Exhibit 10.184
EXECUTION COPY
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SALE AND CONTRIBUTION AGREEMENT
among
THE PERSONS IDENTIFIED ON THE SIGNATURE PAGES HERETO AS SELLERS
as Sellers
and
BLUEGREEN RECEIVABLES FINANCE CORPORATION XI,
as the Trust Depositor
Dated as of March 13, 2006
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<PAGE>
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS..................................................................................1
Section
1.1.
General......................................................................................1
Section
1.2. Other
Interpretive
Provisions................................................................1
ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF
AGREEMENT...............................................2
Section
2.1.
Closing of
Purchases.........................................................................2
Section
2.2.
Assignment of Rights Under
Agreement.........................................................2
Section
2.3.
Conveyance of Substitute
Receivables.........................................................3
ARTICLE III
REPRESENTATIONS AND
WARRANTIES...............................................................3
Section
3.1.
Representations and Warranties of
Sellers....................................................4
Section
3.2.
Representations and Warranties of Sellers Relating to the Agreement
and the Assets..........11
Section
3.3.
Survival; Knowledge of Trust Depositor; Notice of
Breach....................................13
ARTICLE IV
SELLERS' AFFIRMATIVE AND NEGATIVE
COVENANTS.................................................14
Section
4.1.
Records.....................................................................................14
Section
4.2. Use
of Noteholders'
Names...................................................................14
Section
4.3. Other
Documents.............................................................................14
Section
4.4.
Sellers' Dues
Requirement...................................................................14
Section
4.5.
Consolidation and
Merger....................................................................14
Section
4.6.
Receivables.................................................................................15
Section
4.7.
Compliance with Laws; Preservation of Existence; Conduct of
Business........................15
Section
4.8.
Environmental...............................................................................15
Section
4.9.
Notices to Obligors;
Collections............................................................17
Section
4.10.
Notices.....................................................................................17
Section
4.11.
Assets......................................................................................18
Section
4.12. Compliance
with Contracts; Modifications to Contracts, Mortgages and
Collection Policy......18
Section
4.13. Release
and Bonding of
Liens................................................................18
Section
4.14. Real
Estate
Taxes...........................................................................18
Section
4.15. Accounting
for
Purchases....................................................................19
Section
4.16. Compliance
With Collection
Policies.........................................................19
Section
4.17. Compliance
with Agreements and Applicable
Laws..............................................19
Section 4.18. Security
Interests..........................................................................19
Section
4.19. Name
Changes; Location of Sellers, Records;
Instruments.....................................19
Section
4.20. ERISA
Matters...............................................................................19
Section
4.21.
Restrictions on
Transfers...................................................................20
Section
4.22.
Maintenance.................................................................................20
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Section
4.23.
Condemnation................................................................................20
Section
4.24.
Inspections and
Audits......................................................................20
Section
4.25.
Organizational
Status.......................................................................21
Section
4.26. Amendment
of Time Share
Documents...........................................................21
Section
4.27.
Insurance...................................................................................21
Section
4.28. Operating
Contracts.........................................................................21
Section
4.29. Further
Assurances..........................................................................22
ARTICLE V
PERFECTION OF TRANSFER AND PROTECTION OF BACK-UP SECURITY
INTERESTS.........................22
Section
5.1.
Custody of
Receivables......................................................................22
Section
5.2.
Filing......................................................................................22
Section
5.3. Costs
and
Expenses..........................................................................23
ARTICLE VI
REMEDIES UPON MISREPRESENTATION; RIGHT TO SUBSTITUTE;
UPGRADES..............................23
Section
6.1.
Sellers' Option to
Substitute...............................................................23
Section
6.2.
Repurchases and Substitutions of Receivables for Breach of
Representations and Warranties...23
Section
6.3.
Upgrades....................................................................................24
Section
6.4.
Reassignment of Repurchased or Substituted
Receivables......................................24
ARTICLE VII
INDEMNIFICATION.............................................................................24
Section
7.1.
Sellers
Indemnification.....................................................................24
Section
7.2.
Liabilities to
Obligors.....................................................................25
ARTICLE VIII
MISCELLANEOUS...............................................................................25
Section
8.1.
Termination.................................................................................25
Section
8.2.
Assignment or Delegation by the
Sellers.....................................................25
Section
8.3.
Amendment...................................................................................26
Section
8.4.
Notices.....................................................................................26
Section
8.5.
Merger and
Integration......................................................................26
Section
8.6.
Headings....................................................................................26
Section
8.7.
GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO
VENUE........................27
Section
8.8.
WAIVER OF JURY
TRIAL........................................................................27
Section
8.9. No
Bankruptcy
Petition......................................................................27
Section
8.10.
Severability of
Provisions..................................................................27
Section
8.11. No Waiver;
Cumulative
Remedies..............................................................27
Section
8.12.
Counterparts................................................................................27
Section
8.13. Intended
Characterization...................................................................27
Section
8.14.
Sellers.....................................................................................28
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SCHEDULES
Schedule I.
