Exhibit 10.214
Execution Copy
NOTE FUNDING AGREEMENT
Dated as of May 1, 2006
among
BXG TIMESHARE TRUST I
as Issuer,
BLUEGREEN CORPORATION
as Seller and Servicer,
BLUEGREEN TIMESHARE FINANCE CORPORATION I
as Depositor,
THE PURCHASERS PARTIES HERETO,
and
BRANCH BANKING AND TRUST COMPANY,
as Agent
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Relating to
BXG TIMESHARE TRUST I
Timeshare Loan-Backed VFN Notes, Series I
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TABLE OF CONTENTS
Page
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SECTION I. DEFINITIONS.................................................... 1
Section 1.1. Definitions................................................ 1
Section 1.2. Other Definitional Provisions.............................. 1
SECTION II. AMOUNT AND TERMS OF COMMITMENTS................................ 1
Section 2.1. Purchases.................................................. 2
Section 2.2. Reductions, Increases and Extensions of Commitments........ 3
Section 2.3. Fees, Expenses, Payments, Etc.............................. 4
Section 2.4. Indemnification............................................ 5
Section 2.5. Funding Termination Event.................................. 7
Section 2.6. Notification of Note Rate.................................. 7
SECTION III. CONDITIONS PRECEDENT........................................... 8
Section 3.1. Condition to Initial Funding............................... 8
Section 3.2. Condition to Borrowings................................... 10
Section 3.3. Transfers Pursuant to Section 2.2(e)...................... 11
SECTION IV. REPRESENTATIONS AND WARRANTIES................................ 11
Section 4.1. Representations and Warranties of Bluegreen............... 11
Section 4.2. Representations and Warranties of the Issuer.............. 14
Section 4.3. Representations and Warranties of the Depositor........... 16
SECTION V. COVENANTS..................................................... 18
Section 5.1. Covenants................................................. 18
SECTION VI. INCREASED COSTS, INCREASED CAPITAL, ETC....................... 23
Section 6.1. Increased Costs........................................... 23
Section 6.2. Increased Capital......................................... 24
Section 6.3. Taxes..................................................... 24
Section 6.4. Nonrecourse Obligations; Limited Recourse................. 26
Section 6.5. Breakage.................................................. 26
SECTION VII. THE AGENT..................................................... 26
Section 7.1. Appointment............................................... 26
Section 7.2. Delegation of Duties...................................... 27
Section 7.3. Exculpatory Provisions.................................... 27
Section 7.4. Reliance by Agent......................................... 27
Section 7.5. Notices................................................... 28
Section 7.6. Non-Reliance on Agent and Other Purchasers................ 28
Section 7.7. Indemnification........................................... 28
Section 7.8. Agent in Its Individual Capacities........................ 29
Section 7.9. Successor Agent........................................... 29
Section 7.10. Communications............................................ 29
Section 7.11. Control by Purchasers..................................... 00
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XXXXXXX XXXX. SECURITIES LAWS; TRANSFERS.................................... 30
Section 8.1. Transfers of Notes........................................ 30
Section 8.2. Register of Purchasers.................................... 33
SECTION IX. MISCELLANEOUS................................................. 34
Section 9.1. Amendments and Waivers.................................... 34
Section 9.2. Notices................................................... 34
Section 9.3. No Waiver; Cumulative Remedies............................ 35
Section 9.4. Successors and Assigns.................................... 36
Section 9.5. Counterparts.............................................. 36
Section 9.6. Severability.............................................. 36
Section 9.7. Integration............................................... 36
Section 9.8. Governing Law............................................. 36
Section 9.9. Termination............................................... 36
Section 9.10. Limited Recourse; No Proceedings.......................... 36
Section 9.11. Survival of Representations and Warranties................ 37
Section 9.12. Submission to Jurisdiction; Waivers....................... 37
Section 9.13. WAIVERS OF JURY TRIAL..................................... 38
Section 9.14. Limitation of Liability of Owner Trustee.................. 38
Section 9.15. [RESERVED]................................................ 38
Section 9.16. Hedging Requirements...................................... 39
Section 9.17. No Bankruptcy Petition Against the Structured Purchaser... 39
Section 9.18. Limited Recourse Against the Structured Purchaser......... 39
LIST OF EXHIBITS
EXHIBIT A Form of Investment Letter
EXHIBIT B Form of Joinder Supplement
EXHIBIT C Form of Transfer Supplement
EXHIBIT D Form of Borrowing Notice
EXHIBIT E Conditions Precedent to Initial Funding Date
Schedule A Subsidiaries and Divisions
Schedule B Tradenames
Schedule C Material Transactions
Schedule 4.1(k) Tax Schedule
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This NOTE FUNDING AGREEMENT (this "Agreement"), dated as of May 1,
2006, by and among BXG TIMESHARE TRUST I, a Delaware statutory trust (the
"Issuer"), BLUEGREEN CORPORATION, a Massachusetts corporation ("Bluegreen"),
BLUEGREEN TIMESHARE FINANCE CORPORATION I, a Delaware corporation (the
"Depositor"), the PURCHASERS from time to time parties hereto (collectively, the
"Purchasers") and BRANCH BANKING AND TRUST COMPANY ("BB&T"), a North Carolina
corporation, as agent for the Purchasers (together with its successors in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Issuer, Bluegreen and U.S. Bank National Association, a
national banking association, as Indenture Trustee (together with its successors
in such capacity, the "Indenture Trustee"), are parties to a certain Indenture,
dated as of May 1, 2006 (as the same may from time to time be amended or
otherwise modified, the "Indenture"), pursuant to which the Issuer has issued
its Timeshare Loan-Backed VFN Notes, Series I, Class A (the "Class A Notes"),
Timeshare Loan-Backed VFN Notes, Series I, Class B (the "Class B Notes"),
Timeshare Loan-Backed VFN Notes, Series I, Class C (the "Class C Notes"),
Timeshare Loan-Backed VFN Notes, Series I, Class D (the "Class D Notes"),
Timeshare Loan-Backed VFN Notes, Series I, Class E (the "Class E Notes", and
together with the Class A Notes, the Class B Notes, the Class C Notes and the
Class D Notes, the "Notes");
WHEREAS, the Issuer may, from time to time, subject to and in
accordance with the terms of the Indenture and this Agreement, request
Borrowings, such Borrowings to be evidenced by the Notes; and
WHEREAS, the Purchasers desire to appoint BB&T as Agent hereunder on
and in accordance with the terms provided herein.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby expressly acknowledged, the parties hereto agree as follows:
SECTION I. DEFINITIONS
Section 1.1. Definitions. Capitalized terms used but not defined
herein shall have the meanings set forth in the "Standard Definitions" attached
hereto as Annex A.
Section 1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
(b) The words "hereof", "herein", and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection and Exhibit references are to this Agreement, unless otherwise
specified. The words "including" and "include" shall be deemed to be followed by
the words "without limitation".
SECTION II. AMOUNT AND TERMS OF COMMITMENTS
Section 2.1. Purchases. (a) Each Purchaser hereby directs that the
Notes be registered in the name of the Agent, as nominee on behalf of the
Purchasers from time to time hereunder.
(b) On and subject to the terms and conditions of this
Agreement from the Closing Date and prior to the Facility Termination Date, each
Committed Purchaser severally, agrees to advance its Commitment Percentage of
each Borrowing requested; provided that in no event shall a Committed Purchaser
be required on any date to make an advance exceeding its aggregate Available
Commitment, (determined prior to giving effect to such advance); provided,
further that in no event shall Borrowings occur more frequently than once every
calendar month unless otherwise approved by the Agent.
(c) Such advance shall be made available to the Issuer,
subject to the satisfaction of the conditions specified in Section 3.2 hereof,
at or prior to 2:00 p.m. New York City time on the applicable Funding Date by
deposit of immediately available funds to an account designated by the Issuer to
the Agent; provided, however, that the Structured Purchaser may initiate
transfer of its advance at or prior to 3:00 p.m. New York City time on the
applicable Funding Date.
(d) Each Borrowing on the applicable Funding Date shall be
made on prior notice from the Issuer received by the Agent (such notice, a
"Borrowing Notice") not later than 10:00 a.m. New York City time on the second
Business Day preceding such Funding Date. Each Borrowing Notice shall be
irrevocable and shall specify (i) the aggregate amount of the Borrowing, and
(ii) the applicable Funding Date (which shall be a Business Day) and shall be in
substantially in the form attached hereto as Exhibit D. Borrowings may occur on
any Business Day, excluding the following (each, a "Blackout Period"): (a) the
last 3 Business Days of any month other than November and December, (b) the 15th
(or if the 15th is not a Business Day, the next succeeding Business Day) of any
month, (c) the last 5 Business Days of November and (d) the last 15 days of
December. The Agent shall promptly forward a copy of all Borrowing Notices to
each Purchaser no later than Noon on the same day received.
Notwithstanding the language above that Borrowings may
not occur during a Blackout Period, upon five Business Day's prior written
notice from the Issuer, the Agent agrees to enter into a pre-funding arrangement
with the Structured Purchaser for the issuance of commercial paper in
anticipation of a Blackout Period. If, pursuant to such pre-funding agreement
with the Structured Purchaser, an advance is scheduled to be made to the Issuer
during the Blackout Period (the "Blackout Funding Date"), then a Borrowing
Notice will be sent to all other Purchasers who are not Structured Purchasers in
accordance with the procedures above and such Borrowing shall occur on such
Blackout Funding Date.
(e) Pursuant to the Indenture, the Issuer shall issue five
Classes of Notes - the Class A Notes, the Class B Notes, the Class C Notes, the
Class D Notes and the Class E Notes. Each Borrowing shall be evidenced by a
corresponding increase in the Outstanding Note Balance of each Class of Notes. A
Class of Notes will have its Outstanding Note Balance increased on each Funding
Date by an amount equal to (1) the product of (A) the
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amount of such Borrowing and (B) such Class' Percentage Interest, divided by (2)
the Borrowing Base Percentage.
(f) Payments on the Notes shall be made as provided in the
Indenture and the Agent shall allocate to the Purchasers each payment in respect
of the Notes received by the Agent in its capacity as nominee of the Purchasers.
(g) The Agent shall keep records of each Borrowing, each
Interest Accrual Period applicable thereto, the interest rate(s) applicable to
the Notes and each payment of principal and interest thereon. Such records shall
be rebuttably presumptive evidence of the subject matter thereof absent manifest
error.
(h) The aggregate minimum advance for a Funding Date shall be
$10,000,000; provided, however, that if the Available Commitment shall be less
than $10,000,000, the minimum advance shall be $5,000,000; and provided,
further, that the aggregate minimum advance for the Initial Funding Date shall
be $15,000,000.
Section 2.2. Reductions, Increases and Extensions of Commitments.
(a) At any time the Issuer may, acting at the direction of the Residual Interest
Owner, upon at least three Business Days' prior written notice to the Agent,
terminate the Commitments or reduce the aggregate Commitments; provided,
however, such Commitments may not be reduced to an amount less than $50,000,000;
provided, further, that any such reduction shall not entitle the Issuer to
prepay the balance of the Notes other than through Available Funds. Each such
partial reduction shall be in an aggregate amount of $5,000,000 or integral
multiples of $1,000,000 in excess thereof (or such other amount requested by the
Issuer to which the Committed Purchasers consent). Reductions of the aggregate
Commitments pursuant to this subsection 2.2(a) shall be allocated pro rata among
the Committed Purchasers in accordance with each Committed Purchaser's
Commitment Percentage. At any time, the Agent may upon the request of the
Residual Interest Owner and the consent of all the Committed Purchasers (which
consent may be withheld in their sole discretion), increase the Commitments of
the Committed Purchasers.
(b) On the Facility Termination Date, the Commitment of each
Committed Purchaser shall be automatically reduced to zero.
(c) On the date hereof, the Structured Purchaser has executed
a Joinder Supplement (as defined below) and on the date hereof is a Committed
Purchaser hereunder. Subject to the provisions of subsections 8.1(a) and 8.1(b),
any other Person may from time to time with the consent of the Agent and the
Issuer become a party to this Agreement as a Purchaser by (i) delivering to the
Issuer an Investment Letter and (ii) entering into an agreement substantially in
the form attached hereto as Exhibit B hereto (a "Joinder Supplement"), with the
Agent and the Issuer, acknowledged by the Servicer, which shall specify (A) the
name and address of such Person for purposes of Section 9.2 hereof, (B) its
Commitment, if any, and (C) the other information provided for in such form of
Joinder Supplement. Upon its receipt of a duly executed Joinder Supplement, the
Agent shall on the effective date determined pursuant thereto give notice of
such effectiveness to the Issuer, the Servicer and the Indenture Trustee.
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(d) A Joinder Supplement may provide for a reduction in the
Commitment of a Committed Purchaser if, in accordance with the terms thereof,
proper notice is delivered to the Agent, the Issuer and the Servicer. At any
time such notice is received from a Committed Purchaser, the Commitment of such
Committed Purchaser shall be reduced as provided for therein.
(e) So long as no Event of Default has occurred and is
continuing (unless otherwise agreed by the Agent), no more than 75 and no less
than 45 days prior to the Commitment Expiration Date, the Issuer may request,
through the Agent, that each Purchaser extend the Commitment Expiration Date to
a date which is up to 364 days after the Commitment Expiration Date then in
effect, which decision will be made by each Purchaser in its sole discretion.
Upon receipt of any such request, the Agent shall promptly notify each Purchaser
thereof. Within 10 Business Days of notice from the Agent, each Purchaser shall
notify the Agent of its willingness or refusal to so extend the Commitment
Expiration Date (the "Extension Notice Deadline"). The Agent shall notify the
Issuer of such willingness or refusal by the Purchasers within five Business
Days of the Extension Notice Deadline. If any Purchaser notifies the Agent of
its refusal to extend or does not expressly notify the Agent that it is willing
to extend the Commitment Expiration Date by the applicable Extension Notice
Deadline (each a "Non-Extending Purchaser"), the Commitment Expiration Date
shall not be so extended.
(f) Subject to the extensions, increases and reductions
described above, on the date hereof, the aggregate Commitments and the Maximum
Facility Balance shall each be $137,500,000.
Section 2.3. Fees, Expenses, Payments, Etc. (a) Bluegreen agrees to
pay to the Agent and the Placement Agent, the Fees and other amounts set forth
in the Fee Letters at the times specified therein.
(b) Bluegreen further agrees to pay on the earlier of the
Initial Funding Date and June 15, 2006, to the Agent and the Structured
Purchaser all reasonable costs and expenses in connection with the preparation,
execution, delivery, administration (including any requested amendments, waivers
or consents of any of the Transaction Documents or the Liquidity Agreement) of
this Agreement, the Transaction Documents and the Liquidity Agreement, and the
other documents to be delivered hereunder or in connection herewith, including
the reasonable fees (for the Agent's counsel, estimated to be approximately
$150,000) and out-of-pocket expenses of counsel for the Agent and the Structured
Purchaser with respect thereto.
(c) Bluegreen agrees to pay to the Agent and, following the
occurrence and during the continuance of an Event of Default other than one
arising from the failure of the Obligors to make payments on the Timeshare
Loans, each Purchaser, promptly following presentation of an invoice therefor,
all reasonable costs and expenses (including reasonable fees and expenses of
counsel), if any, in connection with the enforcement of any of the Transaction
Documents, and the other documents delivered thereunder or in connection
therewith.
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(d) Bluegreen further agrees to pay on demand any and all
documentary, stamp, transfer and other taxes and governmental fees payable in
connection with the execution, delivery, filing and recording of any of the
Transaction Documents or the other documents and agreements to be delivered
hereunder and thereunder or otherwise in connection with the issuance of the
Notes, and agrees to save each Purchaser and the Agent harmless from and against
any liabilities with respect to or resulting from any delay in paying or any
omission to pay such taxes and fees.
(e) Periodic fees or other periodic amounts payable hereunder
shall be calculated, unless otherwise specified in the Fee Letters, on the basis
of a 360-day year and for the actual days elapsed.
