Exhibit 10.187
EXECUTION COPY
(BXG Timeshare I to Depositor - Initial Timeshare Loans)
TRANSFER AGREEMENT
This TRANSFER
AGREEMENT (this
"Agreement"), dated as
of September
15, 2007, is by and among Bluegreen Corporation, a Massachusetts corporation
("Bluegreen"), BXG Timeshare Trust I, a statutory trust formed
under the laws of
the State of Delaware
("BXG Timeshare I" or
the "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, in connection
with the transactions contemplated by (i)
that certain purchase and contribution agreement, dated as of May 1, 2006 (the
"Warehouse Purchase
and Contribution Agreement") by and between Bluegreen
Timeshare Finance
Corporation I, as
depositor (the "Warehouse Depositor") and
Bluegreen, as seller, (ii) that certain sale agreement,
dated as of May 1,
2006
(the "Warehouse Sale Agreement") by and between the Warehouse
Depositor and BXG
Timeshare I,
(iii) that certain indenture, dated as of May 1, 2006 (the
"Warehouse
Indenture"), by and
among BXG Timeshare I,
Bluegreen, as
servicer
(the "Warehouse
Servicer"),
Vacation Trust, Inc., as club trustee,
Concord
Servicing Corporation,
as backup servicer,
U.S. Bank National Association, as
indenture trustee, and Branch Banking and Trust Company, as agent,
and (iv) that
certain note funding
agreement, dated as of
May 1, 2006 (the
"Warehouse Note
Funding Agreement")
by and among BXG
Timeshare I, as issuer, Bluegreen, as
seller and as
servicer, the
Warehouse Depositor, Branch Banking and Trust
Company, as agent,
and the purchasers named therein, (A) Bluegreen sold,
transferred and
conveyed, from time to time, all of its right, title and
interest in, to and
under certain
timeshare loans, receivables and related
security (the "Warehouse Timeshare Loans") to the Warehouse
Depositor,
(B) the
Warehouse Depositor
sold the Warehouse
Timeshare Loans to BXG
Timeshare I and
(C) BXG Timeshare I issued five classes of notes (the "Warehouse
Notes") secured
by the Warehouse Timeshare Loans;
WHEREAS, in connection
with each sale of the
Warehouse Timeshare
Loans to the Warehouse
Depositor under the Warehouse Purchase and Contribution
Agreement, Bluegreen made certain representations and warranties
with respect to
the Warehouse Timeshare Loans as of the related transfer dates;
WHEREAS, the Depositor
has been established as a bankruptcy-remote
entity owned by Bluegreen for the purpose of acquiring the Warehouse Timeshare
Loans and, from time to time, other Timeshare Loans sold and/or
contributed to
it by Bluegreen, as
the case may be, in accordance with the provisions of the
Bluegreen Purchase Agreement;
WHEREAS, on the
Closing Date, (i) the
Seller wishes to sell all of
its right, title and interest in and to certain of the Warehouse
Timeshare Loans
(the "Initial
Timeshare Loans") to the Depositor in accordance with the
provisions of this Agreement, (ii) the Depositor intends,
concurrently with
the
purchase of the Initial Timeshare Loans from the Seller,
to sell,
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transfer and otherwise
absolutely convey, and BXG Receivables Note Trust 2007-A
(the "Issuer")
intends to purchase the Initial Timeshare Loans and other
timeshare loans,
and (ii) the Issuer
intends to pledge such Initial Timeshare
Loans and other timeshare loans acquired thereby to U.S. Bank, National
Association, as
indenture trustee (in such capacity, the "Indenture Trustee")
and custodian (in such
capacity, the
"Custodian"),
pursuant to an
indenture,
dated as of September
15, 2007 (the "Indenture"), by and among the Issuer,
Bluegreen, as servicer
(the "Servicer"), the
Club Trustee, the Backup Servicer
and 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, Bluegreen
originated
substantially
all of the Initial
Timeshare Loans, is
familiar with the terms of the Initial Timeshare Loans and
is the Warehouse
Servicer and has been servicing each of the Initial Timeshare
Loans in accordance with the Servicing Standard and the applicable
provisions of
the Warehouse
Indenture and it has not taken or failed to
take any action to
cause a breach of the
representations and warranties set forth in the Warehouse
Purchase and Contribution Agreement;
WHEREAS, in
consideration
for providing the
representations
and
warranties set forth in Section 5 of this Agreement and having the
obligation to