Location of Offices
Schedule 3.1(ff)
Insurance
Schedule 3.1(jj)
Organizational Structure; Intercompany Debt
EXHIBITS
Exhibit A Form of Sale
Assignment
iii
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SALE AND CONTRIBUTION AGREEMENT
This Sale
and Contribution Agreement, dated as of March 13, 2006, is
made
by and among the Persons identified on the signature pages hereto as Sellers,
(together with their
permitted successors and assigns, each a "Seller" and
collectively, the "Sellers") and Bluegreen Receivables Finance
Corporation XI, a
Delaware corporation
(together with its
permitted successors
and assigns, the
"Trust Depositor").
WHEREAS,
in the regular course
of its business, the
Sellers originate
Receivables;
WHEREAS,
the Trust Depositor
has been established as a bankruptcy-remote
entity for the purpose of acquiring from Sellers from time to time
Receivables
and related Assets
owned by the Sellers
in accordance
with the terms of
this
Agreement;
WHEREAS,
the Sellers and Trust
Depositor wish to set
forth the terms and
conditions pursuant to
which Trust Depositor will acquire such Receivables and
related Assets (including Substitute Assets); and
WHEREAS,
Trust Depositor intends concurrently with each transfer of
Assets
hereunder to sell, transfer and otherwise absolutely convey all
right, title and
interest in and to the Assets to the Trust pursuant to the Sale and Servicing
Agreement dated as of the date hereof by and among Trust
Depositor,
the Trust,
Bluegreen Corporation,
individually
and in its capacity as
Servicer, Concord
Servicing Corporation,
as Back-up
Servicer, Vacation Trust, Inc., as Club
Trustee, General
Electric Capital Corporation, as Facility Administrator,
the
Noteholders and U.S.
Bank National Association, as Indenture Trustee and
Custodian (as amended, supplemented or otherwise modified from time
to time, the
"Sale and Servicing Agreement"), executed concurrently
herewith;
WHEREAS,
the Sellers and Trust
Depositor wish to set
forth the terms and
conditions pursuant to
which (i) the Sellers
will sell, transfer,
assign and
otherwise absolutely
convey the Assets to Trust Depositor, and (ii) the
Receivables Files, deeds and other instruments, certificates,
books, records and
information of any
kind relating to the
Assets referred
to in the foregoing
clause (i) and from time to time sold and purchased hereunder and
under the Sale
and Servicing Agreement and transferred to the Custodian (as
custodian and agent
for the Indenture Trustee) under the Custodian Agreement.
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements
hereinafter set forth, the Sellers and Trust Depositor agree as
follows:
ARTICLE I
DEFINITIONS
Section
1.1. General. Unless otherwise defined in this Agreement,
capitalized terms
used herein (including in the preamble above) have the
meanings assigned to
them in the
Definitions Annex to
the Sale and
Servicing
Agreement.
Section
1.2. Other Interpretive Provisions. Except to the extent
otherwise
specified in the particular term or provision at issue,
this Agreement shall
be
interpreted and construed in accordance with the Document
Conventions.
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ARTICLE II
AGREEMENT TO TRANSFER; ASSIGNMENT OF AGREEMENT
Section
2.1. Closing of Purchases. During the Purchase Period, no later
than five (5) days prior to each Transfer Date (or such shorter
period to which
Trust Depositor
shall agree),
the Sellers shall
notify the Trust Depositor of
the intent to effect a Purchase and the proposed Transfer Date thereof.
During
the Purchase Period,
no later than two (2) Business Days prior to each Transfer
Date (or such shorter period to which Trust Depositor shall agree),
the Sellers
will deliver or cause to be delivered to Trust Depositor a notice
specifying all
outstanding Eligible
Receivables
currently owned by the Sellers which the
Sellers wish to sell, transfer, set-over, convey and absolutely
assign pursuant
to this Agreement,
together with the items set forth on Schedule IB to the Sale
and Servicing
Agreement with respect thereto. On or prior to the Transfer
Date,
Trust Depositor
will notify the
Sellers of the
Eligible Receivables
it will
purchase (the "Purchased Receivables") on such date and the
cash purchase price
(the "Sale Price") it will pay for such purchase. To the extent
that there is no
Sale Price or the cash portion of the Sale Price for the
Purchased Receivables
is less than the fair market value thereof, the difference shall be deemed a
capital contribution
by the Sellers to the
Trust Depositor.
On each Transfer
Date, the applicable Seller shall execute an assignment (the "Sale
Assignment"),
dated as of such Transfer Date, substantially in the form of Exhibit A
hereto,
Allonges (or other assignment in the case of Aruba Receivables) which have been
stapled to
the original notes, if any, evidencing, as applicable, the
Receivables and Mortgage Assignments with respect to each of the
Receivables and
related Assets being purchased on such Transfer Date by the Trust
Depositor. The
Sale Price shall be payable by Trust Depositor in full by wire
transfer on the
Transfer Date to an
account designated by the applicable Seller to Trust
Depositor on or before the Transfer Date.
