EXHIBIT 10.132
(BXG 2001-A to Depositor - Initial Timeshare Loans)
TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this "AGREEMENT"), dated as of June 15,
2004, is by and among Bluegreen Corporation, a Massachusetts corporation
("BLUEGREEN"), BXG Receivables Note Trust 2001-A, a statutory trust formed under
the laws of the State of Delaware (the "WAREHOUSE ISSUER" or the "SELLER") and
Bluegreen Receivables Finance Corporation VIII, a Delaware corporation (the
"SECURITIZATION DEPOSITOR"), and their respective permitted successors and
assigns.
W I T N E S S E T H:
WHEREAS, in connection with the transactions contemplated by (i)
that certain amended and restated sale and servicing agreement, dated as of
April 17, 2002 (the "WAREHOUSE SALE AND SERVICING AGREEMENT") by and among
Bluegreen Receivables Finance Corporation V, as depositor (the "WAREHOUSE
DEPOSITOR"), the Warehouse Issuer, as issuer, Bluegreen, as seller and servicer
(in such capacity, the "WAREHOUSE SERVICER"), Concord Servicing Corporation, as
backup servicer (the "BACKUP SERVICER"), Vacation Trust, Inc., as club trustee
(the "Club Trustee") and U.S. Bank National Association ("US BANK"), as
indenture trustee and custodian, (ii) that certain amended and restated
indenture, dated as of April 17, 2002 (the "WAREHOUSE INDENTURE"), by and
between Warehouse Issuer and US Bank, as indenture trustee, and (iii) that
certain amended and restated note purchase agreement, dated as of April 17, 2002
(the "WAREHOUSE NOTE PURCHASE AGREEMENT") by and among the Warehouse Issuer,
Bluegreen, the Warehouse Depositor, Resort Finance LLC (as successor-in-interest
to ING Capital LLC), as agent (the "WAREHOUSE AGENT") and the purchasers named
therein (the "WAREHOUSE PURCHASERS"), (A) Bluegreen sold, transferred and
conveyed, from time to time, all of its right, title and interest in, to and
under certain timeshare loans, receivables and related security (the "WAREHOUSE
TIMESHARE LOANS") to the Warehouse Depositor, (B) the Warehouse Depositor sold
the Warehouse Timeshare Loans to the Warehouse Issuer and (C) the Warehouse
Issuer issued a single class of notes (the "WAREHOUSE NOTES") secured by the
Warehouse Timeshare Loans to the Warehouse Purchasers;
WHEREAS, in connection with each sale of the Warehouse Timeshare
Loans to the Warehouse Depositor under the Warehouse Sale and Servicing
Agreement, Bluegreen made certain representations and warranties with respect to
the Warehouse Timeshare Loans as of the related transfer dates;
WHEREAS, pursuant to Section 9.15 of the Warehouse Note Purchase
Agreement, the Warehouse Agent may, after delivery of notice (a "SALE NOTICE")
to the Warehouse Issuer, direct the Warehouse Issuer to sell, transfer and
convey to the Warehouse Agent's designee, all of its right, title and interest
in, to and under the Warehouse Timeshare Loans specified in such Sale Notice;
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WHEREAS, on the date hereof, the Warehouse Agent has delivered such
notice to the Warehouse Issuer and, in such notice, has directed the Warehouse
Issuer to sell the Warehouse Timeshare Loans specified in such notice to the
Securitization Depositor and to enter into this Agreement and such other
Transaction Documents as are necessary to effectuate the sale of such Warehouse
Timeshare Loans;
WHEREAS, the Securitization Depositor has been established as a
bankruptcy-remote entity owned by Bluegreen for the purpose of acquiring the
Warehouse Timeshare Loans and, from time to time, other Timeshare Loans sold
and/or contributed to it by Bluegreen, as the case may be, in accordance with
the provisions of the Purchase Agreement;
WHEREAS, on the Closing Date, (i) pursuant to the Sale Notice, the
Seller wishes to sell all of its right, title and interest in and to the
Warehouse Timeshare Loans to the Securitization Depositor in accordance with the
provisions of this Agreement, (ii) the Securitization Depositor intends,
concurrently with the purchase of the Warehouse Timeshare Loans from the Seller,
to sell, transfer and otherwise absolutely convey, and BXG Receivables Note
Trust 2004-B (the "SECURITIZATION ISSUER") intends to purchase the Warehouse
Timeshare Loans and other timeshare loans, and (ii) the Securitization Issuer
intends to pledge such Warehouse Timeshare Loans and other timeshare loans
acquired thereby to US Bank, as indenture trustee (in such capacity, the
"SECURITIZATION INDENTURE TRUSTEE") and custodian (in such capacity, the
"SECURITIZATION CUSTODIAN"), pursuant to an indenture, dated as of June 15, 2004
(the "SECURITIZATION INDENTURE"), by and among the Securitization Issuer,
Bluegreen, as servicer (the "SECURITIZATION SERVICER"), the Club Trustee and the
Securitization Indenture Trustee, to secure the Issuer's 4.445% Timeshare
Loan-Backed Notes, Series 2004-B, Class A, 4.695% Timeshare Loan-Backed Notes,
Series 2004-B, Class B, 5.190% Timeshare Loan-Backed Notes, Series 2004-B, Class
C, 6.680% Timeshare Loan-Backed Notes, Series 2004-B, Class D and
7.180%Timeshare Loan-Backed Notes, Series 2004-B, Class E (collectively, the
"SECURITIZATION NOTES");
WHEREAS, Bluegreen originated the Warehouse Timeshare Loans, is
familiar with the terms of the Warehouse Timeshare Loans and is the Warehouse
Servicer and has been servicing each of the Warehouse Timeshares Loans on behalf
of the Warehouse Agent and Warehouse Purchasers in accordance with the Servicing
Standard and the applicable provisions of the Warehouse Sale and Servicing
Agreement and it has not taken or failed to take any action to cause a breach of
the representations and warranties set forth in Section 2.1 and 2.2 of Warehouse
Sale and Servicing Agreement;
WHEREAS, in consideration for providing the representations and
warranties set forth in Section 5 of this Agreement and having the obligation to
cure any material breaches thereof, or to repurchase or substitute any Defective
Timeshare Loans, and to provide the indemnities set forth hereunder, Bluegreen
desires: (i) to act as Securitization Servicer on behalf of the Holders of the
Securitization Notes, for which Bluegreen shall be entitled to receive a
Servicing Fee and Additional Servicing Compensation in accordance with the
provisions of the Securitization Indenture, (ii) to act as Administrator on
behalf of the Securitization Issuer and the Owner Trustee, for which Bluegreen
shall be entitled to an Administrator Fee, (iii) to have the option, but not the
obligation, to purchase or substitute Upgraded Club Loans pursuant to the
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terms and conditions set forth in this Agreement and the Transaction Documents
and (iv) to have the option, but not the obligation, to purchase or substitute
Defaulted Timeshare Loans, which such option may be waived with respect to any
Defective Timeshare Loan, in each case, pursuant to the terms and conditions set
forth herein; and
WHEREAS, Bluegreen, as the residual interest of the Warehouse
Issuer, will derive an economic benefit from the sale hereunder of the Warehouse
Timeshare Loans to the Securitization Depositor.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto covenant and agree as follows:
SECTION 1. Definitions; Interpretation. Capitalized terms used but
not defined herein shall have the meanings specified in "Standard Definitions"
attached hereto as Annex A.
SECTION 2. Acquisition of Timeshare Loans.
(a) (i) Timeshare Loans. On the Closing Date, in return for the
Timeshare Loan Acquisition Price for each of the Warehouse Timeshare Loans, the
Seller does hereby transfer, assign, sell and grant to the Securitization
Depositor, without recourse (except as provided in Section 6 and Section 8
hereof), any and all of the Seller's right, title and interest in and to (i) the
Warehouse Timeshare Loans listed on Schedule III hereto, (ii) the Receivables in
respect of such Warehouse Timeshare Loans due after the related Cut-Off Date,
(iii) the related Timeshare Loan Documents (excluding any rights as developer or
declarant under the Timeshare Declaration, the Timeshare Program Consumer
Documents or the Timeshare Program Governing Documents), (iv) all Related
Security in respect of each such Warehouse Timeshare Loan, (v) the Seller's
rights and remedies under the Warehouse Sale and Servicing Agreement (including,
but not limited to, repurchase and substitution rights with respect to breaches
of representations and warranties made by Bluegreen therein in respect of the
Warehouse Timeshare Loans) and (vi) all income, payments, proceeds and other
benefits and rights related to any of the foregoing (the property in clauses
(i)-(vi), being the "ASSETS"). Upon such sale and transfer, the ownership of
each Warehouse Timeshare Loan and all collections allocable to principal and
interest thereon since the related Cut-Off Date and all other property interests
or rights conveyed pursuant to and referenced in this Section 2(a)(i) shall
immediately vest in the Securitization Depositor, its successors and assigns
(including the Securitization Issuer and the Securitization Indenture Trustee).
The Seller shall not take any action inconsistent with such ownership nor claim
any ownership interest in any Warehouse Timeshare Loan for any purpose
whatsoever other than for federal and state income tax reporting, if applicable.
The parties to this Agreement hereby acknowledge that the "credit risk" of the
Warehouse Timeshare Loans conveyed hereunder shall be borne by the
Securitization Issuer and its subsequent assignees.
(b) Delivery of Timeshare Loan Documents. In connection with the
sale, transfer, assignment and conveyance of any Warehouse Timeshare Loans
hereunder, the Securitization Depositor hereby directs the Seller and the Seller
hereby agrees to deliver or cause
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to be delivered to the U.S. Bank, as Custodian, all related Timeshare Loan Files
and to the Securitization Servicer all related Timeshare Loan Servicing Files.
(c) Collections. The Seller shall deposit or cause to be deposited
all collections in respect of the Warehouse Timeshare Loans received by the
Seller, the Warehouse Servicer or any of its Affiliates after the related
Cut-Off Date in the Lockbox Account.
(d) Limitation of Liability. None of the Securitization Depositor,
the Seller or any subsequent assignee of the Securitization Depositor shall have
any obligation or liability with respect to any Warehouse Timeshare Loan nor
shall the Securitization Depositor, the Seller or any subsequent assignee have
any liability to any Obligor in respect of any Warehouse Timeshare Loan. No such
obligation or liability is intended to be assumed by the Securitization
Depositor, the Seller or any subsequent assignee herewith and any such liability
is hereby expressly disclaimed.