(f) All payments to be made hereunder or under the Indenture,
whether on account of principal, interest, fees or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 1:00 p.m. New York
City time on the due date thereof to the Agent's account specified in subsection
9.2(b) hereof or directly to the Purchasers' accounts if the Agent so instructs
the Indenture Trustee. Payments received after 1:00 p.m. New York City time
shall be deemed to have been made on the next Business Day. In any event, the
Agent shall forward or instruct the Indenture Trustee to forward to the
Purchasers their respective portion of such payments in immediately available
funds for receipt no later than 3:00 p.m. New York City time on the date
received. Notwithstanding anything herein to the contrary, if any payment due
hereunder becomes due and payable on a day other than a Business Day, the
payment date thereof shall be extended to the next succeeding Business Day and
in the case of principal, interest shall accrue thereon at the applicable rate
during such extension. To the extent that (i) the Indenture Trustee, the
Depositor, the Seller, the Issuer or the Servicer makes a payment to the Agent
or a Purchaser or (ii) the Agent or a Purchaser receives or is deemed to have
received any payment or proceeds for application to an obligation, which payment
or proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a Indenture
Trustee, receiver or any other party under any bankruptcy or insolvency law,
state or Federal law, common law, or for equitable cause, then, to the extent
such payment or proceeds are set aside, the obligation or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment or proceeds had not been received or deemed received by the Agent
or the Purchasers, as the case may be.
Section 2.4. Indemnification. (a) Bluegreen (the "Indemnitor")
agrees to indemnify and hold harmless the Agent and each Purchaser and any
shareholders, members, directors, officers, employees, agents or Affiliates
thereof, of the Agent or Purchasers (each such Person being referred to as an
"Indemnitee") from and against any and all claims, damages, losses, liabilities,
costs or expenses whatsoever (including reasonable fees and expenses of legal
counsel) which such Indemnitee may incur (or which may be claimed against such
Indemnitee) arising out of, by reason of or in connection with the execution and
delivery of, or payment or other performance under, or the failure to make
payments or perform under, any Transaction Document or the issuance of the Notes
(including in connection with the preparation for defense of any investigation,
litigation or proceeding arising out of, related to or in connection with such
execution, delivery, payment, performance or issuance), except (i) to the extent
that any such claim, damage, loss, liability, cost or expense shall be caused by
the willful misconduct, bad faith,
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recklessness or gross negligence of, or breach of any representation or warranty
in any Transaction Document by, any Indemnitee, (ii) to the extent that any such
claim, damage, loss, liability, cost or expense is covered or addressed by
subsection 2.3(c) or (d) hereof, (iii) to the extent that any such claim,
damage, loss, liability, cost or expense relates to disclosure made by the Agent
or a Purchaser in connection with an Assignment or Participation pursuant to
Section 8.1 hereof which disclosure is not based on information given to the
Agent or such Purchaser by or on behalf of Bluegreen, or any affiliate thereof
or by or on behalf of the Indenture Trustee or (iv) to the extent that such
claim, damage, loss, liability, cost or expense shall be caused by any default
in payment of any Timeshare Loan. The foregoing indemnity shall include any
claims, damages, losses, liabilities, costs or expenses to which any such
Indemnitee may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended, the Investment Company Act of 1940, as amended, or
other federal or state law or regulation arising out of or based upon any untrue
statement or alleged untrue statement of a material fact in any disclosure
document relating to the Notes or any amendments thereof or supplements thereto,
in any case, provided or approved by the Issuer (other than statements provided
by the Indemnitee expressly for inclusion therein) or arising out of, or based
upon, the omission or the alleged omission to state a material fact necessary to
make the statements therein or any amendment thereof or supplement thereto, in
light of the circumstances in which they were made, not misleading (other than
with respect to statements provided by the Indemnitee expressly for inclusion
therein).
(b) Promptly after the receipt by an Indemnitee of a notice of
the commencement of any action against an Indemnitee, such Indemnitee will
notify the Agent and the Agent will, if a claim in respect thereof is to be made
against an Indemnitor pursuant to subsection 2.4(a) hereof, notify such
Indemnitor in writing of the commencement thereof; but the omission so to notify
such party will not relieve such party from any liability which it may have to
such Indemnitee pursuant to the preceding paragraph except to the extent the
Indemnitor is prejudiced by such failure. If any such action is brought against
an Indemnitee and it notifies an Indemnitor of its commencement, such Indemnitor
will be entitled to participate in and, to the extent that it so elects by
delivering written notice to the Indemnitee promptly after receiving notice of
the commencement of the action from the Indemnitee to assume the defense of any
such action, with a single counsel mutually satisfactory to such Indemnitor and
each affected Indemnitee. After receipt of such notice by an Indemnitor from an
Indemnitee, such Indemnitor will not be liable to such Indemnitee for any legal
or other expenses except as provided below and except for the reasonable costs
of investigation incurred by the Indemnitee in connection with the defense of
such action. Each Indemnitee will have the right to employ its own counsel in
any such action, but the fees, expenses and other charges of such counsel will
be at the expense of the such Indemnitee unless (i) the employment of such
counsel by such Indemnitee has been authorized in writing by such Indemnitor,
(ii) such Indemnitor shall have failed to assume the defense and employ counsel,
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnitee and either an Indemnitor or
another person or entity that may be entitled to indemnification from an
Indemnitor (by virtue of this Section 2.4 or otherwise) and such Indemnitee
shall have been advised by counsel that there may be one or more legal defenses
available to such Indemnitee which are different from or additional to those
available to an Indemnitor or such other party or shall otherwise have
reasonably determined that the co-representation would present such counsel with
a conflict of interest (in which case the Indemnitor will not have the right to
direct the defense of such action on behalf of the Indemnitee). In any such case
described in clauses (i) through (iii) of the
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preceding sentence, the reasonable fees, disbursements and other charges of
counsel will be at the expense of the Indemnitor; it being understood that in no
event shall the Indemnitors be liable for the fees, disbursements and other
charges of more than one counsel (in addition to any local counsel) for all
Indemnitees in connection with any one action or separate but similar or related
actions arising out of the same general allegations or circumstances. An
Indemnitor shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with the written consent of an Indemnitor or if there
shall be a final judgment for the plaintiff in any such action, suit or
proceeding, such Indemnitor agrees to indemnify and hold harmless any Indemnitee
to the extent set forth in this Agreement from and against any loss, claim,
damage, liability or reasonable expense by reason of such settlement or
judgment. No Indemnitor shall, without the prior written consent of an
Indemnitee (not to be unreasonably withheld), settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder, if such
settlement, compromise or consent includes an admission of culpability or
wrong-doing on the part of such Indemnitee or the entry or an order, injunction
or other equitable or nonmonetary relief (including any administrative or other
sanctions or disqualifications) against such Indemnitee or if such settlement,
compromise or consent does not include an unconditional release of such
Indemnitee from all liability arising out of such claim, action, suit or
proceeding.
(c) The obligations of Bluegreen under this Agreement shall be
absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement. Without limiting the foregoing,
neither the lack of validity or enforceability of, or any modification to, any
Transaction Document nor the existence of any claim, setoff, defense (other than
a defense of payment) or other right which Bluegreen may have at any time
against the Agent, any Purchaser or any other Person, whether in connection with
any Transaction Document or any unrelated transactions, shall constitute a
defense to such obligations.
Section 2.5. Funding Termination Event. If any Funding Termination
Event shall occur and be continuing, (A) if such event is a Funding Termination
Event specified in clause (i) or (ii) of paragraph (d) of the definition thereof
or paragraphs (d) and (e) of the definition of Event of Default, the Commitment
of each Committed Purchaser shall automatically be reduced to zero, and (B) if
such event is any other Funding Termination Event, with the consent of the
Required Purchasers, the Agent may, or upon the request of the Required
Purchasers, the Agent shall, by notice to the Issuer, reduce the Commitments of
each Committed Purchaser to zero, whereupon the Commitments shall immediately be
reduced to zero.
Section 2.6. Notification of Note Rate. (a) On the third Business
Day immediately preceding each Determination Date, the Agent shall calculate the
CP Note Rate and the LIBOR Note Rate and the Interest Distribution Amount
applicable to all Notes for the applicable Interest Accrual Period and shall
notify the Indenture Trustee and the Servicer of such rate and amount by written
notice. Such rate and amount shall be calculated using an estimate of the
applicable Note Rate, if necessary, for the remaining days in such Interest
Accrual Period. The Agent shall consult with the Structured Purchaser in the
determination of the CP Note Rate.
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(b) On or before the third Business Day immediately preceding
each Determination Date, if the Agent shall have used an estimate of the
applicable Note Rate and Interest Distribution Amount with respect to the
preceding Interest Accrual Period, the Agent shall compute the actual related
Note Rate and Interest Distribution Amount applicable to the Notes for such
Interest Accrual Period, and if the actual Interest Distribution Amount so
computed (i) is greater than the estimated Interest Distribution Amount for such
preceding Interest Accrual Period, the Interest Distribution Amount so
calculated for the current Interest Accrual Period shall be increased by the
amount of such difference and (ii) is less than the estimated Interest
Distribution Amount for such preceding Interest Accrual Period, the Interest
Distribution Amount so calculated for the current Interest Accrual Period shall
be decreased by the amount of such difference.
SECTION III. CONDITIONS PRECEDENT
Section 3.1. Conditions to Closing. The following shall be
conditions precedent to the Closing Date:
(a) This Agreement and the other Transaction Documents shall
have become effective in accordance with their respective terms.
(b) All of the terms, covenants, agreements and conditions of
this Agreement, the Fee Letter and the other Transaction Documents to be
complied with and performed by Bluegreen, the Seller, the Servicer, the Issuer,
the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be,
by the Closing Date shall have been complied with in all material respects or
otherwise waived by the Agent.
(c) Each of the representations and warranties of each of
Bluegreen, the Seller, the Servicer, the Issuer, the Depositor, the Owner
Trustee or the Indenture Trustee, as the case may be, made in this Agreement and
in the other Transaction Documents shall be true and correct in all material
respects as of the time of the Closing Date as though made as of such time
(except to the extent that they expressly relate to an earlier or later time).
(d) No Funding Termination Event, Event of Default, Servicer
Event of Default under any Transaction Document or event that with the giving of
notice or lapse of time or both would constitute such an amortization event or
other termination event shall have occurred and be continuing.
(e) The Agent shall have received (and, to the extent
requested, made available to each Purchaser):
(i) Certified copies of the resolutions of the Board of
Directors of each of Bluegreen and the Depositor approving this Agreement and
the Transaction Documents to which it is a party and any other documents
contemplated thereby and certified copies of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement and the Transaction Documents to which it is a party and any
other documents contemplated thereby;
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(ii) An officer's certificate of each of Bluegreen, the
Depositor and the Owner Trustee, certifying the names and true signatures of the
officers authorized to sign this Agreement and the Transaction Documents and any
other documents to be delivered by it hereunder or thereunder;
(iii) A copy of the bylaws of each of Bluegreen and the
Depositor, certified by an officer thereof;
(iv) A certified copy of the charter of each of
Bluegreen and the Depositor, a certificate as to the good standing of Bluegreen
from the Secretary of State of the State of Massachusetts and a certificate as
to the good standing of the Depositor from the Secretary of State of the State
of Delaware, in each case dated as of a recent date;
(v) Proper financing statements under the UCC of all
jurisdictions that the Agent may deem necessary or desirable in order to perfect
the ownership and security interests contemplated by the Purchase Agreement, the
Sale Agreement, the Indenture and this Agreement;
(vi) Acknowledgment copies of proper financing
statements, if any, necessary to release all security interests and other rights
of any Person in the Trust Estate previously granted by the Seller, the
Depositor or the Issuer;
(vii) Completed requests for information, dated on or
before the Closing Date, in all jurisdictions referred to in subsection (vi)
above that name the Issuer, the Depositor or Bluegreen as debtor, together with
copies of such other financing statements;
(viii) A favorable opinion of counsel to Bluegreen,
dated the Initial Funding Date, in form and substance satisfactory to the Agent,
such opinion to permit reliance by the Purchasers;
(ix) A favorable opinion of counsel to Vacation Trust,
Inc., dated the Initial Funding Date, in form and substance satisfactory to the
Agent related to corporate, regulatory and insolvency matters, such opinion to
permit reliance by the Purchasers;
(x) A favorable written opinion of counsel to the Owner
Trustee and special Delaware counsel to the Issuer, dated the Initial Funding
Date, in form and substance satisfactory to the Agent, such opinion to permit
reliance by the Purchasers;
(xi) A favorable written opinion of counsel to the
Issuer, dated the Initial Funding Date, in form and substance satisfactory to
the Agent, such opinion to permit reliance by the Purchasers;
(xii) A favorable written opinion of internal counsel
for the Indenture Trustee and the Custodian each dated the Initial Funding Date,
as to general corporate matters and such other matters with respect to the
Indenture Trustee and Custodian as the Agent may reasonably request, such
opinion to permit reliance by the Purchasers,
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(xiii) A favorable written opinion of internal counsel
for the Backup Servicer dated the Initial Funding Date as to general corporate
matters and such other matters with respect to the Backup Servicer as the Agent
may reasonably request, such opinion to permit reliance by the Purchasers,
(xiv) A favorable written opinion of local counsels for
the Seller, dated as of the Initial Funding Date regarding certain state
timeshare and real estate legal matters related to each Initial Approved Opinion
Resort and the related Timeshare Loans, in form and substance satisfactory to
the Agent regarding local law matters, such opinion to permit reliance by the
Purchasers;
(xv) A copy of the documentation evidencing the release
of all liens attaching to the Timeshare Loans pursuant to previous financings;
(xvi) Executed copies of each of the Transaction
Documents; and
(xvii) Such other documents, instruments, certificates
and opinions as the Agent may reasonably request including those set forth as
the closing list delivered to the Seller in connection with this transaction.
(f) No action, suit, proceeding or investigation by or before
any Governmental Authority shall have been instituted to restrain or prohibit
the consummation by the Agent or the Purchasers of, or to invalidate, the
transactions contemplated by this Agreement or the Transaction Documents in any
material respect.
Section 3.2. Condition to Borrowings. The following shall be
conditions precedent to any funding by a Purchaser on each Funding Date (unless
otherwise indicated) (which conditions must be satisfied no later than 2:00 p.m.
New York City time on the Business Day immediately preceding such Funding Date):
(a) The Issuer shall have timely delivered a Borrowing Notice
pursuant to subsection 2.1(d) hereof;
(b) The representations and warranties of Bluegreen, the
Issuer and the Depositor set forth or referred to in Section 4.1, 4.2 and 4.3
hereof shall be true and correct in all material respects on the date of such
Borrowing as though made on and as of such date (except where such
representation or warranty specifically relates to any earlier date, in which
case such representation and warranty shall have been true and correct in all
material respects as of such earlier date); no event which is, or upon the
giving of notice, the lapse of time or both would be, a Funding Termination
Event shall have occurred and be continuing on such date;
(c) Both immediately prior to and after giving effect to such
Borrowing and the application of the proceeds thereof as provided herein and in
the Indenture, the Outstanding Note Balance of the Notes shall not exceed the
Borrowing Base;
(d) All conditions specified in the Indenture with respect to
such Borrowing shall have been satisfied;
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(e) If the Agent waives any of the conditions set forth in
Section 3.1 hereof on the Closing Date, each such condition shall be satisfied
on or before the first Borrowing;
(f) With respect to the initial Funding Date, the Agent shall
have received (and, to the extent requested, made available to each Purchaser)
delivery of such documents, opinions and certificates as are specified on
Exhibit E hereto;
(g) Unless previously received on a Funding Date, the Agent
shall have received a favorable written opinion on timeshare and real estate law
matters for the Timeshare Loans to be included on such Funding Date related to
the Resort for which Bluegreen is seeking to have Agent approve as an Additional
Approved Opinion Resort, such opinion to permit reliance by the Purchasers; and
(h) With respect to Borrowings funded by the Structured
Purchaser, (i) the Liquidity Agreement with respect to the Structured Purchaser
shall be in full force and effect, (ii) the Structured Purchaser shall have
sufficient unused liquidity support (after giving effect to the Borrowing to
occur on such Funding Date) pursuant to such Liquidity Agreement and (iii) the
Structured Purchaser will have received funds from either the commercial paper
market or pursuant to the Liquidity Agreement sufficient to make such Borrowing.
