UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 28, 2022
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BLUEGREEN VACATIONS HOLDING CORPORATION |
(Exact name of registrant as specified in its charter) |
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Florida | 001-09071 | 59-2022148 |
(State or other jurisdiction | (Commission | (IRS Employer |
of incorporation) | File Number) | Identification No.) |
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4960 Conference Way North, Suite 100, Boca Raton, Florida | 33431 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: 561-912-8000
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Not applicable |
(Former name or former address, if changed since last report.) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Class A Common Stock, $.01 par value | BVH | New York Stock Exchange |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company [ ]
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.[ ]
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On April 28, 2022, Bluegreen Vacations Corporation (“Bluegreen”), a wholly owned subsidiary of Bluegreen Vacations Holding Corporation, completed a private offering and sale of approximately $172.0 million of vacation ownership interest (“VOI”) receivable-backed notes (the “2022-A Term Securitization”). The 2022-A Term Securitization consisted of the issuance of three tranches of VOI receivable-backed notes (collectively, the “Notes”) as follows: approximately $71.0 million of Class A Notes, approximately $56.5 million of Class B Notes, and approximately $44.5 million of Class C Notes. The interest rates on the Class A Notes, Class B Notes and Class C Notes are 4.12%, 4.61% and 5.35%, respectively, which blends to an overall weighted average note interest rate of approximately 4.60%. The gross advance rate for this transaction was 88.3%. The Notes mature in September 2037. KeyBanc Capital Markets Inc. (“KeyCM”) and BofA Securities, Inc.(“BofA”) acted as joint bookrunners and co-lead managers, and Truist Securities, Inc.(“Truist”) acted as co-manager. KeyCM also acted as structuring agent for the transaction. KeyCM, BofA and Truist were the initial purchasers of the Notes.
The amount of the VOI receivables sold or to be sold to BXG Receivables Note Trust 2022-A (the “Trust”) in the transaction is approximately $194.7 million, approximately $185.0 million of which was sold to the Trust at closing and approximately $9.7 million of which is expected to be sold to the Trust by August 22, 2022. The gross proceeds of such sales to the Trust are anticipated to be approximately $171.9 million. A portion of the proceeds received at the closing were used to: repay KeyBank National Association (“KeyBank”) and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main (“DZ Bank”) approximately $53.2 million, representing all amounts outstanding under Bluegreen’s existing purchase facility with KeyBank and DZ Bank (the "KeyBank/DZ Purchase Facility"); repay Liberty Bank approximately $11.0 million under Bluegreen’s existing facility with Liberty Bank (the “Liberty Bank Facility”); repay Pacific Western Bank approximately $16.1 million under Bluegreen’s existing facility with Pacific Western Bank (the “Pacific Western Bank Facility”); capitalize a reserve fund; and pay fees and expenses associated with the transaction. Prior to the closing of the 2022-A Term Securitization, Bluegreen, as servicer, funded approximately $4.9 million in connection with the servicer redemption of the notes related to the BXG Receivables Note Trust 2013-A, and certain of the VOI notes in such trust were sold to the Trust in connection with the 2022-A Term Securitization. The remainder of the gross proceeds from the 2022-A Term Securitization are expected to be used for general corporate purposes. As a result of the facility repayments described above, (i) there currently are no amounts outstanding under the KeyBank/DZ Purchase Facility, which allows for maximum outstanding receivable-backed borrowings of $80.0 million on a revolving basis through December 31, 2022, (ii) there is currently approximately $11.7 million outstanding under the Liberty Bank Facility, which permits maximum outstanding receivable-backed borrowings of $40.0 million on a revolving basis through June 30, 2024, and (iii) there is currently approximately $5.3 million outstanding under the Pacific Western Bank Facility, which permits maximum outstanding receivable-backed borrowings of $40.0 million on a revolving basis through September 20, 2024. Thus, additional availability of approximately $80.3 million in the aggregate was generated as a result of the repayments. The maximum outstanding receivable-backed borrowings permitted under each facility as set forth above is subject to eligible collateral and the other terms and conditions of the facility.
Subject to performance of the collateral, Bluegreen will receive any excess cash flows generated by the receivables transferred under the 2022-A Term Securitization (excess meaning after payments of customary fees, interest and principal under the 2022-A Term Securitization) on a pro-rata basis as borrowers make payments on their VOI loans.
While ownership of the VOI receivables included in the 2022-A Term Securitization is transferred and sold for legal purposes, the transfer of these receivables is accounted for as a secured borrowing for financial accounting purposes. Accordingly, no gain or loss was recognized as a result of this transaction.
The Notes were offered and sold to the initial purchasers in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and were subsequently offered and sold by the initial purchasers only to qualified institutional buyers in reliance on Rule 144A under the Securities Act and, outside the United States, only to non-US investors pursuant to Regulation S. The Notes have not been registered under the Securities Act or any state securities laws and, unless so registered (which is not expected), the Notes may not be offered or sold in the United States except pursuant to an exemption from the registration requirements of the Securities Act and applicable state securities laws.
The description of the 2022-A Term Securitization set forth above is a summary only, does not purport to be complete and is qualified in its entirety by reference to the full text of the agreements and instruments governing the transaction, which are included as Exhibits 10.1 through 10.5 of this Current Report on Form 8-K and are incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
d) Exhibits
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Exhibit Number |
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| Indenture, dated as of April 28, 2022, among BXG Receivables Note Trust 2022-A, as Issuer, Bluegreen Vacations Corporation, as Servicer, Vacation Trust, Inc., as Club Trustee, Concord Servicing LLC, as Backup Servicer, and U.S. Bank Trust Company, National Association, as Indenture Trustee, U.S Bank National association, as Custodian | |
| Sale Agreement, dated as of April 28, 2022, by and between BRFC 2022-A LLC, as Depositor, and BXG Receivables Note Trust 2022-A, as Issuer | |
| Transfer Agreement, dated as of April 28, 2022, by and among Bluegreen Vacations Corporation, BXG Timeshare Trust I, as Seller, and BRFC 2022-A LLC, as Depositor | |
| Purchase and Contribution Agreement, dated as of April 28, 2022, by and between Bluegreen Vacations Corporation, as Seller, and BRFC 2022-A LLC, as Depositor | |
| BXG Receivables Note Trust 2022-A, Standard Definitions |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: May 2, 2022 | Bluegreen Vacations Holding Corporation | |
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| By: | /s/ Raymond S. Lopez |
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| Raymond S. Lopez |
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| Executive Vice President, Chief Operating Officer, Chief Financial Officer and Treasurer |
Execution Copy
BXG RECEIVABLES NOTE TRUST 2022-A,
as Issuer
BLUEGREEN VACATIONS CORPORATION,
as Servicer
VACATION TRUST, INC.,
as Club Trustee
CONCORD SERVICING LLC,
as Backup Servicer
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Indenture Trustee,
and
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
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INDENTURE
Dated as of April 28, 2022
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION3
SECTION 1.1.General Definitions and Usage of Terms.3
SECTION 1.2.Compliance Certificates and Opinions.3
SECTION 1.3.Form of Documents Delivered to Indenture Trustee.3
SECTION 1.4.Acts of Noteholders, etc.4
SECTION 1.5.Notice to Noteholders; Waiver.5
SECTION 1.6.Effect of Headings and Table of Contents.6
SECTION 1.7.Successors and Assigns.6
SECTION 1.10.Execution in Counterparts.6
SECTION 1.12.Survival of Representations and Warranties.7
SECTION 2.1.General Provisions.8
SECTION 2.3.Definitive Notes.9
SECTION 2.4.Registration, Transfer and Exchange of Notes.10
SECTION 2.5.Mutilated, Destroyed, Lost and Stolen Notes.14
SECTION 2.6.Payment of Interest and Principal; Rights Preserved.15
SECTION 2.7.Persons Deemed Owners.16
SECTION 2.9.Noteholder Lists.16
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SECTION 2.10.Treasury Notes.16
SECTION 2.11.Notice to Depository.16
SECTION 2.12.Confidentiality.17
ARTICLE III. ACCOUNTS; COLLECTION AND APPLICATION OF MONEYS; REPORTS17
SECTION 3.1.Trust Accounts; Investments by Indenture Trustee.17
SECTION 3.2.Establishment and Administration of the Trust Accounts.19
SECTION 3.5.Reports to Noteholders.25
SECTION 3.6.Note Balance Write-Down Amounts.27
SECTION 3.7.Withholding Taxes.27
ARTICLE IV. THE TRUST ESTATE27
SECTION 4.1.Acceptance by Indenture Trustee.27
SECTION 4.2.Subsequent Timeshare Loans.28
SECTION 4.3.Criteria for Subsequent Timeshare Loans.29
SECTION 4.4.Grant of Security Interest; Tax Treatment.29
SECTION 4.5.Further Action Evidencing Assignments.30
SECTION 4.6.Substitution and Repurchase of Timeshare Loans.31
SECTION 4.7.Release of Lien.33
SECTION 4.8.Appointment of Custodian.34
SECTION 4.9.Sale of Timeshare Loans.34
ARTICLE V. SERVICING OF TIMESHARE LOANS35
SECTION 5.1.Appointment of Servicer and Backup Servicer; Servicing Standard.35
SECTION 5.2.Payments on the Timeshare Loans.35
SECTION 5.3.Duties and Responsibilities of the Servicer.36
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SECTION 5.4.Servicer Events of Default.39
SECTION 5.5.Accountings; Statements and Reports.43
SECTION 5.7.Fidelity Bond or Errors and Omissions Insurance.45
SECTION 5.8.Merger or Consolidation of the Servicer.45
SECTION 5.10.Servicer Resignation.46
SECTION 5.11.Fees and Expenses.47
SECTION 5.12.Access to Certain Documentation.47
SECTION 5.14.Account Statements.48
SECTION 5.15.Indemnification; Third Party Claim.48
SECTION 5.16.Backup Servicer.48
ARTICLE VI. EVENTS OF DEFAULT; REMEDIES50
SECTION 6.1.Events of Default.50
SECTION 6.2.Acceleration of Maturity; Rescission and Annulment.51
SECTION 6.4.Indenture Trustee May File Proofs of Claim.54
SECTION 6.5.Indenture Trustee May Enforce Claims Without Possession of Notes.55
SECTION 6.6.Application of Money Collected.55
SECTION 6.7.Limitation on Suits.58
SECTION 6.8.Unconditional Right of Noteholders to Receive Principal and Interest.58
SECTION 6.9.Restoration of Rights and Remedies.59
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SECTION 6.10.Rights and Remedies Cumulative.59
SECTION 6.11.Delay or Omission Not Waiver.60
SECTION 6.12.Control by Noteholders.60
SECTION 6.13.Waiver of Events of Default.60
SECTION 6.14.Undertaking for Costs.61
SECTION 6.15.Waiver of Stay or Extension Laws.61
SECTION 6.16.Sale of Trust Estate.61
SECTION 6.17.Action on Notes.62
SECTION 6.18.Performance and Enforcement of Certain Obligations.62
ARTICLE VII. THE INDENTURE TRUSTEE63
SECTION 7.2.Notice of Events of Default.64
SECTION 7.3.Certain Matters Affecting the Indenture Trustee.64
SECTION 7.4.Indenture Trustee Not Liable for Notes or Timeshare Loans.66
SECTION 7.5.Indenture Trustee May Own Notes.66
SECTION 7.6.Indenture Trustee’s Fees and Expenses.67
SECTION 7.7.Eligibility Requirements for Indenture Trustee.67
SECTION 7.8.Resignation or Removal of Indenture Trustee.67
SECTION 7.9.Successor Indenture Trustee.68
SECTION 7.10.Merger or Consolidation of Indenture Trustee.69
SECTION 7.11.Appointment of Co-Indenture Trustee or Separate Indenture Trustee.70
SECTION 7.12.Paying Agent and Note Registrar Rights.71
SECTION 7.14.Maintenance of Office or Agency.72
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ARTICLE VIII. COVENANTS OF THE ISSUER72
SECTION 8.1.Payment of Principal, Interest and Other Amounts.72
SECTION 8.2.Eligible Timeshare Loans.72
SECTION 8.3.Money for Payments to Noteholders to Be Held in Trust.72
SECTION 8.4.Existence; Merger; Consolidation, etc.74
SECTION 8.5.Protection of Trust Estate; Further Assurances.74
SECTION 8.6.Additional Covenants.76
SECTION 8.7.Restricted Payments.78
SECTION 8.8.Further Instruments and Acts.78
ARTICLE IX. SUPPLEMENTAL INDENTURES78
SECTION 9.1.Supplemental Indentures.78
SECTION 9.2.Supplemental Indentures with Consent of Noteholders.79
SECTION 9.3.Execution of Supplemental Indentures.80
SECTION 9.4.Effect of Supplemental Indentures.80
SECTION 9.5.Reference in Notes to Supplemental Indentures.80
ARTICLE X. REDEMPTION OF NOTES81
SECTION 10.1.Optional Redemption; Election to Redeem.81
SECTION 10.2.Notice to Indenture Trustee.81
SECTION 10.3.Notice of Redemption by the Servicer.81
SECTION 10.4.Deposit of Redemption Price.81
SECTION 10.5.Notes Payable on Redemption Date.81
ARTICLE XI. SATISFACTION AND DISCHARGE82
SECTION 11.1.Satisfaction and Discharge of Indenture.82
SECTION 11.2.Application of Trust Money; Repayment of Money Held by Paying Agent.83
SECTION 11.3.Trust Termination Date.83
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ARTICLE XII. REPRESENTATIONS AND WARRANTIES AND COVENANTS83
SECTION 12.1.Representations and Warranties of the Issuer.83
SECTION 12.2.Representations and Warranties of the Servicer.87
SECTION 12.3.Representations and Warranties of the Indenture Trustee.90
SECTION 12.4. Multiple Roles..........................................................................................................91
SECTION 12.5. [Reserved]..............................................................................................................91
SECTION 12.6.Covenants of the Club Trustee.91
SECTION 12.7.Representations and Warranties of the Backup Servicer.94
SECTION 13.1.Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.96
SECTION 13.2.Statements Required in Certificate or Opinion.97
SECTION 13.4.No Proceedings.99
SECTION 13.5.Limitation of Liability of Owner Trustee.100
Exhibit AForm of Notes
Exhibit BForm of Investor Representation Letter
Exhibit CForm of Transfer Certificate For Rule 144A Global Notes to Regulation S Global Notes During The Restricted Period
Exhibit DForm of Transfer Certificate For Rule 144A Global Notes to Regulation S Global Notes After Restricted Period
Exhibit EForm of Transfer Certificate For Regulation S Global Notes To 144A Global Notes During Restricted Period
Exhibit FForm of Transfer Certificate For Regulation S Global Notes During Restricted Period
Exhibit GCredit Policy
Exhibit HForm of Monthly Servicer Report
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Exhibit IServicing Officer’s Certificate
Exhibit JForm of Investor Certification
Exhibit KForm of ROAP Waiver Letter
Exhibit LForm of Aruba Notice
Exhibit M[Reserved]
Exhibit NForm of Subsequent Transfer Notice
Exhibit OCollection Policy
Annex Standard Definitions
Schedule ISchedule of Timeshare Loans
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INDENTURE
This INDENTURE, dated as of April 28, 2022 (this “Indenture”), is among BXG RECEIVABLES NOTE TRUST 2022-A, a statutory trust formed under the laws of the State of Delaware, as issuer (the “Issuer”), BLUEGREEN VACATIONS CORPORATION (“Bluegreen”), a Florida corporation, in its capacity as servicer (the “Servicer”), VACATION TRUST, INC., a Florida corporation, as trustee under the Club Trust Agreement (the “Club Trustee”), CONCORD SERVICING LLC, a Delaware LLC, as backup servicer (the “Backup Servicer”), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as indenture trustee (the “Indenture Trustee”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as custodian (the “Custodian”).
RECITALS OF THE ISSUER
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its $70,981,000 4.12% Timeshare Loan-Backed Notes, Series 2022-A, Class A (the “Class A Notes”), $56,474,000 4.61% Timeshare Loan-Backed Notes, Series 2020-A, Class B (the “Class B Notes”) and its $44,497,000 5.35% Timeshare Loan-Backed Notes, Series 2020-A, Class C (the "Class C Notes" and together with the Class A Notes and the Class B Notes, the “Notes”);
WHEREAS, all things necessary to make the Notes, when executed by the Issuer and authenticated and delivered by the Indenture Trustee hereunder, the valid non-recourse obligations of the Issuer, and to make this Indenture a valid agreement of the Issuer, in accordance with its terms, have been done;
WHEREAS, the Servicer has agreed to service and administer the Timeshare Loans securing the Notes and the Backup Servicer has agreed to, among other things, service and administer the Timeshare Loans if the Servicer shall no longer be the Servicer hereunder;
WHEREAS, the Club Trustee is a limited purpose entity which, on behalf of Beneficiaries of the Club, holds title to the Timeshare Properties related to the Club Loans.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the holders thereof, it is mutually covenanted and agreed, for the benefit of the Noteholders, as follows:
GRANTING CLAUSE
To secure the payment of the principal of and interest on the Notes in accordance with their terms, the payment of all of the sums payable under this Indenture and the performance of the covenants contained in this Indenture, the Issuer hereby Grants to the Indenture Trustee, for the benefit of the Noteholders, all of the Issuer’s right, title and interest in and to the following whether now owned or hereafter acquired and any and all benefits accruing to the Issuer from, (i) the Initial Timeshare Loans specified on Schedule I hereto, (ii) any Subsequent Timeshare Loans, (iii) any Qualified Substitute Timeshare Loans, (iv) the
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Receivables in respect of each Timeshare Loan due after the related Cut-Off Date, (v) 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), (vi) all Related Security in respect of each Timeshare Loan, (vii) all rights and remedies under the Transfer Agreement, the Bluegreen Purchase Agreement, the Sale Agreement, the Backup Servicing Agreement, the Lockbox Agreement, the Administration Agreement, the Remarketing Agreement and the Custodial Agreement, (viii) all amounts properly deposited into the Lockbox Account (after the related Cut-Off Date), the Collection Account, the General Reserve Account, the Prefunding Account, and the Force Majeure Loan Reserve Account, and (ix) proceeds of the foregoing (including, without limitation, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds (as applicable), condemnation awards, rights to payment of any and every kind, and other forms of obligations and receivables which at any time constitute all or part or are included in the proceeds of any of the foregoing) (collectively, the “Trust Estate”). Notwithstanding the foregoing, the Trust Estate shall not include (i) any Timeshare Loan released from the Lien of this Indenture in accordance with the terms hereof and any Related Security, Timeshare Loan Documents, income or proceeds related to such released Timeshare Loan, (ii) any amount distributed pursuant to Section 3.4 or Section 6.6 hereof or (iii) any Misdirected Deposits.
Such Grant is made in trust to secure (i) the payment of all amounts due on the Notes in accordance with their terms, equally and ratably except as otherwise may be provided in this Indenture, without prejudice, priority, or distinction between any Note of a Class and any other Note of the same Class by reason of differences in time of issuance or otherwise, and (ii) the payment of all other sums payable under the Notes and this Indenture.
The Indenture Trustee acknowledges such Grant, accepts the trusts hereunder in accordance with the provisions hereof, and agrees to perform the duties herein required to the best of its ability and to the end that the interests of the Noteholders may be adequately and effectively protected as hereinafter provided.
The Custodian shall hold the Timeshare Loan Files in trust, for the use and benefit of the Issuer and all present and future Noteholders, and shall retain possession thereof. The Custodian further agrees and acknowledges that each other item making up the Trust Estate that is physically delivered to the Custodian will be held by the Custodian in the State of Minnesota or in any other location acceptable to the Indenture Trustee and the Servicer.
The Indenture Trustee further acknowledges that in the event that a court of competent jurisdiction were to hold that the conveyance of the Timeshare Loans by the Depositor to the Issuer pursuant to the Sale Agreement constitutes a loan and not a sale as it is intended by all the parties hereto, the Custodian will be holding each of the Timeshare Loans as bailee of the Issuer; provided, however, that with respect to the Timeshare Loans, the Custodian will not act at the direction of the Issuer without the written consent of the Indenture Trustee.
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(a) In addition to the terms defined elsewhere in this Indenture, capitalized terms shall have the meanings given them in the Standard Definitions attached hereto as Annex A. |
(b) With respect to all terms in this Indenture, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all amendments, modifications and supplements thereto or any changes therein entered into in accordance with their respective terms and not prohibited by this Indenture; references to Persons include their successors and assigns; and the term “including” means “including without limitation”. |
Upon any written application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, other than any request that (a) the Indenture Trustee authenticate the Notes specified in such request, (b) the Indenture Trustee invest moneys in any of the Trust Accounts pursuant to the written directions specified in such request or (c) the Indenture Trustee pay moneys due and payable to the Issuer hereunder to the Issuer’s assignee specified in such request, the Indenture Trustee shall require the Issuer to furnish to the Indenture Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and that the request otherwise is in accordance with the terms of this Indenture, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that, in the case of any such requested action as to which other evidence of satisfaction of the conditions precedent thereto is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer delivered to the Indenture Trustee may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows that such Opinion of Counsel with respect to the matters upon which his/her certificate or opinion is based is erroneous. Any such Officer’s Certificate or opinion and any
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Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer as to such factual matters unless such officer or counsel knows that the certificate or opinion or representations with respect to such matters is erroneous. Any Opinion of Counsel may be based on the written opinion of other counsel, in which event such Opinion of Counsel shall be accompanied by a copy of such other counsel’s opinion and shall include a statement to the effect that such other counsel believes that such counsel and the Indenture Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Wherever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Section 7.1(b) hereof.
Whenever in this Indenture it is provided that the absence of the occurrence and continuation of a Default, Event of Default or Servicer Event of Default is a condition precedent to the taking of any action by the Indenture Trustee at the request or direction of the Issuer, then, notwithstanding that the satisfaction of such condition is a condition precedent to the Issuer’s right to make such request or direction, the Indenture Trustee shall be protected in acting in accordance with such request or direction if it does not have Knowledge of the occurrence and continuation of such event. For all purposes of this Indenture, the Indenture Trustee shall not be deemed to have Knowledge of any Default, Event of Default or Servicer Event of Default nor shall the Indenture Trustee have any duty to monitor or investigate to determine whether a default has occurred (other than an Event of Default of the kind described in Section 6.1(a) hereof) or Servicer Event of Default has occurred unless a Responsible Officer of the Indenture Trustee shall have Knowledge thereof or shall have been notified in writing thereof by the Issuer, the Servicer or any secured party.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
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sometimes referred to as the “Act” of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 7.1 hereof) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 1.4. |
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient. |
(c) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the holder of any Note shall bind every future holder of the same Note and the holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note. |
(d) By accepting the Notes issued pursuant to this Indenture, each Noteholder irrevocably appoints the Indenture Trustee hereunder as the special attorney‑in‑fact for such Noteholder vested with full power on behalf of such Noteholder to effect and enforce the rights of such Noteholder for the benefit of such Noteholder; provided, that nothing contained in this Section 1.4(d) shall be deemed to confer upon the Indenture Trustee any duty or power to vote on behalf of the Noteholders with respect to any matter on which the Noteholders have a right to vote pursuant to the terms of this Indenture. |
(a) Where this Indenture provides for notice to Noteholders of any event, or the mailing of any report to Noteholders, such notice or report shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, via first class mail, or sent by private courier or confirmable electronic means to each Noteholder affected by such event or to whom such report is required to be mailed, at its address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or the mailing of such report. In any case where a notice or report to Noteholders is mailed, neither the failure to mail such notice or report, nor any defect in any notice or report so mailed, to any particular Noteholder shall affect the sufficiency of such notice or report with respect to other Noteholders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. |
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(b) In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to mail or send notice to Noteholders, in accordance with Section 1.5(a) hereof, of any event or any report to Noteholders when such notice or report is required to be delivered pursuant to any provision of this Indenture, then such notification or delivery as shall be made with the approval of the Indenture Trustee shall constitute a sufficient notification for every purpose hereunder. |
The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
All covenants and agreements in this Indenture by each of the parties hereto shall bind its respective successors and permitted assigns, whether so expressed or not.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK. UNLESS MADE APPLICABLE IN A SUPPLEMENT HERETO, THIS INDENTURE IS NOT SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS AMENDED, AND SHALL NOT BE GOVERNED THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
In any case where any Payment Date or the Stated Maturity or any other date on which principal of or interest on any Note is proposed to be paid shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) such payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such Payment Date, Stated Maturity or other date on which principal of or interest on any Note is proposed to be paid; provided, that no penalty interest shall accrue for the period from and after such Payment Date, Stated Maturity, or any other date on which principal of or interest on any Note is proposed to be paid, as the case may be, until such next succeeding Business Day.
This Indenture shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (a) an original manual signature; (b) a faxed, scanned, or photocopied manual signature, or (c) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively,
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“Signature Law”), in each case to the extent applicable. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. Notwithstanding the foregoing, with respect to any notice provided for in this Indenture or any instrument required or permitted to be delivered hereunder, any party hereto receiving or relying upon such notice or instrument shall be entitled to request execution thereof by original manual signature as a condition to the effectiveness thereof. In case any provision in or obligation under this Indenture shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. If any party delivers this Agreement or any other certificate, agreement or document related to this transaction to the other parties using an electronic signature service, if requested by another party, such transmitting party will specify the signature service used by such party to the other parties in a separate writing. Any documentation with respect to transfer of the Notes or other securities presented to the Indenture Trustee or any transfer agent must contain original documents with manually executed signatures.
SECTION 1.11. Inspection. |
The Issuer agrees that, on ten Business Days’ prior notice (or, one Business Day’s prior notice after the occurrence and during the continuance of an Event of Default or a Servicer Event of Default), it will permit the representatives of the Indenture Trustee or any Noteholder, during the Issuer’s normal business hours, to examine all of the books of account, records, reports and other papers of the Issuer, to make copies thereof and extracts therefrom, and to discuss its affairs, finances and accounts with its designated officers, employees and independent accountants in the presence of such designated officers and employees (and by this provision the Issuer hereby authorizes its independent accountants to discuss with such representatives such affairs, finances and accounts), all at such reasonable times and as often as may be reasonably requested for the purpose of reviewing or evaluating the financial condition or affairs of the Issuer or the performance of and compliance with the covenants and undertakings of the Issuer and the Servicer in this Indenture or any of the other documents referred to herein or therein. Any reasonable expense incident to the exercise by the Indenture Trustee at any time or any Noteholder during the continuance of any Default or Event of Default, of any right under this Section 1.11 shall be borne by the Issuer and distributed in accordance with Section 3.4 or Section 6.6 hereof, as applicable. Nothing contained herein shall be construed as a duty of the Indenture Trustee to perform such inspection.
