Exhibit 10.188
EXECUTION COPY
(Bluegreen to Depositor - Closing Date Eligible Investments,
Initial Timeshare Loans and Subsequent Timeshare Loans)
PURCHASE AND CONTRIBUTION AGREEMENT
This PURCHASE AND CONTRIBUTION AGREEMENT (this "Agreement"),
dated
as of September 15, 2007, is by and among Bluegreen Corporation, a
Massachusetts
corporation
("Bluegreen" or a "Seller") and BRF Corporation 2007-A, a Delaware
corporation (the
"Depositor") and their
respective
permitted successors and
assigns.
W I T N E S S E T H:
WHEREAS, on the Closing Date, the Depositor, as seller, intends to
enter into that certain Sale Agreement dated as of September 15,
2007 (the "Sale
Agreement"), by and between the Depositor and BXG Receivables Note
Trust 2007-A,
a Delaware
statutory trust (the "Issuer") pursuant to which the Depositor
intends to
sell to the Issuer the timeshare loans and certain eligible
investments acquired
pursuant to the terms
of this Agreement and certain other
timeshare loans
acquired by the
Depositor pursuant to a transfer
agreement,
dated as of September
15, 2007, by and among the Depositor, Bluegreen and BXG
Timeshare Trust I from time to time pursuant to the terms
thereof;
WHEREAS, on the
Closing Date,
Bluegreen intends to enter into that
certain Indenture dated as of September 15, 2007 (the "Indenture"),
by and among
the Issuer, Bluegreen, as servicer (in such capacity, the
"Servicer"),
Vacation
Trust, Inc.,
a Florida corporation, as club trustee (the "Club Trustee"),
Concord Servicing
Corporation,
as backup servicer, and U.S. Bank National
Association, as
indenture trustee (the "Indenture Trustee"), paying agent and
custodian, whereby the
Issuer will pledge the
Trust Estate (as
defined in the
Indenture) to the
Indenture Trustee to secure the Issuer's
5.828% Timeshare
Loan-Backed Notes, Series 2007-A, Class A, 6.474% Timeshare
Loan-Backed Notes,
Series 2007-A, Class B, 7.463% Timeshare Loan-Backed Notes, Series
2007-A, Class
C, 7.611% Timeshare
Loan-Backed Notes, Series 2007-A, Class D, 8.283% Timeshare
Loan-Backed Notes, Series 2007-A, Class E, 9.680% Timeshare
Loan-Backed Notes,
Series 2007-A, Class F
and 11.149% Timeshare
Loan-Backed Notes, Series 2007-A,
Class G (collectively, the "Notes");
WHEREAS, (A) on the Closing Date (i) the Seller desires to sell,
and
the Depositor desires to purchase Timeshare Loans originated by the
Seller or an
Affiliate thereof (the "Initial Timeshare Loans") and the Closing
Date Eligible
Investments and (ii)
Bluegreen,
as the sole shareholder of the Depositor,
desires to make a contribution of capital pursuant to the terms hereof and
(B)
on each Transfer Date
during the Prefunding
Period (i) the Seller
desires to
sell, and the Depositor desires to purchase Timeshare Loans originated by the
Seller or an Affiliate
thereof (the "Subsequent Timeshare Loans") and (ii)
Bluegreen, as
the sole shareholder of the Depositor, desires to make a
contribution of capital pursuant to the terms hereof;
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WHEREAS, pursuant
to the terms of (i) the Sale Agreement, the
Depositor shall sell
to the Issuer the Initial Timeshare Loans and the
Closing
Date Eligible Investments on the Closing Date and any Subsequent
Timeshare Loans
acquired from the
Seller and (ii) the
Indenture, the Issuer
shall pledge the
Initial Timeshare
Loans, the Closing Date Eligible Investments and the
Subsequent Timeshare
Loans, as part of the Trust Estate, to the Indenture
Trustee to secure the Notes;
WHEREAS, the
Seller may, and in certain circumstances will be
required, to cure,
repurchase or
substitute and provide
one or more Qualified
Substitute Timeshare
Loans for a Timeshare
Loan that is a Defective Timeshare
Loan, previously
sold to the Depositor
hereunder and pledged
to the Indenture
Trustee pursuant to the Indenture;
WHEREAS, to
the extent the Seller has breached certain
representations
and warranties
herein,
the Seller may, and in certain
circumstances will,
be required to
repurchase
certain Closing Date Eligible
Investments previously
sold to the
Depositor hereunder and pledged to the
Indenture Trustee pursuant to the Indenture; and
WHEREAS, the
Depositor may, at the direction of the Seller, be
required to exercise the Seller's option to purchase or replace
Timeshare Loans
that become subject to an Upgrade or Defaulted Timeshare Loans previously sold
to the Issuer and pledged to the Indenture Trustee pursuant to the
Indenture.