SECTION IV. REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Bluegreen. Bluegreen
hereby represents and warrants to the Agent and the Purchasers that as of the
date hereof, the Closing Date and each Funding Date:
(a) It is a corporation validly existing and in good standing
under the laws of the State of Massachusetts, with full power and authority
under such laws to own its properties and conduct its business as such
properties are currently owned and such business is currently conducted and to
execute, deliver and perform its obligations under this Agreement and the
Transaction Documents to which it is a party.
(b) It has the power, authority and right to make, execute,
deliver and perform this Agreement and the Transaction Documents to which it is
a party and all the transactions contemplated hereby and thereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement and the Transaction Documents to which it is a party. When
executed and delivered, each of this Agreement and the Transaction Documents to
which it is a party will constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
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(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained in
connection with the execution, delivery or performance of each of this Agreement
and the Transaction Documents to which it is a party that has not been duly
obtained and that is not and will not be in full force and effect on the Closing
Date, except such that may be required by applicable securities laws or UCC-1
Financing Statements as have been prepared for filing.
(d) The execution, delivery and performance of each of this
Agreement and the Transaction Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its charter or By-laws, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound (other than
violations of such laws, regulations, orders, decrees, mortgages, indentures,
contracts and other agreements that, individually or in the aggregate, would not
have a material adverse effect on its ability to perform its obligations under
this Agreement or the Transaction Documents to which it is a party).
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body pending or, to its knowledge,
threatened against it, with respect to this Agreement, the Transaction Documents
to which it is a party, the transactions contemplated hereby or thereby or the
issuance of the Notes, and there is no such litigation or proceeding against it
or any significant portion of its properties that would have a material adverse
effect on the transactions contemplated by, or its ability to perform its
obligations under, this Agreement or the Transaction Documents to which it is a
party.
(f) It has delivered to the Agent complete and correct copies
of its audited financial statements for the fiscal year ended on or about
December 31, 2005.
(g) No report, statement, exhibit or other written information
required to be furnished by Bluegreen or any of its Affiliates, agents or
representatives to the Agent or any Purchaser pursuant to this Agreement or the
Transaction Documents is or shall be inaccurate in any material respect, or
contains or shall contain any material misstatement of fact, or omits or shall
omit to state a material fact or any fact necessary to make the statements
contained therein not misleading, in each case, as of the date it is or shall be
dated or (except as otherwise disclosed to the Agent or any Purchaser, as the
case may be, at such time) as of the date so furnished.
(h) Each of the Transaction Documents to which it is a party
is in full force and effect and no amortization, termination or other event or
circumstance has occurred thereunder or in connection therewith that could
reasonably be expected to result in the termination of any such agreement or any
other interruption of the ongoing performance by the parties to each such
agreement of their respective obligations thereunder.
(i) Bluegreen repeats and reaffirms to the Agent and the
Purchasers each of the representations and warranties of Bluegreen in the
Transaction Documents to which it is a party and each other document delivered
in connection therewith or herewith, and represents that such representations
and warranties are true and correct in all material respects
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(except where such representation or warranty specifically relates to any
earlier date, in which case such representation and warranty is repeated and
affirmed as of such earlier date).
(j) Based upon the Investment Letters of the Purchasers and
compliance with the terms of this Agreement and the Transaction Documents, the
sale of the Notes pursuant to the terms of this Agreement and the Indenture will
not require the registration of such Notes under the Securities Act.
(k) All tax returns (federal, state and local) required to be
filed with respect to Bluegreen have been filed (which filings may be made by an
Affiliate of Bluegreen on a consolidated basis covering Bluegreen and other
Persons) and there has been paid or adequate provision made in its GAAP
financial statements for the payment of all taxes, assessments and other
governmental charges in respect of Bluegreen (or in the event consolidated
returns have been filed, with respect to the Persons subject to such returns),
other than as on Schedule 4.1(k) hereto.
(l) Based upon the Investment Letters of the Purchasers, the
representation letter from GSS Holdings, Inc. and compliance with the terms of
this Agreement and the Transaction Documents, the Indenture is not required to
be qualified under the Trust Indenture Act of 1939, as amended and none of
Bluegreen, the Depositor or the Issuer is required to be registered under the
Investment Company Act of 1940, as amended.
(m) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of Bluegreen
since the year ended December 31, 2005.
(n) The chief executive office of Bluegreen is at the address
indicated in Section 9.2 hereof.
(o) The Credit Policy and the Collection Policy attached as
Exhibits J and K to the Indenture, respectively (as the same may be amended from
time to time in accordance with the provisions of the Indenture and this
Agreement), are representative of policies of Bluegreen and are consistent with
the Servicing Standard and, to the best knowledge of the Servicer, industry
standard (it being understood that Bluegreen does not review credit bureau
reports or scores reported by Fair Xxxxxx & Company prior to loan origination).
(p) As of the date hereof: (i) Bluegreen has only the
subsidiaries and divisions listed on Schedule A to this Agreement; and (ii)
Bluegreen has, within the last five (5) years, operated only under the
tradenames identified in Schedule B to this Agreement, and, within the last five
years, has not changed its name, merged with or into or consolidated with any
other corporation or been the subject of any proceeding under Xxxxx 00, Xxxxxx
Xxxxxx Code (Bankruptcy), except as disclosed in such Schedule C.
(q) Bluegreen and each Affiliate thereof is in compliance in
all material respects with ERISA and no lien in favor of the Pension Benefit
Guaranty Corporation on any of the Timeshare Loans shall exist.
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(r) The name and address of the Lockbox Bank, together with
the account numbers of the Lockbox Accounts at the Lockbox Bank, are specified
in the Lockbox Agreement (or at such other Lockbox Bank and/or with such other
Lockbox Accounts as have been notified to the Agent). All applicable Obligors
will be instructed to make payment to the Lockbox Account in accordance with the
Indenture.
(s) For clarity, it is understood that the Timeshare Loans,
related Timeshare Loan Documents and other related assets will be conveyed by
the Seller to the Depositor and by the Depositor to the Issuer pursuant to the
Purchase Agreement and Sale Agreement, respectively, without recourse,
representation on warranty except as expressly provided therein. Without
limiting the foregoing, none of the Seller, the Depositor or any of their
respective subsidiaries shall be responsible for payments on the Timeshare
Loans, and any other credit risks associated therewith shall be borne by the
Issuer and the holders of any obligations of the Issuer.
(t) Bluegreen and each of its Affiliates has and intends to in
the future to properly disclose and account for the transactions contemplated by
the Transaction Documents as an on balance sheet transaction in accordance with
GAAP. Bluegreen intends to have the transactions contemplated by the Transaction
Documents reviewed by a third party advisor and eventually by its auditors to
confirm the foregoing. The transaction contemplated by the Transaction Documents
is a structured financing for tax purposes.
Section 4.2. Representations and Warranties of the Issuer. The
Issuer hereby represents and warrants to the Agent and the Purchasers that as of
the date hereof, the Closing Date and each Funding Date:
(a) It is a statutory trust validly existing and in good
standing under the laws of the State of Delaware, with full power and authority
under such laws to own its properties and conduct its business as such
properties are currently owned and such business is currently conducted and to
execute, deliver and perform its obligations under this Agreement and the
Transaction Documents to which it is a party.
(b) It has the power, authority and right to make, execute,
deliver and perform this Agreement and the Transaction Documents to which it is
a party and all the transactions contemplated hereby and thereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement and the Transaction Documents to which it is a party. When
executed and delivered, each of this Agreement and the Transaction Documents to
which it is a party will constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
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(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained in
connection with the execution, delivery or performance of each of this Agreement
and the Transaction Documents to which it is a party that has not been duly
obtained and that is not and will not be in full force and effect on the Closing
Date, except such that may be required by applicable securities laws or UCC-1
Financing Statements as have been prepared for filing.
(d) The execution, delivery and performance of each of this
Agreement and the Transaction Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, the Trust Agreement, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound.
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body pending or, to its knowledge,
threatened against it, with respect to this Agreement the Transaction Documents
to which it is a party, the transactions contemplated hereby or thereby or the
issuance of the Notes.
(f) No report, statement, exhibit or other written information
required to be furnished by it or any of its Affiliates, agents or
representatives to the Agent or any Purchaser pursuant to this Agreement or the
Transaction Documents is or shall be inaccurate in any material respect, or
contains or shall contain any material misstatement of fact, or omits or shall
omit to state a material fact or any fact necessary to make the statements
contained therein not misleading, in each case, as of the date it is or shall be
dated or (except as otherwise disclosed to the Agent or any Purchaser, as the
case may be, at such time) as of the date so furnished.
(g) The Notes have been duly and validly authorized, and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to and paid for in accordance with this Agreement, will be duly and
validly issued and outstanding, and will be entitled to the benefits of the
Indenture, this Agreement and the other Transaction Documents.
(h) Each of the Transaction Documents to which it is a party
is in full force and effect and no amortization, termination or other event or
circumstance has occurred thereunder or in connection therewith that could
reasonably be expected to result in the termination of any such agreement or any
other interruption of the ongoing performance by the parties to each such
agreement of their respective obligations thereunder.
(i) The Issuer repeats and reaffirms to the Agent and the
Purchasers each of the representations and warranties of the Issuer in the
Transaction Documents to which it is a party and each other document delivered
in connection therewith or herewith, and represents that such representations
and warranties are true and correct in all material respects (except where such
representation or warranty specifically relates to any earlier date, in which
case such representation and warranty is repeated and affirmed as of such
earlier date).
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(j) Any taxes, fees and other charges of Governmental
Authorities applicable to it, except for franchise or income taxes, in
connection with the execution, delivery and performance by it of this Agreement
and the Transaction Documents to which it is a party or otherwise applicable to
it in connection with the transactions contemplated hereby or thereby have been
paid or will be paid at or prior to the Closing Date to the extent then due.
Section 4.3. Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants, that as of the date hereof and the
Closing Date:
(a) It is a corporation validly existing and in good standing
under the laws of the State of Delaware, with full power and authority under
such laws to own its properties and conduct its business as such properties are
currently owned and such business is currently conducted and to execute, deliver
and perform its obligations under this Agreement and the Transaction Documents
to which it is a party.
(b) It has the power, authority and right to make, execute,
deliver and perform this Agreement and the Transaction Documents to which it is
a party and all the transactions contemplated hereby and thereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement and the Transaction Documents to which it is a party. When
executed and delivered, each of this Agreement and the Transaction Documents to
which it is a party will constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms, subject, as to such
enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws relating to or affecting creditors' rights generally from time to
time in effect. The enforceability of its obligations under such agreements may
also be limited by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and no
representation or warranty is made with respect to the enforceability of its
obligations under any indemnification provisions in such agreements to the
extent that indemnification is sought in connection with securities laws
violations.
(c) No consent, license, approval or authorization of, or
registration with, any Governmental Authority is required to be obtained in
connection with the execution, delivery or performance of each of this Agreement
and the Transaction Documents to which it is a party that has not been duly
obtained and that is not and will not be in full force and effect on the Closing
Date, except such that may be required by applicable securities laws or UCC-1
Financing Statements as have been prepared for filing.
(d) The execution, delivery and performance of each of this
Agreement and the Transaction Documents to which it is a party do not violate
any provision of any existing law or regulation applicable to it, any order or
decree of any court to which it is subject, its charter or By-laws, or any
mortgage, indenture, contract or other agreement to which it is a party or by
which it or any significant portion of its properties is bound.
(e) There is no litigation or administrative proceeding before
any court, tribunal or governmental body pending or, to its knowledge,
threatened against it, with respect to this Agreement, the Transaction Documents
to which it is a party, the transactions contemplated hereby or thereby or the
issuance of the Notes.
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(f) No report, statement, exhibit or other written information
required to be furnished by it or any of its Affiliates, agents or
representatives to the gent or any Purchaser pursuant to this Agreement or the
Transaction Documents is or shall be inaccurate in any material respect, or
contains or shall contain any material misstatement of fact, or omits or shall
omit to state a material fact or any fact necessary to make the statements
contained therein not misleading, in each case, as of the date it is or shall be
dated or (except as otherwise disclosed to the Agent or any Purchaser, as the
case may be, at such time) as of the date so furnished.
(g) The Notes have been duly and validly authorized, and, when
executed and authenticated in accordance with the terms of the Indenture and
delivered to and paid for in accordance with this Agreement, will be duly and
validly issued and outstanding, and will be entitled to the benefits of the
Indenture, this Agreement and the other Transaction Documents.
(h) Each of the Transaction Documents to which it is a party
is in full force and effect and no default or other event or circumstance has
occurred thereunder or in connection therewith that could reasonably be expected
to result in the termination of any such agreement or any other interruption of
the ongoing performance by the parties to each such agreement of their
respective obligations thereunder.
(i) The Depositor repeats and reaffirms to the Agent and the
Purchasers each of the representations and warranties of the Depositor in the
Transaction Documents to which it is a party and each other document delivered
in connection therewith or herewith, and represents that such representations
and warranties are true and correct in all material respects (except where such
representation or warranty specifically relates to any earlier date, in which
case such representation and warranty are repeated and affirmed as of such
earlier date).
(j) Any taxes, fees and other charges of Governmental
Authorities applicable to it, except for franchise or income taxes, in
connection with the execution, delivery and performance by it of this Agreement
and the Transaction Documents to which it is a party or otherwise applicable to
it in connection with the transactions contemplated hereby or thereby have been
paid or will be paid at or prior to the Closing Date to the extent then due.
(k) The chief executive office of the Depositor is at the
address indicated in Section 9.2 hereof.