SECTION 3. Intended Characterization; Grant of Security Interest. It
is the intention of the parties hereto that the transfer of Warehouse Timeshare
Loans to be made pursuant to the terms hereof shall constitute a sale by the
Seller to the Securitization Depositor and not a loan secured by the Warehouse
Timeshare Loans. In the event, however, that a court of competent jurisdiction
were to hold that any such transfer constitutes a loan and not a sale, it is the
intention of the parties hereto that the Seller shall be deemed to have granted
to the Securitization Depositor as of the date hereof a first priority perfected
security interest in all of Seller's right, title and interest in, to and under
the Assets specified in Section 2 hereof, and that with respect to such
conveyance, this Agreement shall constitute a security agreement under
applicable law. In the event of the characterization of any such transfer as a
loan, the amount of interest payable or paid with respect to such loan under the
terms of this Agreement shall be limited to an amount which shall not exceed the
maximum non-usurious rate of interest allowed by the applicable state law or any
applicable law of the United States permitting a higher maximum non-usurious
rate that preempts such applicable state law, which could lawfully be contracted
for, charged or received (the "HIGHEST LAWFUL RATE"). In the event any payment
of interest on any such loan exceeds the Highest Lawful Rate, the parties hereto
stipulate that (a) to the extent possible given the term of such loan, such
excess amount previously paid or to be paid with respect to such loan be applied
to reduce the principal balance of such loan, and the provisions thereof
immediately be deemed reformed and the amounts thereafter collectible thereunder
reduced, without the necessity of the execution of any new document, so as to
comply with the then applicable law, but so as to permit the recovery of the
fullest amount otherwise called for thereunder and (b) to the extent that the
reduction of the principal balance of, and the amounts collectible under, such
loan and the reformation of the provisions thereof described in the immediately
preceding clause (a) is not possible given the term of such loan, such excess
amount will be deemed to have been paid with respect to such loan as a result of
an error and upon discovery of such error or upon notice thereof by any party
hereto such amount shall be refunded by the recipient thereof.
The characterization of the Seller as "debtor" and the
Securitization Depositor as "secured party" in any such financing statement
required hereunder is solely for protective purposes and shall in no way be
construed as being contrary to the intent of the parties that this
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transaction be treated as a sale to the Securitization Depositor of such
Seller's entire right, title and interest in and to the Assets.
Each of the Seller, Bluegreen, the Club Trust, the Club Trustee, the
Securitization Depositor and any of its Affiliates hereby agrees to make the
appropriate entries in its general accounting records and to indicate that the
Warehouse Timeshare Loans have been transferred to the Securitization Depositor.
SECTION 4. Conditions Precedent to Acquisition of Warehouse
Timeshare Loans by the Securitization Depositor. The obligations of the
Securitization Depositor to purchase any Warehouse Timeshare Loans hereunder
shall be subject to the satisfaction of the following conditions:
(a) All representations and warranties of Bluegreen contained in
Section 5 and in Schedule I hereof, and all information provided in the Schedule
of Timeshare Loans related thereto shall be true and correct as of the Closing
Date or Transfer Date, as applicable, and Bluegreen shall have delivered to the
Securitization Depositor, the Securitization Indenture Trustee and the Initial
Purchaser an Officer's Certificate to such effect.
(b) On or prior to the Closing Date or a Transfer Date, as
applicable, the Seller shall have delivered or shall have caused the delivery of
(i) the related Timeshare Loan Files to the Securitization Custodian and the
Securitization Custodian shall have delivered a receipt therefore pursuant to
the Custodial Agreement and (ii) the Timeshare Loan Servicing Files to the
Securitization Servicer.
(c) The Seller shall have delivered or shall have caused to be
delivered all other information theretofore required or reasonably requested by
the Securitization Depositor to be delivered by the Seller or performed or
caused to be performed all other obligations required to be performed as of the
Closing Date or Transfer Date, as the case may be, including all filings,
recordings and/or registrations as may be necessary in the reasonable opinion of
the Securitization Depositor, the Securitization Issuer, or the Securitization
Indenture Trustee to establish and preserve the right, title and interest of the
Securitization Depositor, the Securitization Issuer, or the Securitization
Indenture Trustee, as the case may be, in the related Warehouse Timeshare Loans.
(d) On or before the Closing Date, the Securitization Depositor, the
Securitization Servicer, the Club Trustee, the Backup Servicer and the Indenture
Trustee shall have entered into the Securitization Indenture.
(e) The Securitization Notes shall be issued and sold on the Closing
Date, and each of the Securitization Issuer and the Securitization Depositor
shall receive the full consideration due it upon the issuance of the
Securitization Notes, and the Securitization Issuer and the Securitization
Depositor shall have applied their respective consideration to the extent
necessary, to pay the Timeshare Loan Acquisition Price for each Warehouse
Timeshare Loan.
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(f) Each Timeshare Loan conveyed on a Transfer Date shall satisfy
each of the criteria specified in the definition of "Qualified Substitute
Timeshare Loan" and each of the conditions herein and in the Securitization
Indenture for substitution of Warehouse Timeshare Loans shall have been
satisfied.
(g) The Securitization Depositor shall have received such other
certificates and opinions as it shall reasonably request.
SECTION 5. Representations and Warranties and Certain Covenants of
Bluegreen.
(a) Bluegreen represents and warrants to the Securitization
Depositor, the Securitization Issuer and the Securitization Indenture Trustee
for the benefit of the Securitization Noteholders, as of the Closing Date (with
respect to the Timeshare Loans transferred on the Closing Date) and on each
Transfer Date (with respect to Qualified Substitute Timeshare Loans transferred
on such Transfer Date) as follows:
(i) Due Incorporation; Valid Existence; Good Standing. It is a
corporation duly organized and validly existing in good standing under the
laws of the jurisdiction of its incorporation; and is duly qualified to do
business as a foreign corporation and in good standing under the laws of
each jurisdiction where the character of its property, the nature of its
business or the performance of its obligations under this Agreement makes
such qualification necessary, except where the failure to be so qualified
will not have a material adverse effect on its business or its ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of the Warehouse
Timeshare Loans. To Bluegreen's Knowledge, the Seller is, and so long as
the Warehouse Notes are outstanding, will be a business trust duly
organized and validly existing in good standing under the laws of the
jurisdiction of its formation and is duly qualified to do business as a
foreign corporation and in good standing under the laws of each
jurisdiction where the performance of its obligations under this Agreement
makes such qualification necessary, except where the failure to be so
qualified will not have a material adverse effect on its ability to
perform its obligations under this Agreement or any other Transaction
Document to which it is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of the Warehouse
Timeshare Loans.
(ii) Possession of Licenses, Certificates, Franchises and
Permits. Each of Bluegreen and the Seller holds (and Bluegreen at all
times during the term of this Agreement and the Seller so long as the
Warehouse Notes are outstanding, will hold) all material licenses,
certificates, franchises and permits from all governmental authorities
necessary for the conduct of its business, and has received no notice of
proceedings relating to the revocation of any such license, certificate,
franchise or permit, which singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would materially and adversely
affect its ability to perform its obligations under this Agreement or any
other Transaction Document to which it is a party or under the
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transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(iii) Corporate Authority and Power. It has, and at all times
during the term of this Agreement will have, all requisite corporate power
and authority to own its properties, to conduct its business, to execute
and deliver this Agreement and all documents and transactions contemplated
hereunder and to perform all of its obligations under this Agreement and
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder. To Bluegreen's
Knowledge, the Seller has, and so long as the Warehouse Notes are
outstanding, will have all requisite corporate power and authority to own
its properties, to conduct its business, to execute and deliver this
Agreement and all documents and transactions contemplated hereunder and to
perform all of its obligations under this Agreement and any other
Transaction Document to which it is a party or under the transactions
contemplated hereunder or thereunder. To Bluegreen's Knowledge, the Seller
has all requisite power and authority to acquire, own, transfer and convey
the Warehouse Timeshare Loans to the Securitization Depositor.
(iv) Authorization, Execution and Delivery Valid and Binding.
This Agreement and all other Transaction Documents and instruments
required or contemplated hereby to be executed and delivered by Bluegreen
have been duly authorized, executed and delivered by Bluegreen and,
assuming the due execution and delivery by, the other party or parties
hereto and thereto, constitute legal, valid and binding agreements
enforceable against Bluegreen in accordance with their respective terms
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
liquidation, dissolution, moratorium and other similar applicable laws
affecting the enforceability of creditors' rights generally applicable in
the event of the bankruptcy, insolvency, reorganization, liquidation or
dissolution, as applicable, of Bluegreen and to general principles of
equity, regardless of whether such enforceability shall be considered in a
proceeding in equity or at law. To Bluegreen's Knowledge, this Agreement
and all other Transaction Documents and instruments required or
contemplated hereby to be executed and delivered by the Seller have been
duly authorized, executed and delivered by the Seller and, assuming the
due execution and delivery by, the other party or parties hereto and
thereto, constitute legal, valid and binding agreements enforceable
against the Seller in accordance with their respective terms subject, as
to enforceability, to bankruptcy, insolvency, reorganization, liquidation,
dissolution, moratorium and other similar applicable laws affecting the
enforceability of creditors' rights generally applicable in the event of
the bankruptcy, insolvency, reorganization, liquidation or reorganization
as applicable, of the Seller and to general principles of equity,
regardless of whether such enforceability shall be considered in a
proceeding in equity or at law. To Bluegreen's Knowledge, this Agreement
constitutes a valid transfer of the Seller's interest in the Warehouse
Timeshare Loans to the Securitization Depositor or, in the event of the
characterization of any such transfer as a loan, the valid creation of a
first priority perfected security interest in the Warehouse Timeshare
Loans in favor of the Securitization Depositor.