NOW, THEREFORE,
in consideration of
the mutual covenants set forth
herein, and for other
valuable
consideration, the
receipt and
sufficiency of
which are hereby acknowledged, the parties hereto covenant and
agree as follows:
Definitions;
Interpretation.
Capitalized terms used
but not
defined herein
shall have the
meanings specified
in "Standard Definitions"
attached as Annex A to the Indenture.
Acquisition of
Timeshare Loans and Closing Date Eligible
Investments and Contribution of Capital to the Depositor.
Timeshare Loans and
Contribution of
Capital. On the
Closing
Date (with respect to
the Initial Timeshare
Loans) and on each
Transfer Date
during the Prefunding
Period (with respect to the Subsequent Timeshare Loans),
the Seller
hereby agrees to (x) sell in part and
contribute
in part to the
Depositor in return for the Timeshare Loan Acquisition Price for each Timeshare
Loan to be sold on the Closing Date or such Transfer Date, as
applicable, to be
paid in part in cash and in part as an increase in its equity
ownership of the
Depositor and (y) transfer, assign, sell and grant to the Depositor, without
recourse (except as provided in Section 6 and Section 8 hereof),
any and all of
the Seller's right,
title and interest in and to (i) any Timeshare Loans listed
on Schedule III hereto or the related Subsequent Transfer Notice,
as applicable,
(ii) the Receivables
in respect of such
Timeshare Loans due
after the related
Cut-Off Date, (iii) the related Timeshare Loan Documents
(excluding any
rights
as developer or declarant under the Timeshare Declaration, the
Timeshare Program
Consumer Documents or
the Timeshare
Program Governing Documents), (iv) all
Related Security
in respect of each
such Timeshare
Loan and (v) all
income,
payments, proceeds
and other benefits and rights related to any of the
foregoing.
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Upon such contribution, sale and transfer, the ownership
of each Timeshare Loan
and all collections
allocable to
principal and interest thereon after the
related Cut-Off
Date and all
other property interests or rights conveyed
pursuant to and
referenced in this Section 2(a) shall immediately vest in the
Depositor, its
successors
and assigns. The Seller shall not take any
action
inconsistent with
such ownership nor claim any ownership interest in any
Timeshare Loan for any
purpose whatsoever other than for federal and state
income tax reporting,
if applicable. The parties to this Agreement hereby
acknowledge that the
"credit risk" of the Timeshare Loans conveyed hereunder
shall be borne by the Depositor and its subsequent assignees.
Closing Date Eligible
Investments.
On the Closing
Date, in
return for an amount equal to the sum of the Prefunding
Account Initial
Deposit
and the Capitalized
Interest Account
Initial Deposit,
the Seller does
hereby
transfer, assign, sell
and grant to the Depositor, without recourse (except as
provided in Section 6 and Section 8 hereof), any and all of the Seller's
right,
title and interest in and to the Closing Date Eligible Investments
(the property
in Section 2(a) and this Section 2(b), the "Assets"). The Seller shall not take
any action
inconsistent with such ownership nor claim any ownership interest
in
any Closing Date Eligible Investment for any purpose
whatsoever other than
for
federal and state income tax reporting, if applicable.
Delivery of Timeshare Loan Documents. In connection with the
contribution, sale,
transfer, assignment and conveyance of any
Timeshare Loan
hereunder, the Seller
hereby agrees to deliver or cause to be delivered, on the
Closing Date
(with respect to any Initial Timeshare Loan), at least five
Business Days prior to
each Transfer Date
during the Prefunding
Period (with
respect to any
Subsequent Timeshare
Loan) and on or within
five Business Days
from each Transfer
Date (with respect to
any Qualified
Substitute
Timeshare
Loan), as applicable,
to the Custodian all related Timeshare Loan Files and to
the Servicer all related Timeshare Loan Servicing Files.
