exhibit 10.117
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 Owner Trust 2000, 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.
W I T N E S S E T H:
WHEREAS, in connection with the transactions contemplated by (i) that
certain sale and servicing agreement, dated as of September 1, 2000 (the
"Warehouse Sale and Servicing Agreement") by and among the Warehouse Issuer, as
issuer, Bluegreen Receivables Finance Corporation IV, as depositor (the
"Warehouse Depositor"), 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"),
U.S. Bank National Association ("US Bank"), as indenture trustee and custodian,
Xxxxxx Financial, Inc. and Barclays Bank PLC as noteholders, (ii) that certain
indenture, dated as of September 1, 2000 (the "Warehouse Indenture"), by and
between Warehouse Issuer and US Bank, as indenture trustee (as amended by that
certain supplement, dated as of November 15, 2002 (the "Indenture Supplement")
by the parties thereto and the Warehouse Purchasers (as defined below)), and
(iii) that certain note purchase agreement, dated as of September 1, 2000 (the
"Warehouse Class A Note Purchase Agreement") by and among the Warehouse Issuer,
Bluegreen, the Warehouse Depositor, Sheffield Receivables Corporation, as
purchaser (the "Class A Warehouse Purchaser") and Barclays Bank PLC, as agent
(the "Class A Warehouse Agent"), and (iv) that certain note purchase agreement,
dated as of September 1, 2000 (the "Warehouse Class B Note Purchase Agreement")
by and among the Warehouse Issuer, Bluegreen, the Warehouse Depositor, Xxxxxx
Financial, Inc., as purchaser (the "Class B Warehouse Purchaser" and together
with the Class A Warehouse Purchaser, the "Warehouse Purchasers") and as agent
(the "Class B Warehouse Agent" and together with the Class A Warehouse Agent,
the "Warehouse Agents"), (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 two classes
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;
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WHEREAS, pursuant to Section 10.4 of the Warehouse Indenture as
supplemented by the Indenture Supplement, Xxxxxx Financial, Inc., as facility
administrator (in such capacity, the "Facility Administrator"), may, after
delivery of notice (a "Sale Notice") to the Warehouse Issuer and US Bank, direct
the Warehouse Issuer to sell, transfer and convey to the Facility
Administrator'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 Facility Administrator has delivered
such notice to the Warehouse Issuer and, in such notice, has directed the
Warehouse Issuer to sell the 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 ING 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, a portion of the proceeds from the sale of the Securitization
Notes shall be applied as a payment in full of all amounts due the Warehouse
Purchasers in respect of the Warehouse Notes and upon receipt thereof, the
Warehouse Sale and Servicing Agreement, the Warehouse Indenture, the Warehouse
Class A Note Purchase Agreement, the Warehouse Class B Note Purchase Agreement
and other related documents shall terminate in accordance with the respective
terms thereof.
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 Agents, the
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Facility Administrator and the 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 Article V 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 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 Owner Trust 2000, 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
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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.
(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 on and 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
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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.
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
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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.
(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
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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 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
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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 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)
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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 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
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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, (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
10
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 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 Blugreen and the
11
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 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
12
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 expect to have a material adverse effect on
the Trust Estate or the Club Trustee's ability to perform
its obligations under the Transaction Documents;
(G) Neither the Club nor the Club Trustee has
incurred any indebtedness for borrowed money (directly, by
guarantee, or otherwise);
(H) All ad valorem taxes and other taxes and
assessments against the Club and/or its trust estate have
been paid when due and neither the Servicer nor, 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);
13
(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 Article V 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
14
Agreement to the Securitization Issuer and that the Securitization Issuer
intends to pledge the 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) 0ptional 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 ING 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
15
forth in Section 6(d) below. To the extent that Bluegreen shall elect to
substitute Qualified 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. 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 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
16
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.
SECTION 7. Covenants of Bluegreen and the Seller.
