otherwise enforce the liens of the related 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 it or, to Bluegreen's
Knowledge, on behalf of the Seller pursuant to this Agreement, 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 it 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, its financial condition or assets or
business, or which may impair its or the Seller's ability to perform its
respective obligations under this Agreement, which have not been disclosed
herein or therein or in the certificates and other documents furnished to
the Securitization Depositor by or on its or the Seller's behalf pursuant
hereto or thereto specifically for use in connection with the transactions
contemplated hereby or thereby.
(xi) Foreign Tax Liability. It is not aware of any Obligor under a
Warehouse Timeshare Loan who has withheld any portion of payments due
under such Warehouse Timeshare Loan because of the requirements of a
foreign taxing authority, and no foreign taxing authority has contacted it
concerning a withholding or other foreign tax liability.
(xii) No Deficiency Accumulation. Neither it nor, to Bluegreen's
Knowledge, the Seller has 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
it or the Seller.
(xiii) Taxes. It has filed all tax returns (federal, state and
local) which it reasonably believes are required to be filed and has paid
or made adequate provision for the payment of all taxes, assessments and
other governmental charges due from it or is contesting any such tax,
assessment or other governmental charge in good faith through appropriate
proceedings or except where the failure to file or pay will not have a
material adverse effect on the rights and interests of the Securitization
Depositor or any of its
10
subsequent assignees. It knows of no basis for any material additional tax
assessment for any fiscal year for which adequate reserves have not been
established. It intends to pay all such taxes, assessments and
governmental charges when due. To Bluegreen's Knowledge, the Seller has
filed, as of the Closing Date all applicable tax returns which it
reasonably believes are required to be filed.
(xiv) Place of Business. The principal place of business and chief
executive office where Bluegreen and the Seller keeps its records
concerning the Warehouse Timeshare Loans will be 0000 Xxxxxxxxxx Xxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (or such other place specified
by Bluegreen and the Seller by written notice to the Securitization
Depositor, the Securitization Issuer and the Securitization Indenture
Trustee). The Seller is a business trust formed under the laws of the
State of Delaware. Bluegreen is a corporation formed under the laws of the
Commonwealth of Massachusetts.
(xv) Securities Laws. Neither it nor, to Bluegreen's Knowledge, the
Seller is 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 Warehouse Timeshare Loans will be used by it or the Seller 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 Warehouse Timeshare
Loans that are 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
Securitization 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
11
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 Timeshares Properties related to the Warehouse
Timeshare 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 Warehouse 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, to Bluegreen's Knowledge, 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);
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(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 Warehouse Timeshare Loans and related
Trust Estate hereunder, the Securitization Depositor and its
subsequent assignees is an "Interest Holder Beneficiary" under the
Club Trust Agreement and each of the Warehouse Timeshare Loans
constitutes "Lien Debt", "Purchase Money Lien Debt" and "Owner
Beneficiary Obligations" under the Club Trust Agreement; and
(M) Except as disclosed to the Securitization Depositor or its
assignees in writing, each Mortgage associated with a Warehouse
Timeshare Loan that is 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 Securitization Indenture
Trustee (upon assignment thereof to the Securitization Indenture
Trustee). Each of such Mortgages was granted in connection with the
financing of a sale of a Resort Interest.
(xvii) Bluegreen is the Warehouse Servicer and has been servicing
the Warehouse Timeshare Loans in accordance with the Servicing Standard
and the applicable provisions of the Warehouse Sale and Servicing
Agreement and it has not taken or failed to take any action to cause a
breach of the representations and warranties set forth in Sections 2.1 and
2.2 of Warehouse Sale and Servicing Agreement.