Collections. The Seller shall deposit or cause to be deposited
all collections
in respect of
Timeshare Loans received by the Seller or its
Affiliates after the
related Cut-Off
Date in the Lockbox
Account and, with
respect to Credit Card
Timeshare Loans, direct each applicable credit card
vendor to deposit all payments in respect of such Credit Card
Timeshare Loans to
the Credit Card Account (net of the Servicer Credit Card Processing
Costs).
Limitation of
Liability.
Neither
the Depositor nor any
subsequent assignee of the Depositor shall have any obligation or
liability with
respect to any Timeshare Loan nor shall the Depositor or any
subsequent assignee
have any liability
to any Obligor in
respect of any
Timeshare Loan.
No such
obligation or
liability is intended to be assumed by the Depositor or any
subsequent assignee
herewith and any such liability is hereby expressly
disclaimed.
Intended
Characterization;
Grant of Security Interest. It is
the intention
of the parties hereto that each transfer of the Closing
Date
Eligible Investments and Timeshare Loans to be made pursuant to the
terms hereof
shall constitute a
sale, in part, and a capital contribution, in part, by the
Seller to the
Depositor and not a
loan secured by the
Closing Date
Eligible
Investments and the
Timeshare Loans.
In the event,
however, that a court of
competent jurisdiction
were to hold that any
such transfer
constitutes a loan
and not a sale and contribution,
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it is the intention
of the parties
hereto that the Seller
shall be deemed to
have granted to the Depositor as of the date hereof a first
priority perfected
security interest in
all of the Seller's
right, title and
interest in, to and
under the Assets specified in Section 2 hereof and the proceeds
thereof and that
with respect to such
transfer, this Agreement shall constitute a security
agreement under applicable law. In the event of the
characterization of any such
transfer as a loan, the amount of interest payable or paid with respect to
such
loan under the terms of this Agreement shall be limited to an
amount which shall
not exceed the maximum
non-usurious rate of
interest allowed by the applicable
state law or any applicable law of the United States permitting a
higher maximum
non-usurious rate that
preempts such applicable state law, which could lawfully
be contracted for, charged or received (the "Highest Lawful Rate").
In the event
any payment of interest on any such loan exceeds the Highest
Lawful Rate, the
parties hereto
stipulate that (a) to the extent possible given the term of
such
loan, such excess amount previously paid or to be paid with respect
to such loan
be applied to reduce
the principal
balance of such loan,
and the provisions
thereof immediately be
deemed reformed and the amounts thereafter collectible
thereunder reduced,
without the necessity of the execution of any new document,
so as to comply with the then applicable law, but so as to permit the
recovery
of the fullest amount otherwise called for thereunder and (b) to
the extent that
the reduction of the principal balance of, and the amounts
collectible
under,
such loan and the reformation of the provisions thereof described in the
immediately preceding
clause (a) is not
possible given the
term of such loan,
such excess amount will be deemed to have been paid with respect to
such loan as
a result of an error and upon discovery of such error or upon
notice thereof by
any party hereto such amount shall be refunded by the recipient
thereof.
The
characterization
of the Seller as "debtor" and the Depositor as
"secured party"
in any such security agreement and any related financing
statements required
hereunder is solely for protective purposes and shall in no
way be construed
as being contrary to the intent of the parties that this
transaction be
treated as a sale and contribution to the Depositor of the
Seller's entire right, title and interest in and to the Assets.
Each of
the Seller, the Club, the Club Trustee and any of their
Affiliates
hereby agrees to make the appropriate entries in its general accounting
records
to indicate that the Closing Date Eligible Investments and the Timeshare Loans
have been transferred to the Depositor and its subsequent
assignees.
Conditions Precedent
to Acquisition
of Timeshare
Loans and
Closing Date Eligible
Investments by the
Depositor.
The obligations of the
Depositor to purchase any Timeshare Loans and Closing Date Eligible
Investments
hereunder shall be subject to the satisfaction of the following
conditions:
On the Closing Date,
with respect to the Initial
Timeshare
Loans, and on each Transfer Date, with respect to each Subsequent
Timeshare Loan
or any Qualified
Substitute Timeshare
Loan replacing a Timeshare Loan, all
representations and
warranties of the
Seller contained in
Section 5(a) hereof
shall be true
and correct on such date as if made on such date, and all
representations and
warranties as to the Timeshare Loans contained in Section
5(b) hereof and all
information provided
in the Schedule of Timeshare Loans in
respect of each
such Timeshare Loan conveyed on the Closing Date or such
Transfer Date,
as applicable, shall be true
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<PAGE>
and correct on such date. On the Closing Date, with respect to the Closing
Date
Eligible Investments, all representations and warranties of the
Seller contained
in Section 5(a) hereof shall be true and correct on such date as if
made on such
date, and all
representations
and warranties as to the Closing Date
Eligible
Investments contained in Section 5(b) hereof and all information
provided in the
Schedule of Eligible
Investments in respect
of each such Closing Date Eligible
Investment conveyed on the Closing Date shall be true and correct
on such date.