Concurrent
with the payment of the Sale Price, if any, for Purchased
Receivables and execution and delivery of the Sale Assignment,
the Allonges and
the Mortgage Assignments, as applicable, in respect thereof, the Sellers
shall
have, and shall be deemed for all purposes to have sold,
transferred,
assigned,
set over and otherwise
conveyed to Trust Depositor, in consideration therefor
without recourse, representation or warranty other than as
expressly provided in
the Transaction Documents, all the Sellers' right, title and
interest in and to
the Purchased
Receivables
and related Assets specified on the List of
Receivables and conveyed to the Trust Depositor pursuant to this
Agreement.
The
foregoing sale, transfer, assignment, set-over and conveyance does
not
constitute and is not
intended to result in
the creation or an
assumption by
Trust Depositor (or
any assignee thereof)
of any obligation of
the Sellers in
connection with
the Receivables and related Assets, or any agreement or
instrument relating
thereto, including any obligation to any Obligor or
any
other Person,
or (i) any taxes, fees, or other charges imposed by any
Governmental Authority
and (ii) any insurance
premiums which remain owing with
respect to any Receivable at the time such Receivable is sold hereunder. Upon
the consummation
of the foregoing
sale, transfer, assignment, set-over and
conveyance no
Seller shall claim any ownership interest in the Purchased
Receivables and
related Assets or take any action inconsistent with the Trust
Depositor's ownership of such Purchased Receivables and related
Assets.
Section
2.2. Assignment of Rights Under Agreement. Trust Depositor has
the
right to assign its interest under this Agreement to the Trust,
which shall in
turn assign its interest under this Agreement to the Indenture
Trustee for the
benefit of the Noteholders as may be required to effect the
purposes of the Sale
and Servicing Agreement and the Indenture, without further notice
to, or consent
of, the Sellers, and
the Trust and the Indenture Trustee for the benefit of the
Noteholders shall succeed to all of the rights of Trust Depositor
hereunder. The
Sellers acknowledge
that, pursuant to the Sale and Servicing Agreement, Trust
Depositor will
assign all of its right, title and interest in and to the
Receivables and
related Assets
conveyed hereunder and
all other rights of the
Trust Depositor hereunder to the Trust, including but not
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limited to, its right to exercise the remedies created by Section
6.2 hereof for
breaches of
representations and
warranties of the Sellers contained in Article
III hereof, which
shall in turn assign
such right, title and
interest to the
Indenture Trustee
for the benefit of the Noteholders as well as any other
covenants or representations or warranties made by the Sellers
hereunder.
The
Sellers agree that, upon such assignment to the Trust and the
Indenture Trustee
for the benefit of the Noteholders, such remedies, covenants and
representations, including the repurchase obligations of Sellers
with respect to
breaches of such representations set forth herein and in Section
2.7 of the Sale
and Servicing Agreement, will run to and be for the benefit of the
Trust and the
Indenture Trustee
for the benefit of the Noteholders and their respective
assignees and the Trust, the Indenture Trustee or such assignee may
enforce the
same directly without joinder of Trust Depositor.
Section
2.3. Conveyance of Substitute Receivables. Subject to the
satisfaction of the
conditions
set forth in Section 2.7 of the Sale and
Servicing Agreement
in respect of
Replaced Assets, the Sellers may at their
option (but shall not be obligated to) sell, transfer, assign, set over and
otherwise convey
to Trust Depositor, without recourse, representation or
warranty other than as expressly provided in the Transaction
Documents (and in
consideration of Trust Depositor's concurrent transfer of property,
by exchange
of one or more related Receivables re-transferred by the Trust to Trust
Depositor on the
Substitute
Asset Transfer Date) all the right, title and
interest of such
Seller in and to the Substitute Assets identified in the
related Substitution
Notice and specified
on the List of Receivables and such
Substitute Assets
shall become part of the Assets upon such transfer. Upon the
consummation of each foregoing sale, assignment, transfer and conveyance,
no
Seller shall claim any
ownership interest in the relevant Receivables and
related Assets or any proceeds thereof or take any action
inconsistent with
the
Trust
Depositor's
ownership of
such Receivables and related Assets.
Notwithstanding the
foregoing,
if such option is not
exercised prior to the
expiration of a respective Seller's fiscal quarter, during which the related
Receivable became a Defaulted Receivable, then such Seller's right to
exercise
such option with
respect to such
Defaulted Receivable shall be irrevocably
waived, unless,
prior to the
expiration of such Seller's fiscal quarter, such
Seller gives notice to the Trust Depositor of its intention to exercise such
option with
respect to such Defaulted Receivable and does so prior to the
expiration of such Seller's next succeeding fiscal quarter. If, however, such
Seller fails to exercise such option with respect to such
Defaulted Receivable
prior to the expiration of such Seller's next succeeding
fiscal quarter, then
such Seller's
right to exercise
such option
with respect to such Defaulted
Receivable shall be irrevocably waived. The waiver described in
this Section 2.3
shall have no
effect on and shall not constitute a waiver of the Servicer
Purchase Option.
To the
extent that the property delivered by Trust Depositor to the
Sellers in exchange for the Substitute Assets being conveyed has a value less
than the fair market value of such Substitute Assets, the difference, shall be
deemed a capital
contribution by the
Sellers to Trust
Depositor in respect of
such Substitute Assets.