(b) Bluegreen hereby makes the representations and warranties
relating to the Warehouse Timeshare Loans contained in Schedule I hereto for the
benefit of the Securitization Depositor and its assignees as of the Closing Date
(with respect to each Warehouse 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.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive the (i) sale of each
Warehouse Timeshare Loan to the Securitization Depositor, (ii) any subsequent
sale and assignment by the Securitization Depositor of such Warehouse Timeshare
Loans and the rights and remedies of the Securitization Depositor hereunder to
the Securitization Issuer and (iii) the subsequent pledge of such Warehouse
Timeshare Loans and rights and remedies hereunder to the Securitization
Indenture Trustee on behalf of the Securitization Noteholders and shall continue
so long as any such Warehouse Timeshare Loans shall remain outstanding or until
such time as such Warehouse Timeshare Loans are repurchased, purchased or a
Qualified Substitute Timeshare Loan is provided pursuant to Section 6 hereof.
Each of the Seller and Bluegreen acknowledge that it has been advised that the
Securitization Depositor intends to sell, transfer, assign and convey all of its
right, title and interest in and to each Warehouse Timeshare Loan and its rights
and remedies under this Agreement to the Securitization Issuer and that the
Securitization Issuer intends to pledge the
13
Warehouse Timeshare Loans and its rights and remedies under this Agreement to
the Securitization Indenture Trustee on behalf of the Securitization
Noteholders. The Seller and Bluegreen jointly agree that, upon any such
assignment, the Securitization Indenture Trustee may enforce directly, without
joinder of the Securitization Depositor or the Securitization Issuer (but
subject to any defense that Bluegreen may have under this Agreement) all rights
and remedies hereunder.
(d) With respect to any representations and warranties contained in
Section 5 which are made to Bluegreen's Knowledge, if it is discovered that any
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of a Warehouse Timeshare Loan or the interests of
the Securitization Depositor or any subsequent assignee thereof, then
notwithstanding such lack of Knowledge of the accuracy of such representation
and warranty at the time such representation or warranty was made (without
regard to any Knowledge qualifiers), such inaccuracy shall be deemed a breach of
such representation or warranty for purposes of the repurchase or substitution
obligations described in Sections 6(a)(i) or (ii) below.
SECTION 6. Repurchases and Substitutions.
(a) Mandatory Repurchases and Substitutions for Breaches of
Representations and Warranties. Upon the receipt of notice by Bluegreen of a
breach of any of its respective representations and warranties in Section 5 (on
the date on which such representation or warranty was made) which materially and
adversely affects the value of a Warehouse Timeshare Loan or the interests of
the Securitization Depositor or any subsequent assignee of the Securitization
Depositor therein, Bluegreen 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
Securitization Depositor's or its assignee's interest in such related Defective
Timeshare Loan from the Securitization Depositor or its assignee at the
Repurchase Price or (ii) provide one or more Qualified Substitute Timeshare
Loans and pay the related Substitution Shortfall Amounts, if any.
(b) Optional Purchases or Substitutions of Upgraded Club Loans. The
Securitization Depositor hereby irrevocably grants Bluegreen any options to
purchase or substitute Upgraded Club Loans it has under the Sale Agreement with
the Securitization Issuer. With respect to Upgraded Club Loans, on any date,
Bluegreen, as the Securitization Depositor's designee, shall have the option,
but not the obligation, to either (i) pay the Repurchase Price for a related
Upgraded Club Loan or (ii) substitute one or more Qualified Substitute Timeshare
Loans for a related Upgraded Timeshare Loan and pay the related Substitution
Shortfall Amounts, if any; provided, however, that Bluegreen's option to
substitute one or more Qualified Substitute Timeshare Loan for a related
Upgraded Club Loan is limited on any date to (x) 20% of the sum of the Cut-Off
Date Aggregate Loan Balance of the Timeshare Loan on the Closing Date less (y)
the Loan Balances of all Upgraded Club Loans previously substituted by Bluegreen
on the related substitution dates pursuant to this Agreement, the Sale
Agreement, the Purchase Agreement and/or the Xxxxxx Transfer Agreement.
Bluegreen shall deposit or cause the deposit of the related Repurchase Price and
Substitution Shortfall Amounts, if any, in the Collection Account as set forth
in Section 6(d) below. To the extent that Bluegreen shall elect to substitute
Qualified
14
Substitute Timeshare Loans for an Upgraded Timeshare Loan, Bluegreen agrees to
use best efforts to cause each such Qualified Substitute Timeshare Loan to be a
timeshare loan for which the related Obligor has previously effected an upgrade.