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(v) No Violation of Law, Rule, Regulation, etc. The execution,
delivery and performance by Bluegreen of this Agreement and any other
Transaction Document to which it is a party do not and will not (A)
violate any of the provisions of its articles of incorporation or bylaws,
(B) violate any provision of any law, governmental rule or regulation
currently in effect applicable to it or its properties or by which it or
its properties may be bound or affected, including, without limitation,
any bulk transfer laws, where such violation would have a material adverse
effect on its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans, (C) violate any judgment,
decree, writ, injunction, award, determination or order currently in
effect applicable to it or its properties or by which it or its properties
are bound or affected, where such violation would have a material adverse
effect on its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans, (D) conflict with, or
result in a breach of, or constitute a default under, any of the
provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which it is a party or by which it is bound where such
violation would have a material adverse effect on its ability to perform
its obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of the Warehouse Timeshare
Loans or (E) result in the creation or imposition of any Lien upon any of
its properties pursuant to the terms of any such indenture, mortgage, deed
of trust, contract or other instrument. To Bluegreen's Knowledge, the
execution, delivery and performance by the Seller of this Agreement and
any other Transaction Document to which the Seller is a party do not and
will not (1) violate any of the provisions of its certificate of trust,
trust agreement or other related organizational document, (2) violate any
provision of any law, governmental rule or regulation currently in effect
applicable to the Seller or its properties by which the Seller or its
properties may be bound or affected, including, without limitation, any
bulk transfer laws, where such violation would have a material adverse
effect on the Seller's ability to perform its obligations under this
Agreement or any other Transaction Document to which the Seller is a party
or under the transactions contemplated hereunder or thereunder or the
validity or enforceability of the Warehouse Timeshare Loans, (3) violate
any judgment, decree, writ, injunction, award, determination or order
currently in effect applicable to the Seller or its properties or by which
the Seller or its properties are bound or affected, where such violation
would have a material adverse effect on the Seller's ability to perform
its obligations under this Agreement or any other Transaction Document to
which the Seller is a party or under the transactions contemplated
hereunder or thereunder or the validity or enforceability of the related
Warehouse Timeshare Loans or (4) conflict with, or result in a breach of,
or constitute a default under, any of the provisions of any sale and
servicing agreement, indenture, mortgage, deed of trust, contract or other
instrument to which the Seller is a party or by which it is bound where
such violation would have a material adverse effect on the Seller's
ability to perform its obligations under this Agreement or any other
Transaction Document to which the Seller is a party or under the
transactions
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contemplated hereunder or thereunder or the validity or enforceability of
the Warehouse Timeshare Loans.
(vi) Governmental Consent. No consent, approval, order or
authorization of, and no filing with or notice to, any court or other
Governmental Authority in respect of Bluegreen is required which has not
been obtained in connection with the authorization, execution, delivery or
performance by Bluegreen of this Agreement or any of the other Transaction
Documents to which Bluegreen is a party or under the transactions
contemplated hereunder or thereunder, including, without limitation, the
transfer of the Warehouse Timeshare Loans and the creation of the security
interest of the Securitization Depositor therein pursuant to Section 3
hereof. To Bluegreen's Knowledge, no consent, approval, order or
authorization of, and no filing with or notice to, any court or other
Governmental Authority in respect of the Seller is required which has not
been obtained in connection with the authorization, execution, delivery or
performance by the Seller of this Agreement or any of the other
Transaction Documents to which the Seller is a party or under the
transactions contemplated hereunder or thereunder, including, without
limitation, the transfer of the Warehouse Timeshare Loans and the creation
of the security interest of the Securitization Depositor therein pursuant
to Section 3 hereof.
(vii) Defaults. It is not in default under any material
agreement, contract, instrument or indenture to which it is a party or by
which it or its properties is or are bound, or with respect to any order
of any court, administrative agency, arbitrator or governmental body, in
each case, which would have a material adverse effect on the transactions
contemplated hereunder or on its business, operations, financial condition
or assets, and no event has occurred which with notice or lapse of time or
both would constitute such a default with respect to any such agreement,
contract, instrument or indenture, or with respect to any such order of
any court, administrative agency, arbitrator or governmental body. To
Bluegreen's Knowledge, on the Closing Date the Seller is not in default
under any material agreement, contract, instrument or indenture to which
it is a party or by which it or its properties is or are bound, or with
respect to any order of any court, administrative agency, arbitrator or
governmental body, in each case, which would have a material adverse
effect on the transactions contemplated hereunder, and no event has
occurred which with notice or lapse of time or both would constitute such
a default with respect to any such agreement, contract, instrument or
indenture, or with respect to any such order of any court, administrative
agency, arbitrator or governmental body.
(viii) Insolvency. It is solvent and will not be rendered
insolvent by the transfer of Warehouse Timeshare Loans hereunder. On and
after the Closing Date, it will not engage in any business or transaction
the result of which would cause the property remaining with it to
constitute an unreasonably small amount of capital. To Bluegreen's
Knowledge, on the Closing Date the Seller is solvent and will not be
rendered insolvent by the transfer of the Warehouse Timeshare Loans
hereunder. To Bluegreen's Knowledge, on the Closing Date, the Seller will
not engage in any business or transaction, the result of which would cause
the property remaining with it to constitute an unreasonably small amount
of capital.
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(ix) Pending Litigation or Other Proceedings. Other than as
described in the Offering Circular, there is no pending or, to its
Knowledge, threatened action, suit, proceeding or investigation before any
court, administrative agency, arbitrator or governmental body against or
affecting it which, if decided adversely, would materially and adversely
affect (A) its condition (financial or otherwise), its business or
operations, (B) its ability to perform its obligations under, or the
validity or enforceability of, this Agreement or any other documents or
transactions contemplated under this Agreement, (C) any Warehouse
Timeshare Loan or title of any Obligor to any related Timeshare Property,
or (D) the Securitization Depositor's or any of its assigns' ability to
foreclose or otherwise enforce the liens of the related Mortgage Notes and
the rights of the Obligors to use and occupy the related Timeshare
Properties. To Bluegreen's Knowledge, there is no pending or threatened
action, suit, proceeding or investigation before any court, administrative
agency, arbitrator or governmental body against or affecting the Seller
which, if decided adversely, would materially and adversely affect (A) the
Seller's ability to perform its obligations under, or the validity or
enforceability of, this Agreement or any other documents or transactions
contemplated under this Agreement, (B) any Warehouse Timeshare Loan or
title of any Obligor to any related Timeshare Property or (C) the
Securitization Depositor's or any of its assigns' ability to foreclose or
otherwise enforce the liens of the related Mortgage Notes and the rights
of the Obligors to use and occupy the related Timeshare Properties.
(x) Information. No document, certificate or report furnished or
required to be furnished by or on behalf of it or, to Bluegreen's
Knowledge, on behalf of the Seller pursuant to this Agreement, contains or
will contain when furnished any untrue statement of a material fact or
fails or will fail to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances
in which it was made. There are no facts known to it which, individually
or in the aggregate, materially adversely affect, or which (aside from
general economic trends) may reasonably be expected to materially
adversely affect in the future, its financial condition or assets or
business, or which may impair its or the Seller's ability to perform its
respective obligations under this Agreement, which have not been disclosed
herein or therein or in the certificates and other documents furnished to
the Securitization Depositor by or on its or the Seller's behalf pursuant
hereto or thereto specifically for use in connection with the transactions
contemplated hereby or thereby.
(xi) Foreign Tax Liability. It is not aware of any Obligor under
a Warehouse Timeshare Loan who has withheld any portion of payments due
under such Warehouse Timeshare Loan because of the requirements of a
foreign taxing authority, and no foreign taxing authority has contacted it
concerning a withholding or other foreign tax liability.
(xii) Employee Benefit Plan Liability. As of the Closing Date
and each Transfer Date, as applicable, (i) no "accumulated funding
deficiency" (as such term is defined under ERISA and the Code), whether or
not waived, exists with respect to any "employee pension benefit plan" (as
such term is defined under ERISA) sponsored, maintained or contributed to
by Bluegreen or the Seller or any of its affiliates, and, to Bluegreen and
the Seller's knowledge, no event has occurred or circumstance exists that
10
may result in an accumulated funding deficiency as of the last day of the
current plan year of any such plan; (ii) Bluegreen and the Seller and each
of its affiliates has made all contributions required under each
multiemployer plan (as such term is defined under ERISA) (a "Multiemployer
Plan") to which Bluegreen and the Seller or any of its affiliates
contributes or in which Bluegreen and the Seller or any of its affiliates
participates (a "Seller Multiemployer Plan"); and (iii) neither Bluegreen
and the Seller nor any of its affiliates has withdrawn from any
Multiemployer Plan with respect to which there is any outstanding
liability and, to Bluegreen and the Seller's knowledge, no event has
occurred or circumstance exists that presents a risk of the occurrence of
any withdrawal from, or the partition, termination, reorganization or
insolvency of, any Seller Multiemployer Plan that could result in any
liability to Bluegreen or the Seller.
(xiii) Taxes. It has filed all tax returns (federal, state and
local) which it reasonably believes are required to be filed and has paid
or made adequate provision for the payment of all taxes, assessments and
other governmental charges due from it or is contesting any such tax,
assessment or other governmental charge in good faith through appropriate
proceedings or except where the failure to file or pay will not have a
material adverse effect on the rights and interests of the Securitization
Depositor or any of its subsequent assignees. It knows of no basis for any
material additional tax assessment for any fiscal year for which adequate
reserves have not been established. It intends to pay all such taxes,
assessments and governmental charges when due. To Bluegreen's Knowledge,
the Seller has filed, as of the Closing Date all applicable tax returns
which it reasonably believes are required to be filed.
(xiv) Place of Business. The principal place of business and
chief executive office where Bluegreen and the Seller keeps its records
concerning the Warehouse Timeshare Loans will be 0000 Xxxxxxxxxx Xxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (or such other place specified
by Bluegreen and the Seller by written notice to the Securitization
Depositor, the Securitization Issuer and the Securitization Indenture
Trustee). The Seller is a business trust formed under the laws of the
State of Delaware. Bluegreen is a corporation formed under the laws of the
Commonwealth of Massachusetts.
(xv) Securities Laws. Neither it nor, to Bluegreen's Knowledge,
the Seller is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended. No portion of the Timeshare Loan Acquisition Price for
each of the Warehouse Timeshare Loans will be used by it or the Seller to
acquire any security in any transaction which is subject to Section 13 or
Section 14 of the Securities Exchange Act of 1934, as amended.