17
(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 filestamped 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
Timeshare Loan including,
18
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
19
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.
(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).
20
(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, 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.
21
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 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 Owner Trust 2000
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
22
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 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 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.
23
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 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
24
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.
25
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 OWNER TRUST
2000, 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 Xxxxxx 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 OWNER TRUST
2000, 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 Xxxxxx 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 OWNER TRUST 2000, 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. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Title Secretary/Treasurer
[Signature Page to the Xxxxxx 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
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date, (iii) the related Timeshare Loan otherwise ceases to be an Eligible
Timeshare Loan or (iv) the Servicer obtains actual knowledge that a bankruptcy
event has occurred with respect to the related Obligor.
"Defective Timeshare Loan" shall have the meaning specified in Section
4.4 of the Indenture.
"Deferred Interest Amount" shall mean, with respect to a Class of
Notes and a Payment Date, the sum of (i) interest accrued at the related Note
Rate during the related Interest Accrual Period on such Note Balance Write-Down
Amounts applied in respect of such Class and (ii) any unpaid Deferred Interest
Amounts from any prior Payment Date, together with interest thereon at the
applicable Note Rate from the date any such Note Balance Write-Down Amount was
applied in respect of such Class, to the extent permitted by law.
"Definitive Note" shall have the meaning specified in Section 2.2 of
the Indenture.
"Delinquency Event" shall have occurred if the average Delinquency
Level over the last five Due Periods for Timeshare Loans that are 31 days or
more delinquent is equal to or greater than 7%. A Delinquency Event shall be
deemed to exist and be continuing until the average Delinquency Level over the
last five Due Periods for Timeshare Loans that are 31 days or more delinquent is
less than 7% for three consecutive Due Periods.
"Delinquency Level" shall mean for any Due Period, an amount equal to
the sum of the Loan Balances of Timeshare Loans (other than Defaulted Timeshare
Loans) that are the specified number of days delinquent on the last day of such
Due Period divided by the Aggregate Loan Balance on the first day of such Due
Period (expressed as a percentage).
"Delinquency Reserve Amount" shall mean, for any Payment Date, the
product of (i) if (A) no Delinquency Event exists and is continuing, 3.00% or
(B) a Delinquency Event exists and is continuing, 5.00%, and (ii) the aggregate
of the Loan Balances of all Timeshare Loans subject to the lien of the Indenture
(as of the end of the related Due Period).
"Depositor" shall mean Bluegreen Receivables Finance Corporation VI, a
Delaware Corporation, and its permitted successors and assigns.
"Depository" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The initial Depository shall be The Depository Trust Company.
"Depository Agreement" shall mean the letter of representations dated
as of December 13, 2002, by and among the Issuer, the Indenture Trustee and the
Depository.
"Depository Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Depository
effects book-entry transfers and pledges securities deposited with the
Depository.
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"Determination Date" shall mean the day that is five Business Days
prior to such Payment Date.
"Developer" shall mean Bluegreen Vacations Unlimited, Inc., a Florida
corporation, and its permitted successors and assigns.
"DTC" shall mean The Depository Trust Company, and its permitted
successors and assigns.
"Due Period" shall mean with respect to any Payment Date, the period
from the 16th day of the second preceding calendar month to the 15th day of the
preceding calendar month; for the Initial Payment Date, the period from and
including November 16, 2002 to December 15, 2002.
"Eligible Bank Account" shall mean a segregated account, which may be
an account maintained with the Indenture Trustee, which is either (a) maintained
with a depositary institution or trust company whose long-term unsecured debt
obligations are rated at least "A" by Fitch and "A2" by Moody's and whose
short-term unsecured obligations are rated at least "A-1" by Fitch and "P-1" by
Moody's; or (b) a trust account or similar account maintained at the corporate
trust department of the Indenture Trustee.
