Exhibit 10.182
EXECUTION COPY
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INDENTURE
between
BXG RECEIVABLES OWNER TRUST 2006-A,
as Issuer
and
U.S. BANK
NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of March 13, 2006
================================================================================
<PAGE>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................1
SECTION 1.1.
Definitions................................................1
SECTION 1.2.
Rules of
Construction......................................1
ARTICLE II
THE NOTES..................................................2
SECTION 2.1.
Form.......................................................2
SECTION 2.2.
Execution,
Authentication and Delivery.....................2
SECTION 2.3.
Temporary
Notes............................................2
SECTION 2.4.
Registration:
Registration of Transfer and Exchange........3
SECTION 2.5.
Mutilated,
Destroyed, Lost or Stolen Notes.................4
SECTION 2.6.
Persons Deemed
Owner.......................................4
SECTION 2.7. Payment of Principal and
Interest - Defaulted Interest.....4
SECTION 2.8.
Cancellation...............................................5
SECTION 2.9.
Release of
Collateral......................................5
SECTION 2.10.
Definitive
Notes...........................................5
SECTION 2.11.
Transfer
Restrictions......................................5
SECTION 2.12.
CUSIP
Numbers..............................................8
ARTICLE III
COVENANTS; REPRESENTATIONS AND WARRANTIES..................8
SECTION 3.1.
Payment of
Principal and Interest..........................8
SECTION 3.2.
Maintenance of
Office or Agency............................9
SECTION 3.3.
Money for
Payments To Be Held in Trust.....................9
SECTION 3.4.
Existence.................................................10
SECTION 3.5.
Protection of
the Collateral..............................10
SECTION 3.6.
Intentionally
Omitted.....................................11
SECTION 3.7.
Performance of
Obligations; Servicing of Receivables......11
SECTION 3.8.
Negative
Covenants........................................12
SECTION 3.9.
Issuer May
Consolidate, etc., Only on Certain Terms.......13
SECTION 3.10.
Successor or
Transferee...................................14
SECTION 3.11.
No Other
Business.........................................15
SECTION 3.12.
No
Borrowing..............................................15
SECTION 3.13.
Servicer's
Obligations....................................15
SECTION 3.14.
Guarantees, Loans,
Advances and Other Liabilities.........15
SECTION 3.15.
Capital
Expenditures......................................15
SECTION 3.16.
Notice of Defaults and
Events of Default..................15
SECTION 3.17.
Further Instruments
and Acts..............................15
SECTION 3.18.
Compliance with
Laws......................................15
SECTION 3.19.
Tax
Treatment.............................................15
SECTION 3.20.
Investment Company
Act....................................16
SECTION 3.21.
Conduct of
Business.......................................16
SECTION 3.22.
Annual Statement as to
Compliance.........................16
SECTION 3.23.
Representations and
Warranties of the Issuer..............16
ARTICLE IV
SATISFACTION AND DISCHARGE................................17
SECTION 4.1.
Satisfaction and
Discharge of Indenture...................17
SECTION 4.2.
Application of
Trust Money................................18
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SECTION 4.3.
Repayment of
Moneys Held by Paying Agent..................18
ARTICLE V
EVENTS OF DEFAULT; REMEDIES...............................18
SECTION 5.1.
Events of
Default.........................................18
SECTION 5.2.
Acceleration of
Maturity..................................19
SECTION 5.3.
Rescission and
Annulment..................................20
SECTION 5.4.
Collection of Indebtedness and
Suits for Enforcement
by Indenture Trustee......................................20
SECTION 5.5.
Remedies;
Priorities......................................22
SECTION 5.6.
Optional
Preservation of the Receivables..................23
SECTION 5.7.
Limitation of
Suits.......................................23
SECTION 5.8.
Unconditional
Rights of Noteholders To Receive Principal
and Interest..............................................23
SECTION 5.9.
Restoration of
Rights and Remedies........................24
SECTION 5.10.
Rights and Remedies
Cumulative............................24
SECTION 5.11.
Delay or Omission Not
a Waiver............................24
SECTION 5.12.
Control by
Noteholders....................................24
SECTION 5.13.
Waiver of Past
Defaults...................................25
SECTION 5.14.
Undertaking for
Costs.....................................25
SECTION 5.15.
Waiver of Stay or
Extension Laws..........................25
SECTION 5.16.
Action on
Notes...........................................25
SECTION 5.17.
Performance and
Enforcement of Certain Obligations........25
ARTICLE VI
THE INDENTURE TRUSTEE.....................................26
SECTION 6.1.
Duties of the
Indenture Trustee...........................26
SECTION 6.2.
Rights of
Indenture Trustee...............................27
SECTION 6.3.
Individual
Rights of the Indenture Trustee................28
SECTION 6.4.
Indenture
Trustee's Disclaimer............................28
SECTION 6.5.
Notice of
Defaults........................................28
SECTION 6.6.
Reports by
Indenture Trustee to the Holders...............28
SECTION 6.7.
Compensation and
Indemnity................................29
SECTION 6.8.
Replacement of
the Indenture Trustee......................29
SECTION 6.9.
Successor
Indenture Trustee by Merger.....................30
SECTION 6.10.
Appointment of
Co-Trustee or Separate Trustee.............30
SECTION 6.11.
Eligibility;
Disqualification.............................31
SECTION 6.12.
Representations and
Warranties of Indenture Trustee.......31
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS............................32
SECTION 7.1.
Issuer To
Furnish Indenture Trustee Names and Addresses
of Noteholders............................................32
SECTION 7.2.
Preservation of
Information: Communications to
Noteholders...............................................32
ARTICLE VIII ACCOUNTS,
DISBURSEMENTS AND RELEASES......................33
SECTION 8.1.
Collection of
Money.......................................33
SECTION 8.2.
Trust
Accounts............................................33
SECTION 8.3.
General
Provisions Regarding Accounts.....................33
SECTION 8.4.
Release of
Collateral.....................................33
ARTICLE IX
SUPPLEMENTAL INDENTURES...................................34
SECTION 9.1.
Supplemental
Indentures Without Consent of Noteholders....34
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SECTION 9.2.
Supplemental
Indentures With Consent of Noteholders.......34
SECTION 9.3.
Execution of
Supplemental Indentures......................36
SECTION 9.4.
Effect of
Supplemental Indenture..........................36
SECTION 9.5.
Reference in
Notes to Supplemental Indentures.............36
ARTICLE X
REDEMPTION OF NOTES.......................................36
SECTION 10.1.
Redemption................................................36
SECTION 10.2.
Form of Redemption
Notice.................................36
SECTION 10.3.
Notes Payable on
Redemption Date..........................37
ARTICLE XI
MISCELLANEOUS.............................................37
SECTION 11.1.
Compliance
Certificates and Opinions, etc.................37
SECTION 11.2.
Form of Documents
Delivered to Indenture Trustee..........37
SECTION 11.3.
Acts of
Noteholders.......................................38
SECTION 11.4.
Notices, etc., to the
Indenture Trustee, Issuer,
the Facility Administrator................................39
SECTION 11.5.
Notices to
Noteholders; Waiver............................39
SECTION 11.6.
Alternate Payment and
Notice Provisions...................39
SECTION 11.7.
Effect of Headings and
Table of Contents..................40
SECTION 11.8.
Successors and
Assigns....................................40
SECTION 11.9.
Severability..............................................40
SECTION 11.10.
Benefits of Indenture.....................................40
SECTION 11.11.
Legal Holiday.............................................40
SECTION 11.12.
Governing Law; Waiver of Jury Trial.......................40
SECTION 11.13.
Counterparts..............................................40
SECTION 11.14.
Recording of Indenture....................................40
SECTION 11.15.
Trust Obligation..........................................41
SECTION 11.16.
No Petition...............................................41
SECTION 11.17.
Inspection................................................41
SECTION 11.18.