(xvi) Bluegreen Vacation Club. With respect to Warehouse
Timeshare Loans that are Club Loans:
(A) The Club Trust Agreement, of which a true and correct
copy is attached hereto as Exhibit B is in full force and effect and
a certified copy of the
11
Club Trust Agreement has been delivered to the Securitization
Indenture Trustee together with all amendments and supplements in
respect thereof;
(B) The arrangement of contractual rights and obligations
(duly established in accordance with the Club Trust Agreement under
the laws of the State of Florida) was established for the purpose of
holding and preserving certain property for the benefit of the
Beneficiaries referred to in the Club Trust Agreement. The Club
Trustee has all necessary trust and other authorizations and powers
required to carry out its obligations under the Club Trust Agreement
in the State of Florida and in all other states in which it owns
Resort Interests. The Club is not a corporation or business trust
under the laws of the State of Florida. The Club is not taxable as
an association, corporation or business trust under federal law or
the laws of the State of Florida;
(C) The Club Trustee is a corporation duly formed, validly
existing and in good standing under the laws of the State of
Florida. The Club Trustee is authorized to transact business in no
other state. The Club Trustee is not an affiliate of the Servicer
for purposes of Chapter 721, Florida Statutes and is in compliance
with the requirements of such Chapter 721 requiring that it be
independent of the Servicer;
(D) The Club Trustee had all necessary corporate power to
execute and deliver, and has all necessary corporate power to
perform its obligations under this Agreement, the other Transaction
Documents to which it is a party, the Club Trust Agreement and the
Club Management Agreement. The Club Trustee possesses all requisite
franchises, operating rights, licenses, permits, consents,
authorizations, exemptions and orders as are necessary to discharge
its obligations under the Club Trust Agreement;
(E) The Club Trustee holds all right, title and interest
in and to all of the Timeshares Properties related to the Warehouse
Timeshare Loans solely for the benefit of the Beneficiaries referred
to in, and subject in each case to the provisions of, the Club Trust
Agreement and the other documents and agreements related thereto.
Except with respect to the Mortgages, the Club Trustee has permitted
none of such related Warehouse Timeshare Loans to be made subject to
any lien or encumbrance during the time it has been a part of the
trust estate under the Club Trust Agreement;
(F) There are no actions, suits, proceedings, orders or
injunctions pending against the Club or the Club Trustee, at law or
in equity, or before or by any governmental authority which, if
adversely determined, could reasonably be expect to have a material
adverse effect on the Trust Estate or the Club Trustee's ability to
perform its obligations under the Transaction Documents;
(G) Neither the Club nor the Club Trustee has incurred any
indebtedness for borrowed money (directly, by guarantee, or
otherwise);
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(H) All ad valorem taxes and other taxes and assessments
against the Club and/or its trust estate have been paid when due and
neither the Servicer nor, to Bluegreen's Knowledge, the Club Trustee
knows of any basis for any additional taxes or assessments against
any such property. The Club has filed all required tax returns and
has paid all taxes shown to be due and payable on such returns,
including all taxes in respect of sales of Owner Beneficiary Rights
(as defined in the Club Trust Agreement) and Vacation Points;
(I) The Club and the Club Trustee are in compliance in all
material respects with all applicable laws, statutes, rules and
governmental regulations applicable to it and in compliance with
each material instrument, agreement or document to which it is a
party or by which it is bound, including, without limitation, the
Club Trust Agreement;
(J) Except as expressly permitted in the Club Trust
Agreement, the Club Trustee has maintained the One-to-One
Beneficiary to Accommodation Ratio (as such terms are defined in the
Club Trust Agreement);
(K) Bluegreen Vacation Club, Inc. is a non-stock
corporation duly formed, validly existing and in good standing under
the laws of the State of Florida;
(L) Upon purchase of the Warehouse Timeshare Loans and
related Trust Estate hereunder, the Securitization Depositor and its
subsequent assignees is an "Interest Holder Beneficiary" under the
Club Trust Agreement and each of the Warehouse Timeshare Loans
constitutes "Lien Debt", "Purchase Money Lien Debt" and "Owner
Beneficiary Obligations" under the Club Trust Agreement; and
(M) Except as disclosed to the Securitization Depositor or
its assignees in writing, each Mortgage associated with a Warehouse
Timeshare Loan that is a Club Loan and granted by the Club Trustee
or the Obligor on the related Club Loan, as applicable, has been
duly executed, delivered and recorded by or pursuant to the
instructions of the Club Trustee under the Club Trust Agreement and
such Mortgage is valid and binding and effective to create the lien
and security interests in favor of the Securitization Indenture
Trustee (upon assignment thereof to the Securitization Indenture
Trustee). Each of such Mortgages was granted in connection with the
financing of a sale of a Resort Interest.
(xvii) Bluegreen is the Warehouse Servicer and has been
servicing the Warehouse Timeshare Loans in accordance with the Servicing
Standard and the applicable provisions of the Warehouse Sale and Servicing
Agreement and it has not taken or failed to take any action to cause a
breach of the representations and warranties set forth in Sections 2.1 and
2.2 of Warehouse Sale and Servicing Agreement.
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(b) Bluegreen hereby makes the representations and warranties
relating to the Warehouse Timeshare Loans contained in Schedule I hereto for the
benefit of the Securitization Depositor and its assignees as of the Closing Date
(with respect to each Warehouse Timeshare Loan transferred on the Closing Date)
and as of each Transfer Date (with respect to each Qualified Substitute
Timeshare Loan transferred on such Transfer Date), as applicable.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive the (i) sale of each
Warehouse Timeshare Loan to the Securitization Depositor, (ii) any subsequent
sale and assignment by the Securitization Depositor of such Warehouse Timeshare
Loans and the rights and remedies of the Securitization Depositor hereunder to
the Securitization Issuer and (iii) the subsequent pledge of such Warehouse
Timeshare Loans and rights and remedies hereunder to the Securitization
Indenture Trustee on behalf of the Securitization Noteholders and shall continue
so long as any such Warehouse Timeshare Loans shall remain outstanding or until
such time as such Warehouse Timeshare Loans are repurchased, purchased or a
Qualified Substitute Timeshare Loan is provided pursuant to Section 6 hereof.
Each of the Seller and Bluegreen acknowledge that it has been advised that the
Securitization Depositor intends to sell, transfer, assign and convey all of its
right, title and interest in and to each Warehouse Timeshare Loan and its rights
and remedies under this Agreement to the Securitization Issuer and that the
Securitization Issuer intends to pledge the Warehouse Timeshare Loans and its
rights and remedies under this Agreement to the Securitization Indenture Trustee
on behalf of the Securitization Noteholders. The Seller and Bluegreen jointly
agree that, upon any such assignment, the Securitization Indenture Trustee may
enforce directly, without joinder of the Securitization Depositor or the
Securitization Issuer (but subject to any defense that Bluegreen may have under
this Agreement) all rights and remedies hereunder.
(d) With respect to any representations and warranties contained in
Section 5 which are made to Bluegreen's Knowledge, if it is discovered that any
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of a Warehouse Timeshare Loan or the interests of
the Securitization Depositor or any subsequent assignee thereof, then
notwithstanding such lack of Knowledge of the accuracy of such representation
and warranty at the time such representation or warranty was made (without
regard to any Knowledge qualifiers), such inaccuracy shall be deemed a breach of
such representation or warranty for purposes of the repurchase or substitution
obligations described in Sections 6(a)(i) or (ii) below.
SECTION 6. Repurchases and Substitutions.
(a) Mandatory Repurchases and Substitutions for Breaches of
Representations and Warranties. Upon the receipt of notice by Bluegreen of a
breach of any of its respective representations and warranties in Section 5 (on
the date on which such representation or warranty was made) which materially and
adversely affects the value of a Warehouse Timeshare Loan or the interests of
the Securitization Depositor or any subsequent assignee of the Securitization
Depositor therein, Bluegreen shall within 60 days of receipt of such notice,
cure in all material respects the circumstance or condition which has caused
such representation or warranty to be incorrect or either (i) repurchase the
Securitization Depositor's or its assignee's interest in such
14
related Defective Timeshare Loan from the Securitization Depositor or its
assignee at the Repurchase Price or (ii) provide one or more Qualified
Substitute Timeshare Loans and pay the related Substitution Shortfall Amounts,
if any.
(b) Optional Purchases or Substitutions of Club Loans. The
Securitization Depositor hereby irrevocably grants Bluegreen any options to
purchase or substitute Original Club Loans it has under the Sale Agreement with
the Securitization Issuer. With respect to any Original Club Loans for which
Bluegreen and the related Obligor have elected to effect an Upgrade, Bluegreen
will (at its option) either (i) pay the Repurchase Price for such Original Club
Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for
such Original Club Loan and pay the related Substitution Shortfall Amounts, if
any; provided, however, that Bluegreen's option to substitute one or more
Qualified Substitute Timeshare Loan for an Original Club Loan is limited on any
date to (x) 20% of the Aggregate Closing Date Collateral Balance less (y) the
Loan Balances of all Original Club Loans previously substituted by Bluegreen on
the related substitution dates pursuant to this Agreement, the Sale Agreement
and/or the Purchase Agreement. Bluegreen shall deposit or cause the deposit of
the related Repurchase Price and Substitution Shortfall Amounts, if any, in the
Collection Account as set forth in Section 6(d) below. Bluegreen shall use best
efforts to exercise its substitution option with respect to Original Club Loans
prior to exercise of its repurchase option. To the extent that Bluegreen shall
elect to substitute Qualified Substitute Timeshare Loans for an Original Club
Loan, Bluegreen shall use best efforts to cause each such Qualified Substitute
Timeshare Loan to be, in the following order of priority, (i) the Upgrade Club
Loan related to such Original Club Loan and (ii) an Upgrade Club Loan unrelated
to such Original Club Loan.
(c) Optional Purchases or Substitutions of Defaulted Timeshare
Loans. The Securitization Depositor hereby irrevocably grants Bluegreen any
options to purchase or substitute Defaulted Timeshare Loans it has under the
Sale Agreement with the Securitization Issuer. With respect to Defaulted
Timeshare Loans, on any date, Bluegreen will have the option, but not the
obligation, to either (i) purchase a related Defaulted Timeshare Loan subject to
the lien of the Indenture at the Repurchase Price for such related Defaulted
Timeshare Loan or (ii) substitute one or more Qualified Substitute Timeshare
Loans for such related Defaulted Timeshare Loan and pay the related Substitution
Shortfall Amounts, if any; provided, however, that Bluegreen's option to
purchase a related Defaulted Timeshare Loan or to substitute one or more
Qualified Substitute Timeshare Loan for a related Defaulted Timeshare Loan is
limited on any date to the Optional Purchase Limit and the Optional Substitution
Limit, respectively. Balance of the Timeshare Loans less (y) the Loan Balances
of all Defaulted Timeshare Loans previously purchased or substituted by
Bluegreen, as applicable, on the related purchase or substitution dates pursuant
to this Agreement, the Sale Agreement and/or the Purchase Agreement. Bluegreen
shall deposit or cause the deposit of the related Repurchase Price and
Substitution Shortfall Amounts, if any, in the Collection Account as set forth
in Section 6(d) below. Bluegreen may irrevocably waive its option to purchase or
substitute a related Defaulted Timeshare Loan by delivering to the Indenture
Trustee a Waiver Letter in the form of Exhibit A attached hereto.