SECTION V. COVENANTS
Section 5.1. Covenants. Each of Bluegreen, the Depositor and the
Issuer, each solely as to itself, covenants and agrees with the Agent and the
Purchasers, through the Facility Termination Date and thereafter so long as any
amount of the Notes shall remain outstanding or any monetary obligation arising
hereunder shall remain unpaid, unless the Required Purchasers shall otherwise
consent in writing, that:
(a) it shall perform in all material respects each of the
respective agreements and indemnities applicable to it and comply in all
material respects with each of the respective terms and provisions applicable to
it under the other Transaction Documents to which
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it is party, which agreements and indemnities are hereby incorporated by
reference into this Agreement as if set forth herein in full; it shall, to the
extent any other party shall fail to perform any of its obligations in the
Transaction Documents, take all reasonable action to enforce the obligations of
each of the other parties to such Transaction Documents which are contained
therein;
(b) the Issuer and the Servicer shall furnish to the Agent a
copy of each opinion, certificate, report, statement, notice or other
communication (other than investment instructions) relating to the Notes which
is furnished by or on behalf of it to the other or to the Indenture Trustee and
furnish to the Agent after receipt thereof, a copy of each notice, demand or
other communication relating to the Notes, this Agreement or the Indenture
received by the Issuer or the Servicer from the Indenture Trustee, the Depositor
or the Seller; and (ii) such other information, documents records or reports
respecting the Collateral, the Seller, the Depositor, the Issuer or the Servicer
as the Agent may from time to time reasonably request;
(c) the Issuer shall furnish to the Agent on or before the
date such reports are due under the Indenture copies of each of the reports,
notices and certificates required by Section 7.2 of the Indenture;
(d) the Issuer shall promptly furnish to the Agent a copy,
addressed to the Agent, of each opinion of counsel delivered to the Indenture
Trustee pursuant to Section 7.3(d) of the Indenture;
(e) Bluegreen shall not permit a Servicer Event of Default
under the Indenture to occur;
(f) Bluegreen shall continue to engage in business of the same
general type as now conducted with respect to the Timeshare Loans transferred by
it and preserve, renew and keep in full force and effect its existence and take
all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; and comply with
all Requirements of Law except where the failure to be so qualified could
reasonably be expected to have a material adverse affect on Bluegreen;
(g) the Issuer, the Depositor, the Seller and the Servicer
shall at the expense of the Seller and at any time from time to time during
regular business hours, on reasonable notice to the Issuer, the Depositor, the
Seller or the Servicer, as the case may be, permit the Agent, or its agents or
representatives to:
(i) examine all books, records and documents (including
computer tapes and disks) in its possession or under its control; and
(ii) visit its offices and property for the purpose of
examining such materials described in clause (i) above;
(h) the Issuer and the Servicer shall furnish to the Agent,
promptly after the occurrence of any event which is, or upon the giving of
notice, the lapse of time or both would be, an Funding Termination Event, a
certificate of an appropriate officer of the Issuer or
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the Servicer, as the case may be, setting forth the circumstances of such event
and any action taken or proposed to be taken by the Issuer or the Servicer with
respect thereto;
(i) it shall timely make all payments, deposits or transfers
and give all instructions to transfer required by this Agreement and the
Indenture;
(j) it shall execute and deliver to the Agent or the Indenture
Trustee all such documents and instruments and do all such other acts and things
as may be necessary or reasonably required by the Agent or the Indenture Trustee
to enable the Agent or the Indenture Trustee to exercise and enforce their
respective rights under the Transaction Documents and to realize thereon, and
record and file and rerecord and refile all such documents and instruments, at
such time or times, in such manner and at such place or places, all as may be
necessary or required by the Indenture Trustee or the Agent to validate,
preserve, perfect and protect the position of the Indenture Trustee under the
Indenture provided no such action shall be inconsistent with the Indenture or
contrary to instructions of the Indenture Trustee;
(k) neither the Depositor nor the Issuer will consolidate with
or merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, except (i) in accordance with the
Indenture and (ii) with the prior written consent of the Required Purchasers;
(l) Bluegreen will not resign as Servicer, unless (i) the
performance of its duties under the Indenture is no longer permissible pursuant
to Requirements of Law and there is no reasonable action which it could take to
make the performance of such duties permissible under such Requirements of Law,
or (ii) at least 66-2/3% of the Purchasers shall have consented thereto;
(m) Bluegreen shall furnish to each Purchaser and the Agent:
(i) (A) for so long as Bluegreen is a reporting company
under the Exchange Act, each report on Form 8-K, Form 10-K or Form 10-Q required
to be filed with the Securities and Exchange Commission by Bluegreen and (B) if
Bluegreen is no longer a reporting company under the Exchange Act, (1) as soon
as available and in any event within 45 days after the end of each fiscal
quarter, the consolidated balance sheet of Bluegreen and its subsidiaries as of
the end of such quarter and consolidated statements of income and retained
earnings of Bluegreen and its subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter, certified
by the chief financial officer of Bluegreen and (2) as soon as available and in
any event within 90 days after the end of each fiscal year of Bluegreen, a copy
of the consolidated financial statements of Bluegreen and its subsidiaries for
such year accompanied by an audit report of a nationally recognized firm of
independent certified public accountants (or such other firm of independent
certified public accountants acceptable to the Agent) which report shall be
unqualified as to going concern and scope of audit and shall state that such
consolidated financial statements present fairly the consolidated financial
position of Bluegreen and each of its subsidiaries at the dates indicated and
the results of their operations and their cash flow for the periods indicated is
in conformity with GAAP and that the examination had been made in accordance
with GAAP;
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(ii) A copy of each certificate, opinion, report, notice
or other communication (other than investment instructions) furnished by or on
behalf of Bluegreen or the Issuer to the Indenture Trustee under the Transaction
Documents, concurrently therewith, and promptly after receipt thereof, a copy of
each notice, demand or other communication received by or on behalf of
Bluegreen, the Depositor or the Issuer under the Transaction Documents; and
(iii) Such other information (including financial
information), documents, records or reports respecting the Notes, the Trust
Estate, Bluegreen, the Depositor or the Issuer as the Agent may from time to
time reasonably request;
(n) Bluegreen shall not make, or permit any Person within its
control to make, any material amendment, modification or change to, or provide
any material waiver under, the Indenture or the other Transaction Documents
without the prior written consent of the Agent and in any case in compliance
with Section 9.1 hereof;
(o) Bluegreen will comply in all material respects with the
Credit Policy and the Collection Policy in regard to each Timeshare Loan.
Bluegreen shall (i) notify the Agent ten days prior to any material amendment of
or change in the Credit Policy or the Collection Policy and (ii) obtain the
Agent's prior written consent (which consent will not be unreasonably withheld
or delayed) if such amendment or change has a material and adverse affect on the
Noteholders; provided, that Bluegreen may immediately implement any changes (and
provide notice to the Agent subsequent thereto) as may be required under
applicable law from time to time upon the reasonable determination of Bluegreen;
and provided, further, that Bluegreen shall deliver a copy of any non-material
amendments or changes to the Collection Policy or the Credit Policy to the Agent
with the Monthly Report to be delivered subsequent to the effective date of such
amendments or changes.
(p) at the request of the Agent, the Seller shall cause to be
delivered to the Agent, within 30 days following the end of each fiscal quarter
of the Seller, the written report of a review conducted as of the last day of
such fiscal quarter by an independent auditor acceptable to the Agent of a
random sampling of Timeshare Loans that are held by the Custodian, together with
all related Timeshare Loans Documents held by the Custodian; provided, however,
in addition to the quarterly reports described above, each calendar year (so
long as no Event of Default has occurred), the Agent, in its sole discretion,
can request one written report to be conducted other than quarterly and the
Seller shall cause such written report to be delivered to the Agent no later
than the later of (i) thirty days after such request by the Agent or (ii) the
fifth Business Day after the completion of the related audit procedures; it
being understood, however, that if the Agent shall request more than two written
reports during a calendar year (excluding any written reports requested during
the occurrence of an Event of Default), the third request and all other requests
thereafter during such calendar year shall be at the expense of the Agent; it
being further understood, however, that upon the occurrence of an Event of
Default, the Agent shall not be limited to the number of written reports that it
may request and the expense of such written reports shall be borne by the
Seller.
(q) to the extent it has not previously done so, Bluegreen
shall instruct all applicable Obligors to cause all Collections to be deposited
directly to the Lockbox Account. Bluegreen shall hold in trust, and deposit,
immediately, but in any event not later than two
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Business Days of its receipt thereof, to the Lockbox Account all Collections
received from time to time by it from the related Obligors;
(r) Bluegreen shall deliver all the Timeshare Loan Files to
the Custodian pursuant to the terms of the Custodial Agreement;
(s) Bluegreen shall notify the Agent within five Business Days
of obtaining knowledge thereof, of any fraudulent activity or theft in the
origination or servicing of Timeshare Loans that results or may result in a loss
of at least $250,000;
(t) except as otherwise provided herein, neither Bluegreen,
the Depositor nor the Issuer will sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any Adverse
Claim upon (or the filing of any financing statement) or with respect to, any
Timeshare Loan, or upon or with respect to any account which concentrates in a
Lockbox Bank to which any Collections of any Timeshare Loan are sent, or assign
any right to receive income in respect thereof;
(u) except as otherwise permitted in the Indenture or with the
prior written consent of the Agent, Bluegreen will not extend, amend or
otherwise modify the terms of any Timeshare Loan, or amend, modify or waive any
term or condition of any contract related thereto;
(v) neither Bluegreen nor the Servicer will make any change in
its instructions to Obligors regarding payments to be made to the Lockbox
Account, unless such instructions are to deposit such payments to another
lockbox account approved by the Agent;
(w) none of the Seller, the Depositor or the Issuer will
change its name, identity or structure or its chief executive office, unless at
least 30 days prior to the effective date of any such change such person
delivers to the Indenture Trustee and the Agent UCC financing statements to
continue the perfection of the Indenture Trustee's interest in the Timeshare
Loans and written authority to file the same;
(x) each of the Issuer, Bluegreen and the Depositor shall
properly disclose and account for the transactions contemplated by the
Transaction Documents as an on balance sheet transaction under and in accordance
with GAAP;
(y) the Depositor and the Issuer each shall, unless the Agent
shall otherwise consent in writing:
(i) conduct its business solely in its own name through
its duly authorized officers or agents so as not to mislead others as to the
identity of the entity with which such persons are concerned, and shall avoid
the appearance that it is conducting business on behalf of any Affiliate thereof
or that its assets are available to pay the creditors of Bluegreen or any
Affiliate thereof (other than as expressly provided herein);
(ii) maintain corporate records and books of account
separate from those of Bluegreen and any Affiliate (other than itself) thereof;
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(iii) obtain proper authorization for all action
requiring such authorization;
(iv) pay its own operating expenses and liabilities from
its own funds and shall conduct its business from an office or designated area
separate from Bluegreen or any Affiliate thereof;
(v) continuously maintain its resolutions, agreements
and other instruments underlying the transactions described in this Agreement as
part of its official records;
(vi) maintain an arm's-length relationship with
Bluegreen and its Affiliates (other than itself), and shall not hold itself out
as being liable for the debts of Bluegreen or any of its Affiliates (other than
itself);
(vii) keep its assets and liabilities separate from
those of all other entities other than as permitted herein;
(viii) not maintain bank accounts or other depository
accounts to which any Affiliate is an account party or from which any Affiliate
has the power to make withdrawals;
(ix) not amend, supplement or otherwise modify its
organizational documents, except in accordance therewith and with the prior
written consent of the Agent;
(x) not create, incur, assume or suffer to exist any
indebtedness on which it is obligated, except as contemplated by this Agreement
and the other Transaction Documents. It shall not assume, guarantee, endorse or
otherwise be or become directly or contingently liable for the obligations of
any Person by, among other things, agreeing to purchase any obligation of
another Person (other than the Timeshare Loans), agreeing to advance funds to
such Person or causing or assisting such Person to maintain any amount of
capital. It shall not be party to any indenture, agreement, mortgage, deed of
trust or other instrument other than this Agreement and the other Transaction
Documents;
(xi) not enter into, or be a party to any transaction
with any of its Affiliates, except as contemplated by this Agreement and the
other Transaction Documents;
(xii) observe all procedures required by its
organizational documents and preserve and maintain its existence, rights,
franchises and privileges in the jurisdiction of its formation and qualify and
remain qualified in good standing in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualifications would materially adversely affect the interests hereunder of the
Purchasers or the Agent or its ability to perform its obligations hereunder; and
(xiii) not form, or cause to be formed, any
subsidiaries; or make or suffer to exist any loans or advances to, or extend any
credit to, or make any investments (by way of transfer of property,
contributions to capital, purchase of stock or securities or evidences
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of indebtedness (other than the Timeshare Loans), acquisition of the business or
assets, or otherwise) in, any Affiliate or any other Person except as otherwise
permitted herein; and
(z) if requested by the Agent (which is expected to be no more
than once during each annual period following the Closing Date), Bluegreen and
the Issuer shall provide the Agent with a report, satisfactory to the Agent in
its sole discretion, from an independent review company selected by the Agent,
confirming the accuracy of the information in the Transaction Documents with
respect to the Timeshare Loans and the ability of the Servicer to perform its
obligations thereunder.
SECTION VI. INCREASED COSTS, INCREASED CAPITAL, ETC.
Section 6.1. Increased Costs. Subject to the provisions of Section
6.4 hereof, if, due to the introduction of or any change (including any change
by way of imposition or increase of reserve requirements) in or in the
Interpretation of any law or regulation or the imposition of any guideline or
request from any central bank or other Governmental Authority after the date
hereof, there shall be an increase in the cost to an Affected Party of making,
funding or maintaining any investment in the Notes or any interest therein or of
agreeing to purchase or invest in the Notes or any interest therein, as the case
may be (other than by reason of any Interpretation of or change in laws or
regulations relating to Taxes or Excluded Taxes), the Issuer shall, upon written
demand by such Affected Party (or, if such Affected Party is not a Purchaser, by
the Purchaser from whom such Affected Party derives its rights) (with a copy to
the Agent), direct the Indenture Trustee in writing to pay to the Agent for the
benefit of such Affected Party (as a third party beneficiary, in the case of an
Affected Party that is not also a Purchaser hereunder) that portion of such
increased costs incurred which such Affected Party reasonably determines is
attributable to making, funding or maintaining any investment in the Notes or
any interest therein or agreeing to purchase or invest in the Notes or any
interest therein, as the case may be. In determining such amount, such Affected
Party may use any reasonable averaging and attribution methods, consistent with
the averaging and attribution methods generally used by such Affected Party in
determining amounts of this type. A certificate as to such increased costs
incurred submitted to the Issuer and the Agent, setting forth the calculation
thereof in reasonable detail, shall be prima facie evidence as to the amount of
such increased costs. Any Affected Party that incurs such increased costs as
described in this Section 6.1 (or, if such Affected Party is not a Purchaser,
the Purchaser from whom such Affected Party derives its rights) shall use its
commercially reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to take such steps as would eliminate or reduce the
amount of such increased costs; provided that no such steps shall be required to
be taken if, in the reasonable judgment of such Affected Party, such steps would
be materially disadvantageous to such Affected Party.
Section 6.2. Increased Capital. Subject to the provisions of Section
6.4 hereof, if the introduction of or any change in or in the Interpretation of
any law or regulation or the imposition of any guideline or request from any
central bank or other Governmental Authority after the date hereof, affects or
would affect the amount of capital required or expected to be maintained by any
Affected Party after the date hereof, and such Affected Party determines that
the amount of such capital is increased as a result of (i) the existence of such
Affected Party's agreement to make or maintain an investment in the Notes or any
interest therein or (ii) the existence of any agreement by such Affected Party
to make or maintain an investment in the
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Notes or any interest therein or to fund any such investment after the date
hereof, then, upon written demand by such Affected Party (or, if such Affected
Party is not a Purchaser, by the Purchaser from whom such Affected Party derives
its rights) (with a copy to the Agent), the Issuer shall direct the Indenture
Trustee in writing to pay to the Agent for the benefit of such Affected Party
(as a third party beneficiary, in the case of an Affected Party that is not also
a Purchaser hereunder), additional amounts, as specified by such Affected Party,
sufficient to compensate such Affected Party in light of such circumstances, to
the extent that such Affected Party reasonably determines such increase in
capital to be allocated to the existence of such Affected Party's agreement
described in clause (i) above or the commitments of such Affected Party
described in clause (ii) above. In determining such amounts, such Affected Party
may use any reasonable averaging and attribution methods, consistent with the
averaging and distribution methods generally used by such Affected Party in
determining amounts of this type. A certificate as to such amounts submitted to
the Issuer and the Agent by such Affected Party (or, if such Affected Party is
not a Purchaser, by the Purchaser from whom such Affected Party derives its
rights), setting forth the calculation thereof in reasonable detail, shall be
prima facie evidence of the amounts so owed. Any Affected Party that is entitled
to compensation for increases in capital as described in this Section 6.2 shall
use its commercially reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to take such steps as would eliminate or
reduce the amount of such compensation; provided that no such steps shall be
required to be taken if, in the reasonable judgment of such Affected Party, such
steps would be materially disadvantageous to such Affected Party.
Section 6.3. Taxes. (a) Any and all payments and deposits required
to be made hereunder or under the Indenture to or for the benefit of a Purchaser
shall be made, to the extent allowed by law, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding
taxes, levies, imposts, deductions, charges or withholdings imposed on, or
measured by reference to, the net income of such Purchaser, franchise taxes
imposed on such Purchaser, and taxes (other than withholding taxes), levies,
imposts, deductions, charges or withholdings imposed on the receipt or gross
receipts of such Purchaser by any of (i) the United States or any State thereof,
(ii) the state or foreign jurisdiction under the laws of which such Purchaser is
organized, with which it has a present or former connection (other than solely
by reason of this Agreement), or in which it is otherwise doing business or
(iii) any political subdivision thereof (all such excluded items being referred
to as "Excluded Taxes" and all such taxes, levies, imposts, deductions, charges,
withholdings and liabilities other than Excluded Taxes being referred to as
"Taxes"). If the Indenture Trustee, as directed by the Agent, shall be required
by law to deduct any Taxes from or in respect of any sum required to be paid or
deposited hereunder or under any instrument delivered hereunder to or for the
benefit of a Purchaser (A) subject to Section 6.4 hereof, such sum shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums required to be paid or
deposited under this Section 6.3) the amount received by such Purchaser, or
otherwise deposited hereunder or under such instrument, shall be equal to the
sum which would have been so received or deposited had no such deductions been
made, (B) the Indenture Trustee, as directed by the Agent, shall make such
deductions and (C) the Indenture Trustee, as directed by the Agent, shall pay
the full amount of such deductions to the relevant taxation authority or other
authority in accordance with applicable laws.