Confidentiality...........................................41
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EXHIBITS
EXHIBIT A Form of
Notes
EXHIBIT B Form of
Section 3.22 Officer's Certificate
EXHIBIT C Form of
Purchaser Representation Letter
EXHIBIT D Form of
Seller Representation Letter
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INDENTURE,
dated as of March 13, 2006, between BXG Receivables Owner Trust
2006-A, a Delaware
statutory trust (the "Issuer"), and U.S. Bank National
Association, a national banking association, as indenture trustee
and not in its
individual capacity (the "Indenture Trustee").
Each party
agrees as follows
for the benefit of the other party and
for
the equal and ratable
benefit of the Holders of the Issuer's Notes (each, a
"Note" and collectively, the "Notes").
GRANTING CLAUSE
The Issuer
hereby Grants to the Indenture Trustee at the Closing Date,
on
behalf of and for the benefit of the Noteholders, all of the Issuer's right,
title and interest
in, to and under the
following,
whether now existing or
hereafter arising or acquired (collectively, the "Collateral"):
(a) the Trust Assets;
(b) all rights of the Issuer under the Sale and Servicing
Agreement
and the
other Transaction Documents;
(c) all present and
future claims,
demands, causes and choses in
action in
respect of any or all of the foregoing and all payments on or
under and
all proceeds of every kind and nature whatsoever in respect of
any or all
of the foregoing,
including all proceeds of the conversion,
voluntary
or involuntary,
into cash or other
liquid property,
all cash
proceeds,
accounts, accounts receivable, notes, drafts, acceptances,
chattel
paper, checks, deposit accounts, insurance proceeds, condemnation
awards,
rights to payment of any and every kind and other forms of
obligations and
receivables,
instruments and other
property that at any
time
constitute all or part
of or are included in the proceeds of any and
all of the
foregoing.
The
foregoing Grant is made in trust to secure (x) the payment of
principal of and
interest on, and any
other amounts
owing in respect of,
the
Notes, as provided herein and all other obligations of the Issuer
hereunder and
(y) to secure compliance with this Indenture.
The
Indenture Trustee, on behalf of the Noteholders, (1) acknowledges
such
Grant, and (2)
accepts the trusts and
the Grant of the
Collateral under
this
Indenture in
accordance with this
Indenture and agrees to perform its
duties
required in this
Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively
protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION
1.1. Definitions. Capitalized terms used but not otherwise
defined
herein are defined in the Definitions Annex to the Sale and
Servicing Agreement.
SECTION
1.2. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it; (ii) an accounting term
not otherwise
defined has the meaning assigned to it in accordance
with GAAP as in effect
on
the date hereof, (iii) "or" is not exclusive; (iv) "including"
means "including,
without limitation";
and (v) words in the singular include the plural and words
in the plural include the singular.
<PAGE>
ARTICLE II
THE NOTES
SECTION
2.1. Form. The Notes, together with the Indenture Trustee's
certificate of
authentication, shall
be in substantially the form set forth in
Exhibit A, in an
aggregate face
amount not to exceed
$125,000,000
with such
appropriate
insertions, omissions,
substitutions
and other variations
as are
required or permitted by this Indenture, and may have such letters,
numbers or
other marks of identification and such legends or endorsements
placed thereon,
as may, consistently
herewith, be determined by the officers
executing such
Notes, as evidenced by their execution of the Notes. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
The Notes
shall be typewritten, printed, lithographed or engraved or
produced by any
combination of these
methods (with or
without steel
engraved
borders), all as
determined by the officers executing such Notes, as
evidenced
by their execution of such Notes.
Each Note
shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this
Indenture.
SECTION
2.2. Execution,
Authentication and
Delivery. The Notes
shall be
executed on
behalf of the Issuer by any of its Authorized Officers. The
signature of any
such Authorized Officer on the Notes may be manual or
facsimile.
Notes
bearing the manual or facsimile signature of individuals who were
at
the time of signature
Authorized Officers of
the Issuer shall bind the Issuer,
notwithstanding that
such individuals
or any of them have
ceased to hold such
offices prior to the
authentication and
delivery of such Notes or did not hold
such offices at the date of such Notes.
The
Indenture Trustee shall upon an Issuer Order authenticate and deliver
the Notes for original issue in an aggregate principal amount of up to
$125,000,000. The
Outstanding
Amount of Notes at any
time may not exceed
the
aggregate of such amounts except as provided in Section 2.5.
The
Notes shall be issuable as registered Notes in the minimum
denomination of
$100,000 and in greater whole-dollar denominations in excess
thereof.
No Note
shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a
certificate of
authentication
substantially in the
form provided for
herein executed by
the
Indenture Trustee by the manual signature of one of its authorized
signatories,
and such certificate of authentication shall be conclusive evidence, and the
only evidence,
that such Note has been duly authenticated and delivered
hereunder.
SECTION
2.3. Temporary Notes. Pending the preparation of Definitive
Notes,
the Issuer may
execute, and upon
receipt of an Issuer
Order, the Indenture
Trustee shall
authenticate
and deliver, temporary Notes that are printed,
lithographed,
typewritten,
mimeographed or otherwise produced, of the tenor of
the Definitive Notes
in lieu of which they are issued and with such variations
not inconsistent
with this Indenture as
the officers executing
such Notes may
determine, as evidenced by their execution of such Notes.
If
temporary Notes are issued, the Issuer will cause Definitive Notes to
be prepared without
unreasonable
delay. After the preparation of Definitive
Notes, the temporary
Notes shall be
exchangeable
for Definitive Notes upon
surrender of the
temporary Notes at the office or agency of the Issuer to
be
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maintained as
provided in Section
3.2, without charge to the Holder. Upon
surrender for
cancellation of any one or more temporary Notes, the Issuer
shall
execute and the
Indenture Trustee
shall authenticate
and deliver in
exchange
therefor a
like principal amount of Definitive Notes of authorized
denominations. Until
so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as if they were
Definitive
Notes.
SECTION 2.4.
Registration:
Registration
of Transfer and
Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in
which, subject
to such reasonable regulations as it may prescribe, the Issuer
shall provide for
the registration
of Notes and the
registration
of transfers of Notes. The
Indenture Trustee
shall be the "Note
Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, the
Issuer shall promptly
appoint a successor or, if it elects
not to make such an appointment, assume the duties of the Note
Registrar.
If a
Person other than the Indenture Trustee is appointed by the Issuer
as
the Note Registrar,
the Issuer will give the Indenture Trustee and the Facility
Administrator prompt
written notice of the
appointment of such
Note Registrar
and of the location,
and any change in the location, of the Note Register, and
the Indenture
Trustee and the
Facility Administrator
shall have the right
to
inspect the Note Register at all reasonable times, to obtain copies thereof
and
to rely upon a
certificate
executed on behalf of the Note Registrar by a
Responsible Officer
thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
Subject to
the terms and conditions of this Indenture, upon surrender for
registration of transfer of any Note at the office or agency of the
Issuer to be
maintained as provided in Section 3.2, if the requirements of Section
8-401(1)
of the UCC are met,
the Issuer shall
execute, the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the
name of the designated
transferee or transferees, one or more new Notes in any
authorized denominations of a like aggregate principal amount.
At the
option of the Holder, Notes may be exchanged for other new Notes
in
any authorized
denominations
of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency.
Subject to the
terms and conditions
of this Indenture,
whenever any Notes are
so surrendered
for exchange, if the
requirements of
Section 8-401(1) of
the UCC are met, the
Issuer shall
execute, the Indenture Trustee shall authenticate and the
Noteholder shall
obtain from the Indenture Trustee, the Notes that the
Noteholder making the exchange is entitled to receive.
All Notes
issued upon any
registration
of transfer or
exchange of Notes
shall be the valid
obligations
of the Issuer, evidencing the same debt and
entitled to the same benefits under this Indenture as the Notes
surrendered upon
such registration of transfer or exchange.
Every Note
presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written
instrument of
transfer in form
satisfactory to the Indenture Trustee and the Issuer and
duly
executed by, the Holder thereof or such Holder's
attorney duly authorized in
writing, with such
signature guaranteed by an "eligible guarantor institution"
meeting the
requirements of the
Note Registrar,
which requirements include
membership or
participation
in the "Securities Transfer Agent's Medallion
Program" ("STAMP")
or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP.