(c) Optional Purchases and Substitutions of Defaulted Timeshare
Loans. The Securitization Depositor hereby irrevocably grants Bluegreen any
options to purchase or substitute Defaulted Timeshare Loans it has under the
Sale Agreement with the Securitization Issuer. With respect to Defaulted
Timeshare Loans, on any date, Bluegreen will have the option, but not the
obligation, to either (i) purchase a related Defaulted Timeshare Loan subject to
the lien of the Indenture at the Repurchase Price for such related Defaulted
Timeshare Loan or (ii) substitute one or more Qualified Substitute Timeshare
Loans for such related Defaulted Timeshare Loan and pay the related Substitution
Shortfall Amounts, if any; provided, however, that Bluegreen's option to
purchase a related Defaulted Timeshare Loan or to substitute one or more
Qualified Substitute Timeshare Loan for a related Defaulted Timeshare Loan is
limited on any date to the Optional Purchase Limit and the Optional Substitution
Limit, respectively. Balance of the Timeshare Loans less (y) the Loan Balances
of all Defaulted Timeshare Loans previously purchased or substituted by
Bluegreen, as applicable, on the related purchase or substitution dates pursuant
to this Agreement, the Sale Agreement, the Purchase Agreement and/or the Xxxxxx
Transfer Agreement. Bluegreen shall deposit or cause the deposit of the related
Repurchase Price and Substitution Shortfall Amounts, if any, in the Collection
Account as set forth in Section 6(d) below. Bluegreen may irrevocably waive its
option to purchase or substitute a related Defaulted Timeshare Loan by
delivering to the Indenture Trustee a Waiver Letter in the form of Exhibit A
attached hereto.
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts.
The Securitization Depositor hereby directs and Bluegreen 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 Securitization 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 Warehouse
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 Securitization Depositor hereby
directs and Bluegreen hereby agrees, on each date on which a Warehouse Timeshare
Loan has been repurchased, purchased or substituted, to provide the
Securitization Depositor, the Securitization 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 such Warehouse
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 Securitization Depositor hereby directs and Bluegreen hereby agrees to
deliver or to cause the delivery of the Timeshare Loan Files of the related
Qualified Substitute Timeshare Loans to the Securitization Indenture Trustee or
to the Custodian, at the direction of the Securitization
15
Indenture Trustee, on the related Transfer Date in accordance with the
provisions of the Indenture. As of such related Transfer Date, Bluegreen does
hereby transfer, assign, sell and grant to the Securitization Depositor, without
recourse (except as provided in Section 6 and Section 8 hereof), any and all of
Bluegreen's right, title and interest in and to (i) each Qualified Substitute
Timeshare Loan conveyed to the Securitization Depositor 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, and (v) 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 Securitization Depositor, its successors and
assigns. Bluegreen 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. Bluegreen agrees that such Qualified Substitute Timeshare
Loans shall be subject to the provisions of this Agreement.
(g) Officer's Certificate. Bluegreen shall, on each related Transfer
Date, certify in writing to the Securitization Depositor, the Securitization
Issuer and the Securitization Indenture Trustee that each new Timeshare Loan
meets all the criteria of the definition of "Qualified Substitute Timeshare
Loan" and that (i) the Timeshare Loan Files for such Qualified Substitute
Timeshare Loans have been delivered to the Securitization Custodian, and (ii)
the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans
have been delivered to the Securitization 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 Securitization
Depositor, the Securitization Issuer and the Securitization 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 Bluegreen,
in each case, without recourse, as shall be necessary to vest in Bluegreen or
its designee the legal and beneficial ownership of such released Timeshare
Loans. The Securitization Depositor shall cause the Securitization Issuer and
the Securitization Indenture Trustee to cause the Securitization Custodian to
release the related Timeshare Loan Files to Bluegreen or its designee and the
Securitization Servicer to release the related Timeshare Loan Servicing Files to
Bluegreen or its designee.