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(b) Subject to the limitations set forth in subsection 6.3(d)
and Section 6.4 hereof, the Issuer shall direct the Indenture Trustee to
indemnify each Purchaser for the full amount of Taxes (including any Taxes
imposed by any jurisdiction on amounts payable under this Section 6.3) paid by
such Purchaser due to the modification of or any change in or in the
interpretation or administration by any governmental or regulatory agency or
body charged with the interpretation or administration of any law or regulation
relating to Taxes after the date hereof (including penalties, interest and
expenses) arising therefrom or required to be paid with respect thereto. Each
Purchaser agrees to promptly notify the Agent and the Issuer of any payment of
such Taxes made by it and, if practicable, any request, demand or notice
received in respect thereof prior to such payment. Each Purchaser shall be
entitled to payment of this indemnification within 30 days from the date such
Purchaser makes written demand therefor to the Agent and the Issuer. A
certificate as to the amount of such indemnification submitted to the Issuer and
the Agent by such Purchaser setting forth in reasonable detail the basis for and
the calculation thereof, shall be prima facie evidence of the amounts so owed.
(c) Within 30 days after the date of any payment of Taxes, the
Issuer will furnish to the Agent the original or a certified copy of a receipt
evidencing payment thereof.
(d) Each Purchaser that is organized under the laws of a
jurisdiction other than the United States or a state thereof hereby agrees to
complete, execute and deliver to the Indenture Trustee from time to time prior
to the date on which such Purchaser will be entitled to receive distributions
pursuant to the Indenture or this Agreement, Internal Revenue Service W-8ECI or
W-8BEN (or any successor form), as applicable, or such other forms or
certificates as may be required under the laws of any applicable jurisdiction in
order to permit the Indenture Trustee to make payments to, and deposit funds to
or for the account of, such Purchaser hereunder and under the Indenture and this
Agreement without any deduction or withholding for or on account of any tax.
Each Purchaser agrees to provide, to the extent permitted by law, like
additional subsequent duly executed forms on or before the date that any such
form expires or becomes obsolete, or upon the occurrence of any event requiring
an amendment, resubmission or change in the most recent form previously
delivered by it and to provide such extensions or renewals as may be reasonably
requested by the Issuer. Each Purchaser further agrees that compliance with this
subsection 6.3(d) (including by reason of Section 8.1 hereof in the case of any
assignment, sale or other transfer of any interest in the Notes) is a condition
to the payment of any amount otherwise due pursuant to subsections 6.3(a) and
(b) hereof.
(e) Each Purchaser, as of the date hereof, and each other
Purchaser, as of the date such Person becomes a Purchaser entitled to receive
distributions pursuant to this Agreement, the Purchase Agreement or the
Indenture, hereby represents and warrants to the Issuer that it is not subject
to gross-up or indemnity of Taxes under subsection 6.3(a) or (b) hereof from or
in any respect of any sum required to be paid or deposited under this Agreement,
the Indenture or under any instrument delivered pursuant to any of them to or
for the benefit of any Purchaser; provided, that this clause (e) shall not apply
to any Liquidity Institution deemed to be a Purchaser pursuant to the Liquidity
Agreement.
(f) Any Purchaser entitled to the payment of any additional
amount pursuant to this Section 6.3 shall use its best efforts (consistent with
its internal policy and legal and regulatory restrictions) to take such
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steps as would eliminate or reduce the amount of such payment; provided that no
such steps shall be required to be taken if, in the reasonable judgment of such
Purchaser, such steps would be materially disadvantageous to such Purchaser.
Section 6.4. Nonrecourse Obligations; Limited Recourse.
Notwithstanding any provision in any other Section of this Agreement or the
Transaction Documents to the contrary, the obligation of the Issuer to pay any
amounts payable to the Purchasers or the Agent pursuant to this Agreement shall
be without recourse to Bluegreen, the Indenture Trustee or any Affiliate,
officer or director of any of them and the obligation to pay any amounts
hereunder shall be limited solely to the application of the Trust Estate, to the
extent that such amounts are available for distribution.
Section 6.5. Breakage. Subject to Section 6.4 hereof, if for any
reason (other than a default by the Structured Purchaser in failing to advance
proceeds of commercial paper actually raised for such Borrowing) a Borrowing
does not take place on the Funding Date specified in a Borrowing Notice (a
"Defaulted Borrowing Date"), the Issuer shall direct the Indenture Trustee in
writing to pay the Agent for the benefit of the Structured Purchaser, an amount
equal to the sum of (a) all interest (at the applicable CP Rate) that would have
accrued had the Borrowing occurred hereunder on, through and including the later
to occur of (i) the day on which the aggregate principal component of Allocated
Commercial Paper of such Structured Purchaser will mature on or after the
Defaulted Borrowing Date or (ii) the day on which the latest maturing Structured
Hedge Agreement entered into by the Structured Purchaser and relating to the
Allocated Commercial Paper described in clause (i) of this paragraph matures
(such later date, the "Funding Maturity Date"), plus (b) any amounts required to
be paid to unwind any relevant Structured Hedge Agreements; provided, that such
Structured Purchaser shall, on the applicable Funding Maturity Date, make a
payment to the Issuer in an amount equal to the income (less the reasonable
costs and expenses of obtaining such income), if any, actually received by such
Structured Purchaser from investing the aggregate component of Allocated
Commercial Paper for the period from the Defaulted Borrowing Date until such
Funding Maturity Date.
SECTION VII. THE AGENT
Section 7.1. Appointment. Each Purchaser hereby designates and
appoints the Agent as the agent of such Purchaser under this Agreement, and each
such Purchaser authorizes the Agent, as the agent for such Purchaser, to take
such action on its behalf under the provisions of the Transaction Documents and
to exercise such powers and perform such duties thereunder as are expressly
delegated to the Agent by the terms of the Transaction Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent. The Required Purchasers may
replace the Agent at any time with ten Business Days' notice; provided, that a
replacement agent is named prior to dismissal of the Agent.
Section 7.2. Delegation of Duties. The Agent may execute any of its
duties under any of the Transaction Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not
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be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with due care.
Section 7.3. Exculpatory Provisions. Neither the Agent nor its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable to any of the Purchasers for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with any of the other
Transaction Documents (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the Purchasers
for any recitals, statements, representations or warranties made by the Seller,
the Depositor, the Issuer, the Servicer or the Indenture Trustee or any officer
thereof contained in any of the other Transaction Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, any of the other
Transaction Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any of the other Transaction
Documents or for any failure of the Seller, the Depositor, the Issuer, the
Servicer or the Indenture Trustee to perform its obligations thereunder. The
Agent shall not be under any obligation to any Purchaser to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, any of the other Transaction Documents, or to inspect the
properties, books or records of the Seller, the Depositor, the Issuer, the
Servicer or the Indenture Trustee.
Section 7.4. Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, written statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the Agent), independent accountants and other experts
selected by the Agent. The Agent shall be fully justified in failing or refusing
to take any action under any of the Transaction Documents unless it shall first
receive such advice or concurrence of the Required Purchasers as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Purchasers against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under any
of the Transaction Documents in accordance with a request of the Required
Purchasers and such request and any action taken or failure to act pursuant
thereto shall be binding upon all present and future Purchasers.
Section 7.5. Notices. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any breach of this Agreement or the
occurrence of any event which is, or upon the giving of notice, the lapse of
time or both would be, a Funding Termination Event unless the Agent has received
written notice from the Issuer, the Depositor, the Seller, the Servicer, the
Indenture Trustee or any Purchaser referring to this Agreement, describing such
event. In the event that the Agent receives such a notice, the Agent promptly
shall give notice thereof to the Purchasers. The Agent shall take such action
with respect to such event as shall be reasonably directed by the Required
Purchasers; provided that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the Purchasers.
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Section 7.6. Non-Reliance on Agent and Other Purchasers. Each
Purchaser expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Seller, the Depositor, the
Issuer, the Servicer or the Indenture Trustee shall be deemed to constitute any
representation or warranty by the Agent to any Purchaser. Each Purchaser
represents to the Agent that it has, independently and without reliance upon the
Agent or any other Purchaser, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Indenture Trustee, the Seller, the Depositor, the Issuer
and the Servicer and made its own decision to purchase its interest in the Notes
hereunder and enter into this Agreement. Each Purchaser also represents that it
will, independently and without reliance upon the Agent or any other Purchaser,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis, appraisals and decisions in taking or
not taking action under any of the Transaction Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Indenture Trustee, the Seller, the Depositor, the Issuer and the Servicer.
Except, in the case of the Agent, for notices, reports and other documents
received by the Agent under Section 5 hereof, the Agent shall not have any duty
or responsibility to provide any Purchaser with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Indenture Trustee, the Seller,
the Depositor, the Issuer or the Servicer which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
Section 7.7. Indemnification. The Purchasers (other than the
Structured Purchaser) agree to indemnify the Agent in its capacity as such
(without limiting the obligation (if any) of the Seller, the Depositor, the
Issuer or the Servicer to reimburse the Agent for any such amounts), ratably
according to their respective percentage interests in the Notes from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including at any time following the payment of the obligations
under this Agreement, including the Outstanding Note Balance of the Notes) be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement, or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted by
the Agent under or in connection with any of the foregoing; provided that no
Purchaser shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of the Agent resulting from the Agent's own gross
negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the obligations under this Agreement, including the
principal of the Notes.
Section 7.8. Agent in Its Individual Capacities. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Indenture Trustee, the Seller, the Servicer, the Owner
Trustee, the Depositor and the Issuer as though the Agent was not the agent
hereunder. Each Purchaser acknowledges that Branch Banking and Trust company may
act as agent for Liquidity Institutions relating to this Agreement and in
various other capacities relating to the business of any Liquidity Institution
and/or the Structured Purchaser. Branch Banking and Trust Company, in its
capacity as the Agent shall not,
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by virtue of its acting in any such other capacities, be deemed to have duties
or responsibilities hereunder or be held to a standard of care in connection
with the performance of its duties as the Agent other than as expressly provided
in this Agreement. Branch Banking and Trust Company may act as the Agent without
regard to and without additional duties or liabilities arising from its role as
such administrator or agent or arising from its acting in any such other
capacity.
Section 7.9. Successor Agent. The Agent may resign as Agent upon 30
days' notice to the Purchasers, the Indenture Trustee, the Issuer, the
Depositor, the Seller and the Servicer with such resignation becoming effective
upon a successor agent succeeding to the rights, powers and duties of the Agent
pursuant to this Section 7.9. If the Agent shall resign as Agent under this
Agreement, a successor agent for the Purchasers shall be appointed by at least
66-2/3% of the Purchasers (which must include the Structured Purchaser for
purposes of this Section 7.9). The successor agent shall succeed to the rights,
powers and duties of the Agent, and the term "Agent" shall mean such successor
agent effective upon its appointment, and the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed on
the part of such former Agent or any of the parties to this Agreement. After the
retiring Agent's resignation as Agent, the provisions of this Section VII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. Unless waived by the Required Purchasers, the
Agent shall be required to have a combined capital and surplus of at least
$100,000,000.
Section 7.10. Communications. The Agent shall promptly forward to
the Purchasers, copies of all communications received by it under Sections
5.1(c), (d), (h) and (m) hereof and Section 5.5 of the Indenture. Upon
reasonable notice, the Agent shall also make available or provide copies to the
Purchasers of all other relevant communications, documents or information
obtained or prepared by the Agent in connection with the Transaction Documents.
Section 7.11. Control by Purchasers. The Required Purchasers shall
have the right to direct the time, method and place of conducting any action,
non-action, the granting or withholding of consent, proceeding for any remedy
available to the Agent, the Indenture Trustee or the Noteholder under any of the
Transaction Documents. Notwithstanding the foregoing, (i) no such direction
shall be in conflict with any rule of law or with this Agreement; (ii) the Agent
shall not be required to follow any such direction which the Agent reasonably
believes might result in any personal liability on the part of the Agent for
which the Agent is not adequately indemnified; and (iii) the Agent may take any
other action deemed proper by the Agent which is not inconsistent with any such
direction; provided that the Agent shall give notice of any such action to the
Purchasers. The Agent, as the Noteholder, shall cast any vote or give any
direction under the Indenture on behalf of the Purchasers if it has been
directed to do so by the Required Purchasers, provided, that with respect to
Sections 5.4(b), 5.10, 5.16(e), 6.2(b), 6.2(f), 6.3(a), 6.3(d), 6.13(a) and
8.5(e)(ii) of the Indenture, the Agent, as the Noteholder, shall cast any vote
or give any direction under the Indenture on behalf of the Purchasers only with
the consent of at least 66-2/3% of the Purchasers. The Agent agrees that it
shall not effect any material action under this Agreement, the Indenture or any
other Transaction Documents without the direction of the Required Purchasers and
the Agent further agrees that it shall notify all Purchasers with respect to any
action or consent requested of the Agent that requires direction of a majority
of the Purchasers at least five days before taking such action or providing such
consent.
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SECTION VIII. SECURITIES LAWS; TRANSFERS
Section 8.1. Transfers of Notes. (a) Each of the Agent and the
Purchasers agrees that any interest in the Notes purchased or otherwise acquired
by it will be acquired for investment only and not with a view to any
distribution thereof, and that it will not offer to sell or otherwise dispose of
any Note acquired by it (or any interest therein) in violation of any of the
registration requirements of the Securities Act or the registration or
qualification requirements of any applicable state or other securities laws.
Each of the Agent and the Purchasers acknowledges that it has no right to
require the Issuer to register, under the Securities Act or any other securities
law, the Notes (or any interest therein) acquired by it pursuant to this
Agreement, any Joinder Supplement or any Transfer Supplement. Each of the Agent
and the Purchasers hereby confirms and agrees that in connection with any
transfer or syndication by it of an interest in the Notes, it has not engaged
and will not engage in a general solicitation or general advertising including
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(b) Each Purchaser which executes a Joinder Agreement agrees
that it will comply with all transfer restrictions specified in the Indenture
and will execute and deliver to the Issuer, the Seller, the Servicer, the
Depositor, the Indenture Trustee and the Agent on or before the effective date
of its Joinder Agreement a letter in the form attached hereto as Exhibit A (an
"Investment Letter") with respect to the purchase by such Purchaser of an
interest in the Notes. Each initial purchaser of a Note or any interest therein
and any Assignee thereof or Participant therein shall certify to the Issuer, the
Seller, the Servicer, the Depositor, the Indenture Trustee and the Agent that it
is either (A)(i) a citizen or resident of the United States, (ii) a corporation
or partnership (or any other entity treated as a corporation or a partnership
for federal income tax purposes) organized in or under the laws of the United
States or any political subdivision thereof which, if such entity is a
tax-exempt entity, recognizes that payments with respect to the Notes may
constitute unrelated business taxable income or (iii) a person not described in
(i) or (ii) whose income from the Notes is and will be effectively connected
with the conduct of a trade or business within the United States (within the
meaning of the Code) and whose ownership of any interest in a Note will not
result in any withholding obligation with respect to any payments with respect
to the Notes by any Person and who will furnish to the Agent, the Seller, the
Servicer and the Indenture Trustee, and to the Owner making the Transfer a
properly executed U.S. Internal Revenue Service Form W-8ECI or W-8BEN (or any
successor form) (and to agree (to the extent legally able) to provide a new Form
W-8ECI or W-8BEN (or any successor form) upon the expiration or obsolescence of
any previously delivered form and comparable statements in accordance with
applicable United States laws), (B) an estate the income of which is includible
in gross income for United States federal income tax purposes or (C) a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust and one or more United States fiduciaries have
the authority to control all substantial decisions of the trust.