No
service charge shall be made to a Holder for any registration of
transfer or
exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any
registration of
transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 2.5 not involving any
transfer.
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Notwithstanding
anything else
to the contrary contained herein, the
obligation of the
Issuer to pay the
principal of and
interest on the Notes is
not a general
obligation of the
Issuer or any other
Person, but is limited
solely to the Collateral pledged hereunder.
SECTION
2.5. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the
Indenture Trustee
receives evidence to
its satisfaction of the destruction, loss or theft of any
Note, and (ii) there
is delivered to the
Indenture Trustee such security or
indemnity as may be required by the Indenture Trustee and the
Issuer to hold the
Indenture Trustee and the Issuer, respectively, harmless, then, in the absence
of notice to the Issuer, the Note Registrar or the
Indenture Trustee that
such
Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall
execute, and
upon its written request the Indenture Trustee shall authenticate and deliver,
in exchange
for or in lieu of any
such mutilated,
destroyed,
lost or stolen
Note, a replacement Note; provided, however, that if any such
destroyed, lost or
stolen Note, but not a mutilated Note, shall have become, or within
fifteen days
shall be, due and payable, or shall have been called for
redemption, instead
of
issuing a replacement
Note, the Issuer may pay such destroyed, lost or stolen
Note when so due or
payable or upon the Redemption Date without surrender
thereof. If,
after the delivery of such replacement Note (or payment of a
destroyed, lost
or stolen Note pursuant to the proviso to the preceding
sentence), a bona fide
purchaser of the original Note in lieu of which such
replacement Note was
issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such
replacement Note (or
such payment) from the Person to whom it was delivered or any
Person taking such
replacement Note from
such Person to whom such replacement Note was delivered
(or payment made) or any assignee of such Person, except a bona fide purchaser,
and shall be entitled
to recover upon the security or indemnity provided
therefor to
the extent of any loss, damage, cost or expense (including
reasonable attorneys'
fees and costs)
incurred by the Issuer
or the Indenture
Trustee in connection therewith.
Every
replacement
Note issued pursuant
to this Section in replacement of
any mutilated,
destroyed,
lost or stolen
Note shall
constitute
an original
additional contractual
obligation of the
Issuer, whether or not the mutilated,
destroyed, lost or
stolen Note shall be at any time enforceable by anyone,
and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued
hereunder.
The
provisions of this
Section are exclusive
and shall preclude (to
the
extent lawful) all other rights and remedies with respect to the
replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION
2.6. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
of their respective
agents may treat the Person in whose name any Note is
registered (as of the
day of determination)
as the owner of such
Note for the
purpose of receiving payments of principal of and interest, if any,
on such Note
and for all other purposes whatsoever, whether or not such Note be
overdue, and
neither the
Issuer, the Indenture Trustee nor any agent thereof shall be
affected by notice to the contrary.
SECTION
2.7. Payment of Principal and Interest - Defaulted Interest. (a)
The Notes shall accrue
interest at the Note Rate, and such interest shall be
payable on each
Payment Date,
subject to Section 3.1. Any installment of
interest or principal,
if any, payable on any
Note that is punctually paid or
duly provided for by or on behalf of the Issuer on the applicable Payment Date
shall be paid to the Person in whose name such Note (or one or more
Predecessor
Notes) is registered
on the Record Date, by wire transfer of immediately
available funds, or
(if such Person has not delivered to the Indenture Trustee
in writing
instructions with
respect to
effecting a wire transfer to such
Person) by check mailed first-class, postage prepaid, to such Person's
address
as it appears on the Note Register on such Record Date.
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Notwithstanding the
above, the final
installment
of principal payable with
respect to the Notes (and except for the Redemption Price for any Note called
for redemption pursuant to Section 10.1) shall be payable as
provided in Section
2.7(b)(ii). The funds
represented by any such checks returned undelivered shall
be held in accordance with Section 3.3.
(b) (i)
The principal
of each Note shall be
payable on each Payment Date
as and to the extent provided in this Indenture and Section 2.11 of
the Sale and
Servicing Agreement.
Not in limitation of the foregoing, (A) the entire
Outstanding Amount of
the Notes shall be due and payable on the date following
the occurrence
and during the
continuance of an
Event of Default on which the
Notes have been declared due and payable in the manner provided in Section 5.2;
and (B) the entire
Outstanding Amount of
the Notes, if any,
shall be due and
payable on and after the Note Final Scheduled Maturity Date. All principal
payments on the Notes shall be made in accordance with Section 2.11 of the Sale
and Servicing Agreement.
(ii) The Indenture
Trustee shall notify
the Person in whose name a
Note is
registered at the
close of business on the Record Date preceding
the
Payment Date on which the Issuer expects that the final installment
of
principal
of and interest on such Note will be paid. Such notice shall be
mailed no
later than five days prior to such final Payment Date and shall
specify
that such final installment will be payable only upon
presentation
and
surrender of such Note and shall specify the place where such Note
may
be
presented and surrendered for payment of such installment. Notices in
connection
with redemptions of Notes shall be mailed to
Noteholders as
provided
in Section 10.2.
(c) If the
Issuer defaults
in a payment of
interest on the Notes, the
Issuer shall pay, in any lawful manner, defaulted interest (plus interest on
such defaulted
interest to the extent
lawful) at the applicable interest rate
from the Payment Date for which such payment is in default.
The Issuer may pay
such defaulted
interest to the Persons who are
Noteholders
on a subsequent
Payment Date. The
Indenture Trustee is
not personally
liable for any
amounts
payable by the Issuer under this Indenture.
SECTION
2.8. Cancellation. All Notes surrendered for payment,
registration
of transfer, exchange
or redemption shall be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the
Indenture Trustee for
cancellation
any Notes previously
authenticated and
delivered hereunder
that the Issuer may have acquired in any
manner whatsoever, and
all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in
exchange for
any Notes canceled as provided in this Section except as expressly
permitted by
this Indenture.
All canceled Notes may
be held or disposed of by the Indenture
Trustee in accordance
with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that
they
be returned to it; provided, that such Issuer Order is timely and
the Notes have
not been previously disposed of by the Indenture Trustee.
SECTION
2.9. Release of Collateral. Subject to Section 11.1 and the
Transaction Documents,
the Indenture
Trustee shall release
property from the
Lien of this Indenture only (i) upon receipt of an Issuer Request
accompanied by
an Officer's Certificate and (ii) with the consent of the Note
Majority.
SECTION
2.10. Definitive
Notes. The Notes, upon original issuance, shall
be issued in definitive, fully registered form ("Definitive
Notes").
SECTION
2.11. Transfer Restrictions. (a) Each Noteholder, by its
acceptance of the Notes (or the obligations evidenced thereby), will be deemed
to have acknowledged,
represented to and agreed with the Issuer, Bluegreen, the
Trust Depositor and their respective Affiliates as follows:
5
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(i) Its
Note is being acquired
for investment purposes and without any
view to, or for resale in connection with, the distribution thereof (or any
interest therein) in
violation of the Securities Act or any applicable blue sky
laws (as defined below). Such Noteholder is either (i) a "qualified
institutional buyer"
(as defined in Rule 144A under the Securities Act) or (ii)
an "accredited
investor" (as defined in Regulation D under the Securities
Act).
It understands and
acknowledges that the
Notes have not been registered under
the Securities Act or any other applicable securities law of any state or
other
jurisdiction ("blue
sky laws"), and may not be offered, sold or otherwise
transferred except in
compliance
with the registration requirements of the
Securities Act or any other applicable blue sky laws,
pursuant to an
exemption
therefrom or in a transaction not subject thereto. Further, it understands and
acknowledges that the
Issuer in connection
with the initial sale of the Notes,
is relying on the exemption from registration provided in Section 4(2) of
the
Securities Act, the
availability of which
depends on the investment intent of
the purchaser.