(i) Sole Remedy. It is understood and agreed that the obligations of
Bluegreen contained in Section 6(a) to cure a material breach, or to repurchase
or substitute related Defective Timeshare Loans and the obligation of Bluegreen
to indemnify pursuant to Section 8 shall constitute the sole remedies available
to the Securitization Depositor 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 Bluegreen.
16
SECTION 7. Covenants of Bluegreen and the Seller.
(a) Bluegreen hereby covenants and agrees with the Securitization
Depositor as follows:
(i) It shall comply with all applicable laws, rules, regulations and
orders applicable to it and its business and properties except where the
failure to comply will not have a material adverse effect on its business
or its ability to perform its obligations under this Agreement or any
other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(ii) It shall preserve and maintain for itself its existence
(corporate or otherwise), rights, franchises and, privileges in the
jurisdiction of its organization and except where the failure to so
preserve and maintain will not have a material adverse effect on its
business or its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(iii) On or prior to the Closing Date or a Transfer Date, as
applicable, it shall indicate in its and its Affiliate's computer files
and other records that each Timeshare Loan has been sold to the
Securitization Depositor.
(iv) It shall respond to any inquiries with respect to ownership of
a Warehouse Timeshare Loan by stating that such Warehouse Timeshare Loan
has been sold to the Securitization Depositor and that the Securitization
Depositor is the owner of such Warehouse Timeshare Loan.
(v) On or prior to the Closing Date, it shall file or cause the
Seller to file, at Bluegreen's expense, financing statements in favor of
the Securitization Depositor, the Securitization Issuer and the
Securitization Indenture Trustee on behalf of the Securitization
Noteholders, with respect to the Warehouse Timeshare Loans, in the form
and manner reasonably requested by the Securitization Depositor. It shall
deliver or cause the Seller to deliver file-stamped copies of such
financing statements to the Securitization Depositor, the Securitization
Issuer and the Securitization Indenture Trustee on behalf of the
Securitization Noteholders.
(vi) It agrees from time to time to, or cause the Seller to, at
Bluegreen's expense, promptly to execute and deliver all further
instruments and documents, and to take all further actions, that may be
necessary, or that the Securitization Depositor, the Securitization Issuer
or the Securitization Indenture Trustee may reasonably request, to
perfect, protect or more fully evidence the sale of the Warehouse
Timeshare Loans, or to enable the Securitization Depositor, the
Securitization Issuer or the Securitization Indenture Trustee to exercise
and enforce its rights and remedies hereunder or under any
17
Timeshare Loan including, but not limited to, powers of attorney, UCC
financing statements and assignments of mortgage.
(vii) Any change in the legal name of Bluegreen or the Seller 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 Securitization Depositor, the Securitization Issuer and
the Securitization Indenture Trustee in writing.
(viii) Upon the discovery or receipt of notice by a Responsible
Officer of Bluegreen of a breach of any of its representations or
warranties and covenants contained herein, Bluegreen shall promptly
disclose to the Securitization Depositor, the Securitization Issuer and
the Securitization Indenture Trustee, in reasonable detail, the nature of
such breach.
(ix) In the event that Bluegreen shall receive any payments in
respect of a Warehouse Timeshare Loan after the Closing Date or Transfer
Date, as applicable (including any insurance proceeds that are not payable
to the related Obligor), it shall, within two (2) Business Days of
receipt, transfer or cause to be transferred, such payments to the Lockbox
Account.
(x) Bluegreen 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 Bluegreen listed herein.
(xi) In the event that Bluegreen, the Seller or the Securitization
Depositor or any assignee of the Securitization Depositor should receive
actual notice of any transfer taxes arising out of the transfer,
assignment and conveyance of a Warehouse Timeshare Loan from the Seller to
the Securitization Depositor, on written demand by the Securitization
Depositor, or upon Bluegreen or the Seller otherwise being given notice
thereof, Bluegreen shall cause the Seller to pay, and otherwise indemnify
and hold the Securitization Depositor, or any subsequent assignee
harmless, on an after-tax basis, from and against any and all such
transfer taxes.