On or prior to the Closing Date or a Transfer Date (or, with
respect to Qualified Substitute Timeshare Loans, as provided for in
Section 6(g)
hereof), as applicable, the Seller shall have delivered or shall
have caused the
delivery of (i) the
related Timeshare Loan Files to the Custodian and the
Custodian shall have delivered a Custodian's Certification therefor pursuant
to
the Custodial
Agreement and (ii) the Timeshare
Loan Servicing Files to the
Servicer.
The Seller shall have
delivered or caused to be delivered all
other information
theretofore required or reasonably requested by the Depositor
to be delivered by the
Seller or performed or caused to be performed all other
obligations required to be performed as of the Closing Date or
Transfer Date, as
the case may be, including all filings, recordings and/or registrations as may
be necessary
in the reasonable opinion of the Depositor, the Issuer or the
Indenture Trustee to establish and preserve the right, title and
interest of the
Depositor, the
Issuer or the Indenture Trustee, as the case may be, in the
related Timeshare Loans and Closing Date Eligible Investments.
On or before the Closing Date and on each Transfer Date, the
Indenture shall be in full force and effect.
With respect to the Initial Timeshare Loans, the Notes shall
be issued and sold on the Closing Date, and the Issuer and the Depositor
shall
receive the full
consideration due it
upon the issuance of the Notes, and the
Issuer and the Depositor shall have applied their respective consideration to
the extent necessary,
to pay the
Timeshare Loan Acquisition Price for each
Initial Timeshare Loan and to pay for the Closing Date Eligible
Investments;
With respect to the Subsequent Timeshare Loans, the Depositor
shall apply
funds received from the Issuer withdrawn from the Prefunding
Account, to the
extent necessary, to pay the Seller the Timeshare Loan
Acquisition Price for each Subsequent Timeshare Loan.
Each Timeshare Loan conveyed on the Closing Date or a Transfer
Date shall be an Eligible Timeshare Loan and each of the
conditions herein
and
in the Indenture for
the purchases of Initial Timeshare Loans and Subsequent
Timeshare Loans shall have been satisfied.
Each Qualified Substitute Timeshare Loan replacing a Timeshare
Loan shall
satisfy each of the criteria specified in the definition of
"Qualified Substitute
Timeshare Loan" and
each of the conditions herein and in
the Indenture for substitution of Timeshare Loans shall have been
satisfied.
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<PAGE>
The Depositor shall have received such other certificates and
opinions as it shall reasonably request.
Representations and
Warranties and Certain
Covenants of the
Seller.
The Seller represents
and warrants to the
Depositor and the
Indenture Trustee for the benefit of the Noteholders, on the
Closing Date and on
each Transfer Date (with respect to any Subsequent Timeshare Loans or Qualified
Substitute Timeshare Loans transferred on such Transfer Date) as
follows:
(i) Due Incorporation; Valid Existence; Good Standing. It is a
corporation duly organized and validly existing in good standing
under the
laws of
the jurisdiction of its incorporation; and is duly qualified to
do
business
as a foreign
corporation and in
good standing under the laws of
each
jurisdiction where the
character of its property, the nature of its
business
or the performance of its obligations under this Agreement makes
such
qualification necessary, except where the failure to be so
qualified
will not
have a material
adverse effect on its business or its ability to
perform
its obligations
under this
Agreement or any other Transaction
Document
to which it is a party
or under the
transactions
contemplated
hereunder
or thereunder or the validity or enforceability of any
Timeshare
Loans.
(ii) Possession
of Licenses,
Certificates,
Franchises
and
Permits.