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts.
The Securitization Depositor hereby directs and Bluegreen hereby agrees to remit
or cause to be
15
remitted all amounts in respect of Repurchase Prices and Substitution Shortfall
Amounts payable during the related Due Period in immediately available funds to
the Securitization Indenture Trustee to be deposited in the Collection Account
on the related Transfer Date in accordance with the provisions of the Indenture.
In the event that more than one Warehouse Timeshare Loan is substituted pursuant
to Sections 6(a), (b) or (c) hereof on any Transfer Date, the Substitution
Shortfall Amounts and the Loan Balances of Qualified Substitute Timeshare Loans
shall be calculated on an aggregate basis for all substitutions made on such
Transfer Date.
(e) Schedule of Timeshare Loans. The Securitization Depositor hereby
directs and Bluegreen hereby agrees, on each date on which a Warehouse Timeshare
Loan has been repurchased, purchased or substituted, to provide the
Securitization Depositor, the Securitization Issuer and the Indenture Trustee
with a electronic supplement to Schedule III hereto and the Schedule of
Timeshare Loans reflecting the removal and/or substitution of such Warehouse
Timeshare Loans and subjecting any Qualified Substitute Timeshare Loans to the
provisions of this Agreement.
(f) Qualified Substitute Timeshare Loans. On the related Transfer
Date, the Securitization Depositor hereby directs and Bluegreen hereby agrees to
deliver or to cause the delivery of the Timeshare Loan Files of the related
Qualified Substitute Timeshare Loans to the Securitization Indenture Trustee or
to the Custodian, at the direction of the Securitization Indenture Trustee, on
the related Transfer Date in accordance with the provisions of the Indenture. As
of such related Transfer Date, Bluegreen does hereby transfer, assign, sell and
grant to the Securitization Depositor, without recourse (except as provided in
Section 6 and Section 8 hereof), any and all of Bluegreen's right, title and
interest in and to (i) each Qualified Substitute Timeshare Loan conveyed to the
Securitization Depositor on such Transfer Date, (ii) the Receivables in respect
of the Qualified Substitute Timeshare Loans due after the related Cut-Off Date,
(iii) the related Timeshare Loan Documents (excluding any rights as developer or
declarant under the Timeshare Declaration, the Timeshare Program Consumer
Documents or the Timeshare Program Governing Documents), (iv) all Related
Security in respect of such Qualified Substitute Timeshare Loans, and (v) all
income, payments, proceeds and other benefits and rights related to any of the
foregoing. Upon such sale, the ownership of each Qualified Substitute Timeshare
Loan and all collections allocable to principal and interest thereon since the
related Cut-Off Date and all other property interests or rights conveyed
pursuant to and referenced in this Section 6(f) shall immediately vest in the
Securitization Depositor, its successors and assigns. Bluegreen shall not take
any action inconsistent with such ownership nor claim any ownership interest in
any Qualified Substitute Timeshare Loan for any purpose whatsoever other than
consolidated financial and federal and state income tax reporting. Bluegreen
agrees that such Qualified Substitute Timeshare Loans shall be subject to the
provisions of this Agreement.
(g) Officer's Certificate. Bluegreen shall, on each related Transfer
Date, certify in writing to the Securitization Depositor, the Securitization
Issuer and the Securitization Indenture Trustee that each new Timeshare Loan
meets all the criteria of the definition of "Qualified Substitute Timeshare
Loan" and that (i) the Timeshare Loan Files for such Qualified Substitute
Timeshare Loans have been delivered to the Securitization Custodian, and (ii)
the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans
have been delivered to the Securitization Servicer.
16
(h) Release. In connection with any repurchase, purchase or
substitution of one or more Timeshare Loans contemplated by this Section 6, upon
satisfaction of the conditions contained in this Section 6, the Securitization
Depositor, the Securitization Issuer and the Securitization Indenture Trustee
shall execute and deliver or shall cause the execution and delivery of such
releases and instruments of transfer or assignment presented to it by Bluegreen,
in each case, without recourse, as shall be necessary to vest in Bluegreen or
its designee the legal and beneficial ownership of such released Timeshare
Loans. The Securitization Depositor shall cause the Securitization Issuer and
the Securitization Indenture Trustee to cause the Securitization Custodian to
release the related Timeshare Loan Files to Bluegreen or its designee and the
Securitization Servicer to release the related Timeshare Loan Servicing Files to
Bluegreen or its designee.
(i) Sole Remedy. It is understood and agreed that the obligations of
Bluegreen contained in Section 6(a) to cure a material breach, or to repurchase
or substitute related Defective Timeshare Loans and the obligation of Bluegreen
to indemnify pursuant to Section 8 shall constitute the sole remedies available
to the Securitization Depositor or its subsequent assignees for the breaches of
any of its representation or warranty contained in Section 5, and such remedies
are not intended to and do not constitute "credit recourse" to Bluegreen.
SECTION 7. Covenants of Bluegreen and the Seller.
(a) Bluegreen hereby covenants and agrees with the Securitization
Depositor as follows:
(i) It shall comply with all applicable laws, rules, regulations
and orders applicable to it and its business and properties except where
the failure to comply will not have a material adverse effect on its
business or its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(ii) It shall preserve and maintain for itself its existence
(corporate or otherwise), rights, franchises and privileges in the
jurisdiction of its organization and except where the failure to so
preserve and maintain will not have a material adverse effect on its
business or its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions contemplated hereunder or thereunder or the validity or
enforceability of the Warehouse Timeshare Loans.
(iii) On or prior to the Closing Date or a Transfer Date, as
applicable, it shall indicate in its and its Affiliate's computer files
and other records that each Timeshare Loan has been sold to the
Securitization Depositor.
(iv) It shall respond to any inquiries with respect to ownership
of a Warehouse Timeshare Loan by stating that such Warehouse Timeshare
Loan has been
17
sold to the Securitization Depositor and that the Securitization Depositor
is the owner of such Warehouse Timeshare Loan.
(v) On or prior to the Closing Date, it shall file or cause the
Seller to file, at Bluegreen's expense, financing statements in favor of
the Securitization Depositor, the Securitization Issuer and the
Securitization Indenture Trustee on behalf of the Securitization
Noteholders, with respect to the Warehouse Timeshare Loans, in the form
and manner reasonably requested by the Securitization Depositor. It shall
deliver or cause the Seller to deliver file-stamped copies of such
financing statements to the Securitization Depositor, the Securitization
Issuer and the Securitization Indenture Trustee on behalf of the
Securitization Noteholders.
(vi) It agrees from time to time to, or cause the Seller to, at
Bluegreen's expense, promptly to execute and deliver all further
instruments and documents, and to take all further actions, that may be
necessary, or that the Securitization Depositor, the Securitization Issuer
or the Securitization Indenture Trustee may reasonably request, to
perfect, protect or more fully evidence the sale of the Warehouse
Timeshare Loans, or to enable the Securitization Depositor, the
Securitization Issuer or the Securitization Indenture Trustee to exercise
and enforce its rights and remedies hereunder or under any Timeshare Loan
including, but not limited to, powers of attorney, UCC financing
statements and assignments of mortgage.
(vii) Any change in the legal name of Bluegreen or the Seller
and any use by it of any tradename, fictitious name, assumed name or
"doing business as" name occurring after the Closing Date shall be
promptly disclosed to the Securitization Depositor, the Securitization
Issuer and the Securitization Indenture Trustee in writing.
(viii) Upon the discovery or receipt of notice by a Responsible
Officer of Bluegreen of a breach of any of its representations or
warranties and covenants contained herein, Bluegreen shall promptly
disclose to the Securitization Depositor, the Securitization Issuer and
the Securitization Indenture Trustee, in reasonable detail, the nature of
such breach.
(ix) In the event that Bluegreen shall receive any payments in
respect of a Warehouse Timeshare Loan after the Closing Date or Transfer
Date, as applicable (including any insurance proceeds that are not payable
to the related Obligor), it shall, within two (2) Business Days of
receipt, transfer or cause to be transferred, such payments to the Lockbox
Account.
(x) Bluegreen will keep its principal place of business and
chief executive office and the office where it keeps its records
concerning the Timeshare Loans at the address of Bluegreen listed herein.
(xi) In the event that Bluegreen, the Seller or the
Securitization Depositor or any assignee of the Securitization Depositor
should receive actual notice of any transfer taxes arising out of the
transfer, assignment and conveyance of a Warehouse Timeshare
18
Loan from the Seller to the Securitization Depositor, on written demand by
the Securitization Depositor, or upon Bluegreen or the Seller otherwise
being given notice thereof, Bluegreen shall cause the Seller to pay, and
otherwise indemnify and hold the Securitization Depositor, or any
subsequent assignee harmless, on an after-tax basis, from and against any
and all such transfer taxes.
(b) The Seller hereby covenants and agrees with the Securitization
Depositor as follows:
(i) The Seller authorizes the Securitization Depositor, the
Securitization Issuer, and the Securitization Indenture Trustee to file
continuation statements, and amendments thereto, relating to the Warehouse
Timeshare Loans and all payments made with regard to the related Warehouse
Timeshare Loans without the signature of the Seller where permitted by
law. A photocopy or other reproduction of this Agreement shall be
sufficient as a financing statement where permitted by law. The
Securitization Depositor confirms that it is not its present intention to
file a photocopy or other reproduction of this Agreement as a financing
statement, but reserves the right to do so if, in its good faith
determination, there is at such time no reasonable alternative remaining
to it.
(ii) It shall comply with all applicable laws, rules,
regulations and orders applicable to it and its business and properties
except where the failure to comply will not have a material adverse effect
on its business or its ability to perform its obligations under this
Agreement or any other Transaction Document to which it is a party or
under the transactions contemplated hereunder or thereunder or the
validity or enforceability of the Warehouse Timeshare Loans.
(iii) So long as the Warehouse Notes are outstanding, it shall
preserve and maintain for itself its existence (corporate or otherwise),
rights, franchises and privileges in the jurisdiction of its organization
and except where the failure to so preserve and maintain will not have a
material adverse effect on its business or its ability to perform its
obligations under this Agreement or any other Transaction Document to
which it is a party or under the transactions contemplated hereunder or
thereunder or the validity or enforceability of the Warehouse Timeshare
Loans.
(iv) On or prior to the Closing Date or a Transfer Date, as
applicable, it shall indicate in computer files and other records to
indicate that each Warehouse Timeshare Loan has been sold to the
Securitization Depositor.