(b) The Seller hereby covenants and agrees with the Securitization
Depositor as follows:
(i) The Seller authorizes the Securitization Depositor, the
Securitization Issuer, and the Securitization Indenture Trustee to file
continuation statements, and amendments thereto, relating to the Warehouse
Timeshare Loans and all payments made with regard to the related Warehouse
Timeshare Loans without the signature of the Seller where permitted by
law. A photocopy or other reproduction of this Agreement shall be
sufficient as a financing statement where permitted by law. The
Securitization Depositor 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.
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(ii) It shall comply with all applicable laws, rules, regulations
and orders applicable to it and its business and properties except where
the failure to comply will not have a material adverse effect on its
business or its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(iii) So long as the Warehouse Notes are outstanding, it shall
preserve and maintain for itself its existence (corporate or otherwise),
rights, franchises and privileges in the jurisdiction of its organization
and except where the failure to so preserve and maintain will not have a
material adverse effect on its business or its ability to perform its
obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of the Warehouse Timeshare
Loans.
(iv) On or prior to the Closing Date or a Transfer Date, as
applicable, it shall indicate in computer files and other records to
indicate that each Warehouse Timeshare Loan has been sold to the
Securitization Depositor.
(v) It shall respond to any inquiries with respect to ownership of a
Warehouse Timeshare Loan by stating that such Warehouse Timeshare Loan has
been sold to the Securitization Depositor and that the Securitization
Depositor is the owner of such Warehouse Timeshare Loan.
(vi) It agrees and authorizes the filing, at Bluegreen's expense, of
the financing statements specified in Section 7(a)(v) hereof in favor of
the Securitization Depositor, the Securitization Issuer and the
Securitization Indenture Trustee on behalf of the Securitization
Noteholders, with respect to the Warehouse Timeshare Loans.
(vii) It agrees from time to time to, at Bluegreen's expense,
promptly to execute and deliver all further instruments and documents, and
to take all further actions, that may be necessary, or that the
Securitization Depositor, the Securitization Issuer or the Securitization
Indenture Trustee may reasonably request, to perfect, protect or more
fully evidence the sale of the Warehouse Timeshare Loans, or to enable the
Securitization Depositor, the Securitization Issuer or the Securitization
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 Seller hereby appoints Bluegreen, the Securitization Depositor, the
Securitization Issuer and the Securitization 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 Seller
under this Section 7(b)(vii).
(viii) In the event that the Seller shall receive any payments in
respect of a Warehouse Timeshare Loan after the Closing Date or Transfer
Date, as applicable (including any insurance proceeds that are not payable
to the related Obligor), it shall,
19
within two (2) Business Days of receipt, transfer or cause to be
transferred, such payments to the Lockbox Account.
SECTION 8. Indemnification.
(a) Bluegreen hereby agrees to indemnify the Securitization
Depositor, the Securitization Issuer, the Securitization Indenture Trustee, the
Securitization 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 Securitization
Depositor, the Securitization Issuer, the Securitization Indenture Trustee, the
Securitization Noteholders or the Initial Purchaser may sustain directly related
to any breach of the representations and warranties of Bluegreen 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 Warehouse
Timeshare Loan not related to a breach of representation or warranty; (iii)
recourse to Bluegreen for a related 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 Warehouse 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 parties hereto shall (A) promptly notify the
other parties hereto, the Securitization Issuer and the Securitization Indenture
Trustee if a claim is made by a third party with respect to this Agreement or
the Timeshare Loans, and relating to (1) the failure by Bluegreen to perform its
duties in accordance with the terms of this Agreement or (2) a breach of
Bluegreen's representations, covenants and warranties contained in this
Agreement, (B) assume (with the consent of the Securitization Depositor, the
Securitization Issuer, the Securitization Indenture Trustee, the Securitization
Noteholders or the Initial Purchaser, as applicable, which consent shall not be
unreasonably withheld) the defense of any such claim and pay all expenses in
connection therewith, including legal counsel fees and (C) promptly pay,
discharge and satisfy any judgment, order or decree which may be entered against
it or the Securitization Depositor, the Securitization Issuer, the
Securitization Indenture Trustee, the Securitization Noteholders or the Initial
Purchaser in respect of such claim. If Bluegreen 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 Bluegreen.