(ii) It is
a sophisticated
investor and has such knowledge and experience
in financial and business matters so as to be capable of
evaluating the
merits
and risks of such investment, is able to incur a complete loss of such
investment and is able
to bear the
economic risk of such investment for an
indefinite period of
time. It acknowledges that neither the Issuer nor the
Indenture Trustee nor
any person
representing or
affiliated
with any of the
foregoing has made any
representation
to it with respect to
the Issuer or any
affiliate thereof or
the offering or sale of any Notes; it acknowledges that it
has had access to financial and other information concerning the Issuer or any
affiliate thereof, the Collateral and the Notes, including an
opportunity to ask
questions of and
request information
from the Issuer,
the Servicer and the
Indenture Trustee.
(iii) In
the case of resale transactions:
(A) (i)
The prospective purchaser is a "qualified institutional buyer" as
defined in
Rule 144A under the Securities Act (a "QIB"), and is purchasing
for its
own account (and not
for the account of others) or as a fiduciary
or agent
for others
(which others also are QIBs) and has executed a
certificate
substantially in the
form attached as
Exhibit C. Due to the
restrictions on transfer, it is aware that it (or any account for
which it
is
purchasing) may be
required to bear the economic risk of an investment
in the
Notes for an indefinite period, and it (or such account) is able
to
bear such
risk for an
indefinite
period. It acknowledges that it has
received
the information
specified in paragraph (d)(4) of Rule 144A under
the
Securities Act; or
(ii) the prospective
purchaser is an
"accredited
investor"
within the meaning of Regulation D under the Securities Act,
and
is
purchasing the Note for investment purposes and without any view
to, or
for resale
in connection with,
the distribution
thereof in violation
of
the
Securities
Act and has executed a
certificate
substantially in
the
form
attached as Exhibit C.
(B) If
such transaction is not made in reliance on Rule 144A, the
transferor
has delivered a certificate substantially in the form
attached
as Exhibit
D.
(iv) No
resale, pledge or
other transfer
of any Note may be
made by any
person unless either
(i) so long as the Notes are eligible for resale pursuant
to Rule 144A under the Securities Act, such resale, pledge or other transfer is
made to a Person whom the seller reasonably believes after due inquiry is a
QIB
acting for its own account (and not for the account of others) or
as a fiduciary
or agent for others
(which others
also are QIBs) to whom
notice is given that
the resale, pledge or
transfer is being made in reliance on Rule 144A under the
Securities Act and the
transaction
is in compliance with and exempt from
registration under
Rule 144A or (ii) such resale, pledge or other transfer is
made in a transaction exempt from the
6
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registration requirements of the Securities Act and all applicable
blue sky laws
in which case the Indenture Trustee will require (a) that both
the prospective
transferor and the
prospective transferee
represent and warrant
to the Issuer
and the Indenture Trustee in writing the facts surrounding such
transfer, which
representations and
warranties shall be in
form and substance
satisfactory to
the Issuer,
and (b) a written
opinion of counsel
(which shall not be at the
expense of the Issuer,
the Servicer or the Indenture Trustee) satisfactory to
the Indenture
Trustee and the Issuer
to the effect that such transfer will not
violate the Securities Act or any applicable blue sky laws.
The foregoing
representations shall
also be applicable to any sale, pledge or
other transfer of a beneficial or other interest in any Note.
(b) Each
Noteholder by its
acquisition
of any Notes (or a
beneficial or
other interest
therein) shall be deemed to have represented and warranted for
the benefit of the Issuer, the Trust Depositor, the Servicer, the Indenture
Trustee and the
Noteholders, that the
Notes (or a beneficial or other interest
therein) are not
being acquired by or for the account of (i) an "employee
benefit plan" (as defined in Section 3(3) of ERISA), that is subject to Title I
of ERISA, (ii) a "plan" as defined in Section 4975(e)(1) of the
Internal Revenue
Code or (iii) any entity whose underlying assets include plan assets by
reason
of a plan's investment
in the entity (each, a "Benefit Plan") unless the
purchase and holding
of the Notes will not give rise to a nonexempt prohibited
transaction under ERISA or the Internal Revenue Code.
(c) The
Notes will bear the following legends:
"THIS NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE
"SECURITIES ACT"),
OR UNDER THE
SECURITIES
LAWS OF
ANY STATE OR OTHER
JURISDICTION ("BLUE
SKY LAWS") OF THE
UNITED
STATES.
BY ITS ACCEPTANCE OF THIS NOTE THE HOLDER
OF THIS NOTE IS DEEMED
TO
REPRESENT TO THE INDENTURE TRUSTEE, THE ISSUER AND THE SERVICER
THAT IT
(i) IS A
"QUALIFIED
INSTITUTIONAL BUYER"
WITHIN THE MEANING OF RULE 144A
UNDER THE
SECURITIES ACT (A
"QIB") AND IS ACQUIRING SUCH NOTE FOR ITS OWN
ACCOUNT
(AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT
FOR
OTHERS
(WHICH OTHERS ALSO ARE QIBS) TO WHOM
NOTICE IS GIVEN THAT THE
TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A OR (ii) IS OTHERWISE
ACQUIRING
THIS NOTE IN A
TRANSACTION EXEMPT
FROM THE SECURITIES
ACT AND
APPLICABLE
BLUE SKY LAWS.
NO RESALE,
PLEDGE OR OTHER TRANSFER OF THIS NOTE (OR ANY INTEREST THEREIN)
MAY BE
MADE BY ANY PERSON
UNLESS (i) SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH RESALE,
PLEDGE
OR OTHER
TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY
BELIEVES
AFTER DUE INQUIRY IS A
QIB ACTING FOR ITS OWN
ACCOUNT (AND NOT
FOR THE
ACCOUNT OF OTHERS) OR
AS A FIDUCIARY OR
AGENT FOR OTHERS
(WHICH
OTHERS
ALSO ARE QIBs) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A AND, IN ANY CASE, IN
TRANSACTIONS UNDER AND
IN COMPLIANCE WITH
RULE 144A OR (ii) SUCH RESALE,
PLEDGE OR
OTHER TRANSFER IS OTHERWISE MADE IN A TRANSFER EXEMPT FROM THE
REGISTRATION
REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE
7
<PAGE>
BLUE SKY
LAWS, IN WHICH CASE THE INDENTURE TRUSTEE SHALL REQUIRE (A) THAT
BOTH THE
PROSPECTIVE TRANSFEROR
AND THE PROSPECTIVE TRANSFEREE REPRESENTS
AND
WARRANTS TO THE ISSUER IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER,
WHICH
REPRESENTATIONS
AND WARRANTIES SHALL BE IN FORM AND SUBSTANCE
SATISFACTORY TO THE
ISSUER, AND (B) A
WRITTEN OPINION OF
COUNSEL (WHICH
SHALL NOT
BE AT THE EXPENSE OF THE ISSUER, THE SERVICER OR THE INDENTURE
TRUSTEE)
SATISFACTORY
TO THE INDENTURE TRUSTEE AND THE ISSUER TO THE
EFFECT
THAT SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OR
APPLICABLE
BLUE SKY LAWS. ANY ATTEMPTED TRANSFER IN CONTRAVENTION OF THE
IMMEDIATELY PRECEDING
RESTRICTIONS
WILL BE VOID AB INITIO AND THE
PURPORTED
TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE
NOTES
FOR ALL
PURPOSES. THE PROSPECTIVE TRANSFEROR AND PROSPECTIVE
TRANSFEREE,
JOINTLY
AND SEVERALLY, AGREE TO INDEMNIFY THE ISSUER, THE INDENTURE
TRUSTEE,
BLUEGREEN CORPORATION,
THE TRUST DEPOSITOR
AND THEIR RESPECTIVE
AFFILIATES
AGAINST ANY LIABILITY
SUCH PERSON MAY SUFFER
AS A RESULT OF A
TRANSFER
OF A NOTE NOT IN COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS.