(v) It shall respond to any inquiries with respect to ownership
of a Warehouse Timeshare Loan by stating that such Warehouse Timeshare
Loan has been sold to the Securitization Depositor and that the
Securitization Depositor is the owner of such Warehouse Timeshare Loan.
(vi) It agrees and authorizes the filing, at Bluegreen's
expense, of the financing statements specified in Section 7(a)(v) hereof
in favor of the Securitization
19
Depositor, the Securitization Issuer and the Securitization Indenture
Trustee on behalf of the Securitization Noteholders, with respect to the
Warehouse Timeshare Loans.
(vii) It agrees from time to time to, at Bluegreen's expense,
promptly to execute and deliver all further instruments and documents, and
to take all further actions, that may be necessary, or that the
Securitization Depositor, the Securitization Issuer or the Securitization
Indenture Trustee may reasonably request, to perfect, protect or more
fully evidence the sale of the Warehouse Timeshare Loans, or to enable the
Securitization Depositor, the Securitization Issuer or the Securitization
Indenture Trustee to exercise and enforce its rights and remedies
hereunder or under any Timeshare Loan including, but not limited to,
powers of attorney, UCC financing statements and assignments of mortgage.
The Seller hereby appoints Bluegreen, the Securitization Depositor, the
Securitization Issuer and the Securitization Indenture Trustee as
attorneys-in-fact, which appointment is coupled with an interest and is
therefore irrevocable, to act on behalf and in the name of the Seller
under this Section 7(b)(vii).
(viii) In the event that the Seller shall receive any payments
in respect of a Warehouse Timeshare Loan after the Closing Date or
Transfer Date, as applicable (including any insurance proceeds that are
not payable to the related Obligor), it shall, within two (2) Business
Days of receipt, transfer or cause to be transferred, such payments to the
Lockbox Account.
SECTION 8. Indemnification.
(a) Bluegreen hereby agrees to indemnify the Securitization
Depositor, the Securitization Issuer, the Securitization Indenture Trustee, the
Securitization Noteholders and the Initial Purchaser (collectively, the
"INDEMNIFIED PARTIES") against any and all claims, losses, liabilities,
(including reasonable legal fees and related costs) that the Securitization
Depositor, the Securitization Issuer, the Securitization Indenture Trustee, the
Securitization Noteholders or the Initial Purchaser may sustain directly related
to any breach of the representations and warranties of Bluegreen under Section 5
hereof (the "INDEMNIFIED AMOUNTS") excluding, however (i) Indemnified Amounts to
the extent resulting from the gross negligence or willful misconduct on the part
of such Indemnified Party; (ii) any recourse for any uncollectible Warehouse
Timeshare Loan not related to a breach of representation or warranty; (iii)
recourse to Bluegreen for a related Defective Timeshare Loan so long as the same
is cured, substituted or repurchased pursuant to Section 6 hereof; (iv) income,
franchise or similar taxes by such Indemnified Party arising out of or as a
result of this Agreement or the transfer of the Warehouse Timeshare Loans; (v)
Indemnified Amounts attributable to any violation by an Indemnified Party of any
requirement of law related to an Indemnified Party; or (vi) the operation or
administration of the Indemnified Party generally and not related to the
enforcement of this Agreement. The parties hereto shall (A) promptly notify the
other parties hereto, the Securitization Issuer and the Securitization Indenture
Trustee if a claim is made by a third party with respect to this Agreement or
the Timeshare Loans, and relating to (1) the failure by Bluegreen to perform its
duties in accordance with the terms of this Agreement or (2) a breach of
Bluegreen's representations, covenants and warranties contained in this
Agreement, (B) assume (with the consent of the Securitization Depositor, the
Securitization Issuer, the Securitization Indenture
20
Trustee, the Securitization Noteholders or the Initial Purchaser, as applicable,
which consent shall not be unreasonably withheld) the defense of any such claim
and pay all expenses in connection therewith, including legal counsel fees and
(C) promptly pay, discharge and satisfy any judgment, order or decree which may
be entered against it or the Securitization Depositor, the Securitization
Issuer, the Securitization Indenture Trustee, the Securitization Noteholders or
the Initial Purchaser in respect of such claim. If Bluegreen shall have made any
indemnity payment pursuant to this Section 8 and the recipient thereafter
collects from another Person any amount relating to the matters covered by the
foregoing indemnity, the recipient shall promptly repay such amount to
Bluegreen.
(b) The obligations of Bluegreen under this Section 8 to indemnify
the Securitization Depositor, the Securitization Issuer, the Securitization
Indenture Trustee, the Securitization Noteholders and the Initial Purchaser
shall survive the termination of this Agreement and continue until the Notes are
paid in full or otherwise released or discharged.
SECTION 9. No Proceedings. The Seller and Bluegreen hereby agrees
that it will not, directly or indirectly, institute, or cause to be instituted,
or join any Person in instituting, against the Securitization Depositor, the
Securitization Issuer or any Association, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law so long as there shall not have
elapsed one year plus one day since the latest maturing Securitization Notes
issued by the Securitization Issuer.
SECTION 10. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing and
mailed or telecommunicated, or delivered as to each party hereto, at its address
set forth below or at such other address as shall be designated by such party in
a written notice to the other parties hereto. All such notices and
communications shall not be effective until received by the party to whom such
notice or communication is addressed.
Warehouse Issuer
BXG Receivables Note Trust 2001-A
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telecopier: (000) 000-0000
Securitization Depositor
Bluegreen Receivables Finance Corporation VIII
0000 Xxxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
21
Attention: Xxxxx Xxxxx, President
Telecopier: (000) 000-0000
Bluegreen
Bluegreen Corporation
0000 Xxxxxxxxxx Xxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Telecopier: (000) 000-0000
SECTION 11. No Waiver; Remedies. No failure on the part of the
Securitization Depositor, the Securitization Issuer, the Securitization
Indenture Trustee or any assignee thereof to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any other remedies provided by law.
SECTION 12. Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of the Seller, Bluegreen, the
Securitization Depositor and their respective successors and assigns. Any
assignee shall be an express third party beneficiary of this Agreement, entitled
to directly enforce this Agreement. Neither the Seller nor Bluegreen may assign
any of their rights and obligations hereunder or any interest herein without the
prior written consent of the Securitization Depositor and any assignee thereof.
The Securitization Depositor may, and intends to, assign all of its rights
hereunder to the Securitization Issuer and the Securitization Issuer intends to
assign all of its rights to the Securitization Indenture Trustee on behalf of
the Securitization Noteholders, and each of the Seller and Bluegreen consents to
any such assignments. This Agreement shall create and constitute the continuing
obligations of the parties hereto in accordance with its terms, and shall remain
in full force and effect until its termination (or, in the case of the Seller,
so long as the Warehouse Notes are outstanding) provided, however, that the
rights and remedies with respect to any breach of any representation and
warranty made by Bluegreen pursuant to Section 5, and the cure, repurchase or
substitution and indemnification obligations shall be continuing and shall
survive any termination of this Agreement, but such rights and remedies may be
enforced only by the Securitization Depositor, the Securitization Issuer and the
Securitization Indenture Trustee.
SECTION 13. Amendments; Consents and Waivers. No modification,
amendment or waiver of, or with respect to, any provision of this Agreement, and
all other agreements, instruments and documents delivered thereto, nor consent
to any departure by the Seller or Bluegreen from any of the terms or conditions
thereof shall be effective unless it shall be in writing and signed by each of
the parties hereto, the written consent of the Securitization Indenture Trustee
on behalf of the Securitization Noteholders is given and confirmation from the
Rating Agencies that such action will not result in a downgrade, withdrawal or
qualification of any rating assigned to a Class of Notes is received. The
Securitization Depositor shall provide or cause to be provided to the
Securitization Indenture Trustee and the Rating Agencies with such proposed
modifications, amendments or waivers. Any waiver or consent shall be effective
only
22
in the specific instance and for the purpose for which given. No consent to or
demand by the Seller or Bluegreen in any case shall, in itself, entitle it to
any other consent or further notice or demand in similar or other circumstances.
Each of the Seller and Bluegreen acknowledges that in connection with the
intended assignment by the Securitization Depositor of all of its right, title
and interest in and to each Warehouse Timeshare Loan to the Securitization
Issuer and the Grant by the Securitization Issuer's of all of its rights, title
and interest in and to the Warehouse Timeshare Loans to the Securitization
Indenture Trustee on behalf of the Securitization Noteholders, the
Securitization Issuer intends to issue the Notes, the proceeds of which will be
used by the Securitization Depositor to purchase the Warehouse Timeshare Loans
hereunder.
SECTION 14. Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation, shall not in any
way be affected or impaired thereby in any other jurisdiction. Without limiting
the generality of the foregoing, in the event that a Governmental Authority
determines that the Securitization Depositor may not purchase or acquire
Warehouse Timeshare Loans, the transactions evidenced hereby shall constitute a
loan and not a purchase and sale, notwithstanding the otherwise applicable
intent of the parties hereto, and the Seller shall be deemed to have granted to
the Securitization Depositor as of the date hereof, a first priority perfected
security interest in all of the Seller's right, title and interest in, to and
under such Warehouse Timeshare Loans and the related property as described in
Section 2 hereof.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS PRINCIPLES OF CONFLICTS OF LAW.
(B) THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF
MANHATTAN IN NEW YORK CITY AND EACH WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH
ON THE SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO
BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN
THE U.S. MAILS, POSTAGE PREPAID. THE PARTIES HERETO EACH WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE
OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE
PARTIES TO THIS AGREEMENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT
23
THE RIGHT OF ANY OF THEM TO BRING ANY ACTION OR PROCEEDING IN THE
COURTS OF ANY OTHER JURISDICTION.
SECTION 16. Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 17. Execution in Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and both of which when taken together
shall constitute one and the same agreement.
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duty authorized, as of the date
first above written.