It holds, and at all times during the term of this Agreement
will
hold, all
material licenses, certificates, franchises and permits from
all
governmental
authorities necessary
for the conduct of its business, and
has
received no notice of
proceedings relating
to the revocation of
any
such
license, certificate, franchise or permit, which singly or in the
aggregate,
if the subject of an
unfavorable decision,
ruling or finding,
would
materially
and adversely affect its ability to perform its
obligations under this
Agreement or any other Transaction Document to
which it
is a party or under the transactions contemplated hereunder or
thereunder
or the validity or enforceability of any Timeshare Loans.
(iii) Corporate
Authority and Power. It has, and at all times
during the
term of this Agreement will have, all requisite corporate power
and
authority to own its properties, to conduct its business,
to execute
and
deliver this Agreement and all documents and transactions
contemplated
hereunder
and to perform all of its obligations under this Agreement and
any
other Transaction Document to which it is a party or under the
transactions
contemplated hereunder
or thereunder. It has
all requisite
corporate
power and authority to acquire, own, transfer and convey
Timeshare
Loans to the Depositor.
(iv) Authorization,
Execution and Delivery
Valid and Binding.
This
Agreement and all other Transaction Documents and instruments
required
or contemplated
hereby to be executed
and delivered by it
have
been duly
authorized, executed
and delivered by it and, assuming the due
execution
and delivery by, the other party or parties hereto and thereto,
constitute
legal, valid and binding agreements enforceable against it in
accordance
with their respective terms subject, as to enforceability, to
bankruptcy,
insolvency,
reorganization, liquidation,
dissolution,
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moratorium and
other similar applicable laws affecting the
enforceability of
creditors'
rights generally applicable in the
event of the bankruptcy, insolvency, reorganization, liquidation or
dissolution, as
applicable,
of it and to
general principles of
equity,
regardless of
whether such enforceability shall be
considered in a
proceeding
in equity or at law. This Agreement
constitutes a valid transfer of its interest in the Timeshare
Loans
to the Depositor
or, in the event of
the characterization
of any
such transfer as a
loan, the valid
creation of a first priority
perfected security
interest in such Timeshare Loans in favor of the
Depositor.
(v) No Violation of Law, Rule, Regulation, etc. The execution,
delivery
and performance by it of this Agreement and any other
Transaction
Document
to which it is a party do not and will not (A) violate any of
the
provisions
of its articles of
incorporation
or bylaws,
(B) violate any
provision
of any law,
governmental rule or regulation currently in effect
applicable
to it or its properties or by which the Seller or its
properties
may be bound or affected, including, without limitation, any
bulk
transfer laws,
where such violation
would have a material
adverse
effect on
its ability to perform its obligations under this Agreement or
any
other Transaction Document to which it is a party or under the
transactions
contemplated hereunder
or thereunder or the validity or
enforceability of the
Timeshare Loans, (C) violate any judgment, decree,
writ,
injunction,
award, determination or order currently in effect
applicable
to it or its
properties or by which it or its properties are
bound or
affected, where such violation would have a material adverse
effect on
its ability to perform its obligations under this Agreement or
any other Transaction Document to which it is a party or under the
transactions
contemplated hereunder
or thereunder or the validity or
enforceability of any
Timeshare Loans, (D)
conflict with, or result in a
breach of,
or constitute a
default under,
any of the
provisions of any
indenture,
mortgage, deed of
trust, contract or other instrument to which
it is a
party or by which it is bound where such violation would have a
material
adverse effect on its
ability to perform its
obligations under
this
Agreement or any other Transaction Document to which it is a party
or
under
the transactions contemplated hereunder or thereunder or the
validity
or enforceability of Timeshare Loans or (E) result in the
creation
or imposition of any Lien upon any of its properties pursuant to
the terms
of any such indenture,
mortgage, deed of trust, contract or
other
instrument.
(vi) Governmental
Consent. No consent, approval, order or
authorization of,
and no filing
with or notice
to, any court or other
Governmental Authority
in respect of the Seller is required which has not
been
obtained in connection with the authorization, execution, delivery
or
performance by it of
this Agreement or any of the other Transaction
Documents
to which it is a party
or under the
transactions
contemplated
hereunder
or thereunder,
including, without
limitation, the
transfer of
Timeshare
Loans and the creation of the security interest of the
Depositor
therein
pursuant to Section 3 hereof.
(vii) Defaults.