THIS NOTE
(AND ANY INTEREST
HEREIN) MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF
(i) AN "EMPLOYEE
BENEFIT PLAN" (AS
DEFINED IN SECTION 3(3) OF
THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED,
("ERISA")), THAT IS
SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A
PLAN
DESCRIBED IN SECTION 4975(e)(1) OF THE CODE OR (iii) ANY ENTITY
WHOSE
UNDERLYING
ASSETS INCLUDE PLAN
ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY
UNLESS THE PURCHASE
AND HOLDING OF THE NOTE WILL NOT GIVE RISE
TO A
NONEXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE. BY
ACCEPTING
AND HOLDING THIS NOTE (OR ANY INTEREST HEREIN), THE HOLDER
HEREOF
SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (A)
IT IS NOT
A BENEFIT PLAN OR (B) SUCH PURCHASE AND HOLDING WILL NOT
RESULT
IN A
NONEXEMPT PROHIBITED
TRANSACTION
UNDER SECTION
406(A) OF ERISA OR
SECTION
4975 OF THE CODE."
SECTION
2.12. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" or "private
placement" numbers (if
then generally in use), and, if so,
the Indenture Trustee shall indicate the "CUSIP" or "private
placement" numbers
of the Notes in notices of redemption and related materials as a convenience to
Holders of Notes; provided that any such notice may state that no
representation
is made as to the
correctness of such numbers either as printed on the Notes or
as contained in any notice of redemption and related materials.
ARTICLE III
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION
3.1. Payment of Principal and Interest. The Indenture Trustee
will
duly and punctually
pay the principal
and interest, if any, on the Notes in
accordance with the
terms of Section 2.11 of the Sale and Servicing Agreement
and this Indenture.
Without limiting the foregoing, the Issuer will cause to be
distributed all
Available Amounts on deposit in the
Collection
Account on a
Payment Date
8
<PAGE>
deposited therein
in accordance with the terms of the Sale and Servicing
Agreement. Amounts
properly withheld under the Code or any applicable state law
by the Issuer, the Indenture Trustee or any other Paying Agent from
a payment to
any Noteholder of interest and/or principal shall be paid over to
the applicable
Governmental Authority and shall be considered as having been paid
by the Issuer
to such Noteholder for all purposes of this Indenture.
SECTION
3.2. Maintenance of
Office or Agency. The Issuer will maintain an
office or agency where Notes may be surrendered for registration of transfer or
exchange, and where
notices and demands to or upon the Issuer in respect of the
Notes and this
Indenture may be served which shall initially be located in St.
Paul, Minnesota.
The Issuer hereby
initially appoints the Indenture Trustee to
serve as its agent for the foregoing purposes and the Indenture Trustee
accepts
such appointment.
The Issuer will give
prompt written notice
to the Indenture
Trustee and the Facility Administrator of the location, and of any
change in the
location, of any such
office or agency. If at any time the Issuer shall fail to
maintain any such
office or agency or shall fail to furnish the Indenture
Trustee and
the Facility Administrator with the address thereof, such
surrenders, notices
and demands may be
made or served at the
Corporate Trust
Office, and the Issuer
hereby appoints the
Indenture Trustee as its agent to
receive all such
surrenders, notices
and demands
and the Indenture Trustee
accepts such appointment.
SECTION
3.3. Money for Payments To Be Held in Trust. As provided in
Section 8.2,
all payments of
amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection
Account pursuant
to Section 8.2 shall be made on behalf of the Issuer by the
Indenture Trustee or
by another Paying Agent, and no amounts so withdrawn from the
Collection Account
for payments
of Notes shall be paid over to the Issuer
except as provided
in
this Section and Section 2.11 of the Sale and Servicing
Agreement.
On or
before each Payment
Date and Redemption Date, the Issuer shall
deposit, or cause the
Servicer to deposit,
in the Collection Account to the
extent of Available Amounts, an aggregate sum sufficient to pay the
amounts then
becoming due under the
Notes as and to the extent required by Section 2.11 of
the Sale and Servicing
Agreement, such sum to
be held in trust for the benefit
of the Persons
entitled thereto, and shall promptly notify in writing the
Facility Administrator and the Indenture Trustee (unless the Paying
Agent is the
Indenture Trustee) of its action or failure so to act.
The Issuer
will cause each Paying Agent other than the Indenture Trustee,
if any, to execute and deliver to the Facility Administrator and the Indenture
Trustee an instrument
in which such Paying Agent shall agree with the Indenture
Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section, that such
Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect
to the Notes in trust
for the benefit
of the Persons entitled
thereto
until such sums shall be paid to such Persons or otherwise
disposed
of as herein provided and pay such sums to such Persons as
herein
provided;
(ii) give the
Indenture Trustee and the Facility Administrator
notice of
any default by the
Issuer of which it has actual knowledge in
the making
of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon
the
written request of the Indenture Trustee, forthwith pay to the
Indenture
Trustee all sums so held in trust by such Paying Agent;
9
<PAGE>
(iv) immediately
resign as a Paying
Agent and forthwith pay to the
Indenture
Trustee all sums held by it in trust for the payment of Notes
if
at any
time it ceases to meet the standards required to be met by a
Paying
Agent;
and
(v) comply
with all requirements of the Code and any applicable
state law
with respect to the withholding from any payments made by it
on
any Notes
of any applicable
withholding
taxes imposed
thereon and with
respect to
any applicable payment and reporting requirements in connection
therewith.
The Issuer
may at any time, for the purpose of obtaining the satisfaction
and discharge of this
Indenture or for any other purpose, by Issuer Order,
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent,
such sums to be held
by the Indenture
Trustee upon the
same terms as those upon which the sums were held by such Paying
Agent; and upon
such payment by any Paying Agent to the Indenture Trustee, such Paying Agent
shall be released from all further liability with respect to such
money.
Subject to
applicable
laws with respect to escheat of funds,
any money
held by the Indenture
Trustee or any Paying
Agent in trust for the
payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged
from such trust
and be paid to the Issuer on Issuer Request; and the Holder of such Note
shall
thereafter, as an
unsecured general creditor and subject to all defenses
available to the Issuer under all applicable laws, look only to the Issuer for
payment thereof
(but only to the
extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with
respect to
such trust money shall thereupon cease.
SECTION
3.4. Existence. The Issuer will keep in full effect its
existence,
rights and franchises as a statutory trust under the laws of the
jurisdiction of
its organization and
will obtain and preserve its qualification to do business
in each jurisdiction
in which such
qualification
is or shall be
necessary to
protect the validity and enforceability of this Indenture, the Notes and the
Collateral.
SECTION
3.5. Protection of the Collateral. The Issuer intends the
security
interest granted pursuant to this Indenture in favor of the
Indenture Trustee on
behalf of the
Noteholders to be
prior to all other Liens (other than Permitted
Liens) in respect
of the Collateral and the Issuer shall take all action
necessary to obtain
and maintain for the
benefit of the
Indenture Trustee
on
behalf of the
Noteholders the
first Lien on and a first priority perfected
security interest
(other than Permitted
Liens) in the
Collateral. The
Issuer
will from time to time execute and deliver all such supplements and amendments
hereto and all such financing statements, continuation statements,
instruments
of further assurance
and other instruments, and will take such other
action
necessary or advisable to:
(i) Grant more effectively all or any portion of the
Collateral;
(ii) maintain or
preserve the Lien and security interest (and the
first
priority thereof,
except with respect to
Permitted Liens) of
this
Indenture
or carry out more effectively the purposes hereof;
(iii) perfect,
publish notice of or protect the validity of any
Grant made
or to be made by this Indenture;
(iv) enforce any rights under or with respect to the
Collateral;
10
<PAGE>
(v) preserve and defend title to the Collateral and the rights of
the
Indenture Trustee and
the Noteholders in such Collateral against the
claims of
all Persons; or
(vi)
pay all taxes or assessment levied or assessed upon the
Collateral
when due.