(b) The obligations of Bluegreen under this Section 8 to indemnify
the Securitization Depositor, the Securitization Issuer, the Securitization
Indenture Trustee, the Securitization 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 Seller and Bluegreen hereby agrees
that it will not, directly or indirectly, institute, or cause to be instituted,
or join any Person in instituting, against the Securitization Depositor, the
Securitization Issuer or any Association, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
20
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
Securitization Notes issued by the Securitization Issuer.
SECTION 10. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing and
mailed or telecommunicated, or delivered as to each party hereto, at its address
set forth below or at such other address as shall be designated by such party in
a written notice to the other parties hereto. All such notices and
communications shall not be effective until received by the party to whom such
notice or communication is addressed.
Warehouse Issuer
BXG Receivables Note Trust 2001-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopier: (000) 000-0000
Securitization Depositor
Bluegreen Receivables Finance Corporation VI
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx, President
Telecopier: (000) 000-0000
Bluegreen
Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx, Vice President
Telecopier: (000) 000-0000
SECTION 11. No Waiver; Remedies. No failure on the part of the
Securitization Depositor, the Securitization Issuer, the Securitization
Indenture Trustee 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 Seller, Bluegreen, the
Securitization Depositor and their
21
respective successors and assigns. Any assignee shall be an express third party
beneficiary of this Agreement, entitled to directly enforce this Agreement.
Neither the Seller nor Bluegreen may assign any of their rights and obligations
hereunder or any interest herein without the prior written consent of the
Securitization Depositor and any assignee thereof. The Securitization Depositor
may, and intends to, assign all of its rights hereunder to the Securitization
Issuer and the Securitization Issuer intends to assign all of its rights to the
Securitization Indenture Trustee on behalf of the Securitization Noteholders,
and each of the Seller and Bluegreen consents to any such assignments. 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 (or, in the case of the Seller, so long as the Warehouse
Notes are outstanding) provided, however, that the rights and remedies with
respect to any breach of any representation and warranty made by Bluegreen
pursuant to Section 5, and the cure, 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 Securitization Depositor, the Securitization Issuer and the
Securitization Indenture Trustee.
SECTION 13. Amendments; Consents and Waivers. No modification,
amendment or waiver of, or with respect to, any provision of this Agreement, and
all other agreements, instruments and documents delivered thereto, nor consent
to any departure by the Seller or Bluegreen 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 Securitization Indenture Trustee
on behalf of the Securitization 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
Securitization Depositor shall provide or cause to be provided to the
Securitization 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 Seller or Bluegreen in any case shall, in itself, entitle it to
any other consent or further notice or demand in similar or other circumstances.
Each of the Seller and Bluegreen acknowledges that in connection with the
intended assignment by the Securitization Depositor of all of its right, title
and interest in and to each Warehouse Timeshare Loan to the Securitization
Issuer and the Grant by the Securitization Issuer's of all of its rights, title
and interest in and to the Warehouse Timeshare Loans to the Securitization
Indenture Trustee on behalf of the Securitization Noteholders, the
Securitization Issuer intends to issue the Notes, the proceeds of which will be
used by the Securitization Depositor to purchase the Warehouse 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 Securitization Depositor may not purchase or acquire
Warehouse 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 Seller shall be deemed to have granted to
the Securitization Depositor as of the date hereof, a first priority
22
perfected security interest in all of the Seller's right, title and interest in,
to and under such Warehouse 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 WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH
ON THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN
THE U.S. MAILS, POSTAGE PREPAID. THE PARTIES HERETO EACH WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE
OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE
PARTIES TO THIS AGREEMENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY OF THEM TO BRING ANY
ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 16. 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.