It is not in default under any material
agreement,
contract, instrument
or indenture to which it is a party or by
which it
or its properties is
or are bound, or with
respect to any order
of any
court, administrative
agency, arbitrator or
governmental body, in
each case,
which would have a
material adverse effect on the
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transactions
contemplated hereunder
or on its business, operations,
financial
condition or assets, and no event has occurred which with
notice
or lapse
of time or both would
constitute such a
default with respect to
any such
agreement, contract,
instrument or indenture, or with respect to
any
such order of any court, administrative agency, arbitrator or
governmental body.
(viii) Insolvency.
It is solvent and will not be rendered
insolvent
by the transfer of any Timeshare Loans hereunder. On and after
the
Closing Date, it will
not engage in any business or transaction the
result of
which would cause the property remaining with it to constitute
an
unreasonably small amount of capital.
(ix) Pending
Litigation or Other
Proceedings. Other
than as
described
in the Offering
Circular and on Schedule 5 attached hereto, as
of the
Closing Date, there is no pending or, to its Knowledge,
threatened
action,
suit, proceeding or investigation before any court,
administrative
agency,
arbitrator or
governmental body against or affecting it which, if
decided
adversely, would materially and adversely affect (A) its
condition
(financial
or otherwise), business or operations, (B) its ability to
perform
its obligations under,
or the validity or enforceability of, this
Agreement or any other
documents or transactions contemplated under this
Agreement,
(C) any Timeshare
Loan or title of any
Obligor to any related
Timeshare
Property pursuant to the applicable Owner Beneficiary Agreement
or (D) the
Depositor's
or any of its
assigns' ability to foreclose or
otherwise
enforce the liens of
the Mortgage
Notes and the rights
of the
Obligors
to use and occupy the related Timeshare Properties pursuant to
the
applicable Owner Beneficiary Agreement.
(x) Information. No document, certificate or report
furnished
or
required to be furnished by or on behalf of it pursuant to this
Agreement,
in its capacity as Seller, contains or will contain when
furnished
any untrue statement of a material fact or fails or will fail
to
state a
material fact necessary in order to make the statements
contained
therein
not misleading in light of the circumstances in which it was
made.
There are no
facts known to it which, individually or in the aggregate,
materially
adversely affect, or which (aside from general economic trends)
may
reasonably be expected to materially adversely affect in the future,
the
financial condition or assets or its business, or which may impair
the
ability of
it to perform its obligations under this Agreement, which have
not been
disclosed herein or therein or in the certificates and other
documents
furnished to the
Depositor by or on
behalf of it
specifically
for
use in connection with the transactions contemplated hereby or
thereby.
(xi) Foreign
Tax Liability. It is not aware of any Obligor
under a
Timeshare Loan who has
withheld any portion of payments due under
such
Timeshare Loan because of the requirements of a foreign taxing
authority,
and no foreign taxing
authority has
contacted it concerning a
withholding or other foreign tax liability.
(xii) Employee Benefit Plan Liability. As of the Closing Date
and
each Transfer Date, as applicable, (i) no "accumulated funding
deficiency" (as such term is defined under ERISA and the Code),
whether or
not waived,
exists with respect to any "employee pension benefit plan" (as
such term
is defined under ERISA) sponsored,
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maintained
or contributed to by it or any of its Affiliates, and, to its
Knowledge,
no event has occurred or circumstance exists that may result in
an
accumulated funding
deficiency as of the
last day of the current plan
year of
any such plan;
(ii) it and each of
its Affiliates
has made all
contributions required
under each multiemployer plan (as such term is
defined
under ERISA) (a
"Multiemployer
Plan") to which it or
any of its
Affiliates
contributes
or in which it or any of its Affiliates
participates (a "Seller Multiemployer Plan"); and (iii) neither it
nor any
of its
Affiliates has withdrawn from any Multiemployer Plan with respect
to which
there is any
outstanding liability
and, to its
Knowledge,
no
event has
occurred or
circumstance
exists that presents a risk of the
occurrence
of any withdrawal from, or the partition, termination,
reorganization or insolvency of, any Seller Multiemployer Plan that could
result in
any liability to it.
(xiii) Taxes. Other than as described on Schedule 5 hereto, as
of the
Closing Date, it (i) has filed all tax returns (federal,
state and
local)
which it reasonably
believes are required to be filed and has paid
or made
adequate provision in its GAAP financial statements for the
payment of
all taxes, assessments
and other governmental charges due from
it or is
contesting any such tax, assessment or other governmental
charge
in good
faith through appropriate proceedings or except where the
failure
to file or
pay will not have a material adverse effect on the rights and
interests
of the Depositor, (ii) knows of no basis for any material
additional
tax assessment for any fiscal year for which adequate reserves
in its
GAAP financial
statements
have not been
established
and (iii)
intends to
pay all such taxes,
assessments and governmental charges, if
any, when
due.