The representations, warranties and certifications of the Issuer made in this Indenture or in any certificate or other writing delivered by the Issuer pursuant hereto shall survive the authentication and delivery of the Notes hereunder.
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(a) Form of Notes. The Notes shall be designated as the “BXG Receivables Note Trust 2022-A, Timeshare Loan-Backed Notes, Series 2022-A”. The Notes, together with their certificates of authentication, shall be in substantially the form set forth in Exhibit A attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or are 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 officer executing such Notes, as evidenced by such officer’s execution of such Notes. |
(b) Denominations. The Outstanding Note Balance of the Class A Notes, the Class B Notes and the Class C Notes which may be authenticated and delivered under this Indenture is limited to $70,981,000, $56,474,000 and $44,497,000, respectively. The Notes shall be issuable only as registered Notes, without interest coupons, in the denominations of at least $50,000 and in integral multiples of $1,000; provided, however, that the foregoing shall not restrict or prevent the transfer in accordance with Section 2.4 hereof of any Note with a remaining Outstanding Note Balance of less than $50,000. |
(c) Execution, Authentication, Delivery and Dating. The Notes shall be manually executed by an Authorized Officer of the Owner Trustee on behalf of the Issuer. Any Note bearing the signature of an individual who was at the time of execution thereof an Authorized Officer of the Owner Trustee on behalf of the Issuer shall bind the Issuer, notwithstanding that such individual ceases to hold such office prior to the authentication and delivery of such Note or did not hold such office at the date of such Note. 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 set forth in Exhibit A hereto, executed by the Indenture Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Each Note shall be dated the date of its authentication. The Notes may from time to time be executed by the Issuer and delivered to the Indenture Trustee for authentication together with an Issuer Order to the Indenture Trustee directing the authentication and delivery of such Notes and thereupon the same shall be authenticated and delivered by the Indenture Trustee in accordance with such Issuer Order. |
Each of the Notes, upon original issuance, shall be issued in the form of one or more book-entry global certificates (the “Global Notes” and each, a “Global Note”) to be deposited with the Indenture Trustee as custodian for The Depository Trust Company, the initial Depository, by or on behalf of the Issuer. The Notes sold to non-U.S. persons (as defined in Regulation S) in offshore transactions in reliance on Regulation S will be represented by one or more temporary Global Notes (each, a “Temporary Regulation S Global Notes”). Upon the
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expiration of the Restricted Period, interests in a Temporary Regulation S Global Note will be exchangeable for interests in permanent Global Notes of the same Class (together with a Temporary Regulation S Global Note, a “Regulation S Global Note”). The Notes sold to U.S. Persons which are Qualified Institutional Buyers or, with respect to the Closing Date, Institutional Accredited Investors, will be represented by one or more temporary Global Notes (each, a “Rule 144A Global Note”). All Global Notes shall be initially registered on the Note Register in the name of Cede & Co., the nominee of The Depository Trust Company, and no Note Owner will receive a definitive note (a “Definitive Note”) representing such Note Owner’s interest in the related Class of Notes, except as provided in Section 2.3 hereof. Unless and until Definitive Notes have been issued in respect of a Class of Notes pursuant to Section 2.3 hereof:
(a) the provisions of this Section 2.2 shall be in full force and effect with respect to such Class of Notes; |
(b) the Issuer, the Servicer and the Indenture Trustee may deal with the Depository and the Depository Participants for all purposes with respect to such Notes (including the making of distributions on such Notes) as the authorized representatives of the respective Note Owners; |
(c) to the extent that the provisions of this Section 2.2 conflict with any other provisions of this Indenture, the provisions of this Section 2.2 shall control; and |
(d) the rights of the respective Note Owners of a Class of Notes shall be exercised only through the Depository and the Depository Participants and shall be limited to those established by law and agreements between the respective Note Owners and the Depository and/or the Depository Participants. Pursuant to the Depository Agreement, unless and until Definitive Notes are issued in respect of the Notes pursuant to Section 2.3 hereof, the Depository will make book-entry transfers among the Depository Participants and receive and transmit distributions of principal of, and interest on, the Notes to the Depository Participants. |
If (a) the Issuer advises the Indenture Trustee in writing that the Depository is no longer willing or able to properly discharge its responsibilities as Depository with respect to the Global Notes and the Indenture Trustee or the Issuer is unable to locate a qualified successor, (b) the Issuer, at its sole option, elects to terminate the book-entry system through the Depository with respect to any or all Classes of Notes or (c) after the occurrence of an Event of Default, Note Owners (other than Bluegreen or an Affiliate thereof) evidencing not less than 66-2/3% of the then Adjusted Note Balance of such Class of Global Notes, advise the Indenture Trustee and the Depository through the Depository Participants in writing that the continuation of a book-entry system with respect to such Class of Global Notes, through the Depository is no longer in the best interest of such Note Owners, the Indenture Trustee shall use its best efforts to notify all affected Note Owners through the Depository of the occurrence of any such event and of the availability of Definitive Notes to such Note Owners. Neither the Issuer nor the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes, the Issuer, the Indenture Trustee, the Note Registrar and the Servicer shall recognize
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holders of Definitive Notes as Noteholders hereunder. Upon the issuance of Definitive Notes, all references herein to obligations imposed upon or to be performed by the Depository shall be deemed to be imposed upon and performed by the Indenture Trustee, to the extent applicable with respect to such Definitive Notes.
transfer is being made in reliance upon Rule 144A under the Securities Act (or, on the Closing Date, Institutional Accredited Investors) as certified by such transferee (other than the Initial Purchasers and their respective initial transferees) in a letter in the form of Exhibit B hereto; (ii) such resale or transfer is in compliance with Regulation S under the Securities Act as certified by such transferee (other than the Initial Purchasers and their respective initial transferees) in a letter in the form of Exhibit B hereto; or (iii) after the appropriate holding period, such resale or transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act, in each case, in accordance with any applicable securities laws of any state of the United States and any other applicable jurisdiction. Each transferee and each subsequent transferee will be required to notify any subsequent purchaser of such Notes from it of the resale restrictions described herein. None of the Issuer, the Servicer or the Indenture Trustee is obligated to register or qualify the Notes under the Securities Act or any other securities law or to take any action not otherwise required under this Indenture to permit the transfer of any Note without registration. |
(i) Rule 144A Global Note to Temporary Regulation S Global Note During the Restricted Period. If, during the Restricted Period, a Note Owner of an interest in a Rule 144A Global Note wishes at any time to transfer its beneficial interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Temporary Regulation S Global Note, such Note Owner may, in addition to complying with all applicable rules and procedures of the Depository and Clearstream or Euroclear applicable to transfers by their respective participants (the “Applicable Procedures”), transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in the Temporary Regulation S Global Note only upon compliance with the provisions of this Section 2.4(d)(i). Upon receipt by the Note Registrar at its Corporate Trust Office of (A) written instructions given in accordance with the Applicable Procedures from a Depository Participant directing the Note Registrar to credit or cause to be credited to another specified Depository Participant’s account a beneficial interest in the Temporary Regulation S Global Note in an amount equal to the denomination of the beneficial interest in the Rule 144A Global Note to be transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Depository Participant to be credited with, and the account of the Depository Participant to be debited for, such beneficial interest, and (C) a certification in the form of Exhibit C hereto given by the Note Owner that is transferring such interest, the Note Registrar shall instruct the Depository, to reduce the denomination of the Rule 144A Global Note by the denomination of the beneficial interest in the Rule 144A Global Note to be so transferred and, concurrently with such reduction, to increase the denomination of the Temporary Regulation S Global Note by the denomination of the beneficial interest in the Rule 144A Global Note to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (who shall be a Depository Participant acting for or on behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial interest in the
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Temporary Regulation S Global Note having a denomination equal to the amount by which the denomination of the Rule 144A Global Note was reduced upon such transfer. |
(ii) Rule 144A Global Note to Regulation S Global Note After the Restricted Period. If, after the Restricted Period, a Note Owner of an interest in a Rule 144A Global Note wishes at any time to transfer its beneficial interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Regulation S Global Note, such Note Owner may, in addition to complying with all Applicable Procedures, transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in a Regulation S Global Note only upon compliance with the provisions of this Section 2.4(d)(ii). Upon receipt by the Note Registrar at its Corporate Trust Office of (A) written instructions given in accordance with the Applicable Procedures from a Depository Participant directing the Note Registrar to credit or cause to be credited to another specified Depository Participant’s account a beneficial interest in the Regulation S Global Note in an amount equal to the denomination of the beneficial interest in the Rule 144A Global Note to be transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Depository Participant (and, the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Depository Participant to be debited for, such beneficial interest, and (C) a certification in the form of Exhibit D hereto given by the Note Owner that is transferring such interest, the Note Registrar shall instruct the Depository, to reduce the denomination of the Rule 144A Global Note by the aggregate denomination of the beneficial interest in the Rule 144A Global Note to be so transferred and, concurrently with such reduction, to increase the denomination of the Regulation S Global Note by the aggregate denomination of the beneficial interest in the Rule 144A Global Note to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (who shall be a Depository Participant acting for or on behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial interest in the Regulation S Global Note having a denomination equal to the amount by which the denomination of the Rule 144A Global Note was reduced upon such transfer. |
(iii) Regulation S Global Note to Rule 144A Global Note. If the Note Owner of an interest in a Regulation S Global Note wishes at any time to transfer its beneficial interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A Global Note, such holder may, in addition to complying with all Applicable Procedures, transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in a Rule 144A Global Note only upon compliance with the provisions of this Section 2.4(d)(iii). Upon receipt by the Note Registrar at its Corporate Trust Office of (A) written instructions given in accordance with the Applicable Procedures from a Depository Participant directing the Note Registrar to credit or cause to be credited to another specified Depository Participant’s account a beneficial interest in the Rule 144A Global Note in an amount equal to the denomination of the beneficial interest in the Regulation S Global Note to be transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Depository Participant to be credited with, and the account of the Depository Participant (or, if such account is held for
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Euroclear or Clearstream, the Euroclear or Clearstream account, as the case may be) to be debited for such beneficial interest, and (C) with respect to a transfer of a beneficial interest in the Regulation S Global Note for a beneficial interest in the related Rule 144A Global Note (x) during the Restricted Period, a certification in the form of Exhibit E hereto given by the Note Owner, or (y) after the Restricted Period, an Investment Representation Letter in the form of Exhibit B hereto from the transferee to the effect that such transferee is a Qualified Institutional Buyer, the Note Registrar shall instruct the Depository to reduce the denomination of the Regulation S Global Note by the denomination of the beneficial interest in the Regulation S Global Note to be transferred, and, concurrently with such reduction, to increase the denomination of the Rule 144A Global Note by the aggregate denomination of the beneficial interest in the Regulation S Global Note to be so transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (who shall be a Depository Participant acting for or on behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial interest in the Rule 144A Global Note having a denomination equal to the amount by which the denomination of the Regulation S Global Note was reduced upon such transfer. |
(iv) Transfers Within Regulation S Global Notes During Restricted Period. If, during the Restricted Period, the Note Owner of an interest in a Regulation S Global Note wishes at any time to transfer its beneficial interest in such Note to a Person who wishes to take delivery thereof in the form of a Regulation S Global Note, such Note Owner may transfer or cause the transfer of such beneficial interest for an equivalent beneficial interest in such Regulation S Global Note only upon compliance with the provisions of this Section 2.4(d)(iv) and all Applicable Procedures. Upon receipt by the Note Registrar at its Corporate Trust Office of (A) written instructions given in accordance with the Applicable Procedures from a Depository Participant directing the Note Registrar to credit or cause to be credited to another specified Depository Participant’s account a beneficial interest in such Regulation S Global Note in an amount equal to the denomination of the beneficial interest to be transferred, (B) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Depository Participant to be credited with, and the account of the Depository Participant (or, if such account is held for Euroclear or Clearstream, the Euroclear or Clearstream account, as the case may be) to be debited for, such beneficial interest and (C) a certification in the form of Exhibit F hereto given by the transferee, the Note Registrar shall instruct the Depository to credit or cause to be credited to the account of the Person specified in such instructions (who shall be a Depository Participant acting for or on behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial interest in the Regulation S Global Note having a denomination equal to the amount specified in such instructions by which the account to be debited was reduced upon such transfer. |
(e) No resale or other transfer of any Note or any interest therein may be made to any purchaser or transferee unless (i) such purchaser or transferee is not, and will not acquire such Note or any interest therein on behalf of or with the assets of, any Benefit Plan or (ii) no “prohibited transaction” under ERISA or Section 4975 of the Code that is not subject to a statutory, regulatory or administrative exemption and no violation of any substantially similar provision of federal, state or local law will occur in connection with purchaser's or such transferee's acquisition, holding or disposition of such Note or any interest therein. In addition,
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neither the Notes nor any interest therein may be purchased by or transferred to any Benefit Plan or person acting on behalf of or with assets of any Benefit Plan unless it represents that it is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Issuer, the Depositor, the Originators, the Servicer, the Indenture Trustee, the Owner Trustee, the Administrator, the Custodian, the Backup Servicer, the Lockbox Bank or the Initial Purchasers, or by any Affiliate of any such Person. |
(i) The Notes represent the sole obligation of the Issuer payable from the Trust Estate and do not represent the obligations of the Originators, the Servicer, the Depositor, the Backup Servicer, the Owner Trustee, the Indenture Trustee, the Administrator or the Custodian. |
(j) The Issuer may not, at any time, own any Class of Notes. |
(k) Each Note Owner, by its acceptance of its beneficial interest in a Note, will be deemed to have acknowledged, represented to and agreed with the Issuer and the Initial Purchasers, each of the statements set forth in items 1 through 11 of Exhibit B hereto. |
(a) If any mutilated Note is surrendered to the Indenture Trustee, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. |
(b) If there shall be delivered to the Issuer and the Indenture Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless then, in the absence of actual notice to the Issuer or the Indenture Trustee that such Note has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request the Indenture Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
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stolen Note, a replacement Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. |
(c) In case the final installment of principal on any such mutilated, destroyed, lost or stolen Note has become or will at the next Payment Date become due and payable, the Issuer, in its discretion, may, instead of issuing a replacement Note, pay such Note. |
(d) Upon the issuance of any replacement Note under this Section 2.5, the Issuer or the Indenture Trustee may require the payment by the Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed as a result of the issuance of such replacement Note. |
(e) Every replacement Note issued pursuant to this Section 2.5 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the 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. |
(f) The provisions of this Section 2.5 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. |
(a) Any installment of interest or principal, 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 was registered at the close of business on the Record Date for such Payment Date by check mailed to the address specified in the Note Register, or if a Noteholder has provided wire transfer instructions to the Indenture Trustee at least five Business Days prior to the applicable Payment Date, upon the request of a Noteholder, by wire transfer of federal funds to the account and number specified in the Note Register, in each case on such Record Date for such Person (which shall be, as to each original purchaser of the Notes, the account and number specified by such purchaser to the Indenture Trustee in writing, or, if no such account or number is so specified, then by check mailed to such Person’s address as it appears in the Note Register on such Record Date). |
(b) All reductions in the principal amount of a Note effected by payments of principal made on any Payment Date shall be binding upon all Noteholders of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Note. All payments on the Notes shall be paid without any requirement of presentment, but each Noteholder of any Note shall be deemed to agree, by its acceptance of the same, to surrender such Note at the Corporate Trust Office within 30 days after receipt of the final principal payment of such Note. Payment at or following the Stated Maturity of any Definitive Note, however, will be made only upon presentation and surrender of such Definitive Note at the office or agency specified in the notice of final payment mailed to the Noteholders, including the office of any paying agent specified in such notice. |
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(c) All outstanding principal of each Note (unless sooner paid) will be due and payable on the Stated Maturity of such Note. |
Prior to due presentment of a Note for registration of transfer, the Issuer, the Indenture Trustee, and any agent of the Issuer or the Indenture Trustee may treat the registered Noteholder as the owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not payment on such Note is overdue, and neither the Issuer, the Indenture Trustee, nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
All Notes surrendered for registration of transfer or exchange or following final payment shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which 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 2.8, except as expressly permitted by this Indenture. All canceled Notes held by the Indenture Trustee may be disposed of in the normal course of its business or as directed by an Issuer Order.
The Indenture Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Noteholders. In the event the Indenture Trustee no longer serves as the Note Registrar, the Issuer (or any other obligor upon the Notes) shall furnish to the Indenture Trustee at least five Business Days before each Payment Date (and in all events in intervals of not more than six months) and at such other times as the Indenture Trustee may request in writing a list in such form and as of such date as the Indenture Trustee may reasonably require of the names and addresses of the Noteholders.
In determining whether the Noteholders of the required Outstanding Note Balance or the Adjusted Note Balance of the Notes have concurred in any direction, waiver or consent, Notes held or redeemed by the Issuer or any other obligor in respect of the Notes or held by an Affiliate of the Issuer or such other obligor shall be considered as though not Outstanding, except that for the purposes of determining whether the Indenture Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer of the Indenture Trustee knows are so owned shall be so disregarded.
Whenever notice or other communication to the holders of Global Notes is required under this Indenture, unless and until Definitive Notes have been issued to the related
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Note Owners pursuant to Section 2.3 hereof, the Indenture Trustee shall give all such notices and communications specified herein to be given to such Note Owners to the Depository.
Each Noteholder, by acceptance of a Note, agrees and covenants that it shall hold in confidence all Confidential Information; provided, however, that any Noteholder may deliver or disclose Confidential Information to (i) its directors, officers, trustees, managers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the investment represented by the Notes), (ii) its financial advisors and other professional advisors who agree to hold confidential such information substantially in accordance with the terms of this Section 2.12, (iii) any other Noteholder, (iv) any institutional investor to which such Noteholder sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such confidential information to be bound by the provisions of this Section 2.12), (v) any federal or state regulatory authority having jurisdiction over such Noteholder, (vi) the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agencies that requires access to information about such Noteholder’s investment portfolio, (vii) the Rating Agencies or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Noteholder, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Noteholder is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Noteholder may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Notes and the Transaction Documents.
(a) On or before the Closing Date, Indenture Trustee shall establish in the name of the Indenture Trustee for the benefit of the Noteholders or, in the case of the Lockbox Account, in the name of the Issuer, as provided in this Indenture, the Trust Accounts, which accounts shall be Eligible Bank Accounts. |
Subject to the further provisions of this Section 3.1(a), the Indenture Trustee shall, upon receipt or upon transfer from another account, as the case may be, deposit into such Trust Accounts all amounts and Eligible Investments received by it which are required to be deposited therein in accordance with the provisions of this Indenture. All such amounts and all investments made with such amounts, including all income and other gain from such investments, shall be held by the Indenture Trustee in such accounts as part of the Trust Estate as herein provided, subject to withdrawal by the Indenture Trustee in accordance with, and for the purposes specified in the provisions of, this Indenture.
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(b) The Indenture Trustee shall assume that any amount remitted to it in respect of the Trust Estate is to be deposited into the Collection Account pursuant to Section 3.2(a) hereof unless a Responsible Officer of the Indenture Trustee receives written instructions from the Servicer to the contrary. |
(c) None of the parties hereto shall have any right of set-off with respect to any Trust Account or any investment therein. |
(d) So long as no Event of Default shall have occurred and be continuing, all or a portion of the amounts in any Trust Account (other than the Lockbox Account) shall be invested and reinvested by the Indenture Trustee pursuant to an Issuer Order in one or more Eligible Investments. Subject to the restrictions on the maturity of investments set forth in Section 3.1(f) hereof, each such Issuer Order may authorize the Indenture Trustee to make the specific Eligible Investments set forth therein, to make Eligible Investments from time to time consistent with the general instructions set forth therein, in each case, in such amounts as such Issuer Order may specify. Until an Issuer Order to the contrary is delivered, the Indenture Trustee shall make the Eligible Investments set forth in Exhibit A to the Administration Agreement. |
(e) In the event that either (i) the Issuer shall have failed to give investment directions to the Indenture Trustee by 9:30 A.M., New York City time on any Business Day on which there may be uninvested cash or (ii) an Event of Default shall be continuing, the Indenture Trustee shall promptly invest and reinvest the funds then in the designated Trust Account to the fullest extent practicable in those obligations or securities described in clause (e) of the definition of “Eligible Investments”. All investments made by the Indenture Trustee shall mature no later than the maturity date therefor permitted by Section 3.1(f) hereof. |
(f) No investment of any amount held in any Trust Account shall mature later than the Business Day immediately preceding the Payment Date which is scheduled to occur immediately following the date of investment. All income or other gains (net of losses) from the investment of moneys deposited in any Trust Account shall be deposited by the Indenture Trustee in such account promptly upon receipt. |
(g) Subject to Section 3.1(d) hereof, any investment of any funds in any Trust Account shall be made under the following terms and conditions: |
(i) each such investment shall be made or transferred in the name of the Indenture Trustee, in each case in such manner as shall be necessary to maintain the identity of such investments as assets of the Trust Estate; and |
(ii) any certificate or other instrument evidencing such investment shall be delivered directly to the Indenture Trustee, and the Indenture Trustee shall have sole possession of such instrument, and all income on such investment. |
(h)
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depreciation in the market value of such investments (but the institution serving as Indenture Trustee shall at all times remain liable for its own obligations, if any, constituting part of such investments). The Indenture Trustee shall not be liable for any investment or liquidation of an investment made by it in accordance with this Section 3.1 on the grounds that it could have made a more favorable investment or a more favorable selection for sale of an investment. |
(i)If at any time a Trust Account shall cease to be an Eligible Bank Account, the Indenture Trustee shall, within 30 days, establish a new Trust Account that is an Eligible Bank Account. The 30-day period may be extended an additional 30 days if the Indenture Trustee provides to each Rating Agency an action plan prior to expiration of the entire 30-day period.
(j)The parties agree that each Trust Account (other than the Lockbox Account) is a “securities account” within the meaning of Article 8 of the UCC and that all property (including without limitation all uninvested funds, securities and other investment property) at any time deposited or carried in or credited to the Trust Accounts (other than the Lockbox Account) shall be treated as “financial assets” within the meaning of Article 8 of the UCC. The parties agree that (i) U.S. Bank National Association shall be acting as “securities intermediary” within the meaning of Article 8 of the UCC and will at all times act in such capacity with respect to the Trust Accounts and (ii) the Indenture Trustee is the entitlement holder of the Trust Accounts (other than the Lockbox Account). The parties agree that U.S. Bank National Association as “securities intermediary” shall follow all “entitlement orders” (as such term is defined in Article 8 of the UCC) originated by the Indenture Trustee with respect to the Trust Accounts (other than the Lockbox Account) and all financial assets deposited or carried in or credited to any Trust Account (other than the Lockbox Account). The parties agree that the “securities intermediary’s jurisdiction”, within the meaning of Section 8-110 of the UCC with respect to security entitlements to financial assets credited to the Trust Accounts (other than the Lockbox Account) shall be the State of New York.