Any such
sale, transfer,
assignment,
set-over and
conveyance shall
not
constitute and is not intended to result in a creation or an
assumption by Trust
Depositor (or
any assignee thereof) of any obligation of the Sellers in
connection with such
Receivables
and related Assets, or any agreement or
instrument relating
thereto, including any obligation to any Obligor or
any
other Person,
or (i) any taxes, fees, or other charges imposed by any
Governmental Authority
and (ii) any insurance
premiums which remain owing with
respect to any
such Receivable at the time such Receivable is conveyed
hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The
Sellers will make, jointly and severally, and upon the transfer
of
Substitute Assets will be deemed to remake, the representations and warranties
set forth herein for the benefit of Trust Depositor,
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the Indenture Trustee and the Noteholders; provided, however, with respect to
the
representations
and warranties
relating
to the Receivables, such
representations and
warranties shall be
made only on their date of purchase or
transfer hereunder.
It is understood and
agreed that the
representations
and
warranties in this
Article III shall
survive the conveyance
of the Assets to
Trust Depositor,
any conveyance of the
Assets by Trust
Depositor to the Trust
and any conveyance
of any interest
therein to the
Indenture Trustee for the
benefit of the
Noteholders and shall continue so long as any Asset shall
remain
outstanding. The repurchase (or, in the alternative, substitution)
obligation of
the Sellers set forth in Section 6.2 below constitutes the sole
remedy available
for a breach of a
representation or
warranty of the
Sellers in respect of the
Assets. The Sellers
are not responsible
for and shall have no
obligation with
respect to the Obligors' payment obligations under the Receivables,
except with
respect to Servicer
Advances as and to the extent provided in the Transaction
Documents and
obligations under
Section 6.2 hereof with respect to breaches of
representations and
warranties,
when
made, relating to the Receivables;
provided, however, this sentence shall not be construed to limit,
in any manner,
any Seller's other obligations under the Transaction Documents.
Section
3.1. Representations
and Warranties of Sellers.
On the Closing
Date, Sellers, jointly and severally, make, and on each Transfer Date,
Sellers,
jointly and severally,
will be deemed to remake, the following representations
and warranties:
(a) Organization
and Good Standing. Each Seller is a corporation
duly organized,
validly existing and in good standing under the laws of its
jurisdiction of
incorporation,
and has full power
(corporate or
otherwise),
authority and legal right to own its properties and conduct its
business as such
properties are presently owned and such business is presently
conducted, and to
execute, deliver and perform its obligations under this Agreement
and each other
Transaction Document to which it is a party.
(b) Due Qualification.
Each Seller is duly qualified to do business
and is in good
standing as a
foreign corporation (or is exempt from such
requirements), and has
obtained all necessary
licenses and approvals, in each
jurisdiction in which
failure to so qualify or to obtain
such licenses and
approvals would have a Material Adverse Effect.
(c) Due Authorization.
The execution and delivery of this Agreement
and each other Transaction Document to which it is a party, and the
consummation
of the transactions
provided for herein and therein, have been duly authorized
by each Seller by all necessary corporate action on the part of
such Seller.
(d) No Conflict. The
execution and delivery
of this Agreement
and
each other Transaction Document to which such Seller is a party,
the performance
of the transactions
contemplated hereby
and thereby and the fulfillment of the
terms hereof and
thereof do not
contravene
or violate
(i) its articles or
certificate of
incorporation or by-laws or operating agreement, (ii) any law,
rule or regulation applicable to it, (iii) any restrictions under
any indenture,
contract, agreement,
mortgage, deed of trust, o other instrument to which it is
a party or by which it or any of its property is bound, or (iv) any
order, writ,
judgment, award,
injunction
or decree binding on or affecting it or its
property, and do not
result in the creation
or imposition
of any Lien on the
assets of such Seller,
except where any such
contravention or
violation would
not have a Material Adverse Effect.
(e) No Violation. The
execution and delivery by the Sellers of this
Agreement and each
other Transaction Document to which it is a party, the
performance of
the transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof (including the sale of
the Assets by
the Sellers in
accordance
with the provisions of this Agreement) will not
conflict with or violate any Requirements of Law applicable to
any Seller or to
the Assets and do not
require the consent or approval
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of any Governmental
Authority or any other Person, except those which have been
duly obtained,
made or complied with
prior to the Closing Date and are in full
force and effect.
(f) No Proceedings.
There are no proceedings or investigations
pending or, to the best knowledge of the Sellers, threatened against any Seller
Party, any of its
Affiliates or any Time Share Association, before any court,
regulatory body,
administrative
agency, or other tribunal or governmental
instrumentality (i)
asserting the
invalidity
of this Agreement or any other
Transaction Document,
(ii) seeking to
prevent the
consummation of any of
the
transactions contemplated by this Agreement or any other
Transaction Document or
(iii) seeking any
determination or
ruling that could reasonably be expected to
be adversely
determined,
and if adversely
determined,
would have a
Material
Adverse Effect except for the potential assessment by the Tennessee
Department
of Revenue as disclosed in the Seller's Quarterly Report on Form 10-Q for the
quarterly period ended
September 30, 2005. No Seller nor, to the best knowledge
of Sellers, any Time Share Association has received any notice from
any court or
Governmental Authority
alleging that such party or any Affiliate thereof, has
violated any
Requirements of Law or that the Eligible Resorts or the
Facilities
are in violation of any Requirements of Law except for the
potential
assessment
by the Tennessee
Department of Revenue
as disclosed in the Seller's Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2005.