Very truly yours,
BLUEGREEN RECEIVABLES FINANCE
CORPORATION VIII, as Securitization Depositor
By: /S/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx:
Title: Vice President and Assistant Secretary
BXG RECEIVABLES NOTE TRUST 2001-A,
as Warehouse Issuer
By: Wilmington Trust Company,
as Owner Trustee
By: /S/ XXXXX X. XXXXXXXX
Printed Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
BLUEGREEN CORPORATION
By: /S/ XXXX X. XXXXXX
Printed Name: Xxxx X. Xxxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer:
Agreed and acknowledged as to
the last paragraph of Section 3
herein only:
BLUEGREEN VACATION CLUB TRUST
By: Vacation Trust, Inc., Individually and as Club Trustee
By: /S/ XXXXX X. XXXXX
Printed Name: Xxxxx X. Xxxxx
Title: Secretary/Treasurer
[Signature Page to the Transfer Agreement]
25
ANNEX A
Standard Definitions
Annex A
SCHEDULE I
With respect to each Warehouse Timeshare Loan, as of the related Closing
Date or Transfer Date, as applicable:
(a) except if such Timeshare Loan is listed on Schedule II(a) hereof, payments
due under the Warehouse Timeshare Loan are fully-amortizing and payable in
level monthly installments;
(b) payment obligations under the Warehouse Timeshare Loan bear a fixed rate
of interest;
(c) the Obligor thereunder has made a down payment by cash, check or credit
card of at least 10% percent of the actual purchase price (including
closing costs) of the Timeshare Property (which cash down payment may, in
the case of Upgraded Club Loans only, be represented by the principal
payments on such Warehouse Timeshare Loan since its date of origination)
and no part of such payment has been made or loaned to Obligor by
Bluegreen, the Seller or an Affiliate thereof;
(d) as of the related Cut-Off Date, no principal or interest due with respect
to the Warehouse Timeshare Loan is sixty (60) days or more Delinquent;
(e) the Obligor is not an Affiliate of Bluegreen or any Subsidiary; provided,
that solely for the purposes of this representation, a relative of an
employee and employees of Bluegreen or any Subsidiary (or any of its
Affiliates) shall not be deemed to be an "Affiliate";
(f) immediately prior to the conveyance of the Warehouse Timeshare Loan to the
Securitization Depositor, the Seller owns full legal and equitable title
to such Warehouse Timeshare Loan, and the Warehouse Timeshare Loan (and
the related Timeshare Property) is free and clear of adverse claims, liens
and encumbrances and is not subject to claims of rescission, invalidity,
unenforceability, illegality, defense, offset, abatement, diminution,
recoupment, counterclaim or participation or ownership interest in favor
of any other Person;
(g) the Warehouse Timeshare Loan (other than an Aruba Loan) is secured
directly by a first priority Mortgage on the related purchased Timeshare
Property;
(h) with respect to each Club Loan, the Timeshare Property mortgaged by or at
the direction of the related Obligor constitutes a fractional fee simple
timeshare interest in real property at the related Resort that entitles
the holder of the interest to the use of a specific property for a
specified number of days each year or every other year; the related
Mortgage has been delivered for filing and recordation with all
appropriate governmental authorities in all jurisdictions in which such
Mortgage is required to be filed and recorded to create a valid, binding
and enforceable first Lien on the related Timeshare Property and such
Mortgage creates a valid, binding and enforceable first Lien on the
related Timeshare Property, subject only to Permitted Liens; and the
Seller is in compliance with any
Exhibit C
Permitted Lien respecting the right to the use of such Timeshare Property;
each of the Assignments of Mortgage and each related endorsement of the
related Mortgage Note constitutes a duly executed, legal, valid, binding
and enforceable assignment or endorsement, as the case may be, of such
related Mortgage and related Mortgage Note, and all monies due or to
become due thereunder, and all proceeds thereof;
(i) with respect to the Obligor and a particular Timeshare Property purchased
by such Obligor, there is only one original Mortgage and Mortgage Note, in
the case of a Club Loan, and only one Finance Agreement, in the case of an
Aruba Loan; all parties to the related Mortgage and the related Mortgage
Note (and, in the case of an Aruba Loan, Finance Agreement) had legal
capacity to enter into such Timeshare Loan Documents and to execute and
deliver such related Timeshare Loan Documents, and such related Timeshare
Loan Documents have been duly and properly executed by such parties; any
amendments to such related Timeshare Loan Documents required as a result
of any mergers involving the Seller or its predecessors, to maintain the
rights of the Seller or its predecessors thereunder as a mortgagee (or a
Seller, in the case of the Aruba Loan) have been completed;
(j) at the time the related Originator originated such Warehouse Timeshare
Loan to the related Obligor, such Originator had full power and authority
to originate such Warehouse Timeshare Loan and the Obligor had good and
indefeasible fee title or good and marketable fee simple title, or, in the
case of an Aruba Warehouse Loan, a cooperative interest, as applicable, to
the Timeshare Property related to such Warehouse Timeshare Loan, free and
clear of all Liens, except for Permitted Liens;
(k) the related Mortgage (or, in the case of an Aruba Loan, the related
Finance Agreement) contains customary and enforceable provisions so as to
render the rights and remedies of the holder thereof adequate for the
realization against the related Timeshare Property of the benefits of the
security interests or lender's contractual rights intended to be provided
thereby, including (a) if the Mortgage is a deed of trust, by trustee's
sale, including power of sale, (b) otherwise by judicial foreclosure or
power of sale and/or (c) termination of the contract, forfeiture of
Obligor deposits and payments towards the related Warehouse Timeshare Loan
and expulsion from the related Association; in the case of the Club Loans,
there is no exemption available to the related Obligor which would
interfere with the mortgagee's right to sell at a trustee's sale or power
of sale or right to foreclose such related Mortgage, as applicable;
(l) the related Mortgage Note is not and has not been secured by any
collateral except the Lien of the related Mortgage;
(m) if a Mortgage secures a Timeshare Loan, the title to the related Timeshare
Property is insured (or a binding commitment for title insurance, not
subject to any conditions other than standard conditions applicable to all
binding commitments, has been issued) under a mortgagee title insurance
policy issued by a title insurer qualified to do business in the
jurisdiction where the related Timeshare Property is located in a form
generally acceptable to prudent originators of similar mortgage loans,
insuring the Seller or its
Exhibit C
predecessor and its successors and assigns, as to the first priority
mortgage Lien of the related Mortgage in an amount equal to the
outstanding Loan Balance of such Warehouse Timeshare Loan, and otherwise
in form and substance acceptable to the Indenture Trustee; the Seller or
its assignee is a named insured of such mortgagee's title insurance
policy; such mortgagee's title insurance policy is in full force and
effect; no claims have been made under such mortgagee's title insurance
policy and no prior holder of such Warehouse Timeshare Loan has done or
omitted to do anything which would impair the coverage of such mortgagee's
title insurance policy; no premiums for such mortgagee's title insurance
policy, endorsements and all special endorsements are past due;
(n) the Seller or Bluegreen has not taken (or omitted to take), and has no
notice that the related Obligor has taken (or omitted to take), any action
that would impair or invalidate the coverage provided by any hazard, title
or other insurance policy on the related Timeshare Property;
(o) all applicable intangible taxes and documentary stamp taxes were paid as
to the related Warehouse Timeshare Loan;
(p) the proceeds of the Warehouse Timeshare Loan have been fully disbursed,
there is no obligation to make future advances or to lend additional funds
under the originator's commitment or the documents and instruments
evidencing or securing the Warehouse Timeshare Loan and no such advances
or loans have been made since the origination of the Warehouse Timeshare
Loan;
(q) the terms of each Timeshare Loan Document has not been impaired, waived,
altered or modified in any respect, except (x) by written instruments
which are part of the related Timeshare Loan Documents or (y) in
accordance with the Credit Policy or the Servicing Standard (provided that
no Warehouse Timeshare Loan has been impaired, waived, altered, or
modified in any respect more than once). No other instrument has been
executed or agreed to which would effect any such impairment, waiver,
alteration or modification; the Obligor has not been released from
liability on or with respect to the Warehouse Timeshare Loan, in whole or
in part; if required by law or prudent originators of similar loans in the
jurisdiction where the related Timeshare Property is located, all waivers,
alterations and modifications have been filed and/or recorded in all
places necessary to perfect, maintain and continue a valid first priority
Lien of the Mortgage subject only to Permitted Liens;
(r) other than if it is an Aruba Loan, the Warehouse Timeshare Loan is
principally and directly secured by an interest in real property;
(s) the Warehouse Timeshare Loan was originated by Bluegreen or one of its
Affiliates in the normal course of its business; the Warehouse Timeshare
Loan originated by Bluegreen or one of its Affiliates was underwritten in
accordance with its underwriting guidelines; the origination, servicing
and collection practices used by Bluegreen and, to Bluegreen's Knowledge,
its Affiliates with respect to the Warehouse Timeshare Loan have been in
all respects, legal, proper, prudent and customary;
Exhibit C
(t) the related Warehouse Timeshare Loan is assignable to and by the obligee
and its successors and assigns and the related Warehouse Timeshare
Property is assignable upon liquidation of the related Warehouse Timeshare
Loan, without the consent of any other Person (including any Association,
condominium association, homeowners' or timeshare association);
(u) the related Mortgage is and will be prior to any Lien on, or other
interests relating to, the related Timeshare Property;
(v) to Bluegreen's Knowledge, there are no delinquent or unpaid taxes, ground
rents (if any), water charges, sewer rents or assessments outstanding with
respect to any of the Timeshare Properties, nor any other outstanding
Liens or charges affecting the Timeshare Properties that would result in
the imposition of a Lien on the Timeshare Property affecting the Lien of
the related Mortgage or otherwise materially affecting the interests of
the Indenture Trustee on behalf of the Noteholders in the related
Timeshare Loan;
(w) other than with respect to delinquent payments of principal or interest 60
(sixty) or fewer days past due as of the Cut-Off Date, there is no
default, breach, violation or event of acceleration existing under the
Mortgage, the related Mortgage Note or any other document or instrument
evidencing, guaranteeing, insuring or otherwise securing the related
Warehouse Timeshare Loan, and no event which, with the lapse of time or
with notice and the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration
thereunder; and the Seller or Bluegreen has not waived any such material
default, breach, violation or event of acceleration under the Finance
Agreement, Mortgage, the Mortgage Note or any such other document or
instrument, as applicable;
(x) neither the Obligor nor any other Person has the right, by statute,
contract or otherwise, to seek the partition of the Timeshare Property;
(y) the Warehouse Timeshare Loan has not been satisfied, canceled, rescinded
or subordinated, in whole or in part; no portion of the Timeshare Property
has been released from the Lien of the related Mortgage, in whole or in
part; no instrument has been executed that would effect any such
satisfaction, cancellation, rescission, subordination or release; the
terms of the related Mortgage do not provide for a release of any portion
of the Timeshare Property from the Lien of the related Mortgage except