(a) Collection Account. The Issuer hereby directs, and the Indenture Trustee hereby agrees, to cause to be established and maintained an account (the “Collection Account”) for the benefit of the Noteholders. The Collection Account shall be an Eligible Bank Account initially established at the corporate trust department of the Indenture Trustee or an Affiliate thereof, bearing the following designation “BXG Receivables Note Trust 2022-A, Timeshare Loan-Backed Notes, Series 2022-A — Collection Account, U.S. Bank Trust Company, National Association, as Indenture Trustee for the benefit of the Noteholders”. The Indenture Trustee on behalf of the Noteholders shall possess all right, title and interest in all funds on deposit from time to time in the Collection Account and in all proceeds thereof. The Collection Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders as their interests appear in the Trust Estate. If, at any time, the Collection Account ceases to be an Eligible Bank Account, the Indenture Trustee shall, in accordance with Section 3.1(i) hereof, establish a new Collection Account (which if not maintained by the Indenture Trustee is subject to an account control agreement satisfactory to the Indenture Trustee) which shall be an Eligible Bank Account, transfer any cash and/or any investments to such new Collection Account, and from the date such new Collection Account is established, it shall be the
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“Collection Account”. The Indenture Trustee agrees to promptly deposit any amounts received by it into the Collection Account. Amounts on deposit in the Collection Account shall be invested in accordance with Section 3.1 hereof. Withdrawals and payments from the Collection Account will be made on each Payment Date as provided in Section 3.4 or Section 6.6 hereof, as applicable. The Indenture Trustee, at the written direction of the Servicer, shall withdraw (no more than once per calendar week) from the Collection Account and return to the Servicer or as directed by the Servicer, any amounts which (i) were mistakenly deposited in the Collection Account, including, without limitation, amounts representing Misdirected Deposits or (ii) represent Additional Servicing Compensation. The Indenture Trustee may conclusively rely on such written direction. |
(b) General Reserve Account. The Issuer hereby directs and the Indenture Trustee hereby agrees, to cause to be established and maintained an account (the “General Reserve Account”) for the benefit of the Noteholders. On the Closing Date, the Indenture Trustee shall deposit, from the proceeds from the sale of the Notes, an amount equal to the General Reserve Account Initial Deposit. The General Reserve Account shall be an Eligible Bank Account initially established at the corporate trust department of the Indenture Trustee or an Affiliate thereof, bearing the following designation “BXG Receivables Note Trust 2022-A, Timeshare Loan-Backed Notes, Series 2022-A — General Reserve Account, U.S. Bank Trust Company, National Association, as Indenture Trustee for the benefit of the Noteholders”. The Indenture Trustee on behalf of the Noteholders shall possess all right, title and interest in all funds on deposit from time to time in the General Reserve Account and in all proceeds thereof. The General Reserve Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders as their interests appear in the Trust Estate. If, at any time, the General Reserve Account ceases to be an Eligible Bank Account, the Indenture Trustee shall, in accordance with Section 3.1(i) hereof, establish a new General Reserve Account (which if not maintained by the Indenture Trustee is subject to an account control agreement satisfactory to the Indenture Trustee) which shall be an Eligible Bank Account, transfer any cash and/or any investments to such new General Reserve Account and from the date such new General Reserve Account is established, it shall be the “General Reserve Account”. Amounts on deposit in the General Reserve Account shall be invested in accordance with Section 3.1 hereof. Deposits to the General Reserve Account shall be made in accordance with Section 3.4 hereof. Withdrawals and payments from the General Reserve Account shall be made in the following manner: |
(i) Withdrawals. Subject to Sections 3.2(b)(ii) and (iii) hereof, if on any Payment Date, Available Funds (without giving effect to any deposit from the General Reserve Account) would be insufficient to pay any portion of the Required Payments on such Payment Date, the Indenture Trustee shall, solely based on the Monthly Servicer Report, withdraw from the General Reserve Account an amount equal to the lesser of such insufficiency and the amount on deposit in the General Reserve Account and deposit such amount into the Collection Account. |
(ii) Trigger Event or Sequential Pay Event. Upon the occurrence of a Trigger Event or Sequential Pay Event, the Indenture Trustee shall withdraw all amounts on deposit in the General Reserve Account and shall deposit such amounts into the Collection Account for distribution in accordance with Section 3.4 or Section 6.6 hereof, as applicable. |
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(iii) Stated Maturity or Payment in Full. On the earlier to occur of the Stated Maturity and the Payment Date on which the Outstanding Note Balance of all Classes of Notes will be reduced to zero, the Indenture Trustee shall withdraw all amounts on deposit in the General Reserve Account and shall deposit such amounts into the Collection Account for distribution in accordance with Section 3.4 or Section 6.6 hereof, as applicable. |
(iv) Amounts in Excess of General Reserve Account Required Balance. If amounts on deposit in the General Reserve Account are greater than the General Reserve Account Required Balance (after giving effect to all other distributions and disbursements on such Payment Date), the Indenture Trustee shall, based on the Monthly Servicer Report, withdraw funds in excess of the General Reserve Account Required Balance from the General Reserve Account and disburse such amounts to the Certificate Distribution Account to be distributed in accordance with the Trust Agreement. |
(c) Prefunding Account. The Issuer hereby directs, and the Indenture Trustee hereby agrees, that the Indenture Trustee will establish and maintain an account (the “Prefunding Account”) for the benefit of the Noteholders. On the Closing Date, the Issuer shall cause the Indenture Trustee to deposit into the Prefunding Account an amount equal to the Prefunding Amount Initial Deposit. The Prefunding Account shall be an Eligible Bank Account initially established at the corporate trust department of the Indenture Trustee or an Affiliate thereof, bearing the following designation “BXG Receivables Note Trust 2022-A, Timeshare Loan-Backed Notes, Series 2022-A — Prefunding Account, U.S. Bank Trust Company, National Association, as Indenture Trustee for the benefit of the Noteholders”. The Indenture Trustee on behalf of the Noteholders shall possess all right, title and interest in all funds on deposit from time to time in the Prefunding Account and in all proceeds thereof. The Prefunding Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders as their interests appear in the Trust Estate. If, at any time, the Prefunding Account ceases to be an Eligible Bank Account, the Indenture Trustee shall, in accordance with Section 3.1(i) hereof, establish a new Prefunding Account (which if not maintained by the Indenture Trustee is subject to an account control agreement satisfactory to the Indenture Trustee) which shall be an Eligible Bank Account, transfer any cash and/or any investments to such new Prefunding Account and from the date such new Prefunding Account is established, it shall be the “Prefunding Account”. Amounts on deposit in the Prefunding Account shall be invested in accordance with Section 3.1 hereof. Withdrawals and payments from the Prefunding Account shall be made in the following manner: |
(i) Prefunding Period. At or before 9:00 A.M. New York City time, on each Transfer Date for a transfer of Subsequent Timeshare Loans, (x) the Depositor shall instruct Indenture Trustee in writing to withdraw the cash portion of the purchase price from the Prefunding Account which is an amount equal to 88.30% of the Cut-Off Date Loan Balance of the Subsequent Timeshare Loans transferred to the Issuer and to be pledged to the Indenture Trustee as part of the Trust Estate and (y) subject to satisfaction of the conditions specified in Section 4.2 hereof, the Indenture Trustee shall distribute such amounts to the Depositor. |
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(ii) Prefunding Termination Date. On the Prefunding Termination Date, the Indenture Trustee shall deposit all amounts remaining in the Prefunding Account into the Collection Account and such amounts will be distributed on the following Payment Date as a distribution of principal in accordance with Section 3.4 hereof. |
(iii) Investment Earnings. On each Determination Date during the Prefunding Period, the Indenture Trustee shall withdraw all investment earnings on deposits in the Prefunding Account and deposit such amount into the Collection Account. |
(d) [Reserved]. |
(e) Force Majeure Loan Reserve Account. The Issuer hereby directs and the Indenture Trustee hereby agrees, that the Indenture Trustee will establish and maintain an account (the “Force Majeure Loan Reserve Account”) for the benefit of the Noteholders. The Force Majeure Loan Reserve Account shall be an Eligible Bank Account initially established at the Corporate Trust Office of the Indenture Trustee or an Affiliate thereof, bearing the following designation “BXG Receivables Note Trust 2022-A, Timeshare Loan-Backed Notes, Series 2022-A – Force Majeure Loan Reserve Account, U.S. Bank Trust Company, National Association, as Indenture Trustee for the benefit of the Noteholders”. The Indenture Trustee on behalf of the Noteholders shall possess all right, title and interest in all funds on deposit from time to time in the Force Majeure Loan Reserve Account and in all proceeds thereof. The Force Majeure Loan Reserve Account shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders as their interests appear in the Trust Estate. If, at any time, the Force Majeure Loan Reserve Account ceases to be an Eligible Bank Account, the Indenture Trustee shall, in accordance with Section 3.1(i) hereof, establish a new Force Majeure Loan Reserve Account (which if not maintained by the Indenture Trustee is subject to an account control agreement satisfactory to the Indenture Trustee) which shall be an Eligible Bank Account, transfer any cash and/or any investments to such new Force Majeure Loan Reserve Account and from the date such new Force Majeure Loan Reserve Account is established, it shall be the “Force Majeure Loan Reserve Account.” Amounts on deposit in the Force Majeure Loan Reserve Account shall be invested in accordance with Section 3.1 hereof. Deposits to the Force Majeure Loan Reserve Account shall be made in accordance with Section 3.4(a) hereof such that the amount on deposit therein, if any, is equal to the Force Majeure Required Reserve Amount. Withdrawals and payments from the Force Majeure Loan Reserve Account shall be made in the following manner: |
(i) Withdrawals for Deposit into Collection Account. On each Payment Date, if a Post Grace Period Force Majeure Loan becomes a Defaulted Timeshare Loan (unless such Defaulted Timeshare Loan has been repurchased or substituted by the Club Originator), the Indenture Trustee shall, based on the Monthly Servicer Report, withdraw from the Force Majeure Loan Reserve Account and deposit into the Collection Account an amount equal to the lesser of (A) such Timeshare Loan’s outstanding Loan Balance on such date and (B) the amount on deposit in the Force Majeure Loan Reserve Account. |
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(ii) Withdrawals for Distribution to Owner. On each Payment Date, if a Post Grace Period Force Majeure Loan ceases to be a Post Grace Period Force Majeure Loan as a result of either (A) the related Obligor having made at least two consecutive current payments or (B) such Post Grace Period Force Majeure Loan becoming a Defaulted Timeshare Loan for which the Seller has repurchased or substituted such Defaulted Timeshare Loan, then the Indenture Trustee shall, based on the Monthly Servicer Report, distribute to the Collection Account an amount from the Force Majeure Loan Reserve Account equal to the lesser of (A) such Timeshare Loan’s outstanding Loan Balance on such date and (B) the amount on deposit in the Force Majeure Loan Reserve Account. |
(f) Lockbox Account. The Lockbox Account shall at all times be subject to the Lockbox Agreement. If at any time, the Lockbox Account ceases to be an Eligible Bank Account, the Indenture Trustee shall terminate the Lockbox Agreement and the Servicer shall, on behalf of the Issuer and the Indenture Trustee, in accordance with Section 3.1(i) hereof, establish a new Lockbox Account and enter into a new lockbox agreement substantially in the form as the Lockbox Agreement. |
(a) On each Payment Date, so long as no Sequential Pay Event has occurred, to the extent of Available Funds and based solely on the Monthly Servicer Report, the Indenture Trustee shall withdraw funds from the Collection Account to make the following disbursements and distributions to the following parties, in the following order of priority: |
(i) to the Indenture Trustee, the Indenture Trustee Fee and any extraordinary out-of-pocket expenses and indemnities of the Indenture Trustee, plus any accrued and unpaid Indenture Trustee Fees with respect to prior Payment Dates; provided, however, that (i) any payments to the Indenture Trustee as reimbursement for any extraordinary out-of-pocket expenses and indemnities of the Indenture Trustee related to the transfer of servicing to a successor Servicer will be limited to $30,000 per calendar quarter and $100,000 in the aggregate; and (ii) payments to the Indenture Trustee as reimbursement for any other extraordinary out-of-pocket expenses and indemnities of the Indenture Trustee will be limited to $50,000 per calendar year so long as none of the following events has occurred: an Event of Default, acceleration of the Notes or the liquidation of the Trust Estate pursuant to the Indenture; |
(ii) to the Owner Trustee, the Owner Trustee Fee, if due, plus any accrued and unpaid Owner Trustee Fees with respect to prior Payment Dates; |
(iii) to the Administrator, the Administrator Fee, plus any accrued and unpaid Administrator Fees with respect to prior Payment Dates; |
(iv) to the Custodian, the Custodian Fee, plus any accrued and unpaid Custodian Fees with respect to prior Payment Dates; |
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(v) to the Lockbox Bank, the Lockbox Fee, plus any accrued and unpaid Lockbox Fees with respect to prior Payment Dates; |
(vi) to the Servicer, the Servicing Fee, plus any accrued and unpaid Servicing Fees with respect to prior Payment Dates; |
(vii) to the Backup Servicer, the Backup Servicing Fee, plus any accrued and unpaid Backup Servicing Fees with respect to prior Payment Dates (less any amounts received from the Indenture Trustee, as successor Servicer); |
(viii) to the Class A Noteholders, the Class A Interest Distribution Amount; |
(ix) to the Class B Noteholders, the Class B Interest Distribution Amount; |
(x) to the Class C Noteholders, the Class C Interest Distribution Amount; |
(xi) if a Trigger Event shall have occurred and is continuing, to (a) the Class A Noteholders, all remaining Available Funds until the Outstanding Note Balance of the Class A Notes is reduced to zero, then (b) the Class B Noteholders, all remaining Available Funds until the Deferred Interest Amount for such Class, if any, is reduced to zero, then (c) the Class B Noteholders, all remaining Available Funds until the Outstanding Note Balance of the Class B Notes is reduced to zero, then (d) the Class C Noteholders, all remaining Available Funds until the Deferred Interest Amount for such Class, if any, is reduced to zero, and then (e) the Class C Noteholders, all remaining Available Funds until the Outstanding Note Balance of the Class C Notes is reduced to zero; |
(xii) to the Class A Noteholders, the Class A Principal Distribution Amount; |
(xiii) to the Class B Noteholders, the Class B Principal Distribution Amount; |
(xiv) to the Class C Noteholders, the Class C Principal Distribution Amount; |
(xv) to the General Reserve Account, all remaining Available Funds until the amounts on deposit in the General Reserve Account shall be equal to the General Reserve Account Required Balance; |
(xvi) to (a) the Class A Noteholders, (b) the Class B Noteholders and (c) the Class C Noteholders, pari passu and pro rata, the Principal Advance Reduction Amount; |
(xvii) if a Lockout Event shall have occurred and is continuing, to (a) the Class A Noteholders, (b) the Class B Noteholders and (c) the Class C Noteholders, pari passu and pro rata, all remaining Available Funds; |
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(xviii) to the Class B Noteholders, the Deferred Interest Amount for such Class, if any; |
(xix) to the Class C Noteholders, the Deferred Interest Amount for such Class, if any; |
(xx) to the Force Majeure Loan Reserve Account, all remaining amounts until the amounts on deposit in the Force Majeure Loan Reserve Account shall equal the Force Majeure Required Reserve Amount; |
(xxi) to the Indenture Trustee, any extraordinary out‑of‑pocket expenses and indemnities owed to the Indenture Trustee not paid in accordance with clause (i) above; |
(xxii) to the Lockbox Bank, any amounts owed under the Lockbox Agreement not paid in accordance with clause (v) above; and |
(xxiii) to the Certificate Distribution Account, any remaining Available Funds for distribution pursuant to the Trust Agreement. |
(b) On and after the Assumption Date, the Indenture Trustee, as successor Servicer, shall pay the Backup Servicing Fee from amounts received in respect of the Servicing Fee. |
(c) Upon the occurrence of a Sequential Pay Event, distributions shall be made in accordance with Section 6.6 hereof. |
On each Payment Date, the Indenture Trustee shall report to the Initial Purchasers, each Noteholder, each Note Owner and each Rating Agency the portion of payments then being made which represents principal and the amount which represents interest, and shall contemporaneously advise the Issuer of all such payments. The Indenture Trustee shall satisfy its obligations under this Section 3.5 by making available electronically the Monthly Servicer Report to the Initial Purchasers, the Noteholders, each Rating Agency and the Issuer; provided, however, the Indenture Trustee shall have no obligation to provide such information described in this Section 3.5 until it has received the requisite information from the Issuer or the Servicer. On or before the fifth day prior to the final Payment Date with respect to any Class, the Indenture Trustee shall send notice of such Payment Date to each Rating Agency, the Initial Purchasers and the Noteholders of such Class. Such notice shall include a statement that if such Notes are paid in full on the final Payment Date, interest shall cease to accrue as of the day immediately preceding such final Payment Date. In addition, the Indenture Trustee shall deliver to the Note Owners, all notices, compliance reports and other certificates delivered by the Servicer or the Issuer pursuant to this Indenture. At a Note Owner’s request, the Indenture Trustee agrees to provide such Note Owner an accounting of balances in the General Reserve Account.
The Indenture Trustee shall make available to the Noteholders, Note Owners and each Rating Agency, via the Indenture Trustee’s internet website (initially located at
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https://pivot.usbank.com), the Monthly Servicer Report available each month and, with the consent or at the direction of the Issuer, such other information regarding the Notes and/or the Timeshare Loans as the Indenture Trustee may have in its possession, but only with the use of a password provided by the Indenture Trustee or its agent to such Person upon receipt by the Indenture Trustee from such Person of a certification in the form of Exhibit J; provided, however, that the Indenture Trustee or its agent shall provide such password to the parties to this Indenture and each Rating Agency without requiring such certification. The Indenture Trustee will make no representation or warranties as to the accuracy or completeness of such documents and will assume no responsibility therefor.
The Indenture Trustee’s internet website shall be specified by the Indenture Trustee from time to time in writing to the Issuer, the Servicer, the Noteholders and each Rating Agency. For assistance with this service, Noteholders may call the customer service desk at (800) 934-6802. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the dissemination of information in accordance with this Indenture.
The Indenture Trustee shall have the right to change the way Monthly Servicer Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Indenture Trustee shall provide timely and adequate notification to all above parties regarding any such changes.
Annually (and more often, if required by applicable law), the Indenture Trustee shall distribute to the Noteholders and submit to the Internal Revenue Service any Form 1099 or similar information returns required by applicable tax law to be distributed to the Noteholders or submitted to the Internal Revenue Service. The Indenture Trustee shall prepare or cause to be prepared all such forms and returns for distribution or submission by the Indenture Trustee to the Noteholders or the Internal Revenue Service, as applicable.
The Note Balance Write-Down Amount, if any, on each Payment Date shall only be applied in the following order of priority: (i) to the Outstanding Note Balance of the Class C Notes immediately following the distribution of Available Funds on each Payment Date until the Adjusted Note Balance of the Class C Notes is reduced to zero and (ii) to the Outstanding Note Balance of the Class B Notes immediately following the distribution of Available Funds on each Payment Date until the Adjusted Note Balance of the Class B Notes is reduced to zero. The application of the Note Balance Write-Down Amount to the Class B Notes and the Class C Notes, respectively, shall not reduce such Class’ entitlement to unpaid Principal Distribution Amounts.
The Indenture Trustee, on behalf of the Issuer, shall comply with all requirements of the Code and applicable Treasury Regulations promulgated thereunder and applicable state and local law with respect to the withholding from any distributions made by it to any Noteholder of any applicable withholding taxes (including FATCA Withholding Tax) imposed
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thereon and with respect to any applicable reporting requirements in connection therewith. Each Noteholder, by acceptance of a Note, thereby agrees that (i) it will provide its Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is potentially applicable, it will provide its Noteholder FATCA Information to the Indenture Trustee, upon request by the Indenture Trustee, and (ii) the Indenture Trustee has the right to withhold from any amount of interest or other amount (properly withholdable under law and without any corresponding gross up) payable to a Noteholder that fails to comply with the requirements of clause (i) of this Section 3.7. The Indenture Trustee shall pay over any amount withheld pursuant to this Section 3.7 to the appropriate Governmental Authority.
(a) Concurrently with the execution and delivery of this Indenture, the Indenture Trustee does hereby acknowledge and accept the conveyance by the Issuer of the assets constituting the Trust Estate. The Indenture Trustee shall hold the Trust Estate in trust for the benefit of the Noteholders, subject to the terms and provisions hereof. In connection with the conveyance of the Trust Estate to the Indenture Trustee, the Issuer has delivered or has caused the Depositor to deliver (i) to the Custodian, the Timeshare Loan Files and (ii) to the Servicer, the Timeshare Loan Servicing Files, for each Initial Timeshare Loan conveyed on the Closing Date. With respect to each Transfer Date and in accordance with the Custodial Agreement, the Issuer will deliver or cause to be delivered (i) to the Custodian, the Timeshare Loan Files, and (ii) to the Servicer, the Timeshare Loan Servicing Files, for each Subsequent Timeshare Loan or Qualified Substitute Timeshare Loan to be conveyed on such Transfer Date. |
(b) The Indenture Trustee shall perform its duties under this Section 4.1 and hereunder on behalf of the Trust Estate and for the benefit of the Noteholders in accordance with the terms of this Indenture and applicable law and, in each case, taking into account its other obligations hereunder, but without regard to: |
(i) any relationship that the Indenture Trustee or any Affiliate of the Indenture Trustee may have with an Obligor; |
(ii) the ownership of any Note by the Indenture Trustee or any Affiliate of the Indenture Trustee; |
(iii) the Indenture Trustee’s right to receive compensation for its services hereunder or with respect to any particular transaction; or |
(iv) the ownership, or holding in trust for others, by the Indenture Trustee of any other assets or property. |
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With respect to Subsequent Timeshare Loans, on each Transfer Date during the Prefunding Period, subject to the satisfaction of the following conditions and the requirements of Section 4.3 hereof, and in consideration of the Indenture Trustee’s delivery on such Transfer Date to or upon the order of the Depositor of the Timeshare Loan Acquisition Price, the Depositor shall sell, transfer, assign, set over and otherwise convey without recourse to the Issuer, all right, title and interest of the Depositor in and to each Subsequent Timeshare Loan and the Issuer shall Grant such Subsequent Timeshare Loans to the Indenture Trustee for the benefit of the Noteholders. Prior to the acceptance by the Indenture Trustee of any Subsequent Timeshare Loan or the release of any funds therefor, the following conditions must be satisfied on or prior to the related Transfer Date:
(a) the Depositor shall have provided the Indenture Trustee with a notice of a subsequent transfer of Subsequent Timeshare Loans (a “Subsequent Transfer Notice”), a form of which is attached hereto as Exhibit N which notice shall be given not less than one Business Day prior to such Transfer Date; |
(b) the Issuer shall have deposited or caused to be deposited in the Collection Account all principal and interest collected after the related Cut-Off Date in respect of such Subsequent Timeshare Loan; |
(c) no Event of Default shall have occurred and is continuing and no such event would result from the conveyance of such Subsequent Timeshare Loan to the Indenture Trustee; |
(d) the Custodian shall have received the Timeshare Loan Files related to such Subsequent Timeshare Loans and shall have given the Indenture Trustee a written certification and receipt in accordance with the Custodial Agreement; |
(e) the Servicer shall have received the Timeshare Loan Servicing Files related to such Subsequent Timeshare Loans; |
(f) the Indenture Trustee shall have received the certification required to be delivered by the Depositor in Section 4.3 hereof; and |
(g) no Responsible Officer of the Indenture Trustee shall have Knowledge or have actually received written notice that any conditions to such transfer (including the requirements in Section 4.3 hereof) have not been fulfilled and the Indenture Trustee shall have received such other documents, opinions, certificates and instruments as the Indenture Trustee may request. |
No Subsequent Timeshare Loan shall be accepted as part of the Trust Estate on any Transfer Date unless the Indenture Trustee shall have received a certification from the Depositor that (a) the Depositor, as of such Transfer Date, has restated each of the representations and warranties contained in Section 5(a) of the Sale Agreement, (b) each of the conditions in Section 4.2 above has been satisfied, (c) each Subsequent Timeshare Loan is an Eligible Timeshare Loan as of the Transfer Date, and (d) each Subsequent Timeshare Loan satisfies the following criteria
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(measured by using the relevant data for each Timeshare Loan as of its related Cut-Off Date): (i) that such Subsequent Timeshare Loan was not selected by the Depositor in a manner that the Depositor, in its reasonable business judgment, believes to be materially adverse to the interests of the Noteholders, provided that it is acknowledged by the parties hereto that the certification in this clause (d)(i) is not intended and shall not be construed as a guaranty of the performance of such Subsequent Timeshare Loans and that such Subsequent Timeshare Loan may perform differently than other timeshare loans originated by the related Originator or other Affiliates of the Depositor, (ii) that after the purchase of all Subsequent Timeshare Loans, (A) the weighted average interest rate on all Subsequent Timeshare Loans must be greater than 15.0%, (B) the weighted average months of age on all Timeshare Loans must be greater than 9 months, (C) the percentage of Timeshare Loans related to Units at the Resorts is not one percent (1%) less than such percentage on the Closing Date, (D) the percentage of Timeshare Loans related to a Resort as a percentage of all Timeshare Loans does not vary from such percentage on the Closing Date by more than 7% as a percentage of all Timeshare Loans and (E) the percentage of Subsequent Timeshare Loans that were made to existing Bluegreen Vacation Club owners is at least 50% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (iii) that such Subsequent Timeshare Loan does not have a stated maturity later than September 2023, (iv) the related Obligor has made at least one payment in respect of such Subsequent Timeshare Loan, (v) to the extent the related Obligor has a FICO® score, such Obligor does not have a FICO® score of 650 or below, (vi) the weighted average FICO® score of the Obligors of the Subsequent Timeshare Loans must be greater than 737, (vii) the Obligors of the Subsequent Timeshare Loans with no FICO® scores do not represent more than 0.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (viii) the Obligors of the Subsequent Timeshare Loans with no FICO® scores and FICO® scores between, and including, 601 to 625 do not represent more than 0.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (ix) the Obligors of the Subsequent Timeshare Loans with no FICO® scores and FICO® scores between, and including, 601 to 650 do not represent more than 0.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (x) the Obligors of the Subsequent Timeshare Loans with no FICO® scores and FICO® scores between, and including, 601 to 700 do not represent more than 27.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (xi) the Obligors of the Subsequent Timeshare Loans with no FICO® scores and FICO® scores between, and including, 601 to 750 do not represent more than 57.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans, (xii) the Obligors of the Subsequent Timeshare Loans who are Foreign Obligors do not represent more than 0.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans and may only include Foreign Obligors who are residents of Canada, and (xiii) the Obligors of the Subsequent Timeshare Loans with no FICO® scores and the Obligors of the Subsequent Timeshare Loans who are Foreign Obligors do not represent more than 0.0% of the aggregate Cut-Off Date Loan Balances of all Subsequent Timeshare Loans.