(g) All Consents Required. All approvals, authorizations,
consents,
orders or other actions of any Person or of any Governmental
Authority required
in connection with the Sellers' execution and delivery of this
Agreement and the
other Transaction
Documents to which it is a party,
the performance of the
transactions
contemplated hereby and thereby, and the fulfillment of the
terms
hereof and thereof, have been obtained.
(h) Bulk Sales. The
execution,
delivery and
performance
of this
Agreement do not require compliance with any "bulk sales" law by
the Sellers.
(i) Solvency.
Both
before and after giving effect to the
transactions under this Agreement, each Seller will be Solvent.
(j) Selection
Procedures. No
selection procedures
believed by the
Sellers to be adverse
to the interests
of Trust Depositor, the Trust or the
Noteholders were
utilized by the Sellers in selecting the Receivables
constituting part of the Assets being sold hereunder.
(k) Taxes.
(i) All ad valorem
taxes and other taxes and assessments
against the
Eligible Resorts and the Assets, and all sales and
rental taxes respecting the sale or rental of any Accommodations or
Intervals, have been
paid when due or except as may be reserved
against in accordance with GAAP and Sellers know of no basis for
any
additional taxes or assessments against the Eligible Resorts or
the
Assets other
than to the
extent of potential assessment by the
Tennessee Department
of Revenue as disclosed in the Seller's
Quarterly Report
on Form 10-Q for the quarterly period ended
September 30, 2005.
Sellers shall cause each Time Share Association
managed by the Club
Managing Entity and
use their best efforts
to
cause each
other Time
Share Association to collect and pay any
applicable sales or
rental tax respecting the sale or rental of any
Accommodations
or Intervals by such Time Share Association.
(ii) The Sellers
have filed or caused to be filed all tax
returns which, to their knowledge, are required to be filed and
have
paid all taxes shown to be
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due and payable on such returns or on any assessments made against
them or any of their or their Subsidiaries' property and all other
taxes, fees or
other charges imposed on them or any of their
property by any Governmental Authority (other than any amount of
tax
due the validity of which is currently being contested in good
faith
by appropriate
proceedings
and with respect to
which reserves in
accordance with generally accepted accounting principles have been
provided on the books
of the Sellers);
no tax lien has been
filed
and, to the Sellers'
knowledge, no claim is
being asserted,
with
respect to any such tax, fee or other charge, except for such
liens,
fees or other charges which, individually or in the aggregate,
could
not reasonably be expected to have a Material Adverse Effect except
for the potential
assessment by the Tennessee Department of Revenue
as disclosed in the Seller's Quarterly Report on Form 10-Q for the
quarterly period
ended September 30, 2005. Subject to the
information provided
by its respective employees, proper and
accurate amounts
have been withheld by each Seller from its
respective employees for all periods in full and complete
compliance
with all applicable federal, state, local and foreign laws and
such
withholdings have been paid when due to the applicable Governmental
Authorities. Each
Time Share Association managed by the Club
Managing Entity
and, to the best knowledge of Sellers upon due
inquiry, each other
Time Share Association, has filed all required
tax returns
and has paid all taxes
shown to be due and
payable on
such returns,
including interest and penalties, and all other taxes
which are payable by
it, to the extent the same have become due and
payable.
(l) Margin
Stock. No Seller is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any Margin
Stock. No Seller
owns any Margin Stock,
and none of the
proceeds of any Purchase will be used,
directly or
indirectly, for the
purpose of purchasing
or carrying any
Margin
Stock, for the
purpose of
reducing or
retiring any Indebtedness which was
originally incurred
to purchase or carry any Margin Stock or for any other
purpose that might cause any portion of such proceeds to be a "purpose
credit"
within the meaning of
Regulations T, U or X of the Federal Reserve Board. No
Seller will
take or permit to be taken any action which might cause any
Transaction Document
to violate any
regulation of the Federal Reserve Board.
Notwithstanding the
foregoing,
this Agreement shall not limit Bluegreen's
ability to repurchase shares of its common stock so long as it is
otherwise done
in compliance with the terms hereof.
(m) Agreements Enforceable. This Agreement and the other
Transaction
Documents to which
such Seller is a party constitute the legal, valid and
binding obligation of such Seller enforceable against such Seller in
accordance
with their respective
terms, except as such
enforceability
may be limited by
applicable Insolvency
Laws and by general
principles of equity
(regardless of
whether such enforceability is considered in a proceeding in equity
or law).
(n) Title; Prior liens
with respect to the
Resorts and
Additional
Resorts. Sellers and
their Subsidiaries
have good and
marketable title to the
Eligible Resorts
(excluding sold Intervals and any equitable rights of Obligors
under applicable
state law to the Units under any conditional land sales
contracts which are the subject of any Receivables and related
Assets).