23
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, as Securitization
Depositor
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST 2001-A,
as Warehouse Issuer
By: Wilmington Trust Company,
as Owner Trustee
By:
-------------------------------------
Name:
Title:
BLUEGREEN CORPORATION
By:
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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 ING Transfer 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, as Securitization
Depositor
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST 2001-A,
as Warehouse Issuer
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name Xxxxxx X. Xxxxx
Title: Financial Services Officer
BLUEGREEN CORPORATION
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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 ING Transfer Agreement]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
Very truly yours,
BLUEGREEN RECEIVABLES FINANCE
CORPORATION VI, as Securitization
Depositor
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title: President
BXG RECEIVABLES NOTE TRUST 2001-A,
as Warehouse Issuer
By: Wilmington Trust Company,
as Owner Trustee
By:
-------------------------------------
Name:
Title:
BLUEGREEN CORPORATION
By:
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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. Basife
--------------------------------
Name: Xxxxx X. Basife
Title: Secretary/Treasurer
[Signature Page to the ING Transfer 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.
- 3 -
"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.
- 4 -
"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.
- 5 -
"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.
- 6 -
"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
- 7 -
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
- 9 -
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.
- 13 -
"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.
- 14 -
"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.
"Optional 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
- 15 -
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.
- 16 -
"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 Xxxxx'x 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
- 18 -
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. X.xx. 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
- 23 -
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
With respect to each Warehouse Timeshare Loan, as of the related Closing Date or
Transfer Date, as applicable:
(a) except if such Timeshare Loan is listed on Schedule H(a) hereof, payments
due under the Warehouse Timeshare Loan are fully-amortizing and payable in
level monthly installments;
(b) payment obligations under the Warehouse Timeshare Loan bear a fixed rate
of interest;
(c) the Obligor thereunder has made a down payment by cash, check or credit
card of at least 10% percent of the actual purchase price (including
closing costs) of the Timeshare Property (which cash down payment may, in
the case of Upgraded Club Loans only, be represented by the principal
payments on such Warehouse Timeshare Loan since its date of origination)
and no part of such payment has been made or loaned to Obligor by
Bluegreen, the Seller or an Affiliate thereof;
(d) as of the related Cut-Off Date, no principal or interest due with respect
to the Warehouse 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 Warehouse Timeshare Loan to the
Securitization Depositor, the Seller will own full legal and equitable
title to such Warehouse Timeshare Loan, and the Warehouse 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 Warehouse 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 creates a valid, binding and enforceable first Lien on the
related Timeshare
I-1
Property, subject only to Permitted Liens; and the Seller is in compliance
with any Permitted Lien respecting the right to the use of such Timeshare
Property; each of the Assignments of Mortgage and each related endorsement
of the related Mortgage Note constitutes a duly executed, legal, valid,
binding and enforceable assignment or endorsement, as the case may be, of
such related Mortgage and related Mortgage Note, and all monies due or to
become due thereunder, and all proceeds thereof;
(i) with respect to the Obligor and a particular Timeshare Property purchased
by such Obligor, there is only one original Mortgage and Mortgage Note, in
the case of a Club. Loan, 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 Seller or its predecessors, to
maintain the rights of the Seller or its predecessors thereunder as a
mortgagee (or a Seller, in the case of the Aruba Loan) have been
completed;
(j) at the time the related Originator originated such Warehouse Timeshare
Loan to the related Obligor, such Originator had full power and authority
to originate such Warehouse 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 Warehouse Loan, a cooperative interest, as applicable, to
the Timeshare Property related to such Warehouse 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 Warehouse 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;
(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
I-2
acceptable to prudent originators of similar mortgage loans, insuring the
Seller 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 Warehouse Timeshare Loan, and otherwise
in form and substance acceptable to the Indenture Trustee; the Seller 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 Warehouse 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 Seller or Bluegreen 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 Warehouse Timeshare Loan;
(p) the proceeds of the Warehouse 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 Warehouse Timeshare Loan and no such advances