The Issuer
hereby designates the Indenture Trustee as its agent and
attorney-in-fact to
execute any financing
statement,
continuation
statement,
instrument of further
assurance or other instrument required to be executed to
accomplish the foregoing. In no event shall the Indenture Trustee
be responsible
for filing or maintaining such financing statements, continuation statements,
instruments of further assurance or other instruments.
SECTION
3.6. Intentionally Omitted.
SECTION
3.7. Performance of Obligations; Servicing of Receivables. (a)
The
Issuer will not take any action and will use commercially
reasonable efforts not
to permit any action to be taken by others that would release any Person from
any material covenants or obligations under any instrument or
agreement included
in the Collateral or that would result in the amendment, hypothecation,
subordination,
termination or
discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as
expressly provided
in this Indenture,
the Sale and Servicing
Agreement or any other
Transaction
Document.
(b) The
Issuer may contract with other Persons (acceptable to the
Facility
Administrator) to
assist it in performing its duties under this Indenture,
and
any performance of such duties by a Person identified to the Indenture
Trustee
and the Facility
Administrator in an Officer's Certificate of the Issuer
shall
be deemed to be action taken by the Issuer. Initially, the Issuer
has contracted
with the Servicer and the Trust Administrator to assist the Issuer
in performing
its duties under this Indenture.
(c) The
Issuer will punctually
perform and observe all of its obligations
and agreements contained in this Indenture, the Transaction
Documents and in the
instruments and
agreements
included in the
Collateral,
including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by this Indenture and the Sale and
Servicing Agreement
in
accordance with and within the time periods provided for herein and
therein.
(d) If the
Issuer shall have
knowledge of the
occurrence
of a Servicer
Termination Event or
Termination Event,
the Issuer shall
promptly notify
the
Indenture Trustee and the Facility Administrator in writing thereof,
and shall
specify in such notice the action, if any, the Issuer is taking with
respect to
such default.
(e) As
promptly as possible
after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to
Article VIII of the
Sale and Servicing
Agreement,
the Back-Up Servicer shall be appointed in
accordance with Article VIII of the Sale and Servicing Agreement. In the event
that the Back-Up Servicer is unable to act as the Successor
Servicer at the time
when the previous
Servicer ceases to act
as Servicer, the
Indenture Trustee
without further action shall automatically be appointed the
Successor Servicer
under the Sale and Servicing Agreement. The Indenture Trustee may resign
as the
Servicer by giving
written notice of such resignation to the Issuer and the
Facility Administrator
and in such event will
be released from such duties and
obligations, such
release not to be effective until the date a Successor
Servicer enters into a
servicing agreement
with the Issuer as provided below.
Upon delivery of any
such notice to the Issuer and the Facility Administrator,
the Issuer shall obtain a new Servicer acceptable to Holders holding at
least a
majority of the Outstanding Amount of the Notes as the Successor
Servicer. Any
Successor Servicer other than the Indenture Trustee shall: (i) be
an established
financial institution
having a net worth of not less than $50,000,000 and whose
regular
11
<PAGE>
business includes the
servicing of receivables and (ii) enter into a
servicing
agreement with the
Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to the Servicer.
If
within 30 days after the delivery of the notice
referred to above,
the Issuer
shall not have obtained such a Successor Servicer, Holders holding at least a
majority of the Outstanding Amount of the Notes may appoint,
or may petition a
court of competent
jurisdiction to appoint, a Successor Servicer. In connection
with any such appointment, Holders holding at least a majority of the
Outstanding Amount of
the Notes may make such arrangements for the compensation
of such Successor
Servicer as they and
such Successor
Servicer shall agree,
subject to the
limitations
set forth below and in the Sale and Servicing
Agreement, and in
accordance
with Article VIII of the Sale and Servicing
Agreement, the Issuer shall enter into an agreement with such
Successor Servicer
for the servicing of the Receivables (such agreement to be in form
and substance
satisfactory to the
Issuer and the Facility Administrator). If the Indenture
Trustee shall
succeed to the
previous Servicer's duties as Servicer of the
Receivables as provided herein, it shall do so in its individual
capacity and
not in its capacity as Indenture Trustee and, accordingly, the provisions of
Article VI hereof shall be inapplicable to the Indenture Trustee in its duties
as the Successor
Servicer and the
servicing of the
Receivables.
In case the
Indenture Trustee
shall become the Successor Servicer under the Sale and
Servicing Agreement,
the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates, provided, that it shall be fully
liable for
the actions and
omissions of any such
Affiliate in its capacity as Successor
Servicer unless the Issuer and the Facility Administrator shall have consented
in writing to the
appointment of such
Affiliate,
which consent shall not be
unreasonably withheld.
(f) Upon
any termination of the
Servicer's rights and
powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture
Trustee and the
Facility Administrator in writing. As soon as a Successor
Servicer is appointed,
the Issuer shall
notify the Indenture
Trustee and the
Facility Administrator
of such appointment,
specifying in such notice the name
and address of such Successor Servicer.
(g)
Without derogating from the absolute nature of the Grant of
Collateral
under this Indenture
or the rights of the
Indenture Trustee hereunder, the
Issuer agrees that it will not, without the prior written consent
of the Holders
holding at least a
majority of the
Outstanding
Amount of the
Notes, amend,
modify, waive,
supplement, terminate
or surrender, or agree
to any amendment,
modification,
supplement, termination, waiver or surrender of, the terms of
any
Collateral (except to
the extent otherwise
provided in the Sale
and Servicing
Agreement) or
the Transaction Documents, or waive timely performance or
observance by the
Servicer, the Trust
Depositor or the
Sellers under the Sale
and Servicing Agreement; provided, however, that no such amendment shall:
(i)
increase or reduce in
any manner the
amount of, or accelerate or delay the
timing of,
distributions that are
required to be made for the benefit of
the
Noteholders, or (ii)
reduce the aforesaid percentage of the Notes that are
required to consent to any such amendment, in either case without
the consent of
the Holders of all the Outstanding Notes. If any such amendment,
modification,
supplement or waiver
shall be so
consented to by such Holders, the Issuer
agrees, promptly
following a request by the Facility Administrator to do so, to
execute and deliver,
in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Facility
Administrator may deem
necessary or appropriate in the circumstances.
SECTION
3.8. Negative Covenants. So long as any Notes are Outstanding,
the
Issuer shall not:
(i) except as expressly permitted by this Indenture or the
Sale and
Servicing
Agreement, sell, transfer, exchange or otherwise dispose of
any
of the
properties or assets of the Issuer, including those included in
the
Collateral; it being
understood
that the Collection Policies do not
provide
for the sale of the Collateral;
12
<PAGE>
(ii) claim any credit on, or make any deduction from the principal
or
interest payable in
respect of, the Notes (other than amounts properly
withheld
from such payments
under the Code or
applicable
State law) or
assert any
claim against any present or former Noteholder by reason of the
payment of
the taxes levied or assessed upon any part of the Collateral;
or
(iii) (A) permit the validity or effectiveness of this Indenture
to
be
impaired, or permit the Lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person
to be
released from any covenants or obligations with respect to the
Notes
under this Indenture
except as may be expressly permitted hereby, or by
the Sale
and Servicing
Agreement or any other Transaction Document, (B)
permit any
Lien (other than the Lien of this Indenture or Permitted Liens)
to be
created on or extend to or otherwise arise upon or burden the
Collateral
or any part
thereof or any
interest therein or the proceeds
thereof or
(C) permit the Lien of this Indenture not to constitute a valid
first
priority (other than with respect to any
Permitted Lien)
security
interest
in the Collateral.