(o) Access. Subject to
applicable state and/or county jurisdiction,
the Eligible
Resorts relating to the Assets,
have direct
access to a public
road.
(p) Utilities.
Electric, gas,
sewer, water facilities and other
necessary utilities are lawfully available in sufficient capacity
to service the
Units relating
to the Intervals in the Eligible Resorts
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<PAGE>
relating to the
Receivables and any
easements necessary to
the furnishing of
such utility
service have been obtained and duly recorded. Sellers or the
applicable Time Share
Association
managed by the Club
Managing Entity have
timely paid water charges and utility taxes relating to the
Eligible Resorts.
(q) Amenities. All
amenities described in
the sales prospectus and
the "Public Reports"
for the Eligible
Resorts relating to
the Receivables are
completed, or will be
completed in all material respects, in the time periods
described in the "Public Reports", or a bond insuring their
completion has been
posted. Each
Obligor has or will have in the time period described in the
applicable "Public
Reports" access to and the use of all of
the amenities and
public utilities of
the Eligible Resorts
relating to the Receivables as and to
the extent provided in the Declaration and the "Public Reports". Each Obligor
has access to and the use of all of the amenities of the Eligible
Resorts as and
to the extent provided
in the Club Trust Agreement and the Time Share Documents
in respect of the respective Eligible Resorts.
(r) Flood Insurance.
With respect to any
Eligible Resort that is
managed by the Club
Managing Entity and that is located in a flood zone as
defined in the Flood
Disaster Protection
Act of 1973, as
amended, or
located
within wetlands, as defined by any Governmental Authority,
such Eligible
Resort
is covered by flood
insurance in form and amounts and with reputable insurers
which are customary for the industry.
(s) Time Share Documents. The Time Share Documents are legal,
valid,
binding and enforceable against the Sellers or their Affiliates,
as applicable,
and, to the knowledge of the Sellers, the applicable Time Share
Associations, in
each case in accordance with their respective terms.
(t) Compliance
with Time Share
Documents.
No Seller nor any
Time
Share Association
managed by the Club
Managing Entity or, to
the knowledge of
any Seller, any other
Time Share Association is in default under the Time Share
Documents and no event
has occurred
which, with the passage of time or the
giving of notice would become a default by any Seller, any Time Share
Association managed by
the Club Managing
Entity or, to the
knowledge of any
Seller, any other Time Share Association under the Time Share
Documents.
(u) Location of Offices. The principal place of business and chief
executive office of each Seller, and the office where each Seller
keeps all the
Records, are located
at the addresses of such Seller referred to on Schedule I
hereto (or at such other locations as to which the notice and other
requirements
specified herein
shall have been
satisfied).
The state of
incorporation
or
formation and
organizational
identification number,
if any, of each Seller is
set forth on
Schedule I hereto. Each Seller's name, as set forth in its
organizational
documents, is
completely and correctly identified in Schedule I
of this Agreement.
(v) Reports
Accurate. No report, exhibit, financial statement,
document, book,
record or report
furnished or to be furnished by any Seller
pursuant to this Agreement or any other Transaction Document is or
will be, when
considered as a whole,
inaccurate in any material respect as of the date it is
or shall be dated or (except as otherwise disclosed to the Noteholders at such
time) as of the date so furnished, and no such document contains or
will contain
any material
misstatement
of fact or omits or
shall omit to state a
material
fact or any fact
necessary in light of the circumstances under which made, to
make the statements
contained therein not misleading; provided, however, the
Trust Depositor
acknowledges
that the Trust Depositor's remedy for a
misrepresentation of
matters set forth in Section 3.2 or a breach of a warranty
set forth in Section
3.2 hereof is
provided by and limited to Section 6.2
hereof.
(w) Full Disclosure. Since September 30, 2005, no event has
occurred, that alone or together with other events, could
reasonably be expected
to have a Material
Adverse Effect and
there is
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<PAGE>
no fact of which Sellers have knowledge after due inquiry that
could reasonably
be expected to have a Material Adverse Effect, except the financial statement
restatement as
disclosed in the Seller's Current Report on Form 8-K filed
with
the SEC on December
19, 2005. The Sellers
know of no fact or
condition which
could prevent or
restrict the offering or sale of Intervals to Obligors in
accordance with applicable Requirements of Law.
(x) Tradenames.
No Seller has any
trade names,
fictitious names,
assumed names or
"doing business
as" names or other
names under which it
has
done or is doing business within the past five (5) years
other than
"Bluegreen
Patten Corporation" and "Bluegreen Corporation of
Massachusetts".
(y) Compliance with Collection Policy. Each Seller has complied in
all material respects
with the Collection Policy with regard to each Receivable
and the related Contract, has notified or will notify the Facility
Administrator
and the Noteholders,
in accordance with Section 6.3(o)(ii) of the Sale and
Servicing Agreement of any change to the Collection Policy, and has
not made any
change to the Collection Policy that could materially and adversely
affect or
impair the
collectibility of any Receivable or that is a material change
except
for such changes as to which the Facility Administrator and the
Noteholders have
been notified and as to which the Noteholders have consented. For purposes of
this section,
any change
that would
cause the Issuer to
not be a
qualifying
special purpose entity, as "qualifying special purpose entity" is defined
under
GAAP, shall be material.