(xiv) Place of Business. The principal place of business and
chief
executive office where it keeps its records
concerning
Timeshare
Loans will
be 4960 Conference Way
North, Suite 100, Boca
Raton, Florida
33431
(or such other place specified by it by written notice to the
Depositor
and the Indenture Trustee). It is a corporation formed under
the
laws of
the Commonwealth of Massachusetts.
(xv) Securities Laws.
It is not an "investment company" or a
company
"controlled" by an
"investment company" within the meaning of the
Investment
Company Act of 1940,
as amended.
No portion of the
Timeshare
Loan
Acquisition Price for each of the Timeshare Loans or the price of
the
Closing
Date Eligible Investments will be used by it to acquire any
security
in any transaction
which is subject to
Section 13 or Section 14
of the
Securities Exchange Act of 1934, as amended.
(xvi) Bluegreen Vacation Club. With respect to the Club Loans:
(A) The Club
Trust Agreement, of which a true and
correct copy is
attached hereto as Exhibit B is in full
force and
effect; and a
certified copy of the
Club Trust Agreement
has been
delivered to the Indenture Trustee together with all
amendments and
supplements in respect thereof;
(B) The arrangement of contractual rights and
obligations (duly
established
in accordance with the Club Trust
Agreement under the
laws of the State of Florida) was established
for the purpose of holding and preserving certain
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<PAGE>
property for the
benefit of the
Beneficiaries
referred to in the
Club Trust Agreement.
The Club Trustee has
all necessary trust and
other
authorizations
and powers
required
to carry out its
obligations under the
Club Trust Agreement
in the State of Florida
and in all other states in which it holds Resort Interests. The
Club
is not a corporation
or business trust
under the laws of the State
of Florida. The Club
is not taxable as an association, corporation
or business
trust under federal law or the laws of the State
of
Florida;
(C) The Club
Trustee is a corporation duly formed,
validly existing and in good standing under the laws of the State
of
Florida. As of the Closing Date, the Club Trustee is qualified to
do
business as a foreign
corporation and is in good standing under the
laws of the state of Tennessee. As of each Transfer Date, the Club
Trustee will
be duly qualified to do business as a foreign
corporation and
will be in good
standing under the laws of each
jurisdiction it is required by law to be. The Club Trustee is not
an
affiliate of the
Servicer for purposes of Chapter 721, Florida
Statutes and is in compliance with the requirements of such Chapter
721 requiring that it be independent of the Servicer;
(D) The Club Trustee has all necessary corporate power
to execute and deliver, and has all necessary corporate power to
perform its obligations under this Agreement, the other Transaction
Documents to which it is a party, the Club Trust Agreement and the
Club Management Agreement. The Club Trustee possesses all
requisite
franchises,
operating
rights,
licenses,
permits,
consents,
authorizations,
exemptions and orders as are necessary to discharge
its obligations under the Club Trust Agreement;
(E) The Club Trustee holds all right, title and interest
in and to all of the Timeshare Properties related to the Club
Loans
solely for the benefit
of the Beneficiaries referred to in, and
subject in each case to the provisions of, the Club Trust
Agreement
and the other documents and agreements related thereto.