"Eligible Investments" shall mean one or more of the following:
(a) obligations of, or guaranteed as to timely payment of
principal and interest by, the United States or any agency or
instrumentality thereof when such obligations are backed by the full
faith and credit of the United States;
(b) federal funds, certificates of deposit, time deposits
and bankers' acceptances, each of which shall not have an original
maturity of more than 90 days, of any depository institution or trust
company incorporated under the laws of the United States or any state;
provided that the long-term unsecured debt obligations of such
depository institution or trust company at the date of acquisition
thereof have been rated by each Rating Agency in one of the three
highest rating categories available from S&P and no lower than A2 by
Moody's; and provided, further, that the short-term obligations of
such depository institution or trust company shall be rated in the
highest rating category by such Rating Agency;
(c) commercial paper or commercial paper funds (having
original maturities of not more than 90 days) of any corporation
incorporated under the laws of the United States or any state thereof;
provided that any such commercial paper or commercial paper funds
shall be rated in the highest short-term rating category by each
Rating Agency; and
(d) any no-load money market fund rated (including money
market funds managed or advised by the Indenture Trustee or an
Affiliate thereof) in the highest short-term rating category or
equivalent highest long-term rating category
- 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.
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"Monthly Servicer Report" shall have the meaning specified in Section
5.5 of the Indenture.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage" shall mean, with respect to a Club Loan, any purchase money
mortgage, deed of trust, purchase money deed of trust or mortgage deed creating
a first lien on a Timeshare Property to secure debt granted by the Club Trustee
on behalf of an Obligor to the Club Originator with respect to the purchase of
such Timeshare Property and/or the contribution of the same to the Club and
otherwise encumbering the related Timeshare Property to secure payments or other
obligations under such Timeshare Loan.
"Mortgage Note" shall mean, with respect to a Club Loan, the original,
executed promissory note evidencing the indebtedness of an Obligor under a Club
Loan, together with any rider, addendum or amendment thereto, or any renewal,
substitution or replacement of such note.
"Net Liquidation Proceeds" shall mean with respect to a Liquidation,
the positive difference between Liquidation Proceeds and Liquidation Expenses.
"New Servicing Fee Proposal" shall have the meaning specified in
Section 5.4 of the Indenture.
"Note Balance Write-Down Amount" shall mean with respect to any
Payment Date, an amount equal to the excess, if any, of the Aggregate
Outstanding Note Balance (immediately after the distribution of Available Funds
and any amounts paid to the Class D Noteholders from the Class D Reserve Account
on such Payment Date) over the Aggregate Loan Balance as of the end of the Due
Period related to such Payment Date.
"Note Owner" shall mean, with respect to a Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Depository or on the books of a Person maintaining an account with such
Depository (directly or as an indirect participant, in accordance with the rules
of such Depository).
"Note Purchase Agreement" shall mean that certain note purchase
agreement dated the Closing Date, between the Initial Purchaser and the Issuer.
"Note Rate" shall mean with respect to the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes, 4.580%, 4.740%, 5.735% and
7.750%, respectively.
"Note Register" shall have the meaning specified in Section 2.4(a) of
the Indenture.
"Note Registrar" shall have the meaning specified in Section 2.4(a) of
the Indenture.
"Noteholder" shall mean any holder of a Note of any Class.
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"Notes" shall mean collectively, the Class A Notes, the Class B Notes,
the Class C Notes and the Class D Notes.
"Obligor" shall mean the related obligor under a Timeshare Loan.
"Officer's Certificate" shall mean a certificate executed by a
Responsible Officer of the related party.
"Opinion of Counsel" shall mean a written opinion of counsel, in each
case acceptable to the addressees thereof.
"Optional Purchase Limit" shall mean, on any date, an amount equal to
(x) 15% of the Cut-Off Date Aggregate Loan Balance less (y) the aggregate Loan
Balances (as of the related purchase dates or release dates, as applicable) of
all Defaulted Timeshare Loans (a) previously purchased by the Club Originator
pursuant to the Sale Agreement, the Purchase Agreement or any of the Transfer
Agreements and (b) previously released pursuant to Section 4.5(c) of the
Indenture.