cure any material breaches thereof, or to repurchase or substitute
any Defective
Timeshare Loans, and
to provide the indemnities set forth hereunder, Bluegreen
desires: (i) to act as
the Servicer on behalf of the holders of the Notes, for
which Bluegreen
shall be entitled to
receive a Servicing
Fee and Additional
Servicing Compensation in accordance with the provisions of the
Indenture, (ii)
to act as the
Administrator on behalf of the Issuer and the Owner Trustee,
for
which Bluegreen
shall be entitled to
an Administrator
Fee, (iii) to have
the
option, but not the
obligation,
to purchase or
substitute Upgrade
Club Loans
pursuant to the
terms and conditions set forth in this Agreement and the
Transaction Documents
and (iv) to have the option, but not the obligation,
to
purchase or
substitute
Defaulted Timeshare Loans, which such option may be
waived with respect to any Defaulted Timeshare Loan, in each case,
pursuant to
the terms and conditions set forth herein; and
WHEREAS, Bluegreen, as the sole stockholder of the Depositor, who
is
the residual interest owner of the Issuer, will derive an economic benefit
from
the sale hereunder of the Initial Timeshare Loans to the
Depositor.
NOW,
THEREFORE,
in consideration of
the mutual covenants set forth
herein, and for other
valuable
consideration, the
receipt and
sufficiency of
which are hereby acknowledged, the parties hereto covenant and
agree as follows:
SECTION 1. Definitions; Interpretation. Capitalized terms used but
not defined herein shall have the meanings specified in "Standard
Definitions"
attached as Annex A to the Indenture.
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SECTION 2. Acquisition of Timeshare Loans.
(a) Initial Timeshare
Loans. On the Closing Date, in return for the
Timeshare Loan
Acquisition Price for
each of the Initial
Timeshare Loans, 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 (i) the Initial
Timeshare Loans
listed on Schedule III hereto, (ii) the Receivables in respect of such
Initial
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
Initial Timeshare Loan and (v) all income, payments, proceeds and
other benefits
and rights related to
any of the foregoing
(the property in
clauses (i)-(v),
being the "Assets").
Upon such sale and transfer, the ownership of each Initial
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
Initial 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
Initial Timeshare Loans conveyed
hereunder shall be borne by the Depositor and its subsequent
assignees.
(b) Delivery of Timeshare Loan Documents. In connection with the
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) and Bluegreen hereby agrees to
deliver or cause to be
delivered, on or
within five
Business Days from each
Transfer Date (with respect to any Qualified Substitute Timeshare Loan), to
the
Custodian, all related
Timeshare Loan Files and to the Servicer all related
Timeshare Loan Servicing Files.
(c) Collections.
The Seller shall
deposit or cause to be deposited
all collections in
respect of the 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).
(d) 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.
SECTION 3. Intended Characterization; Grant of Security Interest.
It
is the intention of the parties hereto that the transfer of
Timeshare Loans to
be made pursuant to
the terms hereof shall
constitute a sale by
the Seller to
the Depositor
and not a loan secured
by such
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Timeshare Loans. In the event, however, that a court of competent
jurisdiction
were to hold that any such transfer constitutes a loan and not a
sale, it is the
intention of the parties hereto that the Seller shall be
deemed to have granted
to the Depositor
as of the date
hereof a first
priority perfected security
interest in all of
Seller's right, title and interest in, to and under the
Assets specified
in Section 2 hereof
and 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 to the Depositor of the Seller's
entire right,
title and interest in and to the Assets.
Each of the Seller, Bluegreen, the Club, the Club Trustee and any
of
its Affiliates
hereby agrees to make the appropriate entries in its general
accounting
records and
to indicate that the Timeshare Loans have been
transferred to the Depositor and its subsequent assignees.