SECTION 4.4. Grant of Security Interest; Tax Treatment. |
(a) The conveyance by the Issuer of the Timeshare Loans to the Indenture Trustee shall not constitute and is not intended to result in an assumption by the Indenture Trustee or any Noteholder of any obligation of the Issuer or the Servicer to the Obligors, the
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insurers under any insurance policies, or any other Person in connection with the Timeshare Loans. |
(b) It is the intention of the parties hereto that, with respect to all taxes, the Notes will be treated as indebtedness (the “Intended Tax Characterization”). The provisions of this Indenture shall be construed in furtherance of the Intended Tax Characterization. Each of the Issuer, the Servicer, the Indenture Trustee, the Club Trustee and the Backup Servicer by entering into this Indenture, and each Noteholder and Note Owner by acquiring a Note or a beneficial interest therein, agree to (i) treat the Notes as indebtedness for all tax purposes and (ii) to report all payments and transactions with respect to the Notes for purposes of all taxes (including FATCA Withholding Taxes) in a manner consistent with the Intended Tax Characterization, unless otherwise required by applicable law. |
(c) None of the Issuer, the Servicer, the Club Trustee or the Backup Servicer shall take any action inconsistent with the Indenture Trustee’s interest in the Timeshare Loans and each such party shall indicate or shall cause to be indicated in its books and records held on its behalf that each Timeshare Loan constituting the Trust Estate has been assigned to the Indenture Trustee on behalf of the Noteholders. |
(a) The Issuer and the Indenture Trustee each agrees that, from time to time, it will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or appropriate, or that the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes may reasonably request, in order to perfect, protect or more fully evidence the security interest in the Timeshare Loans or to enable the Indenture Trustee to exercise or enforce any of its rights hereunder. Without limiting the generality of the foregoing, the Issuer will, without the necessity of a request and upon the request of the Indenture Trustee, execute and file or record (or cause to be executed and filed or recorded) such Assignments of Mortgage, financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate to create and maintain in the Indenture Trustee a first priority perfected security interest, at all times, in the Trust Estate, including, without limitation, recording and filing UCC-1 financing statements, amendments or continuation statements prior to the effective date of any change of the name, identity or structure or relocation of its chief executive office or its jurisdiction of formation or any change that would or could affect the perfection pursuant to any financing statement or continuation statement or assignment previously filed or make any UCC-1 financing statement or continuation statement previously filed pursuant to this Indenture seriously misleading within the meaning of applicable provisions of the UCC (and the Issuer shall give the Indenture Trustee at least 30 Business Days prior notice of the expected occurrence of any such circumstance). The Issuer shall promptly deliver to the Indenture Trustee file-stamped copies of any such filings. |
(b) (i) The Issuer hereby grants to each of the Servicer and the Indenture Trustee a power of attorney to execute, file and record all documents including, but not limited to, Assignments of Mortgage, UCC-1 financing statements, amendments or continuation statements, on behalf of the Issuer as may be necessary or desirable to effectuate the foregoing
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and (ii) the Servicer hereby grants to the Indenture Trustee a power of attorney to execute, file and record all documents on behalf of the Servicer as may be necessary or desirable to effectuate the foregoing; provided, however, that such grant shall not create a duty on the part of the Indenture Trustee or the Servicer to file, prepare, record or monitor, or any responsibility for the contents or adequacy of, any such documents. |
(a) Mandatory Substitution and Repurchase of Timeshare Loans for Breach of Representation or Warranty. If at any time, any party hereto obtains Knowledge or is notified in writing by any other party hereto, that any of the representations and warranties of the Depositor in the Sale Agreement were incorrect at the time such representations and warranties were made, then the party discovering such defect, omission, or circumstance shall promptly notify the other parties to this Indenture, each Rating Agency, the Depositor and the Club Originator. In the event any such representation or warranty of the Depositor is incorrect and materially and adversely affects the value of a Timeshare Loan or the interests of the Noteholders therein, then the Issuer and the Indenture Trustee shall require the Depositor or, pursuant to its rights under the Sale Agreement, the Club Originator, within 60 days after the date it is first notified of, or otherwise obtains Knowledge of such breach, to eliminate or otherwise cure in all material respects the circumstance or condition which has caused such representation or warranty to be incorrect or if the breach relates to a particular Timeshare Loan and is not cured in all material respects (such Timeshare Loan, a “Defective Timeshare Loan”), either (a) repurchase such Defective Timeshare Loan at the Repurchase Price or (b) provide one or more Qualified Substitute Timeshare Loans and pay the related Substitution Shortfall Amount, if any. The Indenture Trustee is hereby appointed attorney-in-fact, which appointment is coupled with an interest and is therefore irrevocable, to act on behalf and in the name of the Issuer to enforce the Depositor’s repurchase or substitution obligations if the Depositor has not complied with its repurchase or substitution obligations under the Sale Agreement within 30 days after the end of the aforementioned 60-day period. |
Notwithstanding the foregoing, (A) the failure to deliver a policy of lender's title insurance in respect of a Timeshare Loan shall not constitute a breach of representation or warranty in respect of such Timeshare Loan if, within ninety (90) days of the Closing Date or Transfer Date (i) the files related to such Timeshare Loan held by the Custodian contain a binding unconditional commitment to issue a policy of lender's title insurance showing no exceptions to coverage (other than Permitted Liens) (which may be a master commitment referencing one of more mortgages) or (ii) if such actual policy is delivered to the Custodian, as the case may be; provided, however, that if such policy of lender's title insurance was delayed because the related original mortgage (or copy thereof) has not been received from the appropriate recording office prior to the 80th day following the Closing Date or Transfer Date, as the case may be, then such 90-day period shall be extended to a date thirty (30) days after such receipt of the related mortgage and (B) the failure to provide evidence that a mortgage or certificate of title has been recorded and/or stamped, as the case may be, in the appropriate recording office shall not constitute a breach of representation or warranty in respect of such Timeshare Loan if such evidence is provided not later than the 90th day following the Closing Date or Transfer Date, as the case may be.
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(b) Optional Purchase or Substitution of Club Loans. Pursuant to the Transfer Agreement and the Bluegreen Purchase Agreement, with respect to any Original Club Loan, on any date, the Club Originator, as designee of the Depositor, will (at its option), if the related Obligor has elected to effect and the Club Originator has agreed to effect an Upgrade, (i) pay to the Collection Account the Repurchase Price for such Original Club Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Original Club Loan and pay the related Substitution Shortfall Amounts, if any; provided, however, that, in the case of an Obligor's election to upgrade, the option to substitute one or more Qualified Substitute Timeshare Loans for an Original Club Loan is limited on any date to (A) 15% of the Aggregate Closing Date Collateral Balance, less (B) the aggregate Loan Balances of Original Club Loans previously substituted by the Club Originator pursuant to this Section 4.6(b) on prior Transfer Dates. The Club Originator, as designee of the Depositor, shall deposit the related Repurchase Price and Substitution Shortfall Amounts, if any, into the Collection Account as set forth in Section 4.6(d) hereof. The Issuer acknowledges that the Club Originator has agreed to use best efforts to exercise its substitution option with respect to Original Club Loans prior to exercise of its repurchase option, and to the extent that the Club Originator shall elect to substitute Qualified Substitute Timeshare Loans for an Original Club Loan, the Club Originator shall use best efforts to cause each such Qualified Substitute Timeshare Loan to be, in the following order of priority, (i) the Upgrade Club Loan related to such Original Club Loan and (ii) an Upgrade Club Loan unrelated to such Original Club Loan. |
(c) Optional Purchase or Substitution of Defaulted Timeshare Loans. Pursuant to the Transfer Agreement and the Bluegreen Purchase Agreement, with respect to any Defaulted Timeshare Loans, on any date, the Club Originator, as designee of the Depositor, shall have the option, but not the obligation, to either (i) purchase the Defaulted Timeshare Loan at the Repurchase Price for such Defaulted Timeshare Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Defaulted Timeshare Loan and pay the related Substitution Shortfall Amounts, if any; provided, however, that the option to repurchase a Defaulted Timeshare Loan or to substitute one or more Qualified Substitute Timeshare Loans for a Defaulted Timeshare Loan is limited on any date to the Optional Purchase Limit and the Optional Substitution Limit, respectively. The Club Originator, as designee of the Depositor, shall purchase or substitute Defaulted Timeshare Loans as provided herein and the Club Originator shall deposit the related Repurchase Price and Substitution Shortfall Amounts, if any, into the Collection Account as set forth in Section 4.6(d) hereof. The Club Originator, may irrevocably waive the Club Originator’s option to purchase or substitute a Defaulted Timeshare Loan by delivering or causing to be delivered to the Indenture Trustee a Waiver Letter in the form of Exhibit K attached hereto. |
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts. The Issuer and the Indenture Trustee shall direct that the Depositor remit or cause to be remitted all amounts in respect of Repurchase Prices and Substitution Shortfall Amounts payable during the related Due Period in immediately available funds to the Indenture Trustee on the Transfer Date for deposit in the Collection Account. |
(e) Schedule of Timeshare Loans. The Issuer and Indenture Trustee shall direct the Depositor to provide or cause to be provided to the Indenture Trustee on any date on which a Timeshare Loan is purchased, repurchased or substituted with an electronic supplement
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to the Schedule of Timeshare Loans reflecting the removal and/or substitution of Timeshare Loans and subjecting any Qualified Substitute Timeshare Loans to the provisions thereof. |
(f) Officer’s Certificate. No substitution of a Timeshare Loan shall be effective unless the Issuer and the Indenture Trustee shall have received an Officer’s Certificate from the Club Originator indicating that (i) the new Timeshare Loan meets all the criteria of the definition of “Qualified Substitute Timeshare Loan”, (ii) the Timeshare Loan Files for such Qualified Substitute Timeshare Loan have been delivered to the Custodian or shall be delivered within five Business Days, and (iii) the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loan have been delivered to the Servicer. |
(g) Qualified Substitute Timeshare Loans. Within five Business Days after a Transfer Date, the Issuer and the Indenture Trustee shall direct the Depositor to deliver or cause the delivery of the Timeshare Loan Files of the related Qualified Substitute Timeshare Loans to the Custodian in accordance with the provisions of this Indenture and the Custodial Agreement. |
(a) The Issuer shall be entitled to obtain a release from the Lien of the Indenture for any Timeshare Loan purchased, repurchased or substituted under Section 4.6 hereof, (i) upon satisfaction of each of the applicable provisions of Section 4.6 hereof, (ii) in the case of any purchase or repurchase, after a payment by the Depositor of the Repurchase Price of the related Timeshare Loan, and (iii) in the case of any substitution, after payment by the Depositor of the applicable Substitution Shortfall Amounts, if any, pursuant to Section 4.6 hereof. |
(b) The Issuer shall be entitled to obtain a release from the Lien of the Indenture for any Timeshare Loan which has been paid in full. |
(c) In addition, at the written direction of the Servicer, on any Payment Date if (i) Available Funds are sufficient to pay the Required Payments, (ii) the amount on deposit in the General Reserve Account is at least equal to the General Reserve Account Required Balance, (iii) the amount on deposit in the Force Majeure Loan Reserve Account is at least equal to the Force Majeure Required Reserve Amount, (iv) no Event of Default has occurred and is continuing, (v) the Optional Purchase Limit is greater than zero and (vi) the Aggregate Outstanding Note Balance is not greater than the Principal Advance Rate Percentage times the sum of the Aggregate Loan Balance and the Prefunding Loan Balance, the Indenture Trustee shall release or shall consent to the release of Defaulted Timeshare Loans that have not been purchased, repurchased or substituted under Section 4.6 hereof from the Lien of the Indenture, without additional payment. |
(d) In connection with (a), (b) and (c) above, the Issuer and Indenture Trustee will execute and deliver such releases, endorsements and assignments as are provided to it by the Depositor, in each case, without recourse, representation or warranty, as shall be necessary to vest in the Depositor or its designee, the legal and beneficial ownership of each Timeshare Loan being released pursuant to this Section 4.7. The Servicer shall deliver a Request for Release to the Custodian with respect to the related Timeshare Loan Files and Timeshare Loan Servicing
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Files being released pursuant to this Section 4.7, and such files shall be transferred to the Depositor or its designee. |
(a) The Indenture Trustee may appoint a custodian to hold all or a portion of the Timeshare Loan Files as agent for the Indenture Trustee. Each custodian shall be a depository institution supervised and regulated by a federal or state banking authority, shall have combined capital and surplus of at least $100,000,000, shall be qualified to do business in the jurisdiction in which it holds any Timeshare Loan File and shall not be the Issuer or an Affiliate of the Issuer. The initial Custodian shall be U.S. Bank National Association. The Indenture Trustee shall not be responsible for paying the Custodian Fee or any other amounts owed to the Custodian. |
(b) The Issuer may appoint other paying agents from time to time. Any such paying agent shall be appointed by Issuer Order with written notice thereof to the Indenture Trustee. Any paying agent appointed by the Issuer shall be a Person who would be eligible to be Indenture Trustee hereunder as provided in Section 7.7 hereof. |
The parties hereto agree that none of the Timeshare Loans in the Trust Estate may be sold or disposed of in any manner except as expressly provided for herein.
(a) Subject to the terms and conditions herein, the Issuer hereby appoints Bluegreen as the initial Servicer hereunder and the Servicer hereby accepts such appointment. The Servicer shall service and administer the Timeshare Loans and perform all of its duties hereunder in accordance with the Servicing Standard. |
(b) Subject to the terms and conditions herein and in the Backup Servicing Agreement, the Issuer hereby appoints Concord Servicing LLC to act as the initial Backup Servicer hereunder. The Backup Servicer shall service and administer the Timeshare Loans and perform all of its duties hereunder and under the Backup Servicing Agreement in accordance with the Servicing Standard. |
Card Timeshare Loans, direct each applicable credit card vendor to deposit all payments in respect of such Credit Card Timeshare Loans into the Lockbox Account. |
(b) On the Closing Date, the Servicer shall cause to be deposited into the Collection Account all amounts collected and received in respect of the Initial Timeshare Loans after the Initial Cut-Off Date to the day preceding the Closing Date (without deduction for any Liquidation Expenses). |
(c) Subject to subsection (d) below, the Indenture Trustee shall direct the Lockbox Bank (or any successor lockbox bank) to remit all collections in respect of the Timeshare Loans on deposit in the Lockbox Account (other than an amount equal to $20,000 that will remain in the Lockbox Account for administrative purposes) into the Collection Account on each Business Day via automated repetitive wire. |
(d) Liquidation Expenses shall be reimbursed as Additional Servicing Compensation to the Servicer in accordance with Section 3.2(a) hereof. To the extent that the Servicer has received any Liquidation Expenses as Additional Servicing Compensation and shall subsequently recover any portion of such Liquidation Expenses from the related Obligor, the Servicer shall deposit such amounts into the Collection Account in accordance with Section 5.3(a) hereof. |
(e) The Servicer agrees that to the extent it receives any amounts in respect of any insurance policies which are not payable to the Obligor or otherwise necessary for the intended use, or any other collections relating to the Trust Estate, it shall deposit such amounts into the Collection Account within two Business Days of receipt thereof (unless otherwise expressly provided herein). |
(a) In addition to any other customary services which the Servicer may perform or may be required to perform hereunder, the Servicer shall perform or cause to be performed through sub-servicers, the following servicing and collection activities in accordance with the Servicing Standard: |
(i) perform standard accounting services and general record keeping services with respect to the Timeshare Loans; |
(ii) respond to telephone or written inquiries of Obligors concerning the Timeshare Loans; |
(iii) keep Obligors informed of the proper place and method for making payment with respect to the Timeshare Loans; |
(iv) contact Obligors to effect collections and to discourage delinquencies in the payment of amounts owed under the Timeshare Loans and doing so by any lawful means; |
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(v) report tax information to Obligors and taxing authorities to the extent required by law; |
(vi) take such other action as may be necessary or appropriate in the Servicer’s judgment (which shall be consistent with the Servicing Standard) for the purpose of collecting and transferring to the Indenture Trustee for deposit into the Collection Account all payments received by the Servicer or remitted to the Lockbox Account in respect of the Timeshare Loans (except as otherwise expressly provided herein), and to carry out the duties and obligations imposed upon the Servicer pursuant to the terms of this Indenture; |
(vii) arrange for Liquidations of Timeshare Properties related to Defaulted Timeshare Loans and remarket such Timeshare Properties as provided in Section 5.3(a)(xiii) hereof; |
(viii) use reasonable best efforts to enforce the purchase and substitution obligations of the Club Originator under the Transfer Agreement or the Bluegreen Purchase Agreement with respect to breaches of representations and warranties related to the Timeshare Loans; |
Notes occurs after the Servicer provides each Rating Agency 10 days’ prior written notice of the same), determine that a Timeshare Loan is a Force Majeure Loan if such determination would cause the aggregate Loan Balance of all Force Majeure Loans to exceed 5.00% of the Aggregate Loan Balance; |
(x) work with Obligors in connection with any transfer of ownership of a Timeshare Property by an Obligor to another Person (to the extent permitted), whereby the Servicer may, only if required by law, consent to the assumption by such Person of the Timeshare Loan related to such Timeshare Property (to the extent permitted); provided, however, in connection with any such assumption, the rate of interest borne by, the maturity date of, the principal amount of, the timing of payments of principal and interest in respect of, and all other material terms of, the related Timeshare Loan shall not be changed other than as permitted in Section 5.3(a)(ix) hereof; |
(xi) to the extent that the Custodian Fees or the Lockbox Fees are, in the Servicer’s reasonable business judgment, no longer commercially reasonable, use commercially reasonable efforts to exercise its rights under the Custodial Agreement or the Lockbox Agreement to replace the Custodian or Lockbox Bank, as applicable. Any such successor shall be reasonably acceptable to the Indenture Trustee; |
(xii) deliver such information and data to the Backup Servicer as is required under the Backup Servicing Agreement; |
(xiii) in the event that a Defaulted Timeshare Loan is not or cannot be released from the Lien of the Indenture pursuant to Section 4.7 hereof, the Servicer shall, in accordance with the Servicing Standard and the Collection Policy, promptly institute collection procedures, which may include, but is not limited to, cancellation, termination or foreclosure proceedings or obtaining a deed-in-lieu of foreclosure (each, a “Foreclosure Property”). Upon the Timeshare Property becoming a Foreclosure Property, the Servicer shall cause the Remarketing Agent to promptly attempt to remarket such Foreclosure Property in accordance with and pursuant to the Remarketing Agreement. The Remarketing Fees due under the Remarketing Agreement shall constitute Liquidation Expenses and upon reimbursement to the Servicer shall be paid by the Servicer to the Remarketing Agent; and |
(xiv) with respect to Timeshare Loans related to Timeshare Properties located in the State of Louisiana, take such action as may be necessary in the applicable jurisdiction to avoid the lapse of a related Mortgage while any such Timeshare Loan remains outstanding. |
(b) The Servicer may not sell any of the Foreclosure Property that is an asset of the Trust Estate except for or as specifically permitted by this Indenture. |
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(c) The Servicer shall, for each applicable Credit Card Timeshare Loan, pay the service charge imposed by the applicable credit card vendor for processing the payment due from the Obligor. |
(d) For so long as Bluegreen or any of its Affiliates controls the Resorts, the Servicer shall use commercially reasonable best efforts to cause the Club Managing Entity to maintain or cause to maintain the Resorts in good repair, working order and condition (ordinary wear and tear excepted). |
(e) For so long as Bluegreen or any of its Affiliates controls the Resorts, the manager and the related management contract for each Resort at all times shall be reasonably satisfactory to the Noteholders representing at least 66‑2/3% of the Adjusted Note Balance of each Class of Notes. For so long as Bluegreen or any of its Affiliates controls the Timeshare Association for a Resort, and Bluegreen or an Affiliate thereof is the manager, the related management contract may be amended or modified in a manner that reasonably may be determined to have a material adverse effect on the Noteholders only with the prior written consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, which consent shall not be unreasonably withheld or delayed. |
(f) In the event any Lien (other than a Permitted Lien) attaches to any Timeshare Loan or related collateral from any Person claiming from and through Bluegreen or one of its Affiliates which materially adversely affects the Issuer’s interest in such Timeshare Loan, Bluegreen shall, within the earlier to occur of ten Business Days after such attachment or the respective lienholders’ action to foreclose on such lien, either (i) cause such Lien to be released of record, (ii) provide the Indenture Trustee with a bond in accordance with the applicable laws of the state in which the Timeshare Property is located, issued by a corporate surety acceptable to the Indenture Trustee, in an amount and in form reasonably acceptable to the Indenture Trustee or (iii) provide the Indenture Trustee with such other security as the Indenture Trustee may reasonably require. |
(g) The Servicer shall: (i) promptly notify the Indenture Trustee of (A) any claim, action or proceeding which may be reasonably expected to have a material adverse effect on the Trust Estate, or any material part thereof, and (B) any action, suit, proceeding, order or injunction of which Servicer becomes aware after the date hereof pending or threatened against or affecting Servicer or any Affiliate which may be reasonably expected to have a material adverse effect on the Trust Estate or the Servicer’s ability to service the same; (ii) at the request of Indenture Trustee with respect to a claim or action or proceeding which arises from or through the Servicer or one of its Affiliates, appear in and defend, at Servicer’s expense, any such claim, action or proceeding which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same; and (iii) comply in all respects, and shall cause all Affiliates to comply in all respects, with the terms of any orders imposed on such Person by any governmental authority the failure to comply with which would have a material adverse effect on the Timeshare Loans or the Servicer’s ability to service the same. |
(h) Except as contemplated by the Transaction Documents, the Servicer shall not, and shall not permit the Club Managing Entity to, encumber, pledge or otherwise grant a Lien or security interest in and to the Reservation System (including, without limitation, all
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hardware, software and data in respect thereof) and furthermore agrees, and shall cause the Club Managing Entity, to use commercially reasonable efforts to keep the Reservation System operational, not to dispose of the same and to allow the Club the use of, and access to, the Reservation System in accordance with the terms of the Club Management Agreement. Notwithstanding the foregoing, should the Club Managing Entity determine that it is desirable to replace the existing hardware and software related to the Reservation System, it will be allowed to enter into a lease or finance arrangement in connection with the lease or purchase of such hardware and software. |
(i) The Servicer shall comply in all material respects with the Collection Policy in effect on the Closing Date (or, as amended from time to time with the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes) and with the terms of the Timeshare Loans. |
(j) At the written request of a Rating Agency, the Servicer shall prepare and deliver to such Rating Agency, updated replines in the format set forth in the Offering Circular. |
(a) A “Servicer Event of Default” means, the occurrence and continuance of any of the following events: |
(i) any failure by the Servicer to make any required payment, transfer or deposit when due hereunder and the continuance of such default for a period of two Business Days; provided, however, that the period within which the Servicer shall make any required payment, transfer or deposit shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay, provided, further, that such longer period shall not exceed seven Business Days; |
(ii) any failure by the Servicer to provide any required report within five Business Days of when such report is required to be delivered hereunder; provided, however, that the period within which the Servicer shall provide any report shall be extended to such longer period as is appropriate in the event of a Force Majeure Delay, provided, further, that such longer period shall not exceed ten Business Days; |
(iii) any failure by the Servicer to observe or perform in any material respect any other covenant or agreement which has a material adverse effect on the Noteholders and such failure is not remedied within 30 days (or, if the Servicer shall have provided evidence satisfactory to the Indenture Trustee that such covenant cannot be cured in the 30-day period and that it is diligently pursuing a cure, 60 days), after the earlier of (x) the Servicer first acquiring Knowledge thereof and (y) the Indenture Trustee’s giving written notice thereof to the Servicer; |
(iv) any representation or warranty made by the Servicer in this Indenture shall prove to be incorrect in any material respect as of the time when the same shall have been made, and such breach is not remedied within 30 days (or, if the Servicer shall have provided evidence satisfactory to the Indenture Trustee that such breach cannot be cured in the 30-day period and that it is diligently pursuing a cure, 60
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days) after the earlier of (x) the Servicer first acquiring Knowledge thereof and (y) the Indenture Trustee’s giving written notice thereof to the Servicer; |
(v) the entry by a court having competent jurisdiction in respect of the Servicer of (i) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Servicer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer, or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; |
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by either to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the Servicer’s failure to pay its debts generally as they become due, or the taking of corporate action by the Servicer in furtherance of any such action; or |
(vii) a Trigger Event that remains uncured for three consecutive Due Periods. |
If any Servicer Event of Default shall have occurred and not been waived hereunder or there shall have been a material default by the Servicer of a material obligation of the Servicer for which (i) the Servicer has received written notice of such default, (ii) such default has not been cured by the Servicer or waived in writing and the period for cure has expired and (iii) such default would result in a liability to the Servicer in excess of 5% of the Servicer’s consolidated equity at such time as determined in accordance with GAAP, the Indenture Trustee may, and upon notice from Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes shall, terminate, on behalf of the Noteholders, by notice in writing to the Servicer, all of the rights and obligations of the Servicer (other than any obligations of the Servicer that, pursuant to the Transaction Documents, are intended to survive termination), as Servicer under this Indenture. The Indenture Trustee shall promptly give written notice of such termination to the Backup Servicer.
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Unless consented to by the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, the Issuer may not waive any Servicer Event of Default.
(b) Replacement of Servicer. From and after the receipt by the Servicer of such written termination notice or the resignation of the Servicer pursuant to Section 5.10 hereof, all authority and power of the Servicer under this Indenture, whether with respect to the Timeshare Loans or otherwise, shall, pass to and be vested in the Indenture Trustee, and the Indenture Trustee shall be the successor Servicer hereunder and the duties and obligations of the Servicer shall terminate. The Servicer shall perform such actions as are reasonably necessary to assist the Indenture Trustee and the Backup Servicer in such transfer. If the Servicer fails to undertake such action as is reasonably necessary to effectuate such a transfer, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of and at the expense of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things reasonably necessary to effect the purposes of such notice of termination. The Servicer agrees that if it is terminated pursuant to this Section 5.4, it shall promptly (and, in any event, no later than five Business Days subsequent to its receipt of the notice of termination from the Indenture Trustee) provide the Indenture Trustee, the Backup Servicer or their respective designees (with reasonable costs being borne by the Servicer) with all documents and records (including, without limitation, those in electronic form) reasonably requested by it to enable the Indenture Trustee to assume the Servicer’s functions hereunder and for the Backup Servicer to assume the functions required by the Backup Servicing Agreement, and the Servicer shall cooperate with the Indenture Trustee in effecting the termination of the Servicer’s responsibilities and rights hereunder and the assumption by a successor of the Servicer’s obligations hereunder, including, without limitation, the transfer within one Business Day to the Indenture Trustee or its designee for administration by it of all cash amounts which shall at the time or thereafter received by it with respect to the Timeshare Loans (provided, however, that the Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Indenture on or prior to the date of such termination). If the Indenture Trustee is unable or unwilling to act as successor Servicer, the Indenture Trustee may appoint or petition a court of competent jurisdiction to appoint a successor Servicer. The Indenture Trustee shall be entitled to renegotiate the Servicing Fee; provided, however, no change to the Servicing Fee may be made unless the Indenture Trustee shall have received the written consent of Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes. Notwithstanding anything herein to the contrary, in no event shall the Indenture Trustee or Bluegreen be liable for any Servicing Fee or for any differential in the amount of the Servicing Fee paid hereunder and the amount necessary to induce any successor Servicer to assume the obligations of Servicer under this Indenture. |
The Indenture Trustee shall be entitled to be reimbursed by the Servicer, (or by the Trust Estate to the extent set forth in Section 3.4(a)(i) or Section 6.6(a)(i) hereof) if the Servicer is unable to fulfill its obligations hereunder for all Servicer Termination Costs.
The successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase obligations, if
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any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the fees and expenses of any other party involved in this transaction that were incurred by the prior Servicer and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer including the original Servicer.
Notwithstanding anything contained in this Indenture to the contrary, any successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer relating to the Timeshare Loans (collectively, the “Predecessor Servicer Work Product”), without any audit or other examination thereof, and such successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that each successor Servicer shall agree to use its best efforts to prevent further Continued Errors. In the event that the successor Servicer becomes aware of Errors or Continued Errors, the successor Servicer shall, with the prior consent of the Indenture Trustee, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors and to recover its costs thereby.