(c) Any sale, transfer, assignment, participation, pledge,
hypothecation or other disposition (a "Transfer") of a Note or any interest
therein may be made only in accordance with this Section 8.1. Any Transfer of a
Note, an interest in a Note, or any Commitment Percentage shall be in respect of
at least $1,000,000 of the outstanding principal
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under the Notes. Any Transfer of an interest in a Note otherwise permitted by
this Section 8.1 will be permitted only if it consists of a pro rata percentage
interest in all payments made with respect to the Purchaser's beneficial
interest in such Note. No Note or any interest therein may be Transferred by
Assignment or Participation (each as defined below) to any Person (each, a
"Transferee") unless such transfer complies with the transfer restrictions
specified in the Indenture and prior to the transfer the Transferee shall have
executed and delivered to the Agent and the Issuer an Investment Letter.
(d) Each of the Issuer, the Depositor, the Seller and the
Servicer authorizes each Purchaser to disclose to any Transferee and any
prospective Transferee any and all financial information in the Purchaser's
possession concerning the Seller, the Servicer, the Depositor and the Issuer
which has been delivered to the Agent or such Purchaser pursuant to the
Transaction Documents (including information obtained pursuant to rights of
inspection granted hereunder) or which has been delivered to such Purchaser by
or on behalf of the Seller, the Issuer, the Depositor or the Servicer in
connection with such Purchaser's credit evaluation of the Seller, the Issuer,
the Depositor or the Servicer prior to becoming a party to, or purchasing an
interest in this Agreement or the Notes, provided that each such Transferee,
prospective Transferee agrees in writing to maintain the confidentiality of such
information pursuant to the following paragraph.
(e) The Agent and each Purchaser, severally and with respect
to itself only, covenants and agrees that any information obtained by the Agent
or such Purchaser pursuant to, or otherwise in connection with, this Agreement
or the other Transaction Documents shall be held in confidence (it being
understood that documents provided to the Agent hereunder may in all cases be
distributed by the Agent to the Purchasers) except that the Agent or such
Purchaser may disclose such information (i) to its officers, directors, members,
employees, agents, counsel, accountants, auditors, advisors or representatives
who have an obligation to maintain the confidentiality of such information, (ii)
to the extent such information has become available to the public other than as
a result of a disclosure by or through the Agent or such Purchaser, (iii) to the
extent such information was available to the Agent or such Purchaser on a
nonconfidential basis prior to its disclosure to the Agent or such Purchaser in
connection with this transaction, (iv) with the consent of the Servicer, (v) to
the extent permitted by the preceding paragraph, (vi) to the extent the Agent or
such Purchaser should be (A) required in connection with any legal or regulatory
proceeding or (B) requested by any Governmental Authority to disclose such
information; provided, that, in the case of clause (vi), the Agent or such
Purchaser, as the case may be, will (unless otherwise prohibited by law or in
connection with regular regulatory reviews) notify the Issuer of its intention
to make any such disclosure as early as practicable prior to making such
disclosure and cooperate with the Servicer in connection with any action to
obtain a protective order with respect to such disclosure; or (vii) in the case
of the Structured Purchaser, to any rating agency rating or proposing to rate
any commercial paper issued by the Structured Purchaser or a Liquidity
Institution.
(f) Each Purchaser may, in accordance with applicable law
(which includes applicable securities laws), at any time grant participations in
all or part of its Commitment or its interest in the Notes, including the
payments due to it under this Agreement and the Indenture (each, a
"Participation"), to any Person (each, a "Participant"); provided, however, that
no Participation shall
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be granted to any Person unless and until the Agent shall have consented thereto
(which consent shall not be unreasonably withheld) and the conditions to
Transfer specified in this Agreement, including in subsection 8.1(c) hereof,
shall have been satisfied and that such Participation consists of a pro rata
percentage interest in all principal payments made with respect to such
Purchaser's beneficial interest (if any) in the Notes and a specified interest
rate on the principal balance of such Participation. In connection with any such
Participation, the Agent shall maintain a register of each Participant and the
amount of each Participation. Each Purchaser hereby acknowledges and agrees that
(i) any such Participation will not alter or affect such Purchaser's direct
obligations hereunder, and (ii) none of the Indenture Trustee, the Issuer, the
Depositor, the Seller nor the Servicer shall have any obligation to have any
communication or relationship with any Participant. No Participant shall be
entitled to transfer all or any portion of its Participation, without the prior
written consent of the Agent. Each Participant shall be entitled to receive
indemnification pursuant to Section 2.4 hereof as if such Participant were a
Purchaser and such Section applied to its Participation. Each Purchaser shall
give the Agent notice of the consummation of any sale by it of a Participation,
and the Agent (upon receipt of notice from the related Purchaser) shall promptly
notify the Issuer, the Servicer and the Indenture Trustee. Unless separately
agreed to between the related Purchaser and the Participant in the related
participation agreement, no Participant shall have the right to approve any
amendment or waiver of the terms of this Agreement except with respect to those
matters set forth in clauses (i) and (ii) of the proviso to Section 9.1 hereof.
(g) Each Purchaser may, with the consent of the Agent and the
Servicer (which shall not unreasonably be withheld) and in accordance with
applicable law (which includes applicable securities laws), sell or assign
(each, an "Assignment"), to any Person (each, an "Assignee") all or any part of
its Commitment or its interest in the Notes and its rights and obligations under
this Agreement and the Indenture pursuant to an agreement substantially in the
form attached hereto as Exhibit C hereto (a "Transfer Supplement"), executed by
such Assignee and the Purchaser and delivered to the Agent and the Servicer for
their acceptance and consent; provided, however, that no such assignment or sale
shall be effective unless and until the conditions to Transfer specified in this
Agreement, including in subsection 8.1(c) hereof, shall have been satisfied; and
provided, further, however, that neither the consent of the Servicer nor the
Agent shall be required in the case of an assignment by any existing Purchaser
to another existing Purchaser (or, in the case of the Structured Purchaser, to
any Eligible Lender), or in the case of any assignment to any Affiliates of the
Agent. From and after the effective date determined pursuant to such Transfer
Supplement, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Transfer Supplement, have the rights and obligations of
a Purchaser hereunder as set forth therein and (y) the transferor Purchaser
shall, to the extent provided in such Transfer Supplement, be released from its
Commitment and other obligations under this Agreement; provided, however, that
after giving effect to each such Assignment, the obligations released by any
such Purchaser shall have been assumed by an Assignee or Assignees. Such
Transfer Supplement shall be deemed to amend this Agreement to the extent, and
only to the extent, necessary to reflect the addition of such Assignee and the
resulting adjustment of Percentage Interests, Commitment Percentages arising
from the Assignment. Upon its receipt and acceptance of a duly executed Transfer
Supplement, the Agent shall on the effective date determined pursuant thereto
give notice of such acceptance to the Issuer, the Servicer and the Indenture
Trustee and the Servicer will provide notice thereof to the Rating Agency (if
required).
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Upon instruction to register a transfer of a Purchaser's beneficial
interest in the Notes (or portion thereof) and surrender for registration of
transfer such Purchaser's Note(s) (if applicable) and delivery to the Issuer and
the Indenture Trustee of an Investment Letter, executed by the registered owner
(and the beneficial owner if it is a Person other than the registered owner),
and receipt by the Indenture Trustee of a copy of the duly executed related
Transfer Supplement and such other documents as may be required under this
Agreement, such beneficial interest in the Notes (or portion thereof) shall be
transferred in the records of the Indenture Trustee and the Agent and, if
requested by the Assignee, new Notes shall be issued to the Assignee and, if
applicable, the transferor Purchaser in amounts reflecting such Transfer as
provided in the Indenture. Such Transfers of Notes (and interests therein) shall
be subject to this Section 8.1 in lieu of any regulations which may be
prescribed under Section 6.3 of the Indenture. Successive registrations of
Transfers as aforesaid may be made from time to time as desired, and each such
registration of a transfer to a new registered owner shall be noted on the Note
Register.
(h) Each Purchaser may pledge its interest in the Notes to any
Federal Reserve Bank as collateral in accordance with applicable law.
(i) Any Purchaser shall have the option to change its
Investing Office.
(j) Each Affected Party shall be entitled to receive
indemnification pursuant to Section 2.4 hereof as though it were a Purchaser and
such Section applied to its interest in or commitment to acquire an interest in
the Notes.
(k) Notwithstanding anything herein to the contrary, the
Structured Purchaser shall be permitted to assign or transfer all of its Notes
or interests therein and its rights and obligations under this Agreement to a
Liquidity Institution (including a Requested Investment (as defined in the
Liquidity Agreement)) in accordance with the Liquidity Agreement without the
consent of any Person and the requirements (including the documentary
requirements) of paragraph (b), (c), the proviso to paragraph (d) and paragraph
(g) shall not apply to any such transfer. Any Liquidity Institution shall
automatically become a Purchaser hereunder to the extent of such interest and
the Issuer and the Agent shall take all steps to reflect and register in the
Purchaser Register such transfer to such Liquidity Institution.
Section 8.2. Register of Purchasers and Participants. The Agent
shall maintain a register (the "Purchaser/Participant Register") for the
registration, transfer and exchange of interests in the Notes and the granting
of Participations of interests in the Notes. The names and addresses of all
Purchasers and Participants and the names and addresses of the transferees of
any interests in Notes shall be registered in the Purchaser/Participant
Register.
SECTION IX. MISCELLANEOUS
Section 9.1. Amendments and Waivers. This Agreement may not be
amended, supplemented or modified nor may any provision hereof be waived except
in accordance with the provisions of this Section 9.1. With the written consent
of the Required Purchasers, the Agent, the Seller, the Servicer, the Depositor
and the Issuer may, from time to time, enter into written amendments,
supplements, waivers or modifications hereto for the purpose of adding any
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provisions to this Agreement or changing in any manner the rights of any party
hereto or waiving, on such terms and conditions as may be specified in such
instrument, any of the requirements of this Agreement; provided, however, that
no such amendment, supplement, waiver or modification shall (i) reduce the
amount of or extend the maturity of any Note or reduce the rate or extend the
time of payment of interest thereon, or reduce or alter the timing of any other
amount payable to any Purchaser hereunder or under the Indenture, in each case
without the consent of the Purchasers affected thereby, (ii) amend, modify or
waive any provision of this Section 9.1, or reduce the percentage specified in
the definition of the Required Purchasers, in each case without the written
consent of all Purchasers, (iii) amend, modify or waive any provision of Section
VII hereof without the written consent of the Agent, (iv) increase the
obligations or decrease the rights of the Structured Purchaser without its
consent, (v) modify the provisions concerning the assignment or transfer of the
Notes or any interest or participation in the Notes without the Structured
Purchaser's consent, or (vi) modify the provisions of Section 9.17 or 9.18
hereof concerning Limited Recourse and No Petition in favor of the Structured
Purchaser without its consent. Any waiver of any provision of this Agreement
shall be limited to the provisions specifically set forth therein for the period
of time set forth therein and shall not be construed to be a waiver of any other
provision of this Agreement.
Section 9.2. Notices. (a) All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or, in the
case of mail or telecopy notice, when received, addressed as follows or, with
respect to a Purchaser, as set forth in its respective Joinder Supplement or
Transfer Supplement, or to such other address as may be hereafter notified by
the respective parties hereto:
The Issuer: BXG TIMESHARE TRUST I
c/o Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration/
BXG TIMESHARE TRUST I
Telecopier No.: (000) 000-0000
Bluegreen: BLUEGREEN CORPORATION
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
The Depositor: BLUEGREEN TIMESHARE FINANCE CORPORATION I
0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
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The Indenture Trustee: U.S. BANK NATIONAL ASSOCIATION
00 Xxxxxxxxxx Xxxxxx
XX-XX-XX0X
Xx. Xxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: BXG Timeshare Trust I
The Agent: BB&T Capital Markets
1133 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
and
Branch Banking and Trust Company
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: (000) 000-0000
(b) Unless otherwise directed by the Agent, all payments to it
shall be made by federal wire (ABA #000000000), to account number 0000000000,
bank name: BB&T, account name: BXG Timeshare Trust, with fax notice (including
federal wire number) to Xxxx Xxxx of Branch Banking and Trust Company; Fax:
(000) 000-0000 and Phone: (000) 000-0000.
Section 9.3. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any Purchaser, any
right, remedy, power or privilege under any of the Transaction Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under any of the Transaction Documents
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
provided in the Transaction Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
Section 9.4. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Seller, the Servicer, the Depositor, the
Issuer, the Agent, the Purchasers, any Assignee, any Participant, any Indemnitee
and their respective successors and assigns, except that the Seller, the
Servicer, the Depositor and the Issuer may not assign or transfer any of their
respective rights or obligations under this Agreement except as provided herein
and in the Indenture, without the prior written consent of 66-2/3% of the
Purchasers and the Purchasers, the Agent, Assignees and Participants may not
assign or transfer any of their respective rights or obligations except as
provided herein.
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Section 9.5. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
Section 9.6. Severability. Any provisions of this Agreement which
are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
Section 9.7. Integration. This Agreement and the Fee Letter
represent the agreement of the Agent, the Seller, the Depositor, the Issuer, the
Servicer and the Purchasers with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by the Purchasers
or the Agent relative to subject matter hereof not expressly set forth or
referred to herein or therein.
Section 9.8. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
Section 9.9. Termination. This Agreement shall remain in full force
and effect until the payment in full of the principal of and interest on the
Notes and all other amounts payable to the Purchasers or the Agent hereunder and
the termination of all Commitments; provided, however, that the provisions of
Sections 2.3, 2.4, 6.1, 6.2, 7.7, 9.11, 9.13, 9.14, 9.17 and 9.18 hereof shall
survive termination of this Agreement, the transfer by a Purchaser of any Note
or any interest therein and any amounts payable to the Agent, Purchasers or any
Affected Party thereunder shall remain payable thereto.
Section 9.10. Limited Recourse; No Proceedings. The obligations of
the Issuer and the Depositor under this Agreement are solely the obligations of
the Issuer and the Depositor, as applicable. No recourse shall be had for the
payment of any fee or other obligation or claim arising out of or relating to
this Agreement or any other agreement, instrument, document or certificate
executed and delivered or issued by the Issuer and the Depositor, or any officer
of any of them in connection therewith, against any partner, member,
stockholder, employee, officer, director or incorporator of the Issuer and the
Depositor. With respect to obligations of the Issuer, neither the Agent nor any
Purchaser shall look to any property or assets of the Issuer, other than to the
Trust Estate. Each Purchaser and the Agent hereby agrees that to the extent such
funds are insufficient or unavailable to pay any amounts owing to it by the
Issuer pursuant to this Agreement, prior to the commencement of a bankruptcy or
insolvency proceeding by or against the Issuer, it shall not constitute a claim
against the Issuer. Each of the Issuer, the Depositor, the Seller, the Servicer,
the Agent and each Purchaser agrees that it shall not institute or join against
the Depositor or the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or similar proceeding under any federal or
state bankruptcy law, for one year and a day after the termination of the
Indenture. Nothing in this paragraph shall limit or otherwise
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affect the liability of the Servicer and the Seller with respect to any amounts
owing by the Servicer or the Seller, respectively, hereunder or the right of the
Agent or any Purchaser to enforce such liability against the Servicer or the
Seller, respectively, or any of its respective assets. For clarity, it is
understood that the Timeshare Loans, related Timeshare Loan Documents and other
assets will be conveyed by the Seller to the Depositor and by the Depositor to
the Issuer pursuant to the terms of the Purchase Agreement and Sale Agreement,
respectively, without recourse, representation on warranty except as expressly
provided therein. Without limiting the foregoing, none of the Seller, the
Depositor or any of their respective subsidiaries shall be responsible for
payments on the Timeshare Loans, and any other credit risks associated therewith
shall be borne by the Issuer and the holders of any obligations of the Issuer.
Section 9.11. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement, the purchase of the Notes
hereunder and the termination of this Agreement.