SECTION 4. Conditions Precedent to Acquisition of Timeshare Loans
by
the Depositor. The
obligations of the Depositor to purchase any Timeshare Loans
hereunder shall be subject to the satisfaction of the following
conditions:
(a) On the Closing
Date, with respect to the Initial Timeshare
Loans, and on each
Transfer Date, with respect to any Qualified Substitute
Timeshare Loan replacing a Timeshare Loan, all representations and
warranties of
Bluegreen 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 and
correct on such date.
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<PAGE>
(b) On or prior to the
Closing Date (with
respect to the
Initial
Timeshare Loans) or,
as provided for in Section 6(g) hereof (with respect to
Qualified Substitute
Timeshare Loans), 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.
(c) 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 the
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.
(d) On or before the Closing Date and on each Transfer Date, the
Indenture shall be in full force and effect.
(e) 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
Timeshare Loan.
(f) Each Initial Timeshare Loan shall be an Eligible Timeshare Loan
and each of the conditions herein and in the Indenture for the
purchases of such
Timeshare Loans shall have been satisfied.
(g) 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.
(h) The Depositor
shall have received such other certificates and
opinions as it shall reasonably request.
SECTION 5.
Representations and
Warranties and Certain Covenants of
Bluegreen.
(a) Bluegreen
represents
and warrants to the Depositor and the
Indenture Trustee for the benefit of the Noteholders as
follows:
(i) Due Incorporation;
Valid Existence; Good
Standing. As of
the
Closing Date and as of each Transfer Date, 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,
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<PAGE>
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.
To Bluegreen's
Knowledge,
as of the Closing
Date, the Seller is a
statutory trust
duly
organized
and validly existing in good standing under the laws of the
jurisdiction of its
formation and is duly
qualified to do
business as a
foreign
entity and in good
standing under the
laws of each
jurisdiction
where the
performance of its
obligations under this
Agreement makes such
qualification necessary, except where the failure to be so
qualified will
not
have a material adverse effect on its ability to perform its
obligations under this
Agreement or any other Transaction Document to
which it
is a party or under the transactions contemplated hereunder or
thereunder
or the validity or enforceability of any Timeshare Loans.
(ii) Possession
of Licenses,
Certificates,
Franchises
and
Permits.
As of the Closing Date
with respect to the Seller and Bluegreen
and as of
each Transfer Date with respect to Bluegreen, each of Bluegreen
and the
Seller holds 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.
As of the Closing
Date
and as of
each Transfer Date, it
has, and at all times during the term of
this
Agreement will have, all requisite corporate power and authority to
own its
properties, to conduct
its business, to
execute and deliver this
Agreement
and all documents and transactions contemplated hereunder and
to
perform
all of its obligations under this Agreement and any other
Transaction Document
to which it is a party
or under the transactions
contemplated hereunder or thereunder. To Bluegreen's Knowledge, as of
the
Closing
Date, the Seller has all requisite corporate power and authority
to own its
properties,
to conduct its
business, to execute and deliver
this
Agreement and all documents and transactions contemplated hereunder
and to
perform all of its
obligations under this
Agreement and any other
Transaction Document
to which it is a party
or under the transactions
contemplated hereunder or thereunder. To Bluegreen's Knowledge, as of
the
Closing
Date, the Seller has all requisite power and authority to
acquire,
own,
transfer and convey Timeshare Loans to the Depositor.
(iv) Authorization,
Execution and Delivery Valid and Binding.