The Indenture Trustee may appoint an Affiliate or the Backup Servicer as the successor Servicer, and the provisions of this Section 5.4(b) related to the Indenture Trustee shall apply to such Affiliate or Backup Servicer.
(c) Any successor Servicer, including the Indenture Trustee, shall not be deemed to be in default or to have breached its duties as successor Servicer hereunder if the predecessor Servicer shall fail to deliver any required deposit into the Collection Account or otherwise fail to cooperate with, or take any actions required by such successor Servicer related to the transfer of servicing hereunder. |
(d) Any successor Servicer appointed pursuant to this Indenture (i) as a condition to any such appointment (other than the Indenture Trustee), shall be a nationally recognized and licensed servicer of timeshare loan receivables that (A) is actively servicing a portfolio of timeshare loans with an aggregate principal balance of not less than $200,000,000, (B) has servicing and collection capabilities for all categories of delinquent and defaulted timeshare loans (including through foreclosure) and (C) is not an Affiliate of any Noteholder, and (ii) shall be subject to all of the terms and conditions of the Servicer under this Indenture (other than such terms and conditions as are unique to the initial Servicer), including, without limitation, the requirement to adhere to the Servicing Standard in the performance of the services to be furnished by it under this Indenture. |
(a) Monthly Servicer Report. Not later than two Business Days prior to the Payment Date, the Servicer shall deliver to the Issuer, the Indenture Trustee, any paying agent,
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each Rating Agency and the Initial Purchasers, a report (the “Monthly Servicer Report”) substantially in the form of Exhibit H hereto, detailing certain activity relating to the Timeshare Loans. The Monthly Servicer Report shall be completed with the information specified therein for the related Due Period and shall contain such other information as may be reasonably requested by the Issuer, the Indenture Trustee, any paying agent or the Initial Purchasers in writing at least five Business Days prior to such Determination Date. Each such Monthly Servicer Report shall be accompanied by an Officer’s Certificate of the Servicer in the form of Exhibit I hereto, certifying the accuracy of the computations reflected in such Monthly Servicer Report. |
(b) Certification as to Compliance. The Servicer shall deliver to the Issuer, the Indenture Trustee, each Rating Agency and the Initial Purchasers, an Officer’s Certificate on or before June 30 of each year commencing in 2023: (x) to the effect that a review of the activities of the Servicer during the preceding calendar year, and of its performance under this Indenture during such period has been made under the supervision of the officer executing such Officer’s Certificate with a view to determining whether during such period, to the best of such officer’s knowledge, the Servicer had performed and observed all of its obligations under this Indenture, and (y) either (A) stating that based on such review, no Servicer Event of Default is known to have occurred and is continuing, or (B) if such a Servicer Event of Default is known to have occurred and is continuing, specifying such Servicer Event of Default and the nature and status thereof. |
(c) Annual Accountants’ Reports. On or before each June 30 of each year commencing in 2023, the Servicer shall, at its own expense, cause a firm of independent public accountants to furnish a certificate or statement (and the Servicer shall provide a copy of such certificate or statement to the Issuer, the Indenture Trustee, each Rating Agency and the Initial Purchasers), to the effect that (1) such firm has examined and audited the Servicer’s servicing controls and procedures for the previous calendar year and that such independent public accountants have examined certain documents and records (including computer records) and servicing procedures of the Servicer relating to the Timeshare Loans, (2) they have examined the most recent Monthly Servicer Report prepared by the Servicer and three other Monthly Servicer Reports chosen at random by such firm and compared such Monthly Servicer Reports with the information contained in such documents and records, (3) their examination included such tests and procedures as they considered necessary in the circumstances, (4) their examinations and comparisons described under clauses (1) and (2) above disclosed no exceptions which, in their opinion, were material, relating to such Timeshare Loans or such Monthly Servicer Reports, or, if any such exceptions were disclosed thereby, setting forth such exceptions which, in their opinion, were material and (5) on the basis of such examinations and comparisons, such firm is of the opinion that the Servicer has, during the relevant period, serviced the Timeshare Loans in compliance with this Indenture and the other Transaction Documents in all material respects and that such documents and records have been maintained in accordance with this Indenture and the other Transaction Documents in all material respects, except in each case for (A) such exceptions as such firm shall believe to be immaterial and (B) such other exceptions as shall be set forth in such written report. The report will also indicate that such firm is independent of the Servicer within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants. In the event such independent public accountants require the Indenture Trustee to agree to the procedures to be performed by such firm in any of the reports required to
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be prepared pursuant to this Section 5.5(c), the Servicer shall direct the Indenture Trustee in writing to so agree; it being understood and agreed that the Indenture Trustee will deliver such letter of agreement in conclusive reliance upon the direction of the Servicer, and the Indenture Trustee has not made any independent inquiry or investigation as to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures. |
To the extent the Indenture Trustee is required to agree to the procedures in order to receive the accountants’ report, such agreement may include, among other things, (1) an acknowledgement that the Servicer has agreed that the procedures to be performed by the firm are sufficient for the purposes of the Indenture and that such procedures are sufficient for the Indenture Trustee’s purposes which are specifically limited to receipt of the accountants’ report, (2) releases by the Indenture Trustee (on behalf of itself and the Noteholders) of claims against the firm and acknowledgement of other limitations of liability in favor of the firm, and (3) restrictions or prohibitions on the disclosure of the accountants’ report or other information or documents provided to it by such firm to any party, including the Noteholders. Notwithstanding the foregoing, in no event shall the Indenture Trustee be required to execute any agreement in respect of the accountants’ report that the Indenture Trustee determines adversely affects it in its individual capacity.
(d) Report on Proceedings and Servicer Event of Default. (i) Promptly upon a Responsible Officer of the Servicer’s obtaining Knowledge of any proposed or pending investigation of it by any Governmental Authority or any court or administrative proceeding which involves or is reasonably likely to have a material and adverse effect affecting the properties, business, prospects, profits or conditions (financial or otherwise) of the Servicer and its subsidiaries, as a whole, the Servicer shall send written notice specifying the nature of such investigation or proceeding and what action the Servicer is taking or proposes to take with respect thereto and evaluating its merits, or (ii) immediately upon obtaining Knowledge of the existence of any condition or event which constitutes a Servicer Event of Default, the Servicer shall send written notice to the Issuer, the Indenture Trustee and the Initial Purchasers describing its nature and period of existence and what action the Servicer is taking or proposes to take with respect thereto. The Issuer, the Indenture Trustee and the Initial Purchasers acknowledge that if any condition or event referred to in subparagraph (i) above has been disclosed on a timely basis in filings with the Securities and Exchange Commission relating to the Servicer, that such disclosure will satisfy the requirements of subparagraph (i) above. |
The Servicer shall maintain access to all data for which it is responsible (including, without limitation, computerized tapes or disks) relating directly to or maintained in connection with the servicing of the Timeshare Loans (which data and records shall be clearly marked to reflect that the Timeshare Loans have been Granted to the Indenture Trustee on behalf of the Noteholders and constitute part of the Trust Estate) at the address specified in Section 13.3 hereof or, upon 15 days’ notice to the Issuer and the Indenture Trustee, at such other place where any Servicing Officer of the Servicer is located (or upon 24 hours’ written notice if an Event of Default or Servicer Event of Default shall have occurred).
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The Servicer shall maintain or cause to be maintained fidelity bond and errors and omissions insurance with respect to the Servicer in such form and in amounts as is customary for institutions acting as custodian of funds in respect of timeshare loans or receivables on behalf of institutional investors; provided that such insurance shall be in a minimum amount of $1,000,000 per policy and shall name the Indenture Trustee as a certificateholder. No provision of this Section 5.7 requiring such fidelity bond or errors and omissions insurance shall diminish or relieve the Servicer from its duties and obligations as set forth in this Indenture. The Servicer shall be deemed to have complied with this provision if one of its respective Affiliates has such fidelity bond or errors and omissions insurance coverage and, by the terms of such fidelity bond or errors and omissions insurance policy, the coverage afforded thereunder extends to the Servicer. Upon a request of the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee, a certification evidencing coverage under such fidelity bond or the errors and omissions insurance. Any such fidelity bond and errors and omissions insurance policy shall not be canceled or modified in a materially adverse manner without 30 days’ prior written notice to the Servicer (or ten days’ prior written notice if the policyholder hasn’t timely paid its premium payments), provided, that the Servicer agrees to provide written notice of any cancellation or materially adverse modification initiated by such insurer to the Indenture Trustee within five Business Days of receipt from the applicable insurer of any such notice.
(a) The Servicer shall promptly provide written notice to the Indenture Trustee and each Rating Agency of any merger or consolidation of the Servicer. The Servicer shall keep in full effect its existence, rights and franchise as a corporation under the laws of the state of its incorporation except as permitted herein, and shall obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture or any of the Timeshare Loans and to perform its duties under this Indenture. |
(b) Any Person into which the Servicer may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Servicer shall be a party, or any Person succeeding to the business of the Servicer, shall be the successor of the Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, however, that the successor or surviving Person (i) is a company whose business includes the servicing of assets similar to the Timeshare Loans and shall be authorized to lawfully transact business in the state or states in which the related Timeshare Properties it is to service are situated; (ii) is a U.S. Person, and (iii) delivers to the Indenture Trustee (A) an agreement, in form and substance reasonably satisfactory to the Indenture Trustee, which contains an assumption by such successor entity of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Servicer under this Indenture and the other Transaction Documents to which the Servicer is a party and (B) an Opinion of Counsel as to the enforceability of such agreement. The Servicer shall provide prior written notice of such merger or consolidation to each Rating Agency. |
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(a) The Servicer may enter into one or more sub-servicing agreements with a sub-servicer upon delivery to the Indenture Trustee of a written confirmation from each Rating Agency that the execution of such sub-servicing agreement and the retention of such sub-servicer would not result in the qualification, downgrade or withdrawal of any rating assigned to a Class of Notes. References herein to actions taken or to be taken by the Servicer in servicing the Timeshare Loans include actions taken or to be taken by a sub-servicer on behalf of the Servicer. Any sub-servicing agreement will be upon such terms and conditions as the Servicer may reasonably agree and as are not inconsistent with this Indenture. The Servicer shall be solely responsible for any sub-servicing fees due and payable to such sub-servicer. |
(b) Notwithstanding any sub-servicing agreement, the Servicer shall remain obligated and liable for the servicing and administering of the Timeshare Loans in accordance with this Indenture, without diminution of such obligation or liability by virtue of such sub-servicing agreement, and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Timeshare Loans. |
The Servicer shall not resign from the duties and obligations hereby imposed on it under this Indenture unless and until (i) a successor servicer, acceptable to the Issuer, the Indenture Trustee and the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, enters into an agreement in form and substance satisfactory to the Indenture Trustee and the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, which contains an assumption by such successor servicer of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Servicer under this Indenture from and after the date of assumption, (ii) the Issuer, the Indenture Trustee and Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes consent to the assumption of the duties, obligations and liabilities of this Indenture by such successor Servicer, and (iii) the ratings of the Notes will not be qualified, downgraded or withdrawn (as evidenced by a letter from each Rating Agency to the Indenture Trustee to such effect, which letter shall be obtained at the expense of the Servicer, without right of reimbursement). Upon such resignation, the Servicer shall comply with Section 5.4(b) hereof.
Except as provided in the immediately preceding paragraph or elsewhere in this Indenture, or as provided with respect to the survival of indemnifications herein, the duties and obligations of a Servicer under this Indenture shall continue until this Indenture shall have been terminated as provided herein. The duties and obligations of a Servicer hereunder shall survive the exercise by the Indenture Trustee of any right or remedy under this Indenture or the enforcement by the Indenture Trustee of any provision of this Indenture.
As compensation for the performance of its obligations under this Indenture, the Servicer shall be entitled to receive on each Payment Date, from amounts on deposit in the
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Collection Account and in the priorities described in Sections 3.4 and 6.6 hereof, the Servicing Fee and any Additional Servicing Compensation. Other than Liquidation Expenses, the Servicer shall pay all expenses incurred by it in connection with its servicing activities hereunder.
Upon ten Business Days’ prior written notice (or, one Business Day’s prior written notice after the occurrence and during the continuance of an Event of Default or a Servicer Event of Default), the Servicer will, from time to time during regular business hours, as requested by the Issuer, the Indenture Trustee or any Noteholder and, prior to the occurrence of a Servicer Event of Default, at the expense of the Issuer or such Noteholder and upon the occurrence and continuance of a Servicer Event of Default, at the expense of the Servicer, permit the Issuer, the Indenture Trustee or any Noteholder or its agents or representatives (i) to examine and make copies of and abstracts from all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under the control of the Servicer relating to the servicing of the Timeshare Loans serviced by it and (ii) to visit the offices and properties of the Servicer for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to the Timeshare Loans with any of the officers, employees or accountants of the Servicer having knowledge of such matters. Nothing in this Section 5.12 shall affect the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors, and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section 5.12. The Servicer may require the Issuer, the Indenture Trustee or any Noteholder or its agents or representatives to execute certain agreements in order to comply with applicable privacy laws.
Prior to the termination of this Indenture, the obligations of the Servicer under this Indenture shall not be subject to any defense, counterclaim or right of offset which the Servicer has or may have against the Issuer, the Indenture Trustee or any Noteholder, whether in respect of this Indenture, any Timeshare Loan or otherwise.
In connection with the Servicer’s preparation of the Monthly Servicer Reports, the Indenture Trustee agrees to deliver to the Servicer a monthly statement providing account balances of each of the Trust Accounts.
The Servicer agrees to indemnify the Issuer, the Indenture Trustee, any paying agent and the Noteholders from and against any and all actual damages (excluding economic losses related to the collectibility of any Timeshare Loan), claims, reasonable attorneys’ fees and related costs, judgments, and any other costs, fees and expenses that each may sustain because of the failure of the Servicer to service the Timeshare Loans in accordance with the Servicing Standard or otherwise perform its obligations and duties hereunder in compliance with the terms of this Indenture, or because of any act or omission by the Servicer due to its negligence or willful misconduct in connection with its maintenance and custody of any funds, documents and
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records under this Indenture, or its release thereof except as contemplated by this Indenture, including, but not limited to, the costs of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Servicer. The Servicer shall immediately notify the Issuer and the Indenture Trustee if it has Knowledge of a claim made by a third party with respect to the Timeshare Loans, and, if such claim relates to the servicing of the Timeshare Loans by the Servicer, the Servicer shall assume, with the consent of the Indenture Trustee, the defense of any such claim and pay all expenses in connection therewith, including reasonable counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it. This Section 5.15 shall survive the termination of this Indenture or the resignation or removal of the Servicer hereunder.
(a) Backup Servicing Agreement. The Issuer, the Indenture Trustee, the Servicer, the Depositor and the Backup Servicer hereby agree to execute the Backup Servicing Agreement. The Backup Servicer shall be responsible for each of the duties and obligations imposed upon it by the provisions of the Backup Servicing Agreement and shall have no duties or obligations under any Transaction Document to which it is not a party. |
(b) Termination of Servicer; Cooperation. In the event that the Servicer is terminated or resigns in accordance with the terms of this Indenture, the Backup Servicer agrees to continue to perform its duties and obligations hereunder and in the Backup Servicing Agreement without interruption. The Backup Servicer agrees to cooperate in good faith with any successor Servicer to effect a transition of the servicing obligations by the Servicer to any successor Servicer. The Indenture Trustee agrees to provide such information regarding the Trust Accounts as the Backup Servicer shall require to produce the Monthly Servicer Report on and after the Assumption Date. |
(c) Backup Servicer Duties After Assumption Date. In the event that the Servicer is terminated or resigns in accordance with this Indenture, the Backup Servicer agrees that it shall undertake those servicing duties and obligations as set forth in and subject to Section 2 and Schedule V of the Backup Servicing Agreement. Notwithstanding Section 5.9 hereof, so long as Concord Servicing LLC is the Backup Servicer, the Indenture Trustee, as successor Servicer, will not be obligated or liable for the servicing and administration activities to the extent that the Backup Servicer is responsible for such activities under the Backup Servicing Agreement. |
(d) Backup Servicing Fee. Prior to the Assumption Date, the Backup Servicer shall receive its Backup Servicing Fee in accordance with Sections 3.4 or 6.6 hereof, as applicable. On and after the Assumption Date, the Indenture Trustee, as successor Servicer, will be obligated to distribute the Backup Servicing Fee to the Backup Servicer from amounts received by the Indenture Trustee in respect of the Servicing Fee. |
(e) Termination of Backup Servicer. Notwithstanding anything to the contrary herein, the Indenture Trustee shall have the right to remove the Backup Servicer with or without cause at any time and replace the Backup Servicer pursuant to the provisions of the Backup Servicing Agreement. In the event that the Indenture Trustee shall exercise its rights to
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remove and replace Concord Servicing LLC as Backup Servicer or Concord Servicing LLC shall have terminated the Backup Servicing Agreement in accordance with the terms thereof, Concord Servicing LLC shall have no further obligation to perform the duties of the Backup Servicer under this Indenture. In the event of a termination of the Backup Servicing Agreement, the Indenture Trustee, at the written direction of Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, shall appoint a successor Backup Servicer reasonably acceptable to the Indenture Trustee. Upon the termination or resignation of the Backup Servicer, the Indenture Trustee shall be deemed to represent, warrant and covenant that it will service or engage a subservicer to perform each of the servicing duties and responsibilities described in this Indenture. |
Within 30 days of the Closing Date (with respect to the Initial Timeshare Loans that are Aruba Club Loans) and the related Transfer Date (with respect to a Subsequent Timeshare Loan or Qualified Substitute Timeshare Loan that is an Aruba Club Loan), the Servicer shall confirm that notices have been mailed out to each related Obligor that such Timeshare Loan has ultimately been transferred and assigned to the Issuer and pledged to the Indenture Trustee, in trust, for the benefit of the Noteholders. Such notice may include any notice or notices that the Aruba Originator’s predecessors in title to the Timeshare Loan may give to the same Obligor with respect to any transfers and assignments of the Timeshare Loan by such predecessors. Such notice shall be in the form attached hereto as Exhibit L, as the same may be amended, revised or substituted by the Indenture Trustee and the Servicer from time to time.
Recordation.Upon the occurrence of a Payment Default Event, as soon as practicable, but in no event later than ten Business Days after receipt of written notice or actual knowledge by an officer of the Servicer of such Payment Default Event, the Servicer shall cause the Assignment of Mortgage in respect of each Timeshare Loan transferred on such date to be sent for recording to the appropriate offices. The Servicer agrees to cause all evidences of recordation to be delivered to the Custodian to be held as part of the Timeshare Loan Files.
“Event of Default” wherever used herein with respect to Notes, means any one of the following events:
(a) a default in the payment of any Interest Distribution Amount on any Class of Notes within three Business Days after the same becomes due and payable; or |
(b) the failure to reduce the Aggregate Outstanding Note Balance to zero and to pay all unpaid Deferred Interest Amounts at the Stated Maturity; or |
(c) a non-monetary default in the performance, or breach, of any covenant of the Issuer in this Indenture (other than a covenant dealing with a default in the performance of which, or the breach of which, is specifically dealt with elsewhere in this Section 6.1), the
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continuance of such default or breach for a period of 30 days (or, if the Issuer shall have provided evidence satisfactory to the Indenture Trustee that such covenant cannot be cured in the 30-day period and that it is diligently pursuing a cure, 60 days) after the earlier of (x) the Issuer first acquiring Knowledge thereof, and (y) the Indenture Trustee’s giving written notice thereof to the Issuer; provided, however, that if such default or breach is in respect of the negative covenants contained in Section 8.6(a)(i) or (ii) hereof, there shall be no grace period whatsoever; or |
(d) if any representation or warranty of the Issuer made in this Indenture shall prove to be incorrect in any material respect as of the time when the same shall have been made, and such breach is not remedied within 30 days (or, if the Issuer shall have provided evidence satisfactory to the Indenture Trustee that such representation or warranty cannot be cured in the 30-day period and that it is diligently pursuing a cure, 60 days) after the earlier of (x) the Issuer first acquiring Knowledge thereof, and (y) the Indenture Trustee’s giving written notice thereof to the Issuer; or |
(e) the entry by a court having jurisdiction over the Issuer of (i) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (ii) a decree or order adjudging the Issuer a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Issuer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Issuer, or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or |
(f) the commencement by the Issuer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by either to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Issuer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the Issuer’s failure to pay its debts generally as they become due, or the taking of corporate action by the Issuer in furtherance of any such action; or |
(g) the Issuer becoming subject to registration as an “investment company” under the Investment Company Act of 1940, as amended (the “’40 Act”); or |
(h) the impairment of the validity of any security interest of the Indenture Trustee in the Trust Estate in any material respect, except as expressly permitted hereunder, or the creation of any material encumbrance on or with respect to the Trust Estate or any portion
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thereof not otherwise permitted, which is not stayed or released within ten days of the Issuer having Knowledge of its creation; or |
(i) the failure by the Club Originator to repurchase any Defective Timeshare Loan or provide a Qualified Substitute Timeshare Loan for a Defective Timeshare Loan to the extent required under the terms of the Transfer Agreement or the Bluegreen Purchase Agreement; or |
(j) the occurrence and continuance of a Servicer Event of Default that is uncured for two consecutive Due Periods. |
(a) Upon the occurrence and continuance of an Event of Default, if (i) such Event of Default of the kind specified in Section 6.1(e) or Section 6.1(f) hereof occurs, (ii) an Event of Default of the kind specified in Section 6.1(a) hereof occurs and either (x) the Indenture Trustee has, in its good faith judgment after consultation with an expert, determined that the value of the assets comprising the Trust Estate is less than the Aggregate Outstanding Note Balance or (y) such Event of Default continues for two consecutive Payment Dates, then each Class of Notes shall automatically become due and payable at its Outstanding Note Balance together with all accrued and unpaid interest thereon. |
(b) Upon the occurrence and continuance of an Event of Default, if such Event of Default is of the kind specified in Section 6.1(a) hereof (other than as described in Section 6.2(a) above), the Indenture Trustee shall, upon written direction from Noteholders representing at least 66-2/3% of the Adjusted Note Balance of the most senior Class of Notes then Outstanding (and, if payment of interest and principal on the most senior Class of Notes then Outstanding is current, the consent of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of the most senior Class of Notes which has failed to receive one or more payments of interest or principal), declare each Class of Notes to be immediately due and payable at its Outstanding Note Balance plus all accrued and unpaid interest thereon. |
(c) Upon the occurrence and continuance of an Event of Default, if such Event of Default (other than an Event of Default of the kind described in Sections 6.2(a) or (b) hereof) shall occur and is continuing, the Indenture Trustee shall, upon written direction from Noteholders representing at least 66-2/3% of the Adjusted Note Balance of the most senior Class of Notes then Outstanding, declare each Class of Notes to be immediately due and payable at its Outstanding Note Balance plus all accrued and unpaid interest thereon. |
(d) Upon any such declaration or automatic acceleration, the Outstanding Note Balance of each Class of Notes together with all accrued and unpaid interest thereon shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Issuer. The Indenture Trustee shall promptly send a notice of any declaration or automatic acceleration to each Rating Agency. |
(e) At any time after such a declaration of acceleration has been made but before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article VI, provided, the Noteholders representing at least 66-2/3%
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of the Adjusted Note Balance of the most senior Class Outstanding (and, if the consent of another Class shall have been required for such declaration, Noteholders representing at least 66-2/3% of the Adjusted Note Balance of such Class) by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if: |
(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay: |
(1) |
all principal due on any Class of Notes which has become due otherwise than by such declaration of acceleration and interest thereon from the date when the same first became due until the date of payment or deposit, |
(2) |
all interest due with respect to any Class of Notes and, to the extent that payment of such interest is lawful, interest upon overdue interest from the date when the same first became due until the date of payment or deposit at a rate per annum equal to the applicable Note Rate, and |
(3) |
all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements, and advances of each of the Indenture Trustee and the Servicer, its agents and counsel; |
and
(ii) all Events of Default with respect to the Notes, other than the non‑payment of the Outstanding Note Balance of each Class of Notes which became due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13 hereof. |
(f) An automatic acceleration under Section 6.2(a) hereof may only be rescinded and annulled by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes then Outstanding. |
(g) Notwithstanding Section 6.2(d) and (e) hereof, (i) if the Indenture Trustee shall have commenced making payments as described in Section 6.6 hereof, no acceleration may be rescinded or annulled and (ii) no rescission shall affect any subsequent Events of Default or impair any rights consequent thereon. |
(a) If an Event of Default with respect to the Notes occurs and is continuing of which a Responsible Officer of the Indenture Trustee has Knowledge, the Indenture Trustee shall promptly give notice to each Noteholder as set forth in Section 7.2 hereof and shall solicit such Noteholders for advice. The Indenture Trustee shall then take such action as so directed by the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes then Outstanding subject to the provisions of this Indenture. |
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(b) Following any acceleration of the Notes, the Indenture Trustee shall have all of the rights, powers and remedies with respect to the Trust Estate as are available to secured parties under the UCC or other applicable law, subject to the limitations set forth in subsection (d) below and provided such action is not inconsistent with any other provision of this Indenture. Such rights, powers and remedies may be exercised by the Indenture Trustee in its own name as trustee under this Indenture. |
(c) If an Event of Default specified in Section 6.1(a) hereof occurs and is continuing, the Indenture Trustee is authorized to recover judgment in its own name and as trustee under this Indenture against the Issuer for the Aggregate Outstanding Note Balance and interest remaining unpaid with respect to the Notes. |
(d) Subject to the provisions set forth herein, if an Event of Default occurs and is continuing, the Indenture Trustee may, in its discretion, and at the instruction of the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes shall, proceed to protect and enforce its rights and the rights of the Noteholders by such appropriate judicial or other proceedings as the Indenture Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. The Indenture Trustee shall notify the Issuer, each Rating Agency, the Servicer and the Noteholders of any such action. |
(e) If the Indenture Trustee shall have received instructions, within 45 days from the date notice pursuant to Section 6.3(a) hereof is first given, from Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes that such Persons approve of or request the liquidation of all of the Trust Estate, the Indenture Trustee shall to the extent lawful, promptly sell, dispose of or otherwise liquidate all of the Trust Estate in a commercially reasonable manner and on commercially reasonable terms, which shall include the solicitation of competitive bids from third parties including any Noteholder (other than Bluegreen or any Affiliates thereof), such bids to be approved by the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes. The Indenture Trustee may obtain a prior determination from any conservator, receiver or liquidator of the Issuer that the terms and manner of any proposed sale, disposition or liquidation are commercially reasonable. Notwithstanding anything to the contrary herein, neither Bluegreen nor any of its Affiliates may make a bid in connection with the disposition of the Timeshare Loans in accordance with this Section 6.3(e). |
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding related to the Issuer, or any other obligor in respect of the Notes, or the property of the Issuer, or such other obligor or their creditors, the Indenture Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand on the Issuer for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise: |
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(i) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee and any predecessor Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and any predecessor Indenture Trustee, their agents and counsel) and of the Noteholders allowed in such judicial proceeding; |
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and |
(iii) to participate as a member, voting or otherwise, of any official committee of creditors appointed in such matter; |
and any custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Noteholder to make such payments to the Indenture Trustee and to pay to the Indenture Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and any predecessor Indenture Trustee, their agents and counsel, and any other amounts due the Indenture Trustee and any predecessor Indenture Trustee under Section 7.6 hereof.