SECTION
3.9. Issuer May Consolidate, etc., Only on Certain Terms. (a)
The
Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the
Person (if other than
the Issuer)
formed by or
surviving
such
consolidation
or merger shall be a Person organized and existing
under
the laws of the
United States of America or any State and shall
expressly
assume,
by an indenture supplemental hereto (in form
satisfactory to the Facility Administrator), executed and delivered
to the
Indenture
Trustee and the
Facility Administrator, the due and punctual
payment of
the principal of and interest on all Notes and the performance
or
observance of every
agreement and covenant of this Indenture on the
part of
the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default
or Event
of Default shall have occurred and be continuing;
(iii) the Issuer shall
have received an Opinion of Counsel (and
shall have
delivered copies thereof to the Indenture Trustee and the
Facility
Administrator) to the
effect that such transaction will not have
any
material adverse
consequence (tax or
otherwise) to the Issuer or any
Noteholder;
(iv) any action that is necessary to maintain the Lien and
security
interest
created by this
Indenture (including
the first ranking priority
thereof,
except with respect to Permitted Liens) shall have been taken;
(v) the Issuer shall have delivered to the Indenture Trustee and
the
Facility
Administrator an
Officer's Certificate and an Opinion of Counsel
each
stating that such consolidation or merger and such supplemental
indenture
comply with this
Article III and that all conditions precedent
herein
provided for relating to such transaction have been complied with
(including, if applicable, any filing required under the Exchange
Act);
(vi) the Person (if other than the Issuer) formed by or surviving
such
consolidation
or merger has a net worth, immediately after such
consolidation or
merger, that is (A)
greater than zero and
(b) not less
than the
net worth of the
Issuer immediately
prior to giving
effect to
such
consolidation or merger; and
(vii) the
Noteholders shall have consented thereto in writing.
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(b)
Except as specifically contemplated by or permitted under the
Transaction Documents,
the Issuer shall not convey or transfer any of its
properties including those included in the Collateral, to any
Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties
and assets of the Issuer the conveyance or transfer of which is
hereby
restricted
shall: (A) be a United States citizen or a Person
organized
and existing
under the laws of the
United States of America or
any State,
(B) expressly
assume, by an indenture supplemental hereto,
executed
and delivered to the Indenture Trustee and the Facility
Administrator, in form satisfactory to the Facility Administrator,
the due
and
punctual payment of the principal of and interest on all Notes and
the
performance or
observance
of every agreement and covenant of this
Indenture
on the part of the Issuer to be performed or observed, all as
provided
herein, (C) expressly agree by means of such supplemental
indenture
that all right,
title and interest so
conveyed or
transferred
shall be
subject and subordinate to the rights of Holders of the Notes
and
the
Facility Administrator as set forth herein, (D) unless otherwise
provided
in such supplemental
indenture,
expressly agree to indemnify,
defend and
hold harmless the Issuer against and from any loss,
liability
or expense
arising under or related to this
Indenture and the
Notes and
(E)
if applicable, expressly agrees by means of such supplemental
indenture
that such Person (or
if a group of Persons,
then one specified
Person)
shall make all filings with the Commission (and any other
appropriate Person)
required by the
Exchange Act in connection with the
Notes;
(ii) immediately after giving effect to such transaction, no
Default
or Event
of Default shall have occurred and be continuing;
(iii) the Issuer shall
have received an Opinion of Counsel (and
shall have
delivered copies thereof to the Indenture Trustee and the
Facility
Administrator) to the
effect that such transaction will not have
any
material adverse
consequence (tax or
otherwise) to the Issuer or any
Noteholder;
(iv) any action that is necessary to maintain the Lien and
security
interest
created by this
Indenture (including
the first ranking priority
thereof,
except with respect to Permitted Liens) shall have been taken;
(v) the
Issuer shall have delivered to the Indenture Trustee and the
Facility
Administrator an
Officer's Certificate and an Opinion of Counsel
each
stating that such conveyance or transfer and such supplemental
indenture
comply with this Article and that all conditions precedent
herein
provided for relating to such transaction have been complied with
(including, if applicable, any filing required under the Exchange
Act);
(vi) the Issuer has a net worth, immediately after such conveyance
or
transfer, that is (A) greater than zero and
(B) not less than the net
worth of
the Issuer immediately
prior to giving effect to such conveyance
or
transfer; and
(vii) the Noteholders shall have consented thereto in writing.
SECTION
3.10. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.9(a),
the Person formed by
or
surviving such
consolidation or merger (if other than the Issuer) shall
succeed
to, and be substituted
for, and may exercise every right and power of, the
Issuer under this
Indenture with the same effect as if such Person had been
named as the Issuer herein.
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(b) Upon a
conveyance or transfer of all the assets and properties of the
Issuer pursuant
to Section
3.9(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or
performed on the part
of the Issuer with respect to the Notes immediately upon the
delivery of written
notice to the Indenture Trustee, the Noteholders and the Facility
Administrator
stating that the Issuer is to be so released.
SECTION
3.11. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing of
the
Receivables in the manner contemplated by this Indenture and the Transaction
Documents and activities incidental thereto.
SECTION
3.12. No Borrowing.
The Issuer shall not
issue, incur,
assume,
guarantee or
otherwise become liable, directly or indirectly, for any
indebtedness secured by the Collateral, except for the Notes.
SECTION
3.13. Servicer's
Obligations.
The Issuer shall use
commercially
reasonable efforts to
cause the Servicer to comply with its obligations under
the Sale and Servicing Agreement.
SECTION
3.14. Guarantees, Loans, Advances and Other Liabilities. Except
as
contemplated by this Indenture and the other Transaction
Documents,
the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring
another's payment
or performance
on any obligation or capability of so doing or otherwise),
endorse or otherwise
become contingently
liable, directly or indirectly,
in
connection with the
obligations,
stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock,
obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION
3.15. Capital Expenditures. The Issuer shall not make any
expenditure (by
long-term or operating
lease or otherwise)
for capital assets
(either realty or personalty).
SECTION
3.16. Notice of
Defaults and Events of Default. The Issuer shall
give the Indenture Trustee and the Facility Administrator prompt written
notice
of each Default
and Event of Default (of which it has actual knowledge)
hereunder and each
default of which it has actual knowledge on the part of the
Servicer or
the Seller of its obligations under the Sale and Servicing
Agreement.
SECTION
3.17. Further
Instruments and Acts. Upon request of the Indenture
Trustee or the Facility Administrator, the Issuer will execute and
deliver such
further instruments
and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this
Indenture.
SECTION
3.18. Compliance with Laws. The Issuer shall comply with the
requirements of all
applicable
laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect
the ability of
the Issuer to perform its obligations under the Notes, this Indenture or any
other Transaction Document.
SECTION
3.19. Tax Treatment.
The Issuer has structured this Indenture and
the Notes with the
intention that the Notes will qualify under applicable
federal, state and
local tax law as
indebtedness. The
Issuer and each
Holder
agrees to treat, and
take no action
inconsistent with the
treatment of, the
Notes (or any
beneficial interest
therein) as
indebtedness
for purposes of
federal, state and
local income or franchise taxes and any other tax imposed on
or measured by income. Each Holder, by acquisition of a beneficial
interest in a
Note, agrees to be bound by the provisions of this Section
3.19.
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<PAGE>
SECTION
3.20. Investment Company Act. The Issuer shall conduct its
operations in a
manner that will not subject it to registration as an
"investment company" under the Investment Company Act of 1940, as
amended.
SECTION
3.21. Conduct of Business. The Issuer shall (a) conduct its
business solely in its own name through its duly authorized officers or agents
so as not to mislead
others as to the
identity of the Issuer
with which those
others are concerned,
and particularly shall
use its best efforts to avoid the
appearance of
conducting
business on behalf of
the Sellers or any
Affiliate
thereof or that the assets of the Issuer are available to pay the creditors of
the Sellers or any Affiliate thereof or any other entity;
(b) maintain
records
and books of account separate from those of the Sellers or any
Affiliate thereof
or any other entity;
(c) use its best
efforts to maintain an arm's-length
relationship with the Sellers or any Affiliate thereof and shall
not hold itself
out as being liable for the debts of the Sellers or any Affiliate
thereof or any
other entity;
(d) use its best
efforts to keep its assets and its liabilities
wholly separate from those of all other entities, including the Sellers or any
Affiliate thereof, except as otherwise anticipated by the
Transaction Documents;
(e) not maintain
bank accounts or other depository accounts to which any
Affiliate is an account party, into which any Affiliate
makes deposits or
from
which any Affiliate
has the power to make withdrawals, except as otherwise
permitted by
the Sale and Servicing Agreement; (f) shall obtain proper
authorization for all
the Issuer's actions
requiring such
authorization; (g)
shall obtain
proper authorization from the Sellers for all action
requiring
approval of the Sellers; (h) shall pay operating
expenses and
liabilities from
the Issuer's own funds; (i) shall disclose in its annual
financial statements
the effects of the
Issuer's transactions
under the Transaction Documents in
accordance with GAAP
and shall disclose
that the assets of the
Issuer are not
available to pay creditors of the Sellers; and (j) shall continuously
maintain
the resolutions,
agreements and other
instruments underlying
the transactions
described in the Transaction Documents as official records.