"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 1 st day of each month, or, if such date
is not a Business Day, then the next succeeding Business Day, commencing on the
Initial Payment Date.
"Payment Default Event" shall have occurred if (i) each Class of Notes
shall become due and payable pursuant to Section 6.2(a) of the Indenture or (ii)
each Class of Notes shall otherwise become due and payable following an Event of
Default under the Indenture and the Indenture Trustee has, in its good faith
judgment, determined that the value of the assets comprising the Trust Estate is
less than the Aggregate Outstanding Note Balance.
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"Percentage Interest" shall mean with respect to the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes, 48%, 12%, 13% and 21%,
respectively.
"Permitted Liens" shall mean (a) with respect to Timeshare Loans in
the Trust Estate, Liens for state, municipal or other local taxes if such taxes
shall not at the time be due and payable, (ii) Liens in favor of the Depositor
and the Issuer created pursuant to the Transaction Documents, and (iii) Liens in
favor of the Trust and the Indenture Trustee created pursuant to the Indenture;
(b) with respect to the related Timeshare Property, materialmen's,
warehousemen's, mechanic's and other Liens arising by operation of law in the
ordinary course of business for sums not due, (ii) Liens for state, municipal or
other local taxes if such taxes shall not at the time be due and payable, (iii)
Liens in favor of the Depositor pursuant to Transfer Agreements and the Purchase
Agreement, and (iv) the Obligor's interest in the Timeshare Property under the
Timeshare Loan whether pursuant to the Club Trust Agreement or otherwise; and
(c) with respect to Timeshare Loans and Related Security in the Trust Estate,
any and all rights of the Beneficiaries referred to in the Club Trust Agreement
under such Club Trust Agreement.
"Person" means an individual, general partnership, limited
partnership, limited liability partnership, corporation, business trust, joint
stock company, limited liability company, trust, unincorporated association,
joint venture, Governmental Authority, or other entity of whatever nature.
"Predecessor Servicer Work Product" shall have the meaning specified
in Section 5.4(b) of the Indenture.
"Principal Distribution Amount" shall equal for any Payment Date and
Class of Notes, the sum of the following:
(i) the product of (a) such Class' Percentage Interest and (b)
the amount of principal collected in respect of each
Timeshare Loan during the related Due Period (including, but
not limited to, principal in respect of scheduled payments,
partial prepayments, prepayments in full, liquidations,
Substitution Shortfall Amounts and Repurchase Prices, if
any, but excluding principal received in respect of
Timeshare Loans that became Defaulted Timeshare Loans during
prior Due Periods that have not been released from the lien
of the Indenture) or, if the Cut-Off Date for a Timeshare
Loan shall have occurred during the related Due Period, the
amount of principal collected in respect of such Timeshare
Loan after such Cut-Off Date, and
(ii) the product of (a) such Class' Percentage Interest and (b)
the aggregate Loan Balance of all Timeshare Loans which
became Defaulted Timeshare Loans during the related Due
Period, less the sum of (x) the aggregate Loan Balance of
all Qualified Substitute Timeshare Loans which were conveyed
to the Trust Estate in respect of Defaulted Timeshare Loans
during the related Due Period, (y) the principal portion of
Repurchase
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Prices paid in respect of Defaulted Timeshare Loans during
the related Due Period, and (z) the principal portion of Net
Liquidation Proceeds received during the related Due Period,
and
(iii) any unpaid Principal Distribution Amounts for such Class
from prior Payment Dates.
"Purchase Agreement" shall mean the purchase and contribution
agreement, dated as of November 15, 2002, between the Club Originator and the
Depositor pursuant to which such Club Originator sells Timeshare Loans to the
Depositor.