(b) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize, consent to, accept or adopt on behalf of any Noteholder any plan of reorganization, agreement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof or affecting the Timeshare Loans or the other assets constituting the Trust Estate or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding. |
All rights of action and claims under this Indenture, the Notes, the Timeshare Loans or the other assets constituting the Trust Estate may be prosecuted and enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Indenture Trustee shall be brought in its own name as trustee under this Indenture, and any recovery of judgment shall, after provisions for the payment of reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and any predecessor Indenture Trustee, their agents and counsel, be for the benefit of the Noteholders in respect of which such judgment has been recovered, and distributed pursuant to the priorities contemplated by Section 3.4 and Section 6.6 hereof, as applicable.
(a) If a Payment Default Event shall have occurred and the Indenture Trustee has not yet effected the remedies under Section 6.3(d) and Section 6.16 hereof, any money collected by the Indenture Trustee in respect of the Trust Estate (other than any amounts owed to the Servicer as Additional Servicing Compensation) and any other money that may be held thereafter by the Indenture Trustee as security for the Notes, including, without limitation, the
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amounts on deposit in the General Reserve Account and the Force Majeure Loan Reserve Account, shall be applied in the following order on each Payment Date: |
(i) to the Indenture Trustee, the Indenture Trustee Fee and any extraordinary out-of-pocket expenses and indemnities owed to the Indenture Trustee, plus any accrued and unpaid Indenture Trustee Fees with respect to prior Payment Dates; provided, however, that (i) any payments to the Indenture Trustee as reimbursement for any extraordinary out-of-pocket expenses and indemnities owed to the Indenture Trustee related to the transfer of servicing to a successor Servicer will be limited to $30,000 per calendar quarter and $100,000 in the aggregate, and (ii) payments to the Indenture Trustee as reimbursement for any other extraordinary out-of-pocket expenses and indemnities owed to the Indenture Trustee will be limited to $50,000 per calendar year so long as none of the following events has occurred: an Event of Default, acceleration of the Notes; or the liquidation of the Trust Estate pursuant to the Indenture; |
(ii) to the Owner Trustee, any accrued and unpaid Owner Trustee Fees; |
(iii) to the Administrator, any accrued and unpaid Administrator Fees; |
(iv) to the Custodian, any accrued and unpaid Custodian Fees; |
(v) to the Lockbox Bank, any accrued and unpaid Lockbox Fees; |
(vi) to the Servicer, any accrued and unpaid Servicing Fees; |
(vii) to the Backup Servicer, any accrued and unpaid Backup Servicing Fees (less any amounts received from the Indenture Trustee, as successor Servicer); |
(viii) to the Class A Noteholders, the Class A Interest Distribution Amount; |
(ix) to the Class B Noteholders, the Class B Interest Distribution Amount; |
(x) to the Class C Noteholders, the Class C Interest Distribution Amount; |
(xi) to the Class A Noteholders, all remaining amounts until the Outstanding Note Balance of the Class A Notes is reduced to zero; |
(xii) to the Class B Noteholders, all remaining amounts until the Outstanding Note Balance of the Class B Notes is reduced to zero; |
(xiii) to the Class C Noteholders, all remaining amounts until the Outstanding Note Balance of the Class C Notes is reduced to zero; |
(xiv) to the Class B Noteholders, the Deferred Interest Amount for such Class, if any; |
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(xv) to the Class C Noteholders, the Deferred Interest Amount for such Class, if any; |
(xvi) to the Indenture Trustee, any extraordinary out‑of‑pocket expenses and indemnities owed to the Indenture Trustee not paid in accordance with clause (i) above; |
(xvii) to the Lockbox Bank, any amounts owed under the Lockbox Agreement not paid in accordance with clause (v) above; and |
(xviii) to the Certificate Distribution Account, any remaining Available Funds for distribution pursuant to the Trust Agreement. |
(b) If (i) (A) a Payment Default Event shall have occurred or (B) each Class of Notes shall otherwise have been declared due and payable following an Event of Default and (ii) the Indenture Trustee shall have effected a sale of the Trust Estate under Section 6.3(d) and Section 6.16 hereof ((i) and (ii), a “Trust Estate Liquidation Event”), any money collected by the Indenture Trustee in respect of the Trust Estate (other than any amounts to the Servicer as Additional Servicing Compensation) and any other money that may be held thereafter by the Indenture Trustee as security for the Notes, including without limitation the amounts on deposit in the General Reserve Account and the Force Majeure Loan Reserve Account, shall be applied in the following order on each Payment Date: |
(i) to the Indenture Trustee, any accrued and unpaid Indenture Trustee Fees and out-of-pocket expenses and indemnities incurred and charged and unpaid as of such date; |
(ii) to the Owner Trustee, any accrued and unpaid Owner Trustee Fees; |
(iii) to the Administrator, any accrued and unpaid Administrator Fees; |
(iv) to the Custodian, any accrued and unpaid Custodian Fees; |
(v) to the Lockbox Bank, any accrued and unpaid Lockbox Fees and any other amounts owed to the Lockbox Bank pursuant to the Lockbox Agreement; |
(vi) to the Servicer, any accrued and unpaid Servicing Fees; |
(vii) to the Backup Servicer, any accrued and unpaid Backup Servicing Fees (less any amounts received from the Indenture Trustee, as successor Servicer); |
(viii) to the Class A Noteholders, the Class A Interest Distribution Amount; |
(ix) to the Class A Noteholders, all remaining amounts until the Outstanding Note Balance of the Class A Notes is reduced to zero; |
(x) to the Class B Noteholders, the Class B Interest Distribution Amount; |
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(xi) to the Class B Noteholders, the Class B Deferred Interest Amount, if any; |
(xii) to the Class B Noteholders, all remaining amounts until the Outstanding Note Balance of the Class B Notes is reduced to zero; |
(xiii) to the Class C Noteholders, the Class C Interest Distribution Amount; |
(xiv) to the Class C Noteholders, the Class C Deferred Interest Amount, if any; |
(xv) to the Class C Noteholders, all remaining amounts until the Outstanding Note Balance of the Class C Notes is reduced to zero; and |
(xvi) to the Certificate Distribution Account, any remaining Available Funds for distribution pursuant to the Trust Agreement. |
(c) Notwithstanding the occurrence and continuation of an Event of Default, prior to the occurrence of a Sequential Pay Event, Noteholders shall continue to be paid in the manner and priorities described in Section 3.4 hereof. |
No Noteholder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or for any other remedy hereunder, unless:
(a) there is a continuing Event of Default and such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default; |
(b) such Noteholder or Noteholders have offered to the Indenture Trustee reasonable indemnity (which may be in the form of written assurances) against the costs, expenses and liabilities to be incurred in compliance with such request; |
(c) the Indenture Trustee, for 30 days after its receipt of such notice, request and offer of indemnity, has failed to institute any such proceeding; and |
(d) no direction inconsistent with such written request has been given to the Indenture Trustee during such 30-day period by the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes Outstanding; |
it being understood and intended that no one or more of such Noteholders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders, or to obtain or to seek to obtain priority or preference over any other Noteholders or to enforce any right under this Indenture, except in the manner herein provided and for the ratable benefit of all such Noteholders. It is further understood and intended that so long as any portion of the Notes remains Outstanding, the Servicer shall not have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture (other than for the enforcement of Section 3.4 hereof) or for the appointment of a
57
receiver or trustee (including without limitation a proceeding under the Bankruptcy Code), or for any other remedy hereunder. Nothing in this Section 6.7 shall be construed as limiting the rights of otherwise qualified Noteholders to petition a court for the removal of an Indenture Trustee pursuant to Section 7.8 hereof.
Notwithstanding any other provision in this Indenture, other than the provisions hereof limiting the right to recover amounts due on the Notes to recoveries from the property comprising the Trust Estate, each Noteholder shall have the absolute and unconditional right to receive payment of the principal of, and interest on, such Note as such payments of principal and interest become due, including on the Stated Maturity, and such right shall not be impaired without the consent of such Noteholder; provided, however, that notwithstanding any other provision of this Indenture to the contrary, the obligation to pay principal and interest on the Notes or any other amount payable to any Noteholder will be without recourse to the Originators, the Administrator, the Servicer, the Backup Servicer, the Indenture Trustee or any Affiliate (other than the Issuer), officer employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on the Notes or any other amount payable to any Noteholder will be subject to the allocation and payment provisions of this Indenture and limited to amounts available from the Trust Estate. Notwithstanding any other terms of this Indenture, the Notes, any Transaction Documents or otherwise, the obligations of the Issuer under the Notes, this Indenture and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture, none of the Noteholders, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. It is understood that the foregoing provisions of this paragraph shall not (i) prevent recourse to the Trust Estate for sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Indenture. It is further understood that the foregoing provisions of this paragraph shall not limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against the Issuer.
If the Indenture Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Indenture Trustee or to such Noteholder, then and, in every such case, subject to any determination in such proceeding, the Issuer, the Indenture Trustee and the Noteholders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Indenture Trustee and the Noteholders continue as though no such proceeding had been instituted.
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Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost, or stolen Notes in Section 2.5(f) hereof, no right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Indenture Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Except as may otherwise be provided in this Indenture, until such time as the conditions specified in Sections 11.1(a)(i) and (ii) hereof have been satisfied in full, the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee, with respect to the Notes. Notwithstanding the foregoing:
(i) no such direction shall be in conflict with any rule of law or with this Indenture; |
(ii) the Indenture Trustee shall not be required to follow any such direction which the Indenture Trustee reasonably believes might result in any personal liability on the part of the Indenture Trustee for which the Indenture Trustee is not adequately indemnified; and |
(iii) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee which is not inconsistent with any such direction; provided that the Indenture Trustee shall give notice of any such action to each Noteholder. |
(a) Unless a Sequential Pay Event shall have occurred, the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes may, by one or more instruments in writing, waive any Event of Default hereunder and its consequences, except a continuing Event of Default: |
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(i) in respect of the payment of the principal of or interest on any Note (which may only be waived by such Noteholder), or |
(ii) in respect of a covenant or provision hereof which under Article IX hereof cannot be modified or amended without the consent of the Noteholder of each Outstanding Note affected (which only may be waived by the Noteholders of all Outstanding Notes affected). |
(b) A copy of each waiver pursuant to Section 6.13(a) hereof shall be furnished by the Issuer to the Indenture Trustee and each Noteholder. Upon any such waiver, such Event of Default shall cease to exist and shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon. |
All parties to this Indenture agree (and each Noteholder by its acceptance thereof shall be deemed to have agreed) that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.14 shall not apply to (i) any suit instituted by the Indenture Trustee, (ii) to any suit instituted by any Noteholder, or group of Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes Outstanding, or (iii) to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or interest on any Note on or after the maturities for such payments, including the Stated Maturity, as applicable.
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
(a) The power to effect the sale of the Trust Estate pursuant to Section 6.3 hereof shall continue unimpaired until the entire Trust Estate shall have been sold or all amounts payable on the Notes shall have been paid or losses allocated thereto and borne thereby. The Indenture Trustee may from time to time, upon directions in accordance with Section 6.12
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hereof, postpone any public sale by public announcement made at the time and place of such sale. |
(b) Unless required by applicable law, the Indenture Trustee shall not sell to a third party the Trust Estate, or any portion thereof except as permitted under Section 6.3(e) hereof. |
(c) In connection with a sale of the Trust Estate: |
(i) any one or more Noteholders (other than Bluegreen or any Affiliates thereof) may bid for and purchase the property offered for sale, and upon compliance with the terms of sale may hold, retain, and possess and dispose of such property, without further accountability, and any Noteholder (other than Bluegreen or any Affiliates thereof) may, in paying the purchase money therefor, deliver in lieu of cash any Outstanding Notes or claims for interest thereon for credit in the amount that shall, upon distribution of the net proceeds of such sale, be payable thereon, and the Notes, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Noteholders after being appropriately stamped to show such partial payment; |
(ii) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance prepared by the Servicer transferring the Indenture Trustee’s interest in the Trust Estate without recourse, representation or warranty in any portion of the Trust Estate in connection with a sale thereof; |
(iii) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey the Issuer’s interest in any portion of the Trust Estate in connection with a sale thereof, and to take all action necessary to effect such sale; |
(iv) no purchaser or transferee at such a sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys; |
(v) the method, manner, time, place and terms of any sale of the Trust Estate shall be commercially reasonable; and |
(vi) none of Bluegreen or its Affiliates may bid for and purchase the Timeshare Loans offered for sale by the Indenture Trustee in Section 6.16(c)(i) hereof. |
The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture or any other Transaction Document shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture or any other Transaction Document. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee
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against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied in accordance with the provisions of this Indenture.
Promptly following a request from the Indenture Trustee, the Issuer shall take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by the Depositor, the Club Originator and the Servicer, as applicable, of each of their respective obligations to the Issuer under or in connection with the Sale Agreement and any other Transaction Document and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Sale Agreement or any other Transaction Document to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Depositor, the Club Originator or the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Depositor, the Club Originator or the Servicer of each of their obligations under the Sale Agreement and the other Transaction Documents.
(a) The Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; except as expressly set forth herein, the Indenture Trustee shall have no obligation to monitor the performance of the Servicer under the Transaction Documents. |
(b) In the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture; provided, however, the Indenture Trustee shall not be required to verify or recalculate the contents thereof or investigate any fact or matter stated therein. |
(c) In case an Event of Default or a Servicer Event of Default (resulting in the appointment of the Indenture Trustee as successor Servicer) has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs; provided, however, that no provision in this Indenture shall be construed to limit the obligations of the Indenture Trustee to provide notices under Section 7.2 hereof. |
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(d) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity acceptable to the Indenture Trustee (which may be in the form of written assurances) against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. |
(e) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: |
(i) this Section 7.1(e) shall not be construed to limit the effect of Section 7.1(a) and (b) hereof; |
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith unless it shall be proved that the Indenture Trustee shall have been negligent in ascertaining the pertinent facts; and |
(iii) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken or believed by the Indenture Trustee to be taken by it in good faith in accordance with the written direction of the holders of the requisite principal amount of the outstanding Notes, or in accordance with any written direction delivered to it under Sections 6.2(a), (b) or (c) hereof relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture. |
(f) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section 7.1. |
(g) The Indenture Trustee makes no representations or warranties with respect to the Timeshare Loans or the Notes or the validity or sufficiency of any assignment of the Timeshare Loans to the Issuer or to the Trust Estate. |
(h) Notwithstanding anything to the contrary herein, the Indenture Trustee is not required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or indemnity reasonably satisfactory to the Indenture Trustee against such risk or liability is not reasonably assured to it. |
The Indenture Trustee shall promptly (but, in any event, within three Business Days) notify the Issuer, the Servicer, each Rating Agency and the Noteholders upon a Responsible Officer obtaining Knowledge of any event which constitutes an Event of Default or a Servicer Event of Default or would constitute an Event of Default or a Servicer Event of Default but for the requirement that notice be given or time elapse or both.
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Subject to the provisions of Section 7.1 hereof:
(a) The Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; |
(b) Any request or direction of any Noteholders, the Issuer, or the Servicer mentioned herein shall be in writing; |
(c) Whenever in the performance of its duties hereunder the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate or an Opinion of Counsel; |
(d) The Indenture Trustee may consult with counsel, accountants and other experts, and the advice of such counsel, accountants and other experts or any Opinion of Counsel shall be deemed authorization in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon; |
(e) Prior to the occurrence of an Event of Default or after the curing of all Events of Default which may have occurred, the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper document, unless requested in writing so to do by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the reasonable opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Servicer or, if paid by the Indenture Trustee, shall be reimbursed by the Servicer upon demand; |
(f) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian (which may be an Affiliate of the Indenture Trustee), and the Indenture Trustee shall not be liable for any acts or omissions of such agents, attorneys or custodians appointed with due care by it hereunder; and |
(g) Delivery of any reports, information and documents to the Indenture Trustee provided for herein or any other Transaction Document is for informational purposes only (unless otherwise expressly stated), and the Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from
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information contained therein, including the Servicer’s or the Issuer’s compliance with any of its representations, warranties or covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates). |
(h)In no event shall the Indenture Trustee be liable for any special, indirect, punitive or consequential damages.
(i)In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation epidemics, pandemics, strikes, work stoppages, act of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications, or computer systems or services.
(j)To help fight the funding of terrorism and money laundering activities, the Indenture Trustee may obtain, verify, and record information that identifies individuals or entities that establish a relationship or open an account with the Indenture Trustee; the Indenture Trustee may ask for information reasonably necessary to identify the individual or entity who is establishing the relationship or opening the account; the Indenture Trustee may also ask for formation documents, such as articles of incorporation, an offering memorandum or other identifying document be provided to it.
(k)Any permissive right to take or refrain from taking action enumerated in this Indenture shall not be construed as a duty or obligation.
(l)In no event shall the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the Risk Retention Rules. The Indenture Trustee shall not be charged with knowledge of such rules, nor shall it be liable to any Noteholder or other party for violation of such rules now or hereinafter in effect.
(m)In no event shall the Indenture Trustee be liable for failure to perform any duties or obligations hereunder if such failure was caused by another Person failing to perform its duties or obligations under the Transaction Documents.
(n)The Indenture Trustee may decline to taking any action at the written direction of the Noteholders in the event that the Indenture Trustee determines in good faith that the action may not lawfully be taken or that the Indenture Trustee believes in good faith that taking such action would subject the Indenture Trustee to personal liability or would be unjustly prejudicial to the non-directing Holders.
(a) The Indenture Trustee makes no representations as to the validity or sufficiency of this Indenture or any Transaction Document, the Notes (other than the authentication thereof) or of any Timeshare Loan. The Indenture Trustee shall not be accountable for the use or application by the Issuer of funds paid to the Issuer in consideration of conveyance of the Timeshare Loans and related assets to the Trust Estate. |
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(b) The Indenture Trustee (in its capacity as Indenture Trustee) shall have no responsibility or liability for or with respect to the validity of any security interest in any property securing a Timeshare Loan; the existence or validity of any Timeshare Loan, the validity of the assignment of any Timeshare Loan to the Trust Estate or of any intervening assignment; the review of any Timeshare Loan, any Timeshare Loan File, the completeness of any Timeshare Loan File, the receipt by the Custodian of any Timeshare Loan, Timeshare Loan File, (it being understood that the Indenture Trustee has not reviewed and does not intend to review such matters); the performance or enforcement of any Timeshare Loan; the compliance by the Servicer or the Issuer with any covenant or the breach by the Servicer or the Issuer of any warranty or representation made hereunder or in any Transaction Document or the accuracy of any such warranty or representation; the acts or omissions of the Servicer, the Issuer or any Obligor; or any action of the Servicer or the Issuer taken in the name of the Indenture Trustee. |
The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes with the same rights as it would have if it were not the Indenture Trustee. Any paying agent, Note Registrar, co-registrar or co-paying agent may become the owner or pledgee of Notes with the same rights as it would have if it were not a paying agent, Note Registrar, co-registrar or co-paying agent.
On each Payment Date, the Indenture Trustee shall be entitled to the Indenture Trustee Fee and reimbursement of out-of-pocket expenses incurred by it in connection with its responsibilities hereunder in the priorities provided in Sections 3.4 or 6.6 hereof, as applicable.
The Issuer shall indemnify, defend and hold the Indenture Trustee harmless from and against any liability, claim, damage, loss, fees or costs or expenses (including reasonable attorneys’ fees and extraordinary out-of-pocket expenses) incurred by the Indenture Trustee without negligence or bad faith on its part (as determined by a final non-appeal order from a court of competent jurisdiction), arising out of or in connection with the acceptance or administration of the office of the Indenture Trustee under this Indenture, including the costs of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder and of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Issuer. The Indenture Trustee’s rights to indemnification shall survive the termination of this Indenture and the resignation or removal of the parties hereunder.
The Indenture Trustee, hereunder shall at all times (a) be a corporation, depository institution, national banking association or trust company organized and doing business under the laws of the United States of America or any state thereof authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $100,000,000, (b) be subject to supervision or examination by federal or state authority, (c) be capable of maintaining an Eligible Bank Account, (d) have a long-term issuer rating of not less than “Baa2”
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from Moody’s and “BBB” from S&P, and (e) shall be acceptable to Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes. If such Person publishes reports of condition at least annually, pursuant to or to the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section 7.7, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 7.7, the Indenture Trustee shall resign in the manner and with the effect specified in Section 7.8 hereof.
(a) The Indenture Trustee may at any time resign and be discharged with respect to the Notes by giving 60 days’ written notice thereof to the Servicer, the Issuer, each Rating Agency and the Noteholders. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor Indenture Trustee not objected to by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes within 30 days after prior written notice, by written instrument, with a copy delivered to each of the Issuer, the Servicer, each Rating Agency, the Noteholders, the successor Indenture Trustee and the predecessor Indenture Trustee. If no successor Indenture Trustee shall have been so appointed and have accepted appointment within 60 days after the giving of such notice of resignation, the resigning Indenture Trustee may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee. |
(b) If at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of Section 7.7 hereof and shall fail to resign after written request therefor by the Issuer, or if at any time the Indenture Trustee shall be legally unable to act, fails to perform in any material respect its obligations under this Indenture, or shall be adjudged as bankrupt or insolvent, or a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Issuer or Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes may direct the Issuer to remove the Indenture Trustee upon 30 days’ prior written notice. If it removes the Indenture Trustee under the authority of the immediately preceding sentence, the Issuer shall promptly appoint a successor Indenture Trustee not objected to by Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, within 30 days after prior written notice, by written instrument, with a copy delivered to each of the Issuer, the Servicer, the Noteholders, each Rating Agency, the successor Indenture Trustee and the predecessor Indenture Trustee. |
(c) Any resignation or removal of the Indenture Trustee and appointment of a successor Indenture Trustee pursuant to any of the provisions of this Section 7.8 shall not become effective until acceptance of appointment by the successor Indenture Trustee as provided in Section 7.9 hereof. |
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(a) Any successor Indenture Trustee appointed as provided in Section 7.8 hereof shall execute, acknowledge and deliver to each of the Servicer, the Issuer, each Rating Agency, the Noteholders and to its predecessor Indenture Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor Indenture Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor Indenture Trustee hereunder with like effect as if originally named a Indenture Trustee. The predecessor Indenture Trustee shall deliver or cause to be delivered to the successor Indenture Trustee or its custodian any Transaction Documents and statements held by it or its custodian hereunder; and the Servicer and the Issuer and the predecessor Indenture Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for the full and certain vesting and confirmation in the successor Indenture Trustee of all such rights, powers, duties and obligations. |
(b) In case of the appointment hereunder of a successor Indenture Trustee with respect to the Notes, the Issuer, the retiring Indenture Trustee and each successor Indenture Trustee with respect to the Notes shall execute and deliver an indenture supplemental hereto wherein each successor Indenture Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Indenture Trustee all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes to which the appointment of such successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is not retiring with respect to all Notes, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes as to which the retiring Indenture Trustee is not retiring shall continue to be vested in the retiring Indenture Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the Trust Estate hereunder by more than one Indenture Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Indenture Trustees co-trustees of the same allocated trust and that each such Indenture Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Indenture Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Indenture Trustee shall become effective to the extent provided therein and each such successor Indenture Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes to which the appointment of such successor Indenture Trustee relates; but, on request of the Issuer or any successor Indenture Trustee, such retiring Indenture Trustee shall duly assign, transfer and deliver to such successor Indenture Trustee all property and money held by such retiring Indenture Trustee hereunder with respect to the Notes of that or those to which the appointment of such successor Indenture Trustee relates. |
Upon request of any such successor Indenture Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor indenture trustee all such rights, powers and trusts referred to in the preceding paragraph.