or loans have been made since the origination of the Warehouse 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 Warehouse 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 Warehouse 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 Mortgage subject only to Permitted Liens;
(r) other than if it is an Aruba Loan, the Warehouse Timeshare Loan is
principally and directly secured by an interest in real property;
(s) the Warehouse Timeshare Loan was originated by Bluegreen or one of its
Affiliates in the normal course of its business; the Warehouse Timeshare
Loan originated by Bluegreen or one of its Affiliates was underwritten in
accordance with its underwriting guidelines; the origination, servicing
and collection practices used by Bluegreen and, to Bluegreen's
I-3
Knowledge, its Affiliates with respect to the Warehouse Timeshare Loan
have been in all respects, legal, proper, prudent and customary;
(t) the related Warehouse Timeshare Loan is assignable to and by the obligee
and its successors and assigns and the related Warehouse Timeshare
Property is assignable upon liquidation of the related Warehouse 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 Bluegreen'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
Warehouse 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 Seller or Bluegreen 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 Warehouse 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 portion
of the Timeshare Property from the Lien of the related Mortgage except
upon the payment of the Warehouse Timeshare Loan in full;
(z) the Seller and, to Bluegreen'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 Seller to maintain or defend actions or
proceedings
I-4
with respect to the Warehouse 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 Warehouse 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
Timeshare Associations, pursuant to an agreement between the Manager and
the respective Associations, such contract being in full force and effect;
to Bluegreen'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 that insurance and condemnation proceeds be
applied to restoration of the improvements;
(ee) each rescission period applicable to the related Warehouse Timeshare Loan
has expired;
(ff) no selection procedures were intentionally utilized by the Seller in
selecting the Timeshare Loan, which the Seller knew were materially
adverse to the Securitization Indenture Trustee or the Securitization
Noteholders;
(gg) the Units related to the Warehouse 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
I-5
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 Seller has 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
timeshare 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 Bluegreen'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 Securitization Notes;
(hh) except if such Timeshare Loan is listed on Schedule II(hh) hereof, the
original Loan Balance of such Warehouse Timeshare Loan does not exceed
$25,000;
(ii) payments with respect to the Warehouse Timeshare Loan are to be in legal
tender of the United States;
(jj) all monthly payments made on the Warehouse Timeshare Loan have been made
by the Obligor and not by the Seller or Bluegreen on the Obligor's behalf;
(kk) the Warehouse Timeshare Loan relates to a Resort;
(11) the Warehouse Timeshare Loan constitutes either "chattel paper", a
"general intangible" or an "instrument" as defined in the UCC as in effect
in all applicable jurisdictions;
(mm) the sale, transfer and assignment of the Warehouse 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 Warehouse
Timeshare Loan and Related Security does not require the consent of the
Obligor;
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(nn) each of the Warehouse 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 Warehouse Timeshare Loan relates to a Completed Unit and the Related
Security do not, and the origination of each Warehouse 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
Warehouse Timeshare Loan and the Related Security; no Warehouse Timeshare
Loan was originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer, conveyance or assignment of such Warehouse
Timeshare Loan would be unlawful, void or voidable;
(pp) to Bluegreen'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 Bluegreen;
(qq) except if such Timeshare Loan is listed on Schedule II(qq) hereof, the
Warehouse Timeshare Loan shall not have a Timeshare Loan Rate less than
12.90% per annum;
(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 Warehouse 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
Warehouse 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;
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(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 Warehouse 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 Warehouse Timeshare Loan does not have an original term to maturity in
excess of 120 months;
(yy) to Bluegreen'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 Warehouse Timeshare Loan may not be assumed
without the consent of the obligee;
(aaa) for each Club Loan, the Obligor under the Warehouse Timeshare Loan has not
had its rights under the Club Trust Agreement suspended;
(bbb) the payments under the Warehouse Timeshare Loan are not subject to
withholding taxes imposed by any foreign governments;
(ccc) each entry with respect to the Warehouse Timeshare Loan as set forth on
Schedule II and Schedule III hereof is true and correct. Each entry with
respect to a Qualified 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 Warehouse 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.
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