Exhibit 10.63
TRUST AGREEMENT
OF
BLUEGREEN STATUTORY TRUST V
THIS TRUST AGREEMENT OF BLUEGREEN STATUTORY TRUST V (this "Trust
Agreement") is dated as of July 19, 2006 by and among Bluegreen Corporation, a
Massachusetts corporation, as depositor (the "Depositor"), Wilmington Trust
Company, a Delaware banking corporation, as trustee (in such capacity, the
"Delaware Trustee"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (in such capacity, the "Property Trustee" and, together
with the Delaware Trustee, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby shall be known as "Bluegreen Statutory Trust
V" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. The Trustees hereby acknowledge receipt of such amount in
trust from the Depositor. Such amount shall constitute the initial trust estate
of the Trust. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a statutory trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Statutory Trust Act"),
and that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Secretary of State of the State of Delaware in such form as the
Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance by the Trust of the
Preferred Securities and Common Securities as may be referred to therein. Prior
to the execution and delivery of such amended and restated Trust Agreement, (i)
the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate of the Trust, except as otherwise contemplated by this Trust
Agreement, and (ii) the Depositor shall take or cause to be taken on behalf of
the trust all actions as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise. Notwithstanding the foregoing, the Trustees are authorized to take
all actions, as instructed by the Depositor, necessary to effect the
transactions contemplated herein.
4. The Depositor, on behalf of the Trust, is hereby authorized, in its
discretion, (i) to prepare, file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents that shall be
necessary or desirable to register or establish the exemption from the
registration of the Preferred Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (ii) to prepare, negotiate, execute and deliver
letters or documents to, or instruments for filing with, a
depositary relating to the sale and issuance of the Preferred Securities of the
Trust as it deems necessary or desirable; and (iii) to negotiate, execute,
deliver and perform on behalf of the Trust one or more placement agreements,
purchase agreements, subscription agreements, dealer manager agreements, escrow
agreements and other similar or related agreements providing for or relating to
the sale of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Securities and Exchange Commission (the
"Commission") or any state securities or Blue Sky laws or by any depositary to
be executed on behalf of the Trust by the Trustees, the Trustees are hereby
authorized and, to the extent so required, directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission and any state securities or Blue Sky laws or
by any depositary.
5. This Trust Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor, which
may increase or decrease the number of trustees of the Trust; provided, that to
the extent required by the Statutory Trust Act, one trustee of the Trust shall
either be a natural person who is a resident of the State of Delaware or, if not
a natural person, an entity that has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Depositor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior written notice to the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts), (ii) to the fullest extent permitted by law, indemnify, defend and
hold harmless the Trustees and any of the officers, directors, employees and
agents of the Trustees (the "Indemnified Persons") from and against all losses,
damages, liabilities, claims, actions, suits, costs, expenses, disbursements
(including the reasonable fees and expenses of counsel), taxes and penalties of
any kind and nature whatsoever (collectively, "Expenses"), to the extent that
such Expenses arise out of or are imposed upon or asserted at any time against
such Indemnified Persons with respect to the performance of this Trust
Agreement, the creation, operation, administration or termination of the Trust
or the transactions contemplated hereby; provided, that the Depositor shall not
be required to indemnify any Indemnified Person for Expenses to the extent such
Expenses result from the willful misconduct, bad faith or negligence of such
Indemnified Person and (iii) to the fullest extent permitted by law, advance to
each such Indemnified Person Expenses incurred by such Indemnified Person in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Depositor of an undertaking, by or on behalf of such Indemnified Person, to
repay such amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified therefor under this Section 7. The obligations of the
Depositor under this Section 7 shall survive the resignation or
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removal of the Trustee, shall survive the termination, amendment, supplement,
and/or restatement of this Trust Agreement, and shall survive the transfer by
the Depositor of any or all of its interest in the Trust.
8. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities of the Trust at the election of the Depositor.
9. This Trust Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BLUEGREEN CORPORATION, as Depositor
By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY, as Property Trustee
By:
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Name:
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Title:
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WILMINGTON TRUST COMPANY, as Delaware Trustee
By:
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Name:
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Title:
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