Section 9.12. Submission to Jurisdiction; Waivers. EACH OF THE
SELLER, THE ISSUER, THE DEPOSITOR, THE SERVICER, THE AGENT AND EACH PURCHASER
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(1) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT TO WHICH IT IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO
THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK SITTING IN MANHATTAN AND THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(2) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(3) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SECTION 9.2 OR AT SUCH
OTHER ADDRESS OF WHICH THE AGENT SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO; AND
(4) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER
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PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
Section 9.13. WAIVERS OF JURY TRIAL. EACH OF THE SELLER, THE
SERVICER, THE ISSUER, THE DEPOSITOR, THE AGENT AND THE PURCHASERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR
INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN.
Section 9.14. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein or in any other Transaction Document
to the contrary, it is expressly understood and agreed by the parties hereto
that (a) this Agreement is executed and delivered by Wilmington Trust Company,
not individually or personally but solely as Owner Trustee, in the exercise of
the powers and authority conferred and vested in it under the Trust Agreement,
(b) each of the representations, undertakings and agreements herein made on the
part of the Issuer is made and intended not as a personal representation,
undertaking or agreement by Wilmington Trust Company but is made and intended
for the purpose for binding only the Issuer and the Trust Estate, and (c) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Agreement or any other Transaction
Documents.
Section 9.15. [RESERVED].
Section 9.16. Hedging Requirements. Upon prior written notice from
the Agent to the Issuer and the Servicer, the Issuer shall enter into a Hedge
Agreement with a Qualified Hedge Counterparty and upon execution thereof shall
pledge all of the Issuer's right, title and interest under such Hedge Agreement
to the Indenture Trustee for the benefit of the Agent on behalf of the
Purchasers pursuant to Section 2.3 hereof and the Indenture. Each Hedge
Agreement shall be in form and substance satisfactory to the Agent, including,
without limitation, having a notional amount based on the Required Hedge Amount.
Notwithstanding the foregoing, the Agent shall review the Interest
Rate Cap Agreements currently pledged to Bluegreen Receivables Finance
Corporation V (the "Existing Hedge Agreements") with a view to allowing the
Issuer to utilize such Existing Hedge Agreements via novation to the extent
commercially feasible to comply with the requirements of this Section 9.16. Any
decision to use the Existing Hedge Agreements shall be at the Agent's reasonable
discretion.
Section 9.17. No Bankruptcy Petition Against the Structured
Purchaser. Each of the parties to this Agreement hereby covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all outstanding indebtedness for borrowed money of the Structured Purchaser,
it will not institute against, or join any other Person in instituting against,
the Structured Purchaser any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other similar proceeding under the Laws of the
United States or any state of the
-00-
Xxxxxx Xxxxxx. The agreements set forth in this Section 9.17 and the parties'
respective obligations under this Section 9.17 shall survive the termination of
this Agreement.
Section 9.18. Limited Recourse Against the Structured Purchaser.
Each party to this Agreement hereby acknowledges and agrees that all
transactions with the Structured Purchaser hereunder or in connection herewith
shall be without recourse of any kind to the Structured Purchaser. Each party
hereto agrees that no liability or obligation of the Structured Purchaser
hereunder for fees, expenses or indemnities shall constitute a claim (as defined
in Section 101 of Title 11 of the United States Bankruptcy Code) against the
Structured Purchaser unless the Structured Purchaser has received sufficient
amounts pursuant to this Agreement to pay such amounts, and such amounts are not
necessary to pay outstanding commercial paper issued by the Structured
Purchaser. No recourse shall be had for any amount owing hereunder or any other
obligation of, or claim against the Structured Purchaser arising out of or based
upon this Agreement or any agreement or document entered into in connection
herewith or therewith against any equity holder, member, employee, officer,
agent, or manager of the Structured Purchaser or any equity holder, member,
employee, officer, director, or affiliate thereof. The agreements set forth in
this Section 9.18 and the parties' respective obligations under this Section
9.18 shall survive the termination of this Agreement.
-39-
IN WITNESS WHEREOF, the parties hereto have caused this Note Funding
Agreement to be duly executed by their respective officers as of the day and
year first above written.
BXG TIMESHARE TRUST I
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner Trustee
By:
-------------------------------------------
Name:
Title:
BLUEGREEN CORPORATION,
as Seller and Servicer
By:
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO & Treasurer
BLUEGREEN TIMESHARE FINANCE
CORPORATION I, as Depositor
By:
------------------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Assistant Treasurer
BRANCH BANKING AND TRUST COMPANY,
as Agent
By:
------------------------------------------------
Name:
Title:
-40-
EXHIBIT A
FORM OF INVESTMENT LETTER
[Date]
BXG TIMESHARE TRUST I
c/o___________, as Owner Trustee
__________________________________
Attention:
Bluegreen Corporation
Bluegreen Timeshare Finance Corporation I
Re BXG TIMESHARE TRUST I
Timeshare Loan-Backed VFN Notes, Series I
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to subsection 8.1(b) of the Note Funding
Agreement dated as of May 1, 2006 (as in effect, the "Note Funding Agreement"),
among BXG TIMESHARE TRUST I, as Issuer, BLUEGREEN CORPORATION, as Seller and
Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor, the
Purchasers parties thereto and Branch Banking and Trust Company, as Agent.
Capitalized terms used herein without definition shall have the meanings set
forth in the Note Funding Agreement. The Purchaser represents to and agrees with
the Issuer as follows:
(a) The Purchaser is authorized [to enter into the Note Funding
Agreement and to perform its obligations thereunder and to consummate the
transactions contemplated thereby] [to purchase a participation or other
interest in obligations under the Note Funding Agreement].
(b) The Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of its
investment in the Notes and is able to bear the economic risk of such
investment. The Purchaser has been afforded the opportunity to ask such
questions as it deems necessary to make an investment decision, and has received
all information it has requested in connection with making such investment
decision. The Purchaser has, independently and without reliance upon the Agent
or any other Purchaser, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Issuer, the Depositor, the Seller and the Servicer and
made its own decision to purchase its interest in the Notes, and will,
independently and without
reliance upon the Agent or any other Purchaser, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis, appraisals and decisions in taking or not taking action under the Note
Funding Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Issuer, the Seller, the Depositor and the
Servicer.
(c) The Purchaser is an "accredited investor ,"as defined in Rule
501, promulgated by the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act") or (except
as otherwise agreed to by the Issuer in its sole discretion) is a "qualified
institutional buyer" (within the meaning of Rule 144A thereunder) and is
acquiring the Notes (or an interest in the Notes) for its own account for
investment purposes. The Purchaser understands that the offering and sale of the
Notes (or any interest in therein) has not been and will not be registered under
the Securities Act and has not and will not be registered or qualified under any
applicable "Blue Sky" law, and that the offering and sale of the Note (or any
interest in therein) has not been reviewed by, passed on or submitted to any
federal or state agency or commission, securities exchange or other regulatory
body.
(d) The Purchaser is not an employee benefit plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") (each
such plan, an "Employee Plan"), an entity whose underlying assets include the
assets of any Employee Plan, or a governmental plan that is subject to any
federal, state or local law which is substantially similar to the provisions of
Section 406 of ERISA or Section 4975 of the Code or the Purchaser's purchase,
holding and disposition of the Notes does not result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a
governmental plan, any substantially similar federal, state or local law) for
which an exemption is not available.
(e) The Purchaser is acquiring an interest in Notes without a view
to any distribution, resale or other transfer thereof except, with respect to
any Purchaser Interest or any interest or participation therein, as contemplated
in the following sentence. The Purchaser will not resell or otherwise transfer
any interest or participation in the Purchaser Interest, except in accordance
with Section 8.1 of the Note Funding Agreement and in a transaction exempt from
the registration requirements of the Securities Act of 1933, as amended, and
applicable state securities or "blue sky" laws. In connection therewith, the
Purchaser hereby agrees that it will not resell or otherwise transfer the Notes
or any interest therein unless the purchaser thereof provides to the addressee
hereof a letter substantially in the form hereof (other than as permitted under
the Note Funding Agreement).
(f) This Investment Letter has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles affecting the enforcement of
creditors' rights generally and general principles of equity.
(g) The Purchaser expressly agrees to be bound by the terms of the
Note Funding Agreement, including but not limited to the confidentiality
provision and the restrictions on transfer set forth in Article VIII thereof.
-2-
Very truly yours,
[NAME OF PURCHASER]
By
----------------------------------
Name:
Title:
-3-
EXHIBIT B
FORM OF JOINDER SUPPLEMENT
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, among BXG TIMESHARE TRUST I (the "Issuer"), BLUEGREEN
CORPORATION, as Seller and Servicer (the "Servicer"), BLUEGREEN TIMESHARE
FINANCE CORPORATION I, as Depositor, the Purchaser set forth in Item 2 of
Schedule I hereto (the "Additional Purchaser"), and Branch Banking and Trust
Company, as Agent for the Purchasers under, and as defined in, the Note Funding
Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 2.2(c) of the Note Funding Agreement, dated as of May
1, 2006, among BXG TIMESHARE TRUST I, as Issuer, BLUEGREEN CORPORATION, as
Seller and Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor,
the Purchasers parties thereto, and the Agent (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Note Funding Agreement"; unless otherwise defined herein, terms defined in the
Note Funding Agreement are used herein as therein defined); and
WHEREAS, the Additional Purchaser (if it is not already a Purchaser
party to the Note Funding Agreement) wishes to become a Purchaser party to the
Note Funding Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Upon receipt by the Agent of five counterparts of this Supplement, to each
of which is attached a fully completed Schedule I and Schedule II, each of which
has been executed by the Additional Purchaser, the Issuer and the Agent, the
Agent will transmit to the Servicer, the Issuer, the Indenture Trustee and the
Additional Purchaser a Joinder Effective Notice, substantially in the form of
Schedule III to this Supplement (a "Joinder Effective Notice"). Such Joinder
Effective Notice shall be executed by the Agent and shall set forth, inter alia,
the date on which the transfer effected by this Supplement shall become
effective (the "Joinder Effective Date"). From and after the Joinder Effective
Date, the Additional Purchaser shall be a Purchaser party to the Note Funding
Agreement for all purposes thereof having an initial Commitment Percentage and a
Commitment, if applicable, as set forth in such Schedule II.
Concurrently with the execution and delivery hereof, the Additional
Purchaser will deliver to the Issuer and the Indenture Trustee an executed
Investment Letter in the form of Exhibit A to the Note Funding Agreement.
Each of the parties to this Supplement agrees and acknowledges that at any
time and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Supplement.
-1-
By executing and delivering this Supplement, the Additional Purchaser
confirms to and agrees with the Agent and the Purchaser as follows: (i) neither
the Agent nor any other Purchaser makes any representation or warranty or
assumes any responsibility with respect to any statements, warranties or
representations made in or in connection with the Note Funding Agreement (other
then representations or warranties made by such respective parties) or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Note Funding Agreement or any other instrument or document furnished
pursuant thereto, or with respect to the financial condition of the Seller, the
Servicer, the Depositor, the Issuer or the Indenture Trustee, or the performance
or observance by the Seller, the Servicer, the Depositor, the Issuer or the
Indenture Trustee of any of their respective obligations under the Note Funding
Agreement or the Indenture or any other instrument or document furnished
pursuant hereto; (ii) the Additional Purchaser confirms that it has received a
copy of such documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Supplement; (iii) the
Additional Purchaser will, independently and without reliance upon the Agent or
any other Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Note Funding Agreement; (iv) each Purchasing
Purchaser appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Note Funding Agreement and the
Indenture as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Section 7 of
the Note Funding Agreement; and (vi) the Additional Purchaser agrees (for the
benefit of the Agent, the other Purchasers, the Indenture Trustee, the Seller,
the Servicer, the Depositor and the Issuer) that it will perform in accordance
with their terms all of the obligations which by the terms of the Note Funding
Agreement are required to be performed by it as a Purchaser.
Schedule II hereto sets forth the Commitment and the Commitment Expiration
Date, if applicable, and the initial Investing Office of the Additional
Purchaser, as well as administrative information with respect to the Additional
Purchaser.
THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(i) Notwithstanding anything contained herein or in any other
Transaction Document to the contrary, it is expressly understood and agreed by
the parties hereto that (a) this Supplement is executed and delivered by
Wilmington Trust Company, not individually or personally but solely as Owner
Trustee, in the exercise of the powers and authority conferred and vested in it
under the Trust Agreement, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as a
personal representation, undertaking or agreement by Wilmington Trust Company
but is made and intended for the purpose for binding only the Issuer and the
Trust Estate, and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Issuer
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this Supplement or
any other Transaction Documents.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be executed by their respective duly authorized officers on Schedule I hereto
as of the date set forth in Item 1 of Schedule I hereto.
-3-
SCHEDULE I TO
JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Note Funding Agreement, dated as of May 1, 2006, among BXG TIMESHARE
TRUST I, as Issuer, BLUEGREEN CORPORATION, as Seller and Servicer,
BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor, the
Purchasers party thereto and Branch Banking and Trust Company, as
Agent.
Item 1: Date of Joinder Supplement:
Item 2: Additional Purchaser:
Item 3: Signatures of Parties to Agreement:
---------------------------------------
as Additional Purchaser
By:
---------------------------------------
Name:
Title:
[By:
---------------------------------------
Name:
Title:]
BXG TIMESHARE TRUST I
as Issuer
By _______________, not in its individual
capacity, but solely as Owner Trustee
By:
---------------------------------------
Name:
Title:
Branch Banking and Trust Company, as Agent
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
-1-
SCHEDULE II TO
JOINDER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT
[Additional Purchaser]
Initial Commitment Percentage:
(if applicable) _______%
Class of Notes _________
Initial Commitment: $____________
Office and Address for Notices:
-1-
SCHEDULE III TO
JOINDER SUPPLEMENT
FORM OF
JOINDER EFFECTIVE NOTICE
To: [Names and addresses of
Issuer, Seller, Servicer, Indenture Trustee, Depositor
Agent and Additional Purchaser]
The undersigned, as Agent under the Note Funding Agreement, dated as
of May 1, 2006, among BXG TIMESHARE TRUST I, as Issuer, BLUEGREEN CORPORATION,
as Seller and Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor,
the Purchasers parties thereto and Branch Banking and Trust Company, as Agent
for the Purchasers thereunder, acknowledges receipt of five executed
counterparts of a completed Joinder Supplement. [Note: attach copies of
Schedules I and II from such Agreement.] Terms defined in such Supplement are
used herein as therein defined.
Pursuant to such Supplement, you are advised that the Joinder
Effective Date will be _____________, .
Very truly yours,
BRANCH BANKING AND TRUST COMPANY, as Agent
By:
------------------------------
Name:
Title:
-1-
EXHIBIT C
FORM OF TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto, among the transferor Purchaser set forth in Item 2 of
Schedule I hereto (the "Transferor Purchaser"), the Purchasing Purchaser set
forth in Item 3 of Schedule I hereto (the "Purchasing Purchaser"), and Branch
Banking and Trust Company, as Agent for the Purchasers under, and as defined in,
the Note Funding Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Note Funding Agreement, dated as of May
1, 2006, among BXG TIMESHARE TRUST I, as Issuer, BLUEGREEN CORPORATION, as
Seller and Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor,
the Purchasers parties thereto and the Agent (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the
"Note Funding Agreement"; unless otherwise defined herein, terms defined in the
Note Funding Agreement are used herein as therein defined);
WHEREAS, the Purchasing Purchaser (if it is not already a Purchaser
party to the Note Funding Agreement) wishes to become a Purchaser party to the
Note Funding Agreement and the Purchasing Purchaser wishes to acquire and assume
from the Transferor Purchaser, certain of the rights, obligations and
commitments under the Note Funding Agreement; and
WHEREAS, the Transferor Purchaser wishes to sell and assign to the
Purchasing Purchaser, certain of its rights, obligations and commitments under
the Note Funding Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Agent of five counterparts of this Supplement, to
each of which is attached a fully completed Schedule I and Schedule II, each of
which has been executed by the Transferor Purchaser, the Purchasing Purchaser
[,the Issuer](1) and the Agent, the Agent will transmit to the Servicer, the
Seller, the Issuer, the Depositor, the Indenture Trustee, the Transferor
Purchaser and the Purchasing Purchaser a Transfer Effective Notice,
substantially in the form of Schedule III to this Supplement (a "Transfer
Effective Notice"). Such Transfer Effective Notice shall be executed by the
Agent and shall set forth, inter alia, the date on which the transfer effected
by this Supplement shall become effective (the "Transfer Effective Date"). From
and after the Transfer Effective Date the Purchasing Purchaser shall be a
Purchaser party to the Note Funding Agreement for all purposes thereof.