"Qualified Substitute Timeshare Loan" shall mean a Timeshare Loan (i)
that, when aggregated with other Qualified Substitute Timeshare Loans being
substituted on such Transfer Date, has a Loan Balance, after application of all
payments of principal due and received during or prior to the month of
substitution, not in excess of the Loan Balance of the Timeshare Loan being
substituted on the related Transfer Date, (ii) that complies, as of the related
Transfer Date, with each of the representations and warranties contained in the
Transfer Agreements and Purchase Agreement, including that such Qualified
Substitute Timeshare Loan is an Eligible Timeshare Loan, (iii) that shall not
cause the weighted average coupon rate of the Timeshare Loans to be less than
15.25% after such substitution, (iv) that shall not cause the weighted average
months of seasoning on the Timeshare Loans to be less than 16 months after such
substitution, and (v) that does not have a stated maturity greater than 12
months prior to the Stated Maturity.
"Rating Agency" shall mean 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
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Mortgage, Owner Beneficiary Rights, Vacation Points and the related Timeshare
Loan Files, (ii) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such Timeshare Loan,
together with all mortgages, assignments and financing statements signed by the
Club Trustee on behalf of an Obligor describing any collateral securing such
Timeshare Loan, (iii) all guarantees, insurance and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Timeshare Loan, and (iv) all other security and books, records
and computer tapes relating to the foregoing.
"Repurchase Price" shall mean with respect to any Timeshare Loan to be
purchased by the Club Originator pursuant to the Transfer Agreements, the Sale
Agreement or the Purchase Agreement, an amount equal to the Loan Balance of such
Timeshare Loan as of the date of such purchase or repurchase, together with all
accrued and unpaid interest on such Timeshare Loan at the related Timeshare Loan
Rate to, but not including, the due date in the then current Due Period.
"Request for Release" shall be a request for release of Timeshare Loan
Documents in the form required by the Custodial Agreement.
"Required Payments" shall mean each of the items described in (i)
through (xv) of Section 3.4 of the Indenture.
"Reservation System": The reservation system utilized by the Club and
owned by the Club Managing Entity and operated by Resort Condominium
International, Inc. or the services contracted by the Club Managing Entity with
a third party.
"Residual Interest Certificate" shall mean the certificate issued
under the Trust Agreement, which represents the economic residual interest of
the Trust formed thereunder.
"Residual Interest Owner" shall mean the owner of the Residual
Interest Certificate issued by the Issuer pursuant to the Trust Agreement, which
shall initially be the Depositor.
"Resort" shall mean any of the following resorts: MountainLoft(TM),
Laurel Crest(TM), Shore Crest Vacation Villas, Harbour Lights(TM), The Lodge
Alley(TM), The Falls Village(TM), Christmas Mountain Village(TM), Orlando's
Sunshine(TM) Resort, Solara Surfside(TM) Condominium, Shenendoah Crossing(TM)
Farm & Country Club and La Cabana Beach Resort & Racquet Club.
"Resort Interests" shall mean as defined in the Club Trust Agreement.
"Responsible Officer" shall mean (a) when used with respect to the
Owner Trustee or the Indenture Trustee, any officer assigned to the Owner
Trustee Corporate Trust Office or the Corporate Trust Office, respectively,
including any Managing Director, Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Assistant Treasurer, any trust officer or any
other officer such Person customarily performing functions similar to those
performed by any of the above designated officers, and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and
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familiarity with the particular subject; (b) when used with respect to the
Servicer, the Chief Financial Officer, a Vice President, an Assistant Vice
President, the Chief Accounting Officer or the Secretary of the Servicer; and
(c) with respect to any other Person, the chairman of the board, chief financial
officer, the president, a vice president, the treasurer, an assistant treasurer,
the secretary, an assistant secretary, the controller, general partner, trustee
or the manager of such Person.