As of the
Closing Date and as of each Transfer Date, this Agreement and
all other
Transaction Documents
and instruments
required or contemplated
hereby
to be executed and delivered by Bluegreen have been duly
authorized, executed
and delivered by
Bluegreen and, assuming the due
execution
and delivery by, the other party or parties hereto and thereto,
constitute
legal, valid and binding agreements enforceable against
Bluegreen
in
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accordance with
their respective terms subject, as to enforceability, to
bankruptcy,
insolvency,
reorganization, liquidation,
dissolution,
moratorium
and other similar
applicable laws affecting the enforceability
of
creditors' rights generally applicable in the event of the
bankruptcy,
insolvency, reorganization, liquidation or dissolution, as
applicable, of
Bluegreen
and to general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at
law. To
Bluegreen's Knowledge,
as of the Closing
Date, this Agreement and all
other
Transaction
Documents and instruments required or contemplated
hereby
to be executed and delivered by the Seller have been duly
authorized, executed
and delivered
by the Seller and,
assuming the due
execution
and delivery by, the other party or parties hereto and thereto,
constitute
legal, valid and
binding agreements
enforceable
against the
Seller
in accordance with their respective terms subject, as to
enforceability, to bankruptcy, insolvency, reorganization, liquidation,
dissolution,
moratorium and other similar applicable laws affecting the
enforceability of creditors' rights generally applicable in the event of
the
bankruptcy, insolvency, reorganization, liquidation or dissolution as
applicable, of the
Seller and to general principles of equity, regardless
of whether such
enforceability
shall be considered in a proceeding in
equity or
at law. To Bluegreen's
Knowledge, as of the
Closing Date, this
Agreement
constitutes
a valid transfer of the Seller's
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. As of the
Closing
Date and as of each Transfer Date, the execution, delivery and
performance by
Bluegreen of this Agreement and any other Transaction
Document
to which it is a party do not and will not (A) violate any of
the
provisions
of its articles of
incorporation
or bylaws,
(B) violate any
provision
of any law,
governmental rule or regulation currently in effect
applicable
to it or its properties or by which it or its properties may be
bound or
affected, including,
without limitation, any bulk transfer laws,
where such
violation would have a
material adverse
effect on its ability
to perform
its obligations under
this Agreement or any other Transaction
Document
to which it is a party
or under the
transactions
contemplated
hereunder
or thereunder or the validity or enforceability of the
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
any
Timeshare Loans or (E) result in the
creation or imposition
of any
Lien
upon any of its properties pursuant to the terms of any such
indenture,
mortgage, deed of trust, contract or other instrument. To
Bluegreen's Knowledge, as of the Closing
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Date,
the execution, delivery and performance by the Seller of this
Agreement
and any other
Transaction
Document to which the Seller is a
party
do not and will not (1) violate any of the provisions of its
certificate of trust,
trust agreement or other related organizational
document,
(2) violate any provision of any law, governmental rule or
regulation
currently in effect
applicable to the Seller or its properties
by which
the Seller or its properties may be bound or affected,
including,
without
limitation,
any bulk transfer
laws, where such
violation would
have a
material adverse
effect on the
Seller's ability to perform its
obligations under this
Agreement or any other Transaction Document to
which
the Seller is a party or under the transactions contemplated
hereunder
or thereunder or the validity or enforceability of any
Timeshare
Loans,
(3) violate any judgment, decree, writ, injunction, award,
determination or order currently in effect applicable to the Seller
or its
properties
or by which the Seller or its properties are bound or affected,
where such
violation would have a material adverse effect on the Seller's
ability to
perform its
obligations
under this Agreement or any other
Transaction Document
to which the Seller is a party or under the
transactions
contemplated hereunder
or thereunder or the validity or
enforceability of
Timeshare Loans or (4)
conflict with,
or result in a
breach of,
or constitute a
default under,
any of the
provisions of any
sale and
servicing agreement, indenture, mortgage, deed of trust,
contract
or other
instrument to which the Seller is a party or by which it is
bound
where such
violation would have a material adverse effect on the Seller's
ability to
perform its
obligations
under this Agreement or any other
Transaction Document
to which the Seller is a party or under the
transactions
contemplated hereunder
or thereunder or the validity or
enforceability of Timeshare Loans.