SECTION
3.22. Annual Statement
as to Compliance. The
Issuer will deliver
to the Indenture Trustee and the Facility Administrator, within 120 days after
the end of each fiscal year of the Issuer (commencing with the
fiscal year ended
December 31, 2006),
an Officer's Certificate, substantially in the form of
Exhibit B, stating that:
(i) a review of the activities of the Issuer during such year and
of
performance under this
Indenture has been made under such Authorized
Officers'
supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on
such
review, the Issuer has
complied with all
conditions
and covenants
under this
Indenture throughout
such year or, if there has been a default
in the
compliance of any such condition or covenant, specifying each such
default
known to such
Authorized
Officers and the nature and status
thereof.
SECTION
3.23. Representations
and Warranties of the Issuer.
The Issuer
represents and warrants as follows:
(a) Power
and Authority. It has
full power, authority
and legal right to
execute, deliver and
perform its obligations as Issuer under this Indenture and
the Notes and the other Transaction Documents to which it is a party
(the
foregoing documents, the "Issuer Documents").
(b) Due
Authorization. The
execution and delivery of the Issuer Documents
and the consummation
of the transactions provided for therein have been
duly
authorized by all necessary action on its part.
(c) No
Conflict. The
execution and delivery of the Issuer Documents, the
performance of the transactions contemplated thereby and the
fulfillment of the
terms thereof
will not conflict with, result in
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any breach of any of the material terms and provisions of, or constitute
(with
or without
notice or lapse of
time or both) a default under, any indenture,
contract, agreement,
mortgage, deed of
trust, or other instrument to which the
Issuer is a party or by which it or any of its property is
bound.
(d) No
Violation. The
execution and delivery of the Issuer Documents, the
performance of the transactions contemplated thereby and the
fulfillment of the
terms thereof will not conflict with or violate, in any material respect, any
Requirements of Law applicable to the Issuer.
(e) All
Consents Required. All approvals, authorizations, consents,
orders
or other actions of
any Person or any
Governmental Authority
required to be
obtained by the Issuer in connection with the execution and delivery of the
Issuer Documents, the
performance of the transactions contemplated thereby and
the fulfillment of the terms thereof have been obtained.
(f)
Location. The Issuer has its chief executive office and place of
business (as such
terms are used in Article 9 of the UCC) in Wilmington,
Delaware. The Issuer
agrees that it will not change the location of such office
to a location outside
of Wilmington,
Delaware, without at
least 30 days prior
written notice to the
Facility
Administrator, the
Servicer and the
Indenture
Trustee, and then only within the United States.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION
4.1. Satisfaction and Discharge of Indenture. This Indenture
shall
cease to be of further effect with respect to the Notes except as
to: (i) rights
of registration
of transfer and
exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments
of principal thereof
and interest thereon,
(iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of
the Indenture
Trustee hereunder
(including the rights
of the Indenture Trustee under Section
6.7 and the obligations of the Indenture Trustee under Section 4.2)
and (vi) the
rights of Noteholders
as beneficiaries
hereof with respect to
the property so
deposited with the
Indenture Trustee payable to all or any of them,
and the
Indenture Trustee, on demand of and at the expense of the Issuer,
shall execute
proper instruments
acknowledging
satisfaction and
discharge of this Indenture
with respect to the Notes, when:
(A) either:
(1) all Notes
theretofore
authenticated and delivered (other
than Notes that have
been destroyed,
lost or stolen and
that have
been replaced
or paid as provided in Section 2.5) have been
delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trust
for cancellation have become due and payable in full;
(B) the Issuer has paid or caused to be paid (solely through
Available Amounts
or pursuant to Section 11.2 of the Sale and
Servicing Agreement)
all other sums payable hereunder by the Issuer
in accordance with the provisions of the Transaction Documents;
and
(C) the Issuer has delivered to the Indenture Trustee and the
Facility Administrator
an Officer's
Certificate and an
Opinion of
Counsel, each meeting the applicable requirements of Section
11.1(a)
and, subject to
Section 11.2,
each stating that
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all conditions
precedent herein provided for relating to the
satisfaction and
discharge of this
Indenture have been complied
with.
SECTION
4.2. Application
of Trust Money.
All moneys
deposited with the
Indenture Trustee
pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes, this Indenture and the Sale
and Servicing Agreement, to the payment, either directly or through any
Paying
Agent, as the Facility
Administrator
shall determine, to the Holders of the
particular Notes for
the payment or
redemption of which
such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due
thereon
for principal and
interest; but such
moneys need not be segregated from other
funds except
to the extent required herein or in the Sale and Servicing
Agreement or as required by law.
SECTION
4.3. Repayment of
Moneys Held by Paying Agent. In connection with
the satisfaction and
discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture
Trustee under this
Indenture with respect to such Notes shall, upon demand of the Issuer,
be paid
to the Indenture
Trustee to be held and
applied according to
Section 3.3, and
thereupon such Paying
Agent shall be released from all further liability with
respect to such moneys.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
SECTION
5.1. Events of Default. "Event of Default", wherever used herein,
means any one of the
following events
(whatever the reason for such Event of
Default and
whether it shall be
voluntary or involuntary or be effected by
operation of law or
pursuant to any
judgment, decree or
order of any court or
any order, rule or regulation of any administrative or governmental
body):
(i) default in the payment of any principal, interest or any other
amounts in
respect of any Note when the same becomes due and payable,
and
such
default shall continue for a period of three (3)
Business Days;
provided,
however, in the event of a Force Majeure Delay, the grace
period
shall be
extended up to ten (10) additional Business Days as appropriate
and
provided further that no grace period shall
apply to the payment due
on the Note
Final Scheduled Maturity Date other than in the event of
a
Force
Majeure Delay;
(ii) default in the
observance or
performance
of any covenant or
agreement
of the Issuer made in
any Transaction
Document (other than a
covenant
or agreement a default in the observance or performance of
which
is
elsewhere
in this Section specifically dealt with), or any
representation or
warranty of the Issuer made in this Indenture or in any
certificate or other
writing delivered
pursuant hereto or in connection
herewith
proving to have been
incorrect in any material respect which
adversely
affects the
Noteholders as of the time when the same shall have
been
made, and such default shall continue or not be cured, or the
circumstance or
condition in respect of which such misrepresentation or
warranty
was incorrect shall not have been eliminated or otherwise
cured,
for a
period of 30 days after there shall have been given, by registered
or
certified mail, to the Issuer by the Indenture Trustee or the Facility
Administrator, or to
the Issuer,
the Facility Administrator, and the
Indenture
Trustee by the Holders of more than 50% of the Outstanding
Amount of
the Notes, a written notice specifying such default or
incorrect
representation or
warranty and
requiring it to be remedied and stating
that such
notice is a "Notice of Default" hereunder;
(iii) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of any of the Issuer,
any Seller,
the
Servicer or the Club Trustee or any substantial part of such Person's
property
in an involuntary case under any applicable Federal or
18
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State
bankruptcy,
insolvency
or other similar law now or hereafter in
effect,
or appointing a receiver, liquidator, assignee, custodian,
trustee,
sequestrator
or similar official of such Person or for any
substantial part
of its property, or ordering the winding-up or
liquidation of such
Person's affairs, and such d