"S&P" shall mean Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Sale Agreement" shall mean that certain sale agreement, dated as of
November 15, 2002, between the Depositor and the Issuer pursuant to which the
Depositor sells Timeshare Loans to the Issuer.
"Schedule of Timeshare Loans" shall mean the list of Timeshare Loans
delivered pursuant to the Sale Agreement, as amended from time to time to
reflect repurchases, substitutions and Qualified Substitute Timeshare Loans
conveyed pursuant to the terms of the Indenture, which list shall set forth the
following information with respect to each Timeshare Loan as of the related
Cut-Off Date, as applicable, in numbered columns:
1 Name of Obligor
2 Condo Ref/Loan Number
3 Interest Rate Per Annum
4 Date of Origin
5 Maturity
6 Sales Price
7 Monthly Payment
8 Original Loan Balance
9 Original Term
10 Outstanding Loan Balance
11 Down Payment
12 First payment date
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sellers" shall mean with respect to (i) the Purchase Agreement,
Bluegreen, (ii) the BXG Trust 2001-A Transfer Agreement, BXG Trust 2001-A and
(iii) the BXG Trust 2000 Transfer Agreement, BXG Trust 2000.
"Sequential Pay Event" shall mean either a Payment Default Event or a
Trust Estate Liquidation Event.
"Servicer" shall mean Bluegreen in its capacity as servicer under the
Indenture, the Backup Servicing Agreement and the Custodial Agreement, and its
permitted successors and assigns.
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"Servicer Event of Default" shall have the meaning specified in
Section 5.4 of the Indenture.
"Servicing Fee" shall mean for any Payment Date, the product of (i)(A)
if Bluegreen or an affiliate thereof is Servicer, one-twelfth of 1.50% and (B)
if the Indenture Trustee is the successor Servicer, one-twelfth of 2.05%, and
(ii) the Aggregate Loan Balance as of the first day of the related Due Period;
provided that if the Indenture Trustee is the successor Servicer, it shall,
after payment of the Backup Servicing Fee, be entitled to a minimum monthly
payment of $5,500.00.
"Servicing Officer" shall mean those officers of the Servicer involved
in, or responsible for, the administration and servicing of the Timeshare Loans,
as identified on the list of Servicing Officers furnished by the Servicer to the
Indenture Trustee and the Noteholders from time to time.
"Servicing Standard" shall mean, with respect to the Servicer and the
Backup Servicer a servicing standard which complies with applicable law, the
terms of the respective Timeshare Loans and, to the extent consistent with the
foregoing, in accordance with the customary standard of prudent servicers of
loans secured by timeshare interests similar to the Timeshare Properties, but in
no event lower than the standards employed by it when servicing loans for its
own account or other third parties, but, in any case, without regard for (i) any
relationship that it or any of its Affiliates may have with the related Obligor,
and (ii) its right to receive compensation for its services hereunder or with
respect to any particular transaction.
"Servicer Termination Costs" shall mean any extraordinary
out-of-pocket expenses incurred by the Indenture Trustee associated with the
transfer of servicing.
"Similar Law" shall mean the prohibited transaction rules under ERISA
or section 4975 of the Code or any substantially similar provision of federal,
state or local law.
"Stated Maturity" shall mean the Payment Date occurring in September
2014.
"Statutory Trust Statute" shall mean the Delaware Statutory Trust Act,
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.ss.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 II(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 Property, subject only to Permitted Liens;
and the Seller is in compliance with any
I-1
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 acceptable to
prudent originators of similar mortgage loans, insuring the Seller or
its
I-2
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 xxx 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 Knowledge, its Affiliates with respect to the Warehouse
Timeshare Loan have been in all respects, legal, proper, prudent and
customary;
I-3
(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 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;
I-4
(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 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
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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;
(ll) 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;
(nn) each of the Warehouse Timeshare Loan, the Related Security, related
Assignment of Mortgage, related Mortgage, related Mortgage Note,
related Finance Agreement and each
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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;
(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;
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(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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