Except with
respect to the
Mortgages (or a pledge of the Co-op Shares in
connection with Aruba
Club Loans), the Club
Trustee has
permitted
none of such Timeshare
Properties to be made subject to any lien or
encumbrance during the
time it has been a part of the trust estate
under the Club Trust Agreement;
(F) There are no actions, suits, proceedings, orders or
injunctions pending
against the Club or the Club Trustee, at law or
in equity, or before
or by any governmental
authority which, if
adversely determined,
could reasonably be expected to have a
material adverse
effect on the Trust
Estate or the Club
Trustee's
ability to perform its obligations under the Transaction
Documents;
(G) Neither the Club nor the Club Trustee has incurred
any indebtedness
for borrowed money
(directly,
by guarantee,
or
otherwise);
(H) All ad valorem taxes and other taxes and assessments
against the Club and/or its trust estate have been paid when due
and
neither the Seller nor the Club Trustee knows of any basis for any
additional taxes or assessments
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<PAGE>
against any such
property. The Club has filed all required tax
returns and has paid
all taxes shown to be
due and payable on such
returns,
including all
taxes in respect of sales of Owner
Beneficiary Rights (as
defined in the Club
Trust Agreement) and
Vacation Points, if any;
(I) The Club and the Club Trustee are in compliance in
all material respects with all applicable laws, statutes,
rules and
governmental
regulations applicable
to it and in
compliance with
each material
instrument,
agreement or document to which it is a
party or by which it is bound, including, without limitation, the
Club Trust Agreement;
(J) Except as
expressly permitted in the Club Trust
Agreement, the Club
has maintained the
One-to-One
Beneficiary to
Accommodation Ratio
(as such terms are
defined in the Club Trust
Agreement);
(K) Bluegreen Vacation
Club, Inc. is a
not-for-profit
corporation duly formed, validly existing and in good standing
under
the laws of the State of Florida;
(L) Upon purchase of
the Club Loans and
related Trust
Estate hereunder, the
Depositor is an "Interest Holder Beneficiary"
under the Club Trust Agreement and each of the Club Loans
constitutes "Lien
Debt", "Purchase Money Lien Debt" and "Owner
Beneficiary Obligations" under the Club Trust Agreement; and
(M) Except as
disclosed to the Indenture Trustee in
writing or noted in the Custodian's Certification, each Mortgage
associated with a
Deeded Club Loan and granted by the Club Trustee
or the Obligor on the related Deeded Club Loan, as applicable, has
been duly executed,
delivered and recorded by or pursuant to the
instructions of the
Club Trustee under the Club Trust Agreement and
such Mortgage is valid
and binding and effective to create the lien
and security
interests in favor of the Indenture Trustee (upon
assignment thereof to the Indenture Trustee). Each of such
Mortgages
was granted in
connection with the
financing of a sale of a Resort
Interest.
The Seller hereby
makes the
representations and
warranties
relating to the Timeshare Loans contained in Schedule I hereto for
the benefit
of the Depositor,
the Issuer and the
Indenture Trustee for
the benefit of the
Noteholders as of the
Closing Date (only with respect to the Initial Timeshare
Loans) and each
Transfer Date (only with respect to each Subsequent Timeshare
Loan or Qualified
Substitute Timeshare Loan transferred on such Transfer Date),
as applicable. The
Seller hereby represents and warrants that each Closing Date
Eligible Investment is
an Eligible Investment for the benefit of the Depositor,
the Issuer and the Indenture Trustee for the benefit of the
Noteholders
as of
the Closing Date.
It is understood
and agreed that the representations and
warranties set forth
in this Section 5 shall survive the sale and contribution
of each Timeshare
Loan to the Depositor
and any assignment of
such Timeshare
Loans by the Depositor and shall continue so
11
<PAGE>
long as any such Timeshare Loans shall remain outstanding or until such time
as
such Timeshare
Loans are repurchased, purchased or a Qualified Substitute
Timeshare Loan is provided pursuant to Section 6 hereof. The Seller
acknowledges
that it has been advised that the Depositor intends to assign all of its
right,
title and interest in
and to each Timeshare
Loan and its rights
and remedies
under this Agreement
to the Issuer. The Seller agrees that, upon any such
assignment, the Depositor and any of its assignees may enforce
directly, without
joinder of the
Depositor (but
subject to any defense
that the Seller may have
under this Agreement) all rights and remedies hereunder.
With respect to any representations and warranties contained
in Section 5 which are made to the Seller's Knowledge, if it is discovered that
any representation and warranty is inaccurate and such inaccuracy
materially and
adversely affects
the value of a Timeshare Loan or the interests of the
Depositor or any subsequent assignee thereof, then notwithstanding such lack
of
Knowledge of the accuracy of such representation and warranty at the time such
representation
or warranty
was made (without regard to any Knowledge
qualifiers), such
inaccuracy shall be deemed a breach of such representation or
warranty for purposes of the repurchase or substitution obligations
described in
Sections 6(a)(i) or (ii) below.
Repurchases and Substitutions.
Mandatory
Repurchases and
Substitutions
for Breaches of
Representations and
Warranties.
Upon the receipt of
notice by the Seller from
the Depositor, the
Issuer or the Indenture Trustee, of a breach of any of the
representations and
warranties
in Section 5 hereof
(on the date on which such
representation or