upon the payment of the Warehouse Timeshare Loan in full;
(z) the Seller and, to Bluegreen's Knowledge, each other party which has had
an interest in the Timeshare Loan is (or, during the period in which such
party held and disposed of such interest, was) in compliance with any and
all applicable filing, licensing and "doing business" requirements of the
laws of the state wherein the Timeshare Property is located to the extent
necessary to permit the Seller to maintain or defend actions or
proceedings with respect to the Warehouse Timeshare Loan in all
appropriate forums in such state without any further act on the part of
any such party;
Exhibit C
(aa) there is no current obligation on the part of any other person (including
any buy down arrangement) to make payments on behalf of the Obligor in
respect of the Warehouse Timeshare Loan;
(bb) the related Association was duly organized and are validly existing; a
manager (the "MANAGER") manages such Resort and performs services for the
Timeshare Associations, pursuant to an agreement between the Manager and
the respective Associations, such contract being in full force and effect;
to Bluegreen's Knowledge, the Manager and the Associations have performed
in all material respects all obligations under such agreement and are not
in default under such agreement;
(cc) in the case of Bluegreen Owned Resorts (other than La Cabana Resort and
Casa Del Mar Resort) and to Bluegreen's Knowledge with respect to the
Non-Bluegreen Owned Resorts and La Cabana Resort and Casa Del Mar Resort,
(i) the related Resort is insured in the event of fire, earthquake, or
other casualty for the full replacement value thereof, and in the event
that the Timeshare Property should suffer any loss covered by casualty or
other insurance, upon receipt of any insurance proceeds, the Associations
at the Resorts are required, during the time such Timeshare Property is
covered by such insurance, under the applicable governing instruments
either to repair or rebuild the portions of the Timeshare Project in which
the Timeshare Property is located or to pay such proceeds to the holders
of any related Mortgage secured by a timeshare estate in the portions of
the Timeshare Project in which the Timeshare Property is located; (ii) the
related Resort, if located in a designated flood plain, maintains flood
insurance in an amount not less than the maximum level available under the
National Flood Insurance Act of 1968, as amended or any applicable laws;
(iii) the related Resort has business interruption insurance and general
liability insurance in such amounts generally acceptable in the industry;
and (iv) the related Resort's insurance policies are in full force and
effect with a generally acceptable insurance carrier;
(dd) the related Mortgage gives the obligee and its successors and assigns the
right to receive and direct the application of insurance and condemnation
proceeds received in respect of the related Timeshare Property, except
where the related condominium declarations, timeshare declarations or
applicable state law provide that insurance and condemnation proceeds be
applied to restoration of the improvements;
(ee) each rescission period applicable to the related Warehouse Timeshare Loan
has expired;
(ff) no selection procedures were intentionally utilized by the Seller in
selecting the Timeshare Loan, which the Seller knew were materially
adverse to the Securitization Indenture Trustee or the Securitization
Noteholders;
(gg) the Units related to the Warehouse Timeshare Loan in the related Resort
have been completed in all material respects as required by applicable
state and local laws, free of all defects that could give rise to any
claims by the related Obligors under home warranties or applicable laws or
regulations, whether or not such claims would create valid offset rights
under the law of the State in which the Resort is located; to the extent
Exhibit C
required by applicable law, valid certificates of occupancy for such Units
have been issued and are currently outstanding; the Seller has complied in
all material respects with all obligations and duties incumbent upon the
developers under the related timeshare declaration (each a "DECLARATION"),
as applicable, or similar applicable documents for the related Resort; no
practice, procedure or policy employed by the related Association in the
conduct of its business violates any law, regulation, judgment or
agreement, including, without limitation, those relating to zoning,
building, use and occupancy, fire, health, sanitation, air pollution,
ecological, environmental and toxic wastes, applicable to such Association
which, if enforced, would reasonably be expected to (a) have a material
adverse impact on such timeshare association or the ability of such
Association to do business, (b) have a material adverse impact on the
financial condition of such Association, or (c) constitute grounds for the
revocation of any license, charter, permit or registration which is
material to the conduct of the business of such Association; the related
Resort and the present use thereof does not violate any applicable
environmental, zoning or building laws, ordinances, rules or regulations
of any governmental authority, or any covenants or restrictions of record,
so as to materially adversely affect the value or use of such Resort or
the performance by the related Association of its obligations pursuant to
and as contemplated by the terms and provisions of the related
Declaration; there is no condition presently existing, and, to Bluegreen's
Knowledge, no event has occurred or failed to occur prior to the date
hereof, concerning the related Resort relating to any hazardous or toxic
materials or condition, asbestos or other environmental or similar matters
which would reasonably be expected to materially and adversely affect the
present use of such Resort or the financial condition or business
operations of the related Association, or the value of the Securitization
Notes;
(hh) except if such Timeshare Loan is listed on Schedule II(hh) hereto, the
original Loan Balance of such Warehouse Timeshare Loan does not exceed
$25,000;
(ii) payments with respect to the Warehouse Timeshare Loan are to be in legal
tender of the United States;
(jj) all monthly payments made on the Warehouse Timeshare Loan have been made
by the Obligor and not by the Seller or Bluegreen on the Obligor's behalf;
(kk) the Warehouse Timeshare Loan relates to a Resort;
(ll) the Warehouse Timeshare Loan constitutes either "chattel paper", a
"general intangible" or an "instrument" as defined in the UCC as in effect
in all applicable jurisdictions;
(mm) the sale, transfer and assignment of the Warehouse Timeshare Loan and the
Related Security does not contravene or conflict with any law, rule or
regulation or any contractual or other restriction, limitation or
encumbrance, and the sale, transfer and assignment of the Warehouse
Timeshare Loan and Related Security does not require the consent of the
Obligor;
Exhibit C
(nn) each of the Warehouse Timeshare Loan, the Related Security, related
Assignment of Mortgage, related Mortgage, related Mortgage Note, related
Finance Agreement and each other related Timeshare Loan Document are in
full force and effect, constitute the legal, valid and binding obligation
of the Obligor thereof enforceable against such Obligor in accordance with
its terms subject to the effect of bankruptcy, fraudulent conveyance or
transfer, insolvency, reorganization, assignment, liquidation,
conservatorship or moratorium, and is not subject to any dispute, offset,
counterclaim or defense whatsoever;
(oo) the Warehouse Timeshare Loan relates to a Completed Unit and the Related
Security do not, and the origination of each Warehouse Timeshare Loan did
not, contravene in any material respect any laws, rules or regulations
applicable thereto (including, without limitation, laws, rules and
regulations relating to usury, retail installment sales, truth in lending,
fair credit reporting, equal credit opportunity, fair debt collection
practices and privacy) and with respect to which no party thereto has been
or is in violation of any such law, rule or regulation in any material
respect if such violation would impair the collectibility of such
Warehouse Timeshare Loan and the Related Security; no Warehouse Timeshare
Loan was originated in, or is subject to the laws of, any jurisdiction
under which the sale, transfer, conveyance or assignment of such Warehouse
Timeshare Loan would be unlawful, void or voidable;
(pp) to Bluegreen's Knowledge, (i) no bankruptcy is currently existing with
respect to the Obligor, (ii) the Obligor is not insolvent and (iii) the
Obligor is not an Affiliate of Bluegreen;
(qq) except if such Timeshare Loan is listed on Schedule II(qq) hereof, the
Warehouse Timeshare Loan shall not have a Timeshare Loan Rate less than 6%
per annum;
(rr) except if such Timeshare Loan is listed on Schedule II(rr) hereof, the
Obligor has made at least two (2) month's aggregate required payments with
respect to the Warehouse Timeshare Loan (not including any down payment);
(ss) if a Resort (other than the La Cabana Beach Resort & Racquet Club in
Aruba) is subject to a construction loan, the construction lender shall
have signed and delivered a non-disturbance agreement (which may be
contained in such lender's mortgage) pursuant to which such construction
lender agrees not to foreclose on any Timeshare Properties relating to a
Warehouse Timeshare Loan which have been sold pursuant to this Agreement;
(tt) the Timeshare Properties and the related Resorts are free of material
damage and waste and are in good repair and fully operational; there is no
proceeding pending or threatened for the total or partial condemnation of
or affecting any Timeshare Property or taking of the Timeshare Property by
eminent domain; the Timeshare Properties and the Resorts in which the
Timeshare Properties are located are lawfully used and occupied under
applicable law by the owner thereof;
Exhibit C
(uu) the portions of the Resorts in which the Timeshare Properties are located
which represent the common facilities are free of material damage and
waste and are in good repair and condition, ordinary wear and tear
excepted;
(vv) no foreclosure or similar proceedings have been instituted and are
continuing with respect to the Warehouse Timeshare Loan or the related
Timeshare Property;
(ww) with respect to the Aruba Loans only, Bluegreen shall own, directly or
indirectly, 100% of the economic and voting interests of the Aruba
Originator;
(xx) the Warehouse Timeshare Loan does not have an original term to maturity in
excess of 120 months;
(yy) to Bluegreen's Knowledge, the capital reserves and maintenance fee levels
of the Associations related to the Resorts are adequate in light of the
operating requirements of such Associations;
(zz) except as required by law, the Warehouse Timeshare Loan may not be assumed
without the consent of the obligee;
(aaa) for each Club Loan, the Obligor under the Warehouse Timeshare Loan has not
had its rights under the Club Trust Agreement suspended;
(bbb) the payments under the Warehouse Timeshare Loan are not subject to
withholding taxes imposed by any foreign governments;
(ccc) each entry with respect to the Warehouse Timeshare Loan as set forth on
Schedule II and Schedule III hereof is true and correct. Each entry with
respect to a Qualified Substitute Timeshare Loan as set forth on Schedule
II and Schedule III hereof, as revised, is true and correct;
(ddd) if the Timeshare Loan relates to a Timeshare Property located in Aruba, a
notice has been mailed or will be mailed by July 31, 2004 (with respect to
Timeshare Loans sold on the Closing Date) or within 30 days of the
Transfer Date, as applicable, to the related Obligor indicating that such
Timeshare Loan has been transferred to the Purchaser and will ultimately
be transferred to the Issuer and pledged to the Indenture Trustee for the
benefit of the Noteholders; and
(eee) no broker is, or will be, entitled to any commission or compensation in
connection with the transfer of the Warehouse Timeshare Loans hereunder.
(fff) if the related Obligor is paying its scheduled payments by pre-authorized
debit or charge, such Obligor has executed an ACH Form substantially in
the form attached hereto as Exhibit C.
(ggg) if the Timeshare Loan is an Aruba Loan, such Timeshare Loan was originated
prior to January 26, 2004.
Exhibit C