(z) Value Given.
Each Seller has
received reasonably equivalent
value from the Trust
Depositor in
consideration for the
transfer to the Trust
Depositor of the
Receivables and
related Assets
hereunder,
no such transfer
shall have been made for or on account of an antecedent
debt owed by any
Seller
to the Trust Depositor, and no such transfer is or may be voidable
or subject to
avoidance under any section of the Bankruptcy Code.
(aa) Accounting.
Each Seller
accounts for the
transfer from such
Seller of interests
in the Assets hereunder as sales of such Assets in its
books, records and financial statements, in each case consistent with GAAP
and
with the requirements set forth herein.
(bb) Separate
Entity. Each Seller is operated as an entity with
assets and
liabilities
distinct from those of the Trust
Depositor and each
Seller hereby
acknowledges
that
the Noteholders are entering into the
transactions
contemplated by the
Sale and Servicing
Agreement and the other
Transaction Documents
in reliance
upon such Seller's identity as a separate
legal entity from the Trust Depositor.
(cc) Investment
Company and Public
Utility Holding Company. No
Seller is an
"investment
company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended,
or a "holding
company" or a "subsidiary company" of a "holding company," within
the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(dd) Accuracy of Representations and Warranties. Each
representation
or warranty
by any Seller contained herein or in any certificate or other
document furnished by
any Seller pursuant
hereto or in connection herewith is
when furnished true
and correct in all material respects; provided, however,
Trust Depositor
acknowledges
that
Trust
Depositor's
remedy
for a
misrepresentation of
matters set forth in Section 3.2 or a breach of a warranty
set forth in Section
3.2 hereof is
provided by and limited to Section 6.2
hereof.
(ee) Reservation
System. Other than with respect to the services
contracted for by the Club Managing Entity or an Affiliate
thereof with a
third
party, if any,
which rights under such contracts shall be licensed (on a
non-exclusive
basis) to the Indenture Trustee for the benefit of the
Noteholders, the
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<PAGE>
Reservation System is
owned by the Club
Managing Entity free
and clear of any
Liens, but subject to
the provisions of the Club Management Agreement and the
Club Trust Agreement,
and the Club has the
right to utilize such
system under
and pursuant to the Club Management Agreement. The Club Management Agreement
is
in full force and
effect and no default on the part of the Club Trustee or the
Club Managing
Entity exists thereunder. Bluegreen owns 100% of the equity
capital of the Club Managing Entity.
(ff) Insurance. Each
Seller and each Time Share Association managed
by the Club Managing
Entity with respect to each Eligible Resort maintain such
insurance coverage as
may be required by any
applicable Requirement
of Law or
pursuant to the Declarations for such Eligible Resort. Schedule 3.1(ff) lists
all insurance policies
of any nature
maintained, as of the
Closing Date, for
current occurrences by each Seller Party and each Time Share
Association managed
by the Club Managing Entity.
(gg) Compliance
with Law. Subject to specific representations
regarding ERISA,
Environmental
Laws, Consumer Laws, the Patriot Act,
tax and
other laws,
each Seller has all material licenses, permits, consents or
approvals from or by, and has made all material filings with, and has given
all
material notices to, all Governmental Authorities having jurisdiction, to the
extent required for
the operation
and conduct of the
Sellers' businesses
in
material compliance with all Requirements of Law.
(hh) Financial
Statements. The
financial statements of each Seller
Party and of each Time Share Association fairly present the
respective financial
conditions and (if
applicable)
results of
operations of such
party as of the
date or dates thereof and for the periods covered thereby. All such financial
statements, other than
those prepared on
behalf of a natural
person, if any,
were prepared in
accordance
with GAAP consistently applied throughout the
periods covered (except, with respect to unaudited financial
statements, for the
absence of footnotes and normal year-end audit adjustments). Except
for any such
changes heretofore
expressly disclosed in writing to Facility
Administrator,
there has been no change in the respective financial condition of Sellers and
each Time Share
Association which is
managed by the Club Managing Entity from
the financial
condition shown in
their respective
financial statements that
could reasonably be
expected to have a Material Adverse Effect. The Facility
Administrator acknowledges that the financial statement restatement
as disclosed
in the Seller's
Current Report on Form 8-K filed with the
SEC on December 19,
2005 will not constitute a violation of this subsection (hh).
(ii) Employee Benefit
Plans. Sellers are in compliance with all
applicable provisions
of ERISA, the Code and all other Requirements of Law with
respect to all employee benefit plans adopted by Sellers
for the benefit of its
employees. No
liability has been incurred by Sellers which remains unsatisfied
for any funding obligation, taxes or penalties with respect to any
such employee
benefit plan.
(jj) Affiliates.