(vi) Governmental
Consent. As of the Closing Date and as
of
each
Transfer Date, no consent, approval, order or authorization of, and
no filing
with or notice to, any court or other Governmental Authority in
respect of
Bluegreen is required which has not been obtained in connection
with the
authorization, execution, delivery or performance by Bluegreen
of
this
Agreement or any of the other Transaction Documents to which
Bluegreen
is a party or under the transactions contemplated hereunder or
thereunder, including,
without limitation,
the transfer of the Timeshare
Loans and
the creation of the security interest of the Depositor
therein
pursuant
to Section 3 hereof. To Bluegreen's Knowledge, as of the Closing
Date, no
consent, approval,
order or authorization of, and no filing with
or notice
to, any court or other Governmental Authority in respect of the
Seller is
required which has not been obtained in connection with the
authorization,
execution, delivery or
performance by the
Seller of this
Agreement
or any of the other Transaction Documents to which the Seller
is
a party or
under the transactions
contemplated
hereunder or
thereunder,
including,
without limitation, the transfer of Timeshare
Loans and the
creation
of the security
interest of the
Depositor therein
pursuant to
Section 3
hereof.
(vii) Defaults. As of the Closing Date and as of each Transfer
Date,
it is not in default under any material agreement, contract,
instrument
or indenture to which it is a party or by which it or its
properties
is or are bound, or with respect to any order of any
court,
administrative agency,
arbitrator
or governmental body, in each case,
which
would have a material adverse effect on the transactions
contemplated hereunder or on its
8
<PAGE>
business,
operations,
financial condition or assets, and no event has
occurred
which with notice or lapse of time or both would constitute such
a default
with respect to any
such agreement,
contract, instrument or
indenture,
or with respect to any such order of any court, administrative
agency,
arbitrator or
governmental body. To Bluegreen's Knowledge, as of
the
Closing Date, the Seller is not in default under any material
agreement,
contract, instrument
or indenture to which it is a party or by
which it
or its properties is
or are bound, or with
respect to any order
of any
court, administrative
agency, arbitrator or
governmental body, in
each case,
which would have a
material adverse effect on the transactions
contemplated
hereunder, and no
event has occurred
which with notice
or
lapse of
time or both would
constitute such a default with respect to any
such
agreement, contract,
instrument or indenture, or with respect to any
such order
of any court, administrative agency, arbitrator or governmental
body.
(viii) Insolvency.
As of the Closing Date and as of each
Transfer
Date, 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. To Bluegreen's Knowledge, as of the Closing Date
the Seller
is solvent and will not be rendered insolvent by the transfer
of any
Timeshare Loans hereunder. To Bluegreen's Knowledge,
on and after
the
Closing Date, the Seller will not engage in any business or
transaction, the
result of which would cause the property remaining with
it to
constitute an unreasonably small amount of capital.
(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 related Mortgage
Notes and the rights
of the
Obligors to use and occupy the related Timeshare Properties
pursuant
to the applicable
Owner Beneficiary
Agreement.
To Bluegreen's
Knowledge,
as of the Closing Date, there is no pending or threatened
action,
suit, proceeding or investigation before any court,
administrative
agency,
arbitrator or
governmental
body against or
affecting the Seller
which, if
decided adversely, would materially and adversely affect (A)
the
Seller's
ability to perform its
obligations
under, or the validity or
enforceability of,
this Agreement or any other documents or transactions
contemplated under this Agreement, (B) any Timeshare Loan or title of
any
Obligor to
any related Timeshare Property pursuant to the applicable Owner
Beneficiary Agreement
or (C) the Depositor's or any of its assigns'
ability
to foreclose or otherwise enforce the liens of the related
Mortgage
Notes and the rights of the Obligors to use and occupy the
related
Timeshare Properties
pursuant to the applicable Owner Beneficiary
Agreement.
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<PAGE>
(x) Information.
As of the Closing Date and as of each
Transfer
Date, no document, certificate or report furnished or required
to
be
furnished by or on behalf of it or, to Bluegreen's Knowledge, on
behalf
of the
Seller pursuant to
this Agreement,
contains or will
contain when
furnished
any untrue statement of a material fact or fails or will fail
to
state a
material fact necessary in order to make the statements
contained
therein
not misleading in light of the circumstances in which it was
made.