(b) At or before 12:00 Noon, local time of the Transferor Purchaser, on
the Transfer Effective Date, the Purchasing Purchaser shall pay to the
Transferor Purchaser, in immediately available funds, an amount equal to the
purchase price, as agreed between the Transferor Purchaser and such Purchasing
Purchaser (the "Purchase Price"), of the portion set forth on Schedule II hereto
being purchased by such Purchasing Purchaser of the outstanding advances
----------
(1) If required by the Note Funding Agreement.
-1-
under the Note owned by the Transferor Purchaser (such Purchasing Purchaser's
"Purchase Percentage") and other amounts owing to the Transferor Purchaser under
the Note Funding Agreement or otherwise in respect of the Notes. Effective upon
receipt by the Transferor Purchaser of the Purchase Price from the Purchasing
Purchaser, the Transferor Purchaser hereby irrevocably sells, assigns and
transfers to the Purchasing Purchaser, without recourse, representation or
warranty, and the Purchasing Purchaser hereby irrevocably purchases, takes and
assumes from the Transferor Purchaser, the Purchasing Purchaser's Purchase
Percentage of [(i)] the presently Outstanding Note Balance under the Notes owned
by the Transferor Purchaser and other amounts owing to the Transferor Purchaser
in respect of the Notes, together with all instruments, documents and collateral
security pertaining thereto, [and (ii) the Purchasing Purchaser's Purchase
Percentage of the Commitment Percentage and the Commitment of the Transferor
Purchaser and other rights, duties and obligations of the Transferor Purchaser
under the Note Funding Agreement.] This Supplement is intended by the parties
hereto to effect a purchase by the Purchasing Purchaser and sale by the
Transferor Purchaser of interests in the Notes, and it is not to be construed as
a loan or a commitment to make a loan by the Purchasing Purchaser to the
Transferor Purchaser. The Transferor Purchaser hereby confirms that the amount
of the Outstanding Note Balance of the Notes is $____________ and its Percentage
Interest thereof is ___%, which equals $____________ as of _______, 200_. Upon
and after the Transfer Effective Date (until further modified in accordance with
the Note Funding Agreement), the Commitment Percentage of the Transferor
Purchaser and the Purchasing Purchaser and the Commitment of the Transferor
Purchaser and the Purchasing Purchaser shall be as set forth in Schedule II to
this Supplement.
(c) The Transferor Purchaser has made arrangements with the Purchasing
Purchaser with respect to (i) the portion, if any, to be paid, and the date or
dates for payment, by the Transferor Purchaser to the Purchasing Purchaser of
any fees heretofore received by the Transferor Purchaser pursuant to the Note
Funding Agreement prior to the Transfer Effective Date and (ii) the portion, if
any, to be paid, and the date or dates for payment, by the Purchasing Purchaser
to the Transferor Purchaser of fees or interest received by the Purchasing
Purchaser pursuant to the Note Funding Agreement or otherwise in respect of the
Notes from and after the Transfer Effective Date.
(d) All principal payments that would otherwise be payable from and after
the Transfer Effective Date to or for the account of the Transferor Purchaser in
respect of the Notes shall, instead, be payable to or for the account of the
Transferor Purchaser and the Purchasing Purchaser, as the case may be, in
accordance with their respective interests as reflected in this Supplement.
(e) All interest, fees and other amounts that would otherwise accrue for
the account of the Transferor Purchaser from and after the Transfer Effective
Date pursuant to the Note Funding Agreement or in respect of the Notes shall,
instead, accrue for the account of, and be payable to or for the account of, the
Transferor Purchaser and the Purchasing Purchaser, as the case may be, in
accordance with their respective interests as reflected in this Supplement. In
the event that any amount of interest, fees or other amounts accruing prior to
the Transfer Effective Date was included in the Purchase Price paid by the
Purchasing Purchaser, the Transferor Purchaser and the Purchasing Purchaser will
make appropriate arrangements for payment by the
-2-
Transferor Purchaser to the Purchasing Purchaser of such amount upon receipt
thereof from the Agent.
(f) Concurrently with the execution and delivery hereof, the Purchasing
Purchaser will deliver to Agent, the Issuer and the Indenture Trustee an
executed Investment Letter in the form of Exhibit A to the Note Funding
Agreement.
(g) Each of the parties to this Supplement agrees and acknowledges that
(i) at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Supplement, and (ii) the Agent shall apply each payment
made to it under the Note Funding Agreement, whether in its individual capacity
or as Agent, in accordance with the provisions of the Note Funding Agreement, as
appropriate.
(h) By executing and delivering this Supplement, the Transferor Purchaser
and the Purchasing Purchaser confirm to and agree with each other and the Agent
and the Purchaser as follows: (i) other than the representation and warranty
that it is the legal and beneficial owner of the interest being assigned hereby
free and clear of any adverse claim created by or through it, the Transferor
Purchaser makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Note Funding Agreement or the Indenture or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Note Funding Agreement or any other instrument or document furnished pursuant
thereto; (ii) the Transferor Purchaser makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Seller,
the Servicer, the Depositor, the Issuer or the Indenture Trustee, or the
performance or observance by the Seller, the Servicer, the Depositor, the Issuer
or the Indenture Trustee of any of their respective obligations under the Note
Funding Agreement, the Indenture or any other instrument or document furnished
pursuant hereto; (iii) each Purchasing Purchaser confirms that it has received a
copy of such documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Supplement; (iv) each
Purchasing Purchaser will, independently and without reliance upon the Agent,
the Transferor Purchaser or any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Note Funding Agreement
or the Indenture; (v) each Purchasing Purchaser appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Note Funding Agreement and the Indenture as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto, all in accordance with Section 7 of the Note Funding Agreement; and
(vi) each Purchasing Purchaser agrees (for the benefit of the Transferor
Purchaser, the Issuer, the Agent, the Purchasers, the Indenture Trustee, the
Depositor, the Seller, the Servicer and the Issuer) that it will perform in
accordance with their terms all of the obligations which by the terms of the
Note Funding Agreement are required to be performed by it as a Purchaser.
(i) [Schedule II hereto sets forth the revised Commitment Percentage and
Commitment of the Transferor Purchaser, the Commitment Percentage, the
Commitment of the Purchasing Purchaser, as applicable, and the initial Investing
Office of the Purchasing Purchaser, as well as administrative information with
respect to the Purchasing Purchaser.]
-3-
(j) THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
[Add items (k) and (l) below only in the case that the Transferor
Purchaser is a Structured Purchaser]
[(k) Each of the parties to this Supplement hereby covenants and agrees
that, prior to the date which is one year and one day after the payment in full
of all outstanding indebtedness for borrowed money of the Transferor Purchaser,
it will not institute against, or join any other Person in instituting against,
the Transferor Purchaser, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the Laws
of the United States or any state of the United States. The agreements set forth
in this paragraph (k) and the parties' respective obligations under this
paragraph (k) shall survive the termination of this Supplement and the Note
Funding Agreement.
(l) Each party to this Supplement hereby acknowledges and agrees that all
transactions with the Transferor Purchaser hereunder or in connection herewith
shall be without recourse of any kind to the Transferor Purchaser. Each party
hereto agrees that no liability or obligation of the Transferor Purchaser
hereunder for fees, expenses or indemnities shall constitute a claim (as defined
in Section 101 of Title 11 of the United States Bankruptcy Code) against the
Transferor Purchaser unless the Transferor Purchaser has received sufficient
amounts pursuant to the Note Funding Agreement to pay such amounts, and such
amounts are not necessary to pay outstanding commercial paper issued by the
Transferor Purchaser. No recourse shall be had for any amount owing hereunder or
any other obligation of, or claim against the Transferor Purchaser arising out
of or based upon this Supplement or the Note Funding Agreement or any agreement
or document entered into in connection herewith or therewith against any equity
holder, member, employee, officer, agent, or manager of the Transferor Purchaser
or any equity holder, member, employee, officer, director, or affiliate thereof.
The agreements set forth in this paragraph (l) and the parties' respective
obligations under this paragraph (l) shall survive the termination of this
Supplement and the Note Funding Agreement.]
IN WITNESS WHEREOF, the parties hereto have caused this Supplement
to be executed by their respective duly authorized officers on Schedule I hereto
as of the date set forth in Item 1 of Schedule I hereto.
-4-
SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Note Funding Agreement, dated as of May 1, 2006, among BXG
TIMESHARE TRUST I, BLUEGREEN CORPORATION, as Seller and
Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as
Depositor, the Purchasers party thereto and Branch Banking and
Trust Company, as Agent.
Item 1: Date of Transfer Supplement:
Item 2: Transferor Purchaser:
Item 3: Purchasing Purchaser:
Item 4: Signatures of Parties to Agreement:
---------------------------------
as Transferor Purchaser
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
as Purchasing Purchaser
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
-1-
CONSENTED TO AND ACCEPTED BY:
BRANCH BANKING AND TRUST COMPANY, as Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
BXG TIMESHARE TRUST I
By __________, not in its individual
capacity, but solely as Owner
Trustee
By:
---------------------------------
Name:
Title:
-2-
SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS, PURCHASE
AND COMMITMENT PERCENTAGES AND PURCHASE PRICE
[Transferor Purchaser]
Commitment Percentage:
Transferor Purchaser Commitment Percentage
Prior to Sale: _______%
Commitment Percentage Sold: _______%
Commitment Percentage Retained: _______%
Commitment:
Transferor Purchaser Commitment
Prior to Sale: $________
Commitment Sold: $________
Commitment Retained $________
Class of Notes _________
D. Outstanding Note Balance of Notes:
Transferor Purchaser
Outstanding Note Balance of Notes Prior to Sale: $________
Outstanding Note Balance of Notes Sold: $________
Outstanding Note Balance of Notes Retained: $________
E. Purchase Percentage: _______%
[Purchasing Purchaser]
Commitment Percentage: _______%
Commitment: $________
C. Outstanding Note Balance of Notes Owned Immediately After Sale: $________
Address for Notices:
Investing Office:
-1-
SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: [Name and address of
Issuer, Servicer, Indenture Trustee, the Transferor
Purchaser and the Purchasing Purchaser]
The undersigned, as Agent under the Note Funding Agreement, dated as
of May 1, 2006, among BXG TIMESHARE TRUST I, as Issuer, BLUEGREEN CORPORATION,
as Seller and Servicer, BLUEGREEN TIMESHARE FINANCE CORPORATION I, as Depositor,
the Purchasers parties thereto and Branch Banking and Trust Company, as Agent
for the Purchasers thereunder, acknowledges receipt of five executed
counterparts of a completed Transfer Supplement. [Note: attach copies of
Schedules I and II from such Agreement.] Terms defined in such Supplement are
used herein as therein defined.
Pursuant to such Transfer Supplement, you are advised that the
Transfer Effective Date will be _____________, 200_.
Very truly yours,
BRANCH BANKING AND TRUST COMPANY, as Agent
By:
------------------------------
Name:
Title:
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EXHIBIT D
FORM OF BORROWING NOTICE
NOTE FUNDING AGREEMENT (the "Agreement"), dated as of May 1, 2006,
by and among BXG TIMESHARE TRUST I, a Delaware statutory trust (the "Issuer"),
BLUEGREEN CORPORATION, a Massachusetts corporation ("Bluegreen"), BLUEGREEN
TIMESHARE FINANCE CORPORATION I, a Delaware corporation (the "Depositor"), the
PURCHASERS from time to time parties hereto (collectively, the "Purchasers") and
BRANCH BANKING AND TRUST COMPANY ("BB&T"), a North Carolina corporation, as
agent for the Purchasers (together with its successors in such capacity, the
"Agent").
Purchaser: _______________________________________________
Issuer: BXG Timeshare Trust I
Requested Funding Date: _______________________________________________
Transmission Date: _______________________________________________
Timeshare Loans to be Pledged: See attachment
Borrowing Base Prior to Funding: $________________
Borrowing Base After Funding: $________________
Available Commitment Prior to Funding: $________________
Available Commitment After Funding: $________________
Requested Wire Amount $________________
Wire Instructions:
2
Requested by:
BXG TIMESHARE TRUST I
By: Wilmington Trust Company,
not in its individual capacity, but solely as Owner Trustee
By:
--------------------------------
Name:
Title:
BLUEGREEN CORPORATION
By:
--------------------------------
Name:
Title:
BLUEGREEN TIMESHARE FINANCE CORPORATION I
By:
--------------------------------
Name:
Title:
2
Attachment
SCHEDULE OF TIMESHARE LOANS PROPOSED TO BE PLEDGED
This schedule will be supplemented from time to time by the Schedule of
Timeshare Loans attached to a borrowing notice dated subsequent to the date
hereof. Each such Schedule of Timeshare Loans shall be deemed to be incorporated
herein and made a part hereof for all purposes.
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EXHIBIT E
CONDITIONS PRECEDENT TO INITIAL FUNDING DATE
(1) Delivery of the completed Exhibit I to the Indenture with ratings acceptable
to the Agent;
(2) Written confirmation of the number of the deposit account to be established
and maintained by Bank of America for the Issuer pursuant to the Deposit Account
Control Agreement; and
(3) Written confirmation of the number of the Credit Card Account.
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SCHEDULE A
Subsidiaries and Divisions
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SCHEDULE B
Tradenames
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SCHEDULE C
Material Transactions
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SCHEDULE 4.1(k)
Tax Schedule
In March 2006, the Tennessee Audit Division (the "Division") advised
Bluegreen that rather than follow through with its intention to impose a sales
tax on sales of vacation ownership interests in Tennessee, it intends to seek to
impose a sales tax on the use of accommodations in Bluegreen's Tennessee
properties by Bluegreen's customers. The division has not commenced an audit of
these transactions and it has not yet identified the years that they intend to
audit. The Division's previous audits covered the period from December 1, 2001
through December 31, 2004. The Division has not formally assessed the
accommodations tax yet, nor have they estimated the amount they are intending to
assess. While in the past the timeshare industry has been successful in avoiding
the imposition by various states of sales tax on the reservation and use of
accommodations by timeshare owners, there is no assurance that no such taxes
will be imposed. Bluegreen intends to vigorously oppose any assessment of
accommodations tax by the Division.
Bluegreen Southwest One, L.P., ("Southwest"), a subsidiary of Bluegreen,
is the developer of the Mountain Lakes subdivision in Texas. One of the lakes
that is an amenity in the development has not filled to the expected level. This
condition has resulted in consumer complaints from property owners. Southwest is
investigating the causes for the failure of the lake to fill. Bluegreen is
unable to predict the results of this investigation, the potential cost to
correct the condition or the consequences in the event that the condition cannot
be corrected.
Also related to the Mountain Lakes subdivision is litigation related to
the development of mineral rights within the subdivision. In April 2006, in
Xxxxxx, et xx x. Bluegreen Southwest One, L.P. acting through its general
partner Bluegreen Southwest Land, Inc., et al, Cause No. 00000 Xxxxxxxx Xxxxx of
the 266th Judicial District, Erath County, Texas, plaintiffs filed a First
Amended Original Petition (April 2006). Pursuant to this First Amended Original
Petition, plaintiffs seek to develop mineral interests in the Mountain Lakes
subdivision and to recover damages from Southwest, alleging breach of contract,
breach of fiduciary duty, tortious interference with existing and prospective
relationships and intentional invasion or interference with property rights by
Southwest, for allegedly interfering with the development of mineral rights held
by plaintiffs. Plaintiffs' claims against Bluegreen Southwest One, L.P. total in
the aggregate $25 million. Bluegreen is still in the process of reviewing
plaintiffs' allegations; however, based on the information currently available,
Bluegreen believes that the claims lack merit and intends to defend vigorously
against them.
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