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(c) No successor Indenture Trustee shall accept appointment as provided in this Section 7.9 unless at the time of such acceptance such successor Indenture Trustee shall be eligible under the provisions of Section 7.7 hereof. |
(d) Upon acceptance of appointment by a successor Indenture Trustee as provided in this Section 7.9, the Servicer shall mail notice of the succession of such Indenture Trustee hereunder to each Noteholder at its address as shown in the Note Register. If the Servicer fails to mail such notice within ten days after acceptance of appointment by the successor Indenture Trustee, the successor Indenture Trustee shall cause such notice to be mailed at the expense of the Issuer and the Servicer. |
Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person succeeding to the corporate trust business of the Indenture Trustee, shall be the successor of the Indenture Trustee hereunder, provided such Person shall be eligible under the provisions of Section 7.7 hereof, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(a) At any time or times for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Trust Estate may at the time be located or in which any action of the Indenture Trustee may be required to be performed or taken, the Indenture Trustee, the Servicer or the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, by an instrument in writing signed by it or them, may appoint, at the reasonable expense of the Issuer and the Servicer, one or more Persons to act as separate trustee or separate trustees or co-trustee, acting jointly with the Indenture Trustee, of all or any part of the Trust Estate, to the full extent that local law makes it necessary for such separate trustee or separate trustees or co-trustee acting jointly with the Indenture Trustee to act. Notwithstanding the appointment of any separate or co-trustee, the Indenture Trustee shall remain obligated and liable for the obligations of the Indenture Trustee under this Indenture. |
(b) The Indenture Trustee and, at the request of the Indenture Trustee, the Issuer shall execute, acknowledge and deliver all such instruments as may be required by the legal requirements of any jurisdiction or by any such separate trustee or separate trustees or co-trustee for the purpose of more fully confirming such title, rights, or duties to such separate trustee or separate trustees or co-trustee. Upon the acceptance in writing of such appointment by any such separate trustee or separate trustees or co-trustee, it, he, she or they shall be vested with such title to the Trust Estate or any part thereof, and with such rights, powers, duties and obligations as shall be specified in the instrument of appointment, and such rights, powers, duties and obligations shall be conferred or imposed upon and exercised or performed by the Indenture Trustee, or the Indenture Trustee and such separate trustee or separate trustees or co-trustees jointly with the Indenture Trustee subject to all the terms of this Indenture, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the
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Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate trustee or separate trustees or co-trustee, as the case may be. Any separate trustee or separate trustees or co-trustee may, at any time by an instrument in writing, constitute the Indenture Trustee its attorney-in-fact and agent with full power and authority to do all acts and things and to exercise all discretion on its behalf and in its name. In any case, if any such separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, the title to the Trust Estate and all assets, property, rights, power duties and obligations and duties of such separate trustee or co-trustee shall, so far as permitted by law, vest in and be exercised by the Indenture Trustee, without the appointment of a successor to such separate trustee or co-trustee unless and until a successor is appointed. |
(c) All provisions of this Indenture which are for the benefit of the Indenture Trustee shall extend to and apply to each separate trustee or co-trustee appointed pursuant to the foregoing provisions of this Section 7.11. |
(d) Every additional trustee and separate trustee hereunder shall, to the extent permitted by law, be appointed and act and the Indenture Trustee shall act, subject to the following provisions and conditions: (i) all powers, duties and obligations and rights conferred upon the Indenture Trustee in respect of the receipt, custody, investment and payment of monies shall be exercised solely by the Indenture Trustee; (ii) all other rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed and exercised or performed by the Indenture Trustee and such additional trustee or trustees and separate trustee or trustees jointly except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Timeshare Properties in any such jurisdiction) shall be exercised and performed by such additional trustee or trustees or separate trustee or trustees; (iii) no power hereby given to, or exercisable by, any such additional trustee or separate trustee shall be exercised hereunder by such trustee except jointly with, or with the consent of, the Indenture Trustee; and (iv) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder. |
If at any time, the Indenture Trustee shall deem it no longer necessary or prudent in order to conform to such law, the Indenture Trustee shall execute and deliver all instruments and agreements necessary or proper to remove any additional trustee or separate trustee.
(e) Any request, approval or consent in writing by the Indenture Trustee to any additional trustee or separate trustee shall be sufficient warrant to such additional trustee or separate trustee, as the case may be, to take such action as may be so requested, approved or consented to. |
(f) Notwithstanding any other provision of this Section 7.11, the powers of any additional trustee or separate trustee shall not exceed those of the Indenture Trustee hereunder. |
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The Trust Paying Agent, the Note Registrar, and any paying agent shall be entitled to the rights, benefits and immunities of the Indenture Trustee as set forth in this Article VII to the same extent and as fully as though named in place of the Indenture Trustee herein.
The Issuer hereby authorizes and directs the Indenture Trustee to enter into the Lockbox Agreement. Pursuant to the Lockbox Agreement, the Indenture Trustee agrees to cause to be established and maintained an account (the “Lockbox Account”) for the benefit of the Noteholders. The Lockbox Account will be titled as required by the Lockbox Bank. The Indenture Trustee is authorized and directed to act as titleholder of the Lockbox Account in accordance with the terms of the Lockbox Agreement for the benefit of the Noteholders with interests in the funds on deposit in such account. In addition, the Indenture Trustee is hereby authorized to enter into, execute, deliver and perform under, each of the applicable Transaction Documents and the Depository Agreement. The Lockbox Bank will be required to transfer and will be permitted to withdraw funds from the Lockbox Account in accordance with the Lockbox Agreement.
The Indenture Trustee will maintain in the City of St. Paul, Minnesota, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Indenture Trustee in respect of the Notes and this Indenture may be served. The Indenture Trustee will give prompt written notice to the Issuer, the Servicer and the Noteholders of the location, and of any change in the location, of any such office or agency or shall fail to furnish the Issuer or the Servicer 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.
The Issuer will cause the due and punctual payment of the principal of, and interest on, the Notes in accordance with the terms of the Notes and this Indenture.
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On each Transfer Date, each Subsequent Timeshare Loan or Qualified Substitute Timeshare Loan, as the case may be, shall be an Eligible Timeshare Loan.
(a) All payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Trust Accounts pursuant to Sections 3.4 or 6.6 hereof shall be made on behalf of the Issuer by the Indenture Trustee, and no amounts so withdrawn from the Collection Account for payments of the Notes shall be paid over to the Issuer under any circumstances, except as provided in this Section 8.3, in Section 3.4 or Section 6.6 hereof, as the case may be. |
(b) In making payments hereunder, the Indenture Trustee will 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. |
(c) Except as required by applicable law, any money held by the Indenture Trustee or any paying agent on behalf of the Noteholders for the payment of any amount due with respect to any Note shall not bear interest and if remaining unclaimed for two years after such amount has become due and payable to the Noteholder shall be discharged from such trust and, subject to applicable escheat laws, and so long as no Event of Default has occurred and is continuing, paid to the Issuer upon request; otherwise, such amounts shall be redeposited in the Collection Account as Available Funds, and such Noteholder shall thereafter, as an unsecured general creditor, 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 any paying agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or any paying agent, before being required to make any such repayment, shall cause to be published once, at the expense and direction of the Issuer, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The Indenture Trustee or any paying agent shall also adopt and employ, at the expense and direction of the Issuer, any other reasonable means of notification of such repayment (including, but not limited to, mailing notice of such repayment to Noteholders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in moneys due and payable but not claimed is determinable) from the records of the Indenture Trustee or of any paying agent, at the last address of record for each such Noteholder. |
(d) The Issuer will cause each paying agent to execute and deliver to the Indenture Trustee an instrument in which such paying agent shall agree with the Indenture Trustee, subject to the provisions of this Section 8.3, that such paying agent will: |
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(i) give the Indenture Trustee notice of any occurrence that is, or with notice or with the lapse of time or both would become, an Event of 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; |
(ii) at any time during the continuance of any such occurrence described in clause (i) above, upon the written request of the Indenture Trustee, pay to the Indenture Trustee all sums so held in trust by such paying agent; |
(iii) 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 at the time of its appointment; and |
(iv) comply with all requirements of the Code, Treasury Regulations promulgated thereunder and any applicable state law with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes (including FATCA Withholding Tax) imposed thereon and with respect to any applicable 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 trusts 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 monies.
(a) The Issuer will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware, and will obtain and preserve its qualification to do business as a foreign business trust in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes or any of the Timeshare Loans. |
(b) The Issuer shall at all times observe and comply in all material respects with (i) all laws applicable to it, (ii) all requirements of law in the declaration and payment of distributions, and (iii) all requisite and appropriate formalities in the management of its business and affairs and the conduct of the transactions contemplated hereby. |
(c) The Issuer shall not (i) consolidate or merge with or into any other Person or convey or transfer its properties and assets substantially as an entirety to any other Person or (ii) commingle its assets with those of any other Person. |
(d) The Issuer shall not become an “investment company” or under the “control” of an “investment company” as such terms are defined in the ’40 Act, and the rules and regulations thereunder (taking into account not only the general definition of the term “investment company” but also any available exceptions to such general definition); provided,
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however, that the Issuer shall be in compliance with this Section 8.4 if it shall have obtained an order exempting it from regulation as an “investment company” so long as it is in compliance with the conditions imposed in such order. |
(a) 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 as may be necessary or advisable to: |
(i) grant more effectively the assets comprising all or any portion of the Trust Estate; |
(ii) maintain or preserve the Lien of this Indenture or carry out more effectively the purposes hereof; |
(iii) publish notice of, or protect the validity of, any Grant made or to be made by this Indenture and perfect the security interest contemplated hereby in favor of the Indenture Trustee in each of the Timeshare Loans and all other property included in the Trust Estate; provided, that the Issuer shall not be required to cause the recordation of the Indenture Trustee’s name as Lien holder on the related title documents for the Timeshare Properties so long as no Event of Default has occurred and is continuing; |
(iv) enforce or cause the Servicer to enforce any of the Timeshare Loans in accordance with the Servicing Standard, provided, however, the Issuer will not cause the Servicer to obtain on behalf of the Indenture Trustee or the Noteholders, any Timeshare Property or to take any actions with respect to any property the result of which would adversely affect the interests of the Indenture Trustee or the Noteholders (including, but not limited to, actions which would cause the Indenture Trustee or the related Noteholders to be considered a holder of title, mortgagee-in-possession, or otherwise, or an “owner” or “operator” of Property not in compliance with applicable environmental statutes); and |
(v) preserve and defend title to the Timeshare Loans (including the right to receive all payments due or to become due thereunder), the interests in the Timeshare Properties, or other property included in the Trust Estate and preserve and defend the rights of the Indenture Trustee in the Trust Estate (including the right to receive all payments due or to become due thereunder) against the claims of all Persons and parties other than as permitted hereunder. |
(b) The Issuer will not take any action and will use its commercially reasonable efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or
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agreement, except as expressly provided in this Indenture or the Custodial Agreement or such other instrument or agreement. |
(c) The Issuer may contract with or otherwise obtain the assistance of other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer, provided, however, that no appointment of such Person shall relieve the Issuer of its duties and obligations hereunder. Initially, the Issuer has contracted with the Servicer, the Indenture Trustee and the Custodian pursuant to this Indenture to assist the Issuer in performing its duties under this Indenture and the other Transaction Documents. |
(d) 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 Trust Estate. |
(e) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the prior written consent of the Indenture Trustee and the Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any Timeshare Loan (except to the extent otherwise provided in this Indenture or in the Timeshare Loan Documents) or the Transaction Documents, or waive timely performance or observance by the Servicer, the Indenture Trustee, the Custodian, any paying agent or the Depositor under this Indenture; and (ii) that any such amendment shall not (A) 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 (B) reduce the aforesaid percentage of the Notes that is required to consent to any such amendment, without the consent of the Noteholders of all the Outstanding Notes. If any such amendment, modification, supplement or waiver shall be so consented to by the Indenture Trustee and the Noteholders, the Issuer agrees, promptly following a request by the Indenture Trustee, to execute and deliver, at its own expense, such agreements, instruments, consents and other documents as the Indenture Trustee may deem necessary or appropriate in the circumstances. |
The Issuer, upon the Issuer’s failure to do so, hereby irrevocably designates the Indenture Trustee and the Servicer, severally, its agents and attorneys-in-fact to execute any financing statement or continuation statement or Assignment of Mortgage required pursuant to this Section 8.5; provided, however, that such designation shall not be deemed to create a duty of the Indenture Trustee to monitor the compliance of the Issuer with the foregoing covenants, and provided, further, that the duty of the Indenture Trustee or the Servicer to execute any instrument required pursuant to this Section 8.5 shall arise only if a Responsible Officer of the Indenture Trustee or the Servicer, as applicable, has Knowledge of any failure of the Issuer to comply with the provisions of this Section 8.5.
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(a) The Issuer will not: |
(i) sell, transfer, exchange or otherwise dispose of any portion of the Trust Estate except as expressly permitted by this Indenture; |
(ii) claim any credit on, or make any deduction from, the principal of, or interest on, any of the Notes (other than amounts properly withheld from such payments under the Code or any applicable state law); |
(iii) engage in any business or activity other than as permitted by this Indenture, the Trust Agreement and the other Transaction Documents and any activities incidental thereto, or amend the Trust Agreement as in effect on the Closing Date other than in accordance with Article XI thereof; |
(iv) issue debt or obligations under any agreement other than this Indenture; |
(v) incur or assume, directly or indirectly, any indebtedness, except for such indebtedness as may be incurred by the Issuer pursuant to this Indenture, or guaranty any indebtedness or other obligations of any Person (other than the Timeshare Loans), 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 (other than the Timeshare Loans); |
(vi) dissolve or liquidate in whole or in part or merge or consolidate with any other Person; |
(vii) (A) permit the validity or effectiveness of this Indenture or any Grant hereby 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 under this Indenture, except as may be expressly permitted hereby, (B) permit any lien, charge, security interest, mortgage or other encumbrance to be created on or to extend to or otherwise arise upon or burden the Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics; liens and other liens that arise by operation of law, in each case, on any of the Resort Interests and arising solely as a result of an act or omission of the related Obligor) other than the Lien of this Indenture or (C) except as otherwise contemplated in this Indenture, permit the Lien of this Indenture (other than with respect to any Permitted Liens or such tax, mechanic’s or other lien) not to constitute a valid first priority security interest in the Trust Estate; |
(viii) take any action or fail to take any actions which action or failure may cause the Issuer to be classified as (A) an association that is taxable as a corporation pursuant to Section 7701 of the Code, (B) a publicly traded partnership that is taxable as a corporation pursuant to Section 7704 of the Code or (C) a taxable
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mortgage pool that is taxable as a corporation pursuant to Section 7701(i) of the Code; or |
(ix) change the location of its principal place of business or jurisdiction of organization without the prior notice to the Indenture Trustee and the Noteholders. |
(b) Notice of Events of Default. Immediately upon the Issuer having Knowledge of the existence of any condition or event which constitutes a Default or an Event of Default or a Servicer Event of Default, the Issuer shall deliver to the Indenture Trustee a written notice describing its nature and period of existence and what action the Issuer is taking or proposes to take with respect thereto. |
(d) Taxes. |
The Issuer shall file all required tax returns in a timely manner and pay all taxes when due and payable or levied against its assets, properties or income, including any property that is part of the Trust Estate, except to the extent the Issuer is contesting the same in good faith and has set aside adequate reserves in accordance with GAAP for the payment thereof.
The Issuer shall not, directly or indirectly, (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest to security in or of the Issuer, the Club Originator, the Depositor or to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, payments and distributions to or on behalf of the Servicer, the Backup Servicer, the Lockbox Bank, the Club Originator, the Depositor, the Indenture Trustee, the Owner Trustee, the Administrator, the Custodian, the Noteholders and the Certificateholders as contemplated by, and to the extent funds are available for such purpose under, this Indenture, the Sale Agreement, the Trust Agreement or the other Transaction Documents. The Issuer will not, directly or indirectly, make or cause to be made payments to or distributions from the Collection Account except in accordance with this Indenture and the other Transaction Documents.
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Upon request of the Indenture Trustee, 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.
(a) The Issuer, the Servicer, the Club Trustee, the Backup Servicer, the Indenture Trustee and the Custodian, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Indenture Trustee, without the consent of any Noteholder, for any of the following purposes: |
(i) to correct or amplify the description of any property at any time subject to the Lien of this Indenture, or to better assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the Lien of this Indenture; provided, such action pursuant to this clause (i) shall not adversely affect the interests of the Noteholders in any respect; or |
(ii) to evidence and provide for the acceptance of appointment hereunder by a successor Indenture Trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Indenture Trustee, pursuant to the requirements of Section 7.9 hereof; or |
(iii) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein or to conform the provisions herein to the descriptions set forth in the Offering Circular, or to make any other provisions with respect to matters or questions arising under this Indenture; |
provided that any action pursuant to clauses (i), (ii) or (iii) shall not adversely affect the interests of any Noteholder.
(b) The Indenture Trustee shall promptly deliver, at least five Business Days prior to the effectiveness thereof, to each Noteholder and each Rating Agency, a copy of any supplemental indenture entered into pursuant to this Section 9.1(a). |
(a) With the consent of Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes then Outstanding and by Act of said Noteholders delivered to the Issuer and the Indenture Trustee, the Issuer and the Indenture Trustee may, pursuant to an Issuer Order, enter into an indenture or indentures supplemental hereto for the
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purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Noteholders under this Indenture; provided, that no supplemental indenture shall, without the consent of the Noteholder of each Outstanding Note affected thereby, |
(i) change the Stated Maturity or Payment Date of any Note or the amount of principal payments or interest payments due or to become due on any Payment Date with respect to any Note, or change the priority of payment thereof as set forth herein, or reduce the principal amount thereof or the Note Rate thereon, or change the place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity; |
(ii) reduce the percentage of the Outstanding Note Balance or Adjusted Note Balance, the consent of the Noteholders of which is required for any supplemental indenture, for any waiver of compliance with provisions of this Indenture or Events of Default and their consequences; |
(iii) modify any of the provisions of this Section 9.2 or Section 6.13 hereof except to increase any percentage of Noteholders required for any modification or waiver or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Noteholder of each Outstanding Note affected thereby; |
(iv) modify or alter the provisions of the proviso to the definition of the term “Outstanding”; or |
(v) permit the creation of any lien ranking prior to or on a parity with the Lien of this Indenture with respect to any part of the Trust Estate or terminate the Lien of this Indenture on any property at any time subject hereto or deprive any Noteholder of the security afforded by the Lien of this Indenture; |
provided, no such supplemental indenture may modify or change any terms whatsoever of this Indenture that could be construed as increasing the Issuer’s or the Servicer’s discretion hereunder.
(b) The Indenture Trustee shall promptly deliver, at least five Business Days prior to the effectiveness thereof to each Noteholder and each Rating Agency, a copy of any supplemental indenture entered into pursuant to Section 9.2(a) hereof. |
In executing, or accepting the additional trusts created by, any supplemental indenture (a) pursuant to Section 9.1 hereof or (b) pursuant to Section 9.2 hereof without the consent of each Noteholder to the execution of the same, or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and (subject to Section 7.1 hereof) shall be, fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and all
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conditions precedent have been satisfied. The Indenture Trustee may, but shall not be obligated to, enter into any supplemental indenture which affects the Indenture Trustee’s own rights, duties, obligations, or immunities under this Indenture or otherwise.
Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Noteholder theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Indenture Trustee, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. New Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
The Servicer shall have the option to redeem not less than all of the Notes and thereby cause the early repayment of the Notes on any date after the Optional Redemption Date by payment of an amount equal to the Redemption Price and any amounts, fees and expenses that are required to be paid pursuant to Section 6.6(b) hereof (unless amounts in the Trust Accounts are sufficient to make such payments).
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The Servicer shall give written notice of its intention to redeem the Notes to the Indenture Trustee at least 15 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Indenture Trustee).
Notices of redemption shall be given by the Servicer or by the Indenture Trustee at the Servicer’s direction by first class mail, postage prepaid, mailed not less than 15 days prior to the Redemption Date to each Noteholder, at the address listed in the Note Register and to each Rating Agency (unless a shorter period shall be satisfactory to the Indenture Trustee). All notices of redemption shall state (a) the Redemption Date, (b) the Redemption Price, (c) that on the Redemption Date, the Redemption Price will become due and payable in respect of each Note, and that interest thereon shall cease to accrue if payment is made on the Redemption Date and (d) the office of the Indenture Trustee where the Notes are to be surrendered for payment of the Redemption Price. Failure to give notice of redemption, or any defect therein, to any Noteholder shall not impair or affect the validity of the redemption of any other Note.
On or before the Business Day immediately preceding the Redemption Date, the Servicer shall deposit with the Indenture Trustee an amount equal to the Redemption Price and any amounts, fees and expenses that are required to be paid hereunder (less any portion of such payment to be made from funds held in any of the Trust Accounts).
Notice of redemption having been given as provided in Section 10.3 hereof and deposit of the Redemption Price with the Indenture Trustee having been made as provided in Section 10.4 hereof, the Notes shall on the Redemption Date, become due and payable at the Redemption Price, and, on such Redemption Date, such Notes shall cease to accrue interest. The Indenture Trustee shall apply all available funds in accordance with Section 6.6(b) hereof and the Noteholders shall be paid the Redemption Price by Indenture Trustee on behalf of the Servicer upon presentment and surrender of their Notes at the office of the Indenture Trustee. If the Servicer shall have failed to deposit the Redemption Price with the Indenture Trustee, the principal and interest with respect to each Class of Notes shall, until paid, continue to accrue interest at their respective Note Rates. The Servicer’s failure to deposit the Redemption Price shall not constitute an Event of Default hereunder.
(a) This Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for),
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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, when: |
(i) either: |
(A) |
all Notes theretofore authenticated and delivered (other than (1) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.5 hereof and (2) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 8.3(c) hereof) have been delivered to the Indenture Trustee for cancellation; or |
(B) |
the final installments of principal on all such Notes not theretofore delivered to the Indenture Trustee for cancellation (1) have become due and payable, or (2) will become due and payable at their Stated Maturity, as applicable within one year, and the Issuer has irrevocably deposited or caused to be deposited (out of Available Funds or amounts received pursuant to Article X hereof) with the Indenture Trustee in trust an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity thereof; |
(ii) the Issuer and the Servicer have paid or caused to be paid (out of Available Funds or amounts received pursuant to Article X hereof) all sums payable hereunder by the Issuer and the Servicer for the benefit of the Noteholders and the Indenture Trustee; and |
(iii) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. |
At such time, the Indenture Trustee shall deliver to the Issuer or at the Issuer’s direction all cash, securities and other property held by it as part of the Trust Estate other than funds deposited with the Indenture Trustee pursuant to Section 11.1(a)(i) hereof, for the payment and discharge of the Notes.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Indenture Trustee under Section 7.6 hereof and, if money shall have been deposited with the Indenture Trustee pursuant to Section 11.1(a)(i) hereof, the obligations of the Indenture Trustee under Sections 11.2 and 8.3(c) hereof shall survive. |
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Subject to the provisions of Section 8.3(c) hereof, all money deposited with the Indenture Trustee pursuant to Sections 11.1 and 8.3 hereof shall be held on behalf of the Noteholders and applied by the Indenture Trustee in accordance with the provisions of the Notes, this Indenture and the Trust Agreement, to the payment, either directly or through a paying agent, as the Indenture Trustee may determine, to the Persons entitled thereto, of the principal and interest for whose payment such money has been deposited with the Indenture Trustee.
In connection with the satisfaction and discharge of this Indenture, all moneys then held by any paying agent other than the Indenture Trustee under the provisions of this Indenture with respect to the Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 3.4 hereof and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Upon the full application of (a) moneys deposited pursuant to this Article XI or (b) proceeds of the Timeshare Loans pursuant to Sections 3.4 or 6.6 hereof, the Trust Estate created by this Indenture shall be deemed to have terminated and all Liens granted hereunder shall be released.
The Issuer represents and warrants to the Indenture Trustee, the Servicer, the Backup Servicer and the Noteholders as of the Closing Date, as follows:
(a) Organization and Good Standing. The Issuer has been duly formed and is validly existing and in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as presently conducted and has the power and authority to own and convey all of its properties and to execute and deliver this Indenture and the other Transaction Documents and to perform the transactions contemplated hereby and thereby. |
(b) Binding Obligation. This Indenture and the other Transaction Documents to which it is a party have each been duly executed and delivered on behalf of the Issuer and this Indenture and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors’ rights and by general principles of equity. |
(c) No Consents Required. No consent of, or other action by, and no notice to or filing with, any Governmental Authority or any other party, is required for the due execution,
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delivery and performance by the Issuer of this Indenture or any of the other Transaction Documents or for the perfection of or the exercise by the Indenture Trustee or the Noteholders of any of their rights or remedies thereunder which have not been duly obtained. |
(d) No Violation. The consummation of the transaction contemplated by this Indenture and the fulfillment of the terms hereof shall not conflict with, result in any material breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a default under, the organizational documents of the Issuer, or any indenture, agreement or other instrument to which the Issuer is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Indenture). |
(e) No Proceedings. There is no pending or, to the Issuer’s Knowledge, threatened action, suit or proceeding, nor any injunction, writ, restraining order or other order of any nature against or affecting the Issuer, its officers or directors, or the property of the Issuer, in any court or tribunal, or before any arbitrator of any kind or before or by any Governmental Authority (i) asserting the invalidity of this Indenture or any of the other Transaction Documents, (ii) seeking to prevent the sale and assignment of any Timeshare Loan or the consummation of any of the transactions contemplated thereby, (iii) seeking any determination or ruling that might materially and adversely affect (A) the performance by the Issuer of this Indenture or any of the other Transaction Documents or the interests of the Noteholders, (B) the validity or enforceability of this Indenture or any of the other Transaction Documents, (C) any Timeshare Loan, or (D) the Intended Tax Characterization, or (iv) asserting a claim for payment of money adverse to the Issuer or the conduct of its business or which is inconsistent with the due consummation of the transactions contemplated by this Indenture or any of the other Transaction Documents. |
(f) Issuer Not Insolvent. The Issuer is solvent and will not become insolvent after giving effect to the transactions contemplated by this Indenture and each of the other Transaction Documents. |
(g) Name. The legal name of the Issuer is as set forth in the signature page of this Indenture and the Issuer does not have any trade names, fictitious names, assumed names or “doing business as” names. |
(h) Eligible Timeshare Loans. Each Timeshare Loan subject to the Lien of this Indenture is an Eligible Timeshare Loan. |
(i) Notes Authorized, Executed, Authenticated, Validly Issued and Outstanding. The Notes have been duly and validly authorized, and when duly and validly executed by the Issuer and authenticated by the Indenture Trustee in accordance with the terms of this Indenture and delivered to and paid for by each Noteholder as provided herein, will be validly issued and outstanding and entitled to the benefits hereof. |
(j) Accuracy of Information. The representations and warranties of the Issuer in the Transaction Documents are true and correct in all material respects as of the Closing Date
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and, except for representations and warranties expressly made as of a different date, each Transfer Date. |
(k) Special Purpose. The Issuer shall engage in no business, and take no actions with respect to any other transaction than the transactions contemplated by the Transaction Documents and will otherwise maintain its existence separate from the Depositor and all other entities as provided in its organizational documents. |
(l) Securities Laws. The Issuer (i) is not required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of the ’40 Act, (ii) will be relying on an exclusion or exemption from the definition of “investment company” under the ’40 Act contained in Section 3(c)(5) of the ’40 Act or Rule 3a-7 under the ’40 Act, although there may be additional exclusions or exemptions available to the Issuer, and (iii) is not a “covered fund” under Section 13 of the Bank Holding Company Act of 1956, as amended. |
(m) Representations and Warranties Regarding Security Interest and Timeshare Loan Files. |
(i) Payment of principal and interest on the Notes in accordance with their terms and the performance by the Issuer of all its obligations under this Indenture are secured by the Trust Estate. The Grant contained in the “Granting Clause” of this Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Trust Estate in favor of the Indenture Trustee, which security interest is prior to all other Liens arising under the UCC, and is enforceable as such against creditors of the Issuer, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). |
(ii) The Timeshare Loans and the documents evidencing such Timeshare Loans constitute either “accounts”, “chattel paper”, “instruments” or “general intangibles” within the meaning of the applicable UCC. |
(iii) The Issuer owns and has good and marketable title to the Trust Estate free and clear of any Lien, claim or encumbrance of any Person, except for Permitted Liens. |
(iv) The Issuer has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Trust Estate granted to the Indenture Trustee hereunder. |
(v) All original executed copies of each Mortgage Note (or an executed Lost Note Affidavit related to such Mortgage Note) that constitute or evidence the Trust Estate have been or will be delivered to the Custodian and a Custodian's Certification therefor has been or will be issued, in accordance with the terms of the Custodial Agreement, to Bluegreen and the Indenture Trustee. |
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(vi) Other than the security interest granted to the Indenture Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Trust Estate. The Issuer has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering the Trust Estate other than any financing statement relating to the security interest granted to the Indenture Trustee hereunder or that has been terminated. |
(vii) All financing statements filed or to be filed against the Issuer in favor of the Indenture Trustee in connection herewith describing the Trust Estate contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Secured Party.” |
(viii) None of the Mortgage Notes that constitute or evidence the Trust Estate has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee. |
The foregoing representations and warranties in Section 12.01(m)(i) – (viii) shall remain in full force and effect and shall not be waived or amended until the Notes are paid in full or otherwise released or discharged.