As of the
Closing Date and as of each Transfer Date, as applicable,
there
are
no facts known to it which, individually or in the aggregate,
materially
adversely affect, or which (aside from general economic trends)
may
reasonably be expected to materially adversely affect in the future,
its
financial condition or assets or business, or which may impair its or
the
Seller's ability to perform its
respective
obligations
under this
Agreement,
which have not been disclosed herein or therein or in the
certificates and other
documents furnished to
the Depositor by or on its
or the
Seller's behalf pursuant hereto or thereto specifically for use in
connection
with the transactions contemplated hereby or thereby.
(xi) Foreign Tax
Liability. As of the
Closing Date and as of
each
Transfer Date, 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 as of
each Transfer Date, as applicable, (i) no "accumulated funding
deficiency" (as such term is defined under ERISA and the Code),
whether or
not
waived, exists with respect to any "employee pension benefit plan"
(as
such term
is defined under ERISA) sponsored, maintained or contributed to
by
Bluegreen or any of its Affiliates, and, to Bluegreen's 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)
Bluegreen and each of
its Affiliates has made all
contributions required
under each multiemployer plan (as such term is
defined
under ERISA) (a "Multiemployer Plan") to which Bluegreen or any
of
its
Affiliates contributes
or in which Bluegreen or any of its Affiliates
participates (a
"Bluegreen
Multiemployer
Plan"); and (iii) neither
Bluegreen
nor any of its Affiliates has withdrawn from any
Multiemployer
Plan with
respect to which
there is any
outstanding
liability and, to
Bluegreen's Knowledge,
no event has occurred
or circumstance exists that
presents
a risk of the occurrence of any withdrawal from, or the
partition,
termination,
reorganization
or insolvency
of, any Bluegreen
Multiemployer Plan that could result in any liability to
Bluegreen.
(xiii) Taxes. Other than as described on Schedule 5 hereto, as
of the
Closing Date, it (A) 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, (B) knows of no basis for any material
additional
tax assessment for any fiscal year for which adequate
10
<PAGE>
reserves
in its GAAP financial
statements have not
been established
and
(C)
intends to pay all such taxes, assessments and governmental
charges,
if any,
when due. To Bluegreen's Knowledge, the Seller has filed, as of
the
Closing Date all applicable tax returns which it reasonably
believes
are
required to be filed.
(xiv) Place of Business. As of the Closing Date (with
respect
to
Bluegreen and the Seller) and as of each Transfer Date (with
respect to
Bluegreen), the
principal place of
business and chief
executive office
where
Bluegreen and the Seller keep their records concerning the
Timeshare
Loans will
be 4960 Conference Way
North, Suite 100, Boca
Raton, Florida
33431 (or
such other
place specified by Bluegreen and the Seller by
written
notice to the
Depositor and the
Indenture Trustee). As of the
Closing
Date, the Seller is a statutory trust formed under the laws of
the
State of
Delaware. As of the
Closing Date and as of each Transfer Date,
Bluegreen
is a corporation
formed under the laws of the Commonwealth of
Massachusetts.
(xv) Securities Laws.
As of the Closing Date (with respect to
Bluegreen
and the Seller) and as
of each Transfer
Date (with respect
to
Bluegreen), neither it
nor, to Bluegreen's
Knowledge,
the Seller is an
"investment company"
or a company "controlled" by an "investment company"
within the
meaning of the Investment Company Act of 1940, as amended.
As
of the
Closing Date, no portion of the Timeshare Loan Acquisition Price
for each
of the Initial
Timeshare Loans will
be used by it or the Seller
to acquire
any security in any transaction which is subject to Section 13
or Section
14 of the Securities Exchange Act of 1934, as amended.
(xvi) Bluegreen
Vacation Club. As of
the Closing Date and as
of each
Transfer Date, 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 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
11
<PAGE>
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 Servicer nor, to Bluegreen's Knowledge, the Club
Trustee
knows of any basis for any additional taxes or assessments against
any such property.
The Club has filed all
required tax returns and
has
paid all taxes
shown to be due and
payable on such returns,
including all taxes in respect of sales of Owner Beneficiary
Rights
(as defined in the Club Trust Agreement) and Vacation Points, 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;
12
<PAGE>
(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 Obli