(i) Attached hereto as Schedule 3.1(jj) is a true and complete
organizational chart
disclosing the
ownership and
relationship of
Sellers and the other Seller Parties, including any Subsidiaries of
Sellers and any
Affiliates of Sellers that have any involvement or
interest in any Time Share Association and the Eligible
Resorts.
(ii) The intercompany indebtedness described on Schedule
3.1(jj) constitutes all Sellers' debts, liabilities and obligations
to any Affiliates
of Sellers as of the date of this Agreement.
Sellers have provided
copies of all
instruments,
agreements
and
other writings,
if any, evidencing and/or securing any of the
foregoing intercompany
debt to the Trust Depositor and the Facility
Administrator.
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<PAGE>
(kk) Sales, Licenses and Permits.
(i) Sales of Intervals
are made in compliance in all material
respects with all applicable Requirements of Law. The Sellers,
the
Accommodations with
respect to which
Intervals are being sold, the
Eligible Resorts,
the Time Share Documents, and the Facilities
comply with,
conform to and obey,
in all material
respects, all
Requirements of
Law (including the applicable Declarations)
applicable to
the Sellers, such Accommodations, the Eligible
Resorts, the Time
Share Documents and the Facilities, and, to the
extent applicable, each indenture, order, instrument, agreement or
document to which
Sellers are a party or by which it is bound.
(ii)Each Time Share Association managed by the Club Managing
Entity
possesses all requisite franchises, certificates of convenience
and
necessity,
operating
rights,
licenses,
permits,
consents,
authorizations, exemptions, orders and approvals as are necessary
to
carry on its business
as now being conducted including without
limitation to manage,
maintain and operate the Eligible Resorts
related to such Time Share Association in material
compliance with
all applicable Requirements of Law.
(ll) Intellectual Property. As of the Closing Date, each Seller
owns
or has rights to use all intellectual property necessary to continue to
conduct
its business as now or heretofore conducted by it or proposed to be
conducted by
it. Each Seller
conducts its business and affairs without infringement of or
interference with any intellectual property of any other Person in
any material
respect. No Seller is
aware of any infringement claim by any other Person with
respect to any Seller's intellectual property.
(mm) Representations as to the Time Share Association. No Seller
nor
any Time Share
Association which is
managed by the Club Managing Entity is in
default in any material respect under any of the Time
Share Documents or
under
any other document
evidencing or securing
any indebtedness
which is secured,
wholly or in part, by the Accommodations, and no event has occurred which
with
the giving of notice,
the passage of time or both,
would constitute such a
default under any of
the applicable
Time Share
Documents or under any
of the
documents evidencing or securing any such indebtedness.
(nn) Brokers.
No broker or finder brought about the obtaining,
making or closing of this Agreement or any other Transaction Document or any
transaction
contemplated thereby,
and no Seller Party or Affiliate thereof has
any obligation
to any Person in
respect of any finder's or brokerage fees in
connection therewith.
(oo)
Environmental Matters.
(i) The operations
of each Seller comply in all material
respects with all applicable Environmental Laws.
(ii) There
are no claims, investigations, litigation,
administrative
proceedings, whether
pending or, to such
Seller's
best knowledge,
threatened, or judgments or orders, relating to any
Hazardous Materials or
alleging the violation of any Environmental
Laws (collectively
"Environmental
Matters") relating in any way to
any operations of such
Seller on any real property leased or owned
by such Seller or to
the operations
of such Seller the result of
which, if adversely determined, could reasonably be expected to
have
a Material Adverse Effect.
-10-
<PAGE>
(iii) No Seller has filed any notice under any international,
federal, state, regional, provincial or local law indicating past
or
present treatment,
storage or disposal of
a Hazardous Material
or
reporting a spill
or release of a Hazardous Material into the
environment the result
of which, if
adversely determined, could
reasonably be expected to have a Material Adverse Effect.
(iv) No Seller has any known material liability, contingent or
otherwise, in
connection with any release of any Hazardous Material
into the environment.
(v) (i) No Hazardous
Material is now or was
formerly used,
stored, generated, manufactured, installed, disposed of or
otherwise
present at or about the Facilities or, to the best
knowledge of any
Seller, any
property adjacent to the Facilities, including the
groundwater located
thereon except in material compliance with
applicable
Environmental Laws
and (ii) all material permits,
licenses, approvals
and filings required by Environmental Laws in
respect of the Facilities have been obtained, and the use,
operation
and condition
of the Facilities does not violate any applicable
Environmental Laws in any material respect. All water intended to
be
drinking water
originating
from any well
located at any
Eligible
Resort is potable.
(pp) Operating Contracts. Sellers have delivered to Trust
Depositor
and Facility
Administrator true,
correct and complete
copies of the Operating
Contracts, including
all exhibits, schedules and attachments. Each of the
Operating Contracts is in full force and effect. Sellers are not in any default
in any material respect under any of the Operating Contracts, and Sellers know
of no default on the part of any other party to any of the
Operating Contracts.
(qq) Litigation.
There
are no actions, demands, lawsuits,
investigations,
proceedings, orders or
injunctions (collectively "Litigation")
pending or,
to the best of any Seller's knowledge, threatened against or
affecting any Seller or any of its Affiliates, at law or