(n) FATCA. |
(i)To the Issuer’s knowledge, without investigation, the Indenture Trustee is not obligated, in respect of any payments to be made by it pursuant to this Indenture, to make any withholding or deduction of FATCA Withholding Tax.
(ii)The Issuer will request that Noteholders provide Noteholder Tax Identification Information and, to the extent FATCA Withholding Tax is potentially applicable, Noteholder FATCA Information to the Indenture Trustee.
(iii)The Issuer will require each Noteholder to agree that the Indenture Trustee has the right to withhold from any amount of interest or other amount (properly withholdable under law and without any corresponding gross-up for amounts properly withheld and remitted to the appropriate Governmental Authority) payable to a Noteholder that fails to comply with the requirements of Section 3.7(i), which requirement the Issuer will have satisfied by virtue of Section 3.7 hereof.
The initial Servicer hereby represents and warrants to the Indenture Trustee, the Issuer, the Backup Servicer and the Noteholders, as of the Closing Date, the following:
(a) Organization and Authority. The Servicer: |
(i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida; |
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(ii) has all requisite power and authority to own and operate its properties and to conduct its business as currently conducted and as proposed to be conducted as contemplated by the Transaction Documents to which it is a party, to enter into the Transaction Documents to which it is a party and to perform its obligations under the Transaction Documents to which it is a party; |
(iii) has made all filings and holds all material franchises, licenses, permits and registrations which are required under the laws of each jurisdiction in which the properties owned (or held under lease) by it or the nature of its activities makes such filings, franchises, licenses, permits or registrations necessary, except where the failure to make such filing will not have a material adverse effect on the Servicer’s activities or its ability to perform its obligations under the Transaction Documents; and |
(iv) 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 the Indenture 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 Indenture 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. |
(b) Place of Business. The address of the principal place of business and chief executive office of the Servicer is 4960 Conference Way North, Suite 100, Boca Raton, Florida 33431 and there have been no other such locations during the immediately preceding four months. |
(c) No Consents. No consent, approval, order or authorization of, and no filing with or notice to, any court or other Governmental Authority in respect of the Servicer is required which has not been obtained in connection with the authorization, execution, delivery or performance by the Servicer of this Indenture or any of the other Transaction Documents to which the Servicer is a party or under the transactions contemplated hereunder or thereunder. |
(d) Compliance with Other Instruments, etc. The Servicer is not in violation of any term of its certificate of incorporation or by-laws. The execution, delivery and performance by the Servicer of the Transaction Documents to which it is a party do not and will not (i) conflict with or violate the organizational documents of the Servicer, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any Lien on any of the properties or assets of the Servicer pursuant to the terms of any instrument or agreement to which the Servicer is a party or by which it is bound where such conflict would have a material adverse effect on the Servicer’s activities or its ability to perform its obligations under the Transaction Documents or (iii) require any consent of or other action by any trustee or any creditor of, any lessor to or any investor in the Servicer. |
(e) Compliance with Law. The Servicer is in material compliance with all statutes, laws and ordinances and all governmental rules and regulations to which it is subject,
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the violation of which, either individually or in the aggregate, could materially adversely affect its business, earnings, properties or condition (financial or other). The internal policies and procedures employed by the Servicer are in material compliance with all applicable statutes, laws and ordinances and all governmental rules and regulations. The execution, delivery and performance of the Transaction Documents to which it is a party do not and will not cause the Servicer to be in violation of any law or ordinance, or any order, rule or regulation, of any federal, state, municipal or other governmental or public authority or agency where such violation would, either individually or in the aggregate, materially adversely affect its business, earnings, properties or condition (financial or other). |
(f) Pending Litigation or Other Proceedings. Except as specified in the Offering Circular, there is no pending or, to the best of the Servicer’s Knowledge, threatened action, suit, proceeding or investigation before any court, administrative agency, arbitrator or governmental body against or affecting the Servicer which, if decided adversely, would materially and adversely affect (i) the condition (financial or otherwise), business or operations of the Servicer, (ii) the ability of the Servicer to perform its obligations under, or the validity or enforceability of this Indenture or any other documents or transactions contemplated under this Indenture, (iii) any Timeshare Loan or title of any Obligor to any Timeshare Property pursuant to the applicable Owner Beneficiary Agreement or (iv) the Indenture Trustee’s ability to foreclose or otherwise enforce the Liens of the Timeshare Loans. |
(g) Taxes. Except as described in SEC filings relating to the Servicer, the Servicer has timely filed all tax returns (federal, state and local) which are required to be filed and has paid all taxes that have become due and payable, other than those which are being contested in good faith or where the failure to file or pay would not have a material adverse effect on the Servicer’s activities or its ability to perform its obligations under the Transaction Documents. |
(h) Transactions in Ordinary Course. The transactions contemplated by this Indenture are in the ordinary course of business of the Servicer. |
(i) Securities Laws. The Servicer is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the ’40 Act. |
(j) Proceedings. The Servicer has taken all action necessary to authorize the execution and delivery by it of the Transaction Documents to which it is a party and the performance of all obligations to be performed by it under the Transaction Documents. |
(k) Defaults. The Servicer 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, which default would have a material adverse effect on the transactions contemplated hereunder; and to the Servicer’s Knowledge, 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. |
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(l) Insolvency. The Servicer is solvent. Prior to the date hereof, the Servicer did not, and is not about to, engage in any business or transaction for which any property remaining with the Servicer would constitute an unreasonably small amount of capital. In addition, the Servicer has not incurred debts that would be beyond the Servicer’s ability to pay as such debts matured. |
(m) No Consents. No prior consent, approval or authorization of, registration, qualification, designation, declaration or filing with, or notice to any federal, state or local governmental or public authority or agency, is, was or will be required for the valid execution, delivery and performance by the Servicer of the Transaction Documents to which it is a party. The Servicer has obtained all consents, approvals or authorizations of, made all declarations or filings with, or given all notices to, all federal, state or local governmental or public authorities or agencies which are necessary for the continued conduct by the Servicer of its respective businesses as now conducted, other than such consents, approvals, authorizations, declarations, filings and notices which, neither individually nor in the aggregate, materially and adversely affect, or in the future will materially and adversely affect, the business, earnings, prospects, properties or condition (financial or other) of the Servicer. |
(n) Name. The legal name of the Servicer is as set forth in the signature page of this Indenture and the Servicer does not have any trade names, fictitious names, assumed names or “doing business as” names other than “Bluegreen Corporation of Massachusetts” in Louisiana. |
(o) Information. No document, certificate or report furnished by the Servicer, in writing, pursuant to this Indenture or in connection with the transactions contemplated hereby, 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, in light of the circumstances under which they were made, not misleading. There are no facts relating to the Servicer as of the Closing Date which when taken as a whole, materially adversely affect the financial condition or assets or business of the Servicer, or which may impair the ability of the Servicer to perform its obligations under this Indenture, which have not been disclosed herein or in the certificates, the Offering Circular and other documents furnished by or on behalf of the Servicer pursuant hereto or thereto specifically for use in connection with the transactions contemplated hereby or thereby. |
(p) [Reserved]. |
The Indenture Trustee hereby represents and warrants to the Servicer, the Issuer, the Backup Servicer and the Noteholders as of the Closing Date, the following:
(a) The Indenture Trustee is a national banking association duly organized and validly existing under the laws of the United States. |
(b) The execution and delivery of this Indenture and the other Transaction Documents to which the Indenture Trustee is a party, and the performance and compliance with the terms of this Indenture and the other Transaction Documents to which the Indenture Trustee
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is a party by the Indenture Trustee, will not violate the Indenture Trustee’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any material agreement or other material instrument to which it is a party or by which it is bound. |
(c) Except to the extent that the laws of certain jurisdictions in which any part of the Trust Estate may be located require that a co-trustee or separate trustee be appointed to act with respect to such property as contemplated herein, the Indenture Trustee has the full power and authority to carry on its business as now being conducted and to enter into and consummate all transactions contemplated by this Indenture and the other Transaction Documents, has duly authorized the execution, delivery and performance of this Indenture and the other Transaction Documents to which it is a party, and has duly executed and delivered this Indenture and the other Transaction Documents to which it is a party. |
(d) This Indenture, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Indenture Trustee, enforceable against the Indenture Trustee in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and the rights of creditors of banks and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law. |
(e) The Indenture Trustee is not in violation of, and its execution and delivery of this Indenture and the other Transaction Documents to which it is a party and its performance and compliance with the terms of this Indenture and the other Transaction Documents to which it is a party will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Indenture Trustee’s good faith and reasonable judgment, is likely to affect materially and adversely the ability of the Indenture Trustee to perform its obligations under any Transaction Document to which it is a party. |
(f) No litigation is pending or, to the best of the Indenture Trustee’s knowledge, threatened against the Indenture Trustee that, if determined adversely to the Indenture Trustee, would prohibit the Indenture Trustee from entering into any Transaction Document to which it is a party or, in the Indenture Trustee’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of the Indenture Trustee to perform its obligations under any Transaction Document to which it is a party. |
(g) Any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery and performance by the Indenture Trustee of or compliance by the Indenture Trustee with the Transaction Documents to which it is a party or the consummation of the transactions contemplated by the Transaction Documents has been obtained and is effective. |
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The parties expressly acknowledge and consent to U.S. Bank Trust Company, National Association and U.S. Bank National Association and acting in the multiple roles of Indenture Trustee, a paying agent, the Note Registrar, the successor Servicer (in the event the Backup Servicer shall not serve as the successor Servicer) and the Custodian, as applicable. Each of U.S. Bank Trust Company, National Association and U.S. Bank National Association may, in such capacities, discharge its separate functions fully, without hindrance or regard to conflict of interest principles, duty of loyalty principles or other breach of fiduciary duties to the extent that any such conflict or breach arises from the performance by U.S. Bank Trust Company, National Association or U.S. Bank National Association, as applicable, of express duties set forth in this Indenture in any of such capacities, all of which defenses, claims or assertions are hereby expressly waived by the other parties hereto, except in the case of negligence (other than errors in judgment) and willful misconduct by U.S. Bank Trust Company, National Association or U.S. Bank National Association, as applicable.
Until the date on which each Class of Notes has been paid in full, the Club Trustee hereby covenants that:
(i) maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions. The funds of the Club Trustee will not be diverted to any other Person or for other than trust or corporate uses of the Club Trustee, as applicable; |
(ii) ensure that, to the extent that it shares the same officers or other employees as any of its stockholders, beneficiaries or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees; |
(iii) ensure that, to the extent that the Club Trustee and the Servicer (together with their respective stockholders or Affiliates) jointly do business with vendors or service providers or share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Club Trustee and the Servicer (together with their respective shareholders or
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Affiliates) do business with vendors or service providers when the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs. All material transactions between Club Trustee and any of its Affiliates shall be only on an arms’ length basis; |
(iv) to the extent that the Club Trustee and any of its stockholders, beneficiaries or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses; and |
(v) conduct its affairs strictly in accordance with the Club Trust Agreement or its amended and restated articles of incorporation, as applicable, and observe all necessary, appropriate and customary corporate formalities, including, but not limited to, holding all regular and special shareholders’, trustees’ and directors’ meetings appropriate to authorize all trust and corporate action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts. |
(d) Corporate Matters. Notwithstanding any other provision of this Section 12.6 and any provision of law, the Club Trustee shall not do any of the following: |
(i) engage in any business or activity other than as set forth herein or in or as contemplated by the Club Trust Agreement or its amended and restated articles of incorporation, as applicable; |
(ii) without the affirmative vote of a majority of the members of the board of directors (or Persons performing similar functions) of the Club Trustee (which must include the affirmative vote of at least one duly appointed Independent Director (as defined in the Club Trust Agreement)), (A) dissolve or liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to the institution of
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bankruptcy or insolvency proceedings against it, (C) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy, (D) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the corporation or a substantial part of its property, (E) make a general assignment for the benefit of creditors, (F) admit in writing its inability to pay its debts generally as they become due, (G) terminate the Club Managing Entity as manager under the Club Management Agreement or (H) take any corporate action in furtherance of the actions set forth in clauses (A) through (G) above; provided, however, that no director may be required by any shareholder or beneficiary of the Club Trustee to consent to the institution of bankruptcy or insolvency proceedings against the Club Trustee so long as it is solvent; |
(iii) merge or consolidate with any other corporation, company or entity or sell all or substantially all of its assets or acquire all or substantially all of the assets or capital stock or other ownership interest of any other corporation, company or entity; or |
(iv) with respect to the Club Trustee, amend or otherwise modify its amended and restated articles of incorporation or any definitions contained therein in a manner adverse to the Indenture Trustee or any Noteholder without the prior written consent of the Indenture Trustee. |
The Backup Servicer hereby represents and warrants to the Indenture Trustee, the Issuer, the Servicer and the Noteholders, as of the Closing Date, the following:
(a)Corporate Representations.
(i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Arizona; |
(ii) has all requisite power and authority to own and operate its properties and to conduct its business as currently conducted and as proposed to be conducted as contemplated by the Transaction Documents to which it is a party, to enter into the Transaction Documents to which it is a party and to perform its obligations under the Transaction Documents to which it is a party; and |
(iii) has made all filings and holds all material franchises, licenses, permits and registrations which are required under the laws of each jurisdiction in
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which the properties owned (or held under lease) by it or the nature of its activities makes such filings, franchises, licenses, permits or registrations necessary, except where the failure to make such filing will not have a material adverse effect on the Backup Servicer activities or its ability to perform its obligations under the Transaction Documents. |
(f) Place of Business. The address of the principal place of business and chief executive office of the Backup Servicer is as set forth in Section 13.3 hereof and there have been no other such locations during the immediately preceding four months. |
(g) Compliance with Other Instruments, etc. The Backup Servicer is not in violation of any term of its certificate of incorporation and by-laws. The execution, delivery and performance by the Backup Servicer of the Transaction Documents to which it is a party do not and will not (i) conflict with or violate the organizational documents of the Backup Servicer, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any Lien on any of the properties or assets of the Backup Servicer pursuant to the terms of any instrument or agreement to which the Backup Servicer is a party or by which it is bound where such conflict would have a material adverse effect on the Backup Servicer’s activities or its ability to perform its obligations under the Transaction Documents or (iii) require any consent of or other action by any trustee or any creditor of, any lessor to or any investor in the Backup Servicer. |
(h) Compliance with Law. The Backup Servicer is in material compliance with all statutes, laws and ordinances and all governmental rules and regulations to which it is subject, the violation of which, either individually or in the aggregate, could materially adversely affect its business, earnings, properties or condition (financial or other). The internal policies and procedures employed by the Backup Servicer are in material compliance with all applicable statutes, laws and ordinances and all governmental rules and regulations. The execution, delivery and performance of the Transaction Documents to which it is a party do not and will not cause the Backup Servicer to be in violation of any law or ordinance, or any order, rule or regulation, of any federal, state, municipal or other governmental or public authority or agency where such violation would, either individually or in the aggregate, materially adversely affect its business, earnings, properties or condition (financial or other). |
(i) Pending Litigation or Other Proceedings. There is no pending or, to the best of the Backup Servicer’s Knowledge, threatened action, suit, proceeding or investigation before any court, administrative agency, arbitrator or governmental body against or affecting the Backup Servicer which, if decided adversely, would materially and adversely affect (i) the condition (financial or otherwise), business or operations of the Backup Servicer, (ii) the ability of the Backup Servicer to perform its obligations under, or the validity or enforceability of this Indenture or any other documents or transactions contemplated under this Indenture, (iii) any property or title of any Obligor to any property or (iv) the Indenture Trustee’s ability to foreclose or otherwise enforce the Liens of the Timeshare Loans. |
(j) Taxes. The Backup Servicer has timely filed all tax returns (federal, state and local) which are required to be filed and has paid all taxes that have become due and payable, other than those which are being contested in good faith or where the failure to file or
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pay would not have a material adverse effect on the Backup Servicer’s activities or its ability to perform its obligations under the Transaction Documents. |
(k) Transactions in Ordinary Course. The transactions contemplated by this Indenture are in the ordinary course of business of the Backup Servicer. |
(l) Securities Laws. The Backup Servicer is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the ’40 Act. |
(m) Proceedings. The Backup Servicer has taken all action necessary to authorize the execution and delivery by it of the Transaction Documents to which it is a party and the performance of all obligations to be performed by it under the Transaction Documents. |
(n) Defaults. The Backup Servicer 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, which default would have a material adverse effect on the transactions contemplated hereunder; and to the Backup Servicer’s Knowledge, 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. |
(o) Insolvency. The Backup Servicer is solvent. Prior to the date hereof, the Backup Servicer did not, and is not about to, engage in any business or transaction for which any property remaining with the Backup Servicer would constitute an unreasonably small amount of capital. In addition, the Backup Servicer has not incurred debts that would be beyond the Backup Servicer’s ability to pay as such debts matured. |
(p) No Consents. No prior consent, approval or authorization of, registration, qualification, designation, declaration or filing with, or notice to any federal, state or local governmental or public authority or agency, is, was or will be required for the valid execution, delivery and performance by the Backup Servicer of the Transaction Documents to which it is a party. The Backup Servicer has obtained all consents, approvals or authorizations of, made all declarations or filings with, or given all notices to, all federal, state or local governmental or public authorities or agencies which are necessary for the continued conduct by the Backup Servicer of its respective businesses as now conducted, other than such consents, approvals, authorizations, declarations, filings and notices which, neither individually nor in the aggregate, materially and adversely affect, or in the future will materially and adversely affect, the business, earnings, prospects, properties or condition (financial or other) of the Backup Servicer. |
(q) Name. The legal name of the Backup Servicer is as set forth in the signature page of this Indenture. Except for Blackwell Recovery, the Backup Servicer does not have any trade names, fictitious names, assumed names or “doing business as” names. |
(r) Information. No document, certificate or report furnished by the Backup Servicer, in writing, pursuant to this Indenture or in connection with the transactions contemplated hereby, 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
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contained therein, in light of the circumstances under which they were made, not misleading. There are no facts relating to the Backup Servicer as of the Closing Date which when taken as a whole, materially adversely affect the financial condition or assets or business of the Backup Servicer, or which may impair the ability of the Backup Servicer to perform its obligations under this Indenture or any other Transaction Document to which it is a party, which have not been disclosed herein or in the certificates and other documents furnished by or on behalf of the Backup Servicer pursuant hereto or thereto specifically for use in connection with the transactions contemplated hereby or thereby. |
Upon any request or application by the Issuer (or any other obligor in respect of the Notes) to the Indenture Trustee to take any action under this Indenture, the Issuer (or such other obligor) shall furnish to the Indenture Trustee:
(a) an Officer’s Certificate (which shall include the statements set forth in Section 13.2 hereof) stating that all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
(b) at the request of the Indenture Trustee, an Opinion of Counsel (which shall include the statements set forth in Section 13.2 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. |
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or opinion has read such covenant or condition; |
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
(c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him/her to express an informed opinion as to whether or not such covenant or condition has been complied with; and |
(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. |
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(a) All communications, instructions, directions and notices to the parties thereto shall be (i) in writing (which may be by facsimile transmission or electronic confirmable means, followed by delivery of original documentation within one Business Day), (ii) effective when received and (iii) delivered or mailed first class mail, postage prepaid to it at the following address: |
If to the Issuer:
BXG Receivables Note Trust 2022-A
c/o Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Fax: (302) 636-4140
with a copy to:
Taylor English Duma LLP
1600 Parkwood Circle Suite 400
Atlanta, Georgia 30339
Attention: Mark I. Sanders, Esq.
Fax: (770) 434-7376
If to the Club Trustee:
Vacation Trust, Inc.
4950 Communication Avenue
Suite 900
Boca Raton, Florida 33431
Attention: John Raney, President
Fax: (561) 912-7999
If to the Servicer:
Bluegreen Vacations Corporation
4960 Conference Way North, Suite 100
Boca Raton, Florida 33431
Attention: Raymond S. Lopez, Executive Vice President, COO, CFO and Treasurer
E-Mail: ray.lopez@bluegreenvacations.com
with a copy to:
Taylor English Duma LLP
1600 Parkwood Circle Suite 400
Atlanta, Georgia 30339
Attention: Mark I. Sanders, Esq.
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Fax: (770) 434-7376
If to the Backup Servicer:
Concord Servicing LLC
4150 North Drinkwater Blvd
Suite 200
Scottsdale, Arizona 85251
Attention: General Counsel
Email Address: syurkiw@concordservicing.com
If to the Indenture Trustee:
(a) for Note transfer purposes and presentment of the Notes for final payment thereon, the corporate office of the Indenture Trustee:
U.S. Bank National Association
111 Fillmore Avenue East
EP-MN-WS2N
St. Paul, MN 55107
Attention: Bondholder Services, Ref: BXG 2022-A
(b) for all other purposes, the corporate office of the Indenture Trustee:
U.S. Bank National Association
190 S. LaSalle St., 7th Floor
MK-IL-SL7C
Chicago, IL 60603
Attention: Global Structured Finance – BXG 2022-A
Telephone Number: (312) 332-7465
Email Address: maritza.hernandez1@usbank.com
If to the Rating Agencies:
S&P Global Ratings, a business unit of Standard & Poor’s Financial Services, LLC
55 Water Street
New York, New York 10041-0003
Attention: Structured Credit Surveillance
Email Address: Servicer_Reports@standardandpoors.com
DBRS, Inc.
140 Broadway, 43rd Floor
New York, NY 10005
Attention: ABS Surveillance
Email Address: abs_surveillance@dbrs.com
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The parties hereto agree that all communications, reports, notices and any other item sent to the Rating Agencies pursuant to this Indenture shall simultaneously be emailed to bluegreen2022a835v@17g5.com.
or at such other address as the party may designate by notice to the other parties hereto, which shall be effective when received.
(b) All communications and notices described hereunder to a Noteholder shall be in writing and delivered or mailed first class mail, postage prepaid or overnight courier at the address shown in the Note Register. The Indenture Trustee agrees to deliver or mail to each Noteholder upon receipt, all notices and reports that the Indenture Trustee may receive hereunder and under any Transaction Documents. Unless otherwise provided herein, the Indenture Trustee may consent to any requests received under such documents or, at its option, follow the directions of Noteholders representing at least 66-2/3% of the Adjusted Note Balance of each Class of Notes within 30 days after prior written notice to the Noteholders. All notices to Noteholders (or any Class thereof) shall be sent simultaneously. Expenses for such communications and notices shall be borne by the Servicer. |
The Noteholders, the Servicer, the Indenture Trustee, the Custodian, the Club Trustee and the Backup Servicer each hereby agrees that it will not, directly or indirectly institute, or cause to be instituted, against the Issuer, the Trust Estate or the Depositor any proceeding of the type referred to in Sections 6.1(d) and (e) hereof, so long as there shall not have elapsed one year plus one day after payment in full of the Notes.
Notwithstanding anything contained herein or in any other Transaction Document to the contrary, it is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust Company, not individually or personally, but solely as Owner Trustee on behalf of the Issuer, in the exercise of the powers and authority conferred and vested in it under the Trust Agreement, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking or agreement by Wilmington Trust Company but is made and intended for the purpose for binding only the Issuer and the Trust Estate, and (c) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture or any other related documents.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
BXG RECEIVABLES NOTE TRUST 2022-A,
By:Wilmington Trust Company, as Owner Trustee
By:/s/ Lester E. Hendrix
Name:Lester E. Hendrix
Title: Vice President
BLUEGREEN VACATIONS CORPORATION,
as Servicer
By:/s/ Raymond Lopez
Name: Raymond S. Lopez
Title: Executive Vice President, COO, CFO, and Treasurer
CONCORD SERVICING LLC,
as Backup Servicer
By:/s/ Sonja Yurkiw
Name:Sonja Yurkiw
Title: COO and General Counsel
VACATION TRUST, INC.,
as Club Trustee
By:/s/ John P. Raney
Name: John P. Raney
Title: President
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Indenture Trustee
By:/s/ Jose A. Galarza
Name:Jose A. Galarza
Title: Vice President
1
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
KL2 3274770, Indenture
Execution Copy
(Depositor to Issuer)
SALE AGREEMENT
This SALE AGREEMENT (this “Agreement”), dated as of April 28, 2022 is by and between BRFC 2022-A LLC, a Delaware limited liability company (the “Depositor”), and BXG Receivables Note Trust 2022-A, a statutory trust formed under the laws of the State of Delaware (the “Issuer”), and their respective permitted successors and assigns.
W I T N E S S E T H:
WHEREAS, on the Closing Date, (i) the Depositor intends to sell and the Issuer intends to purchase the Initial Timeshare Loans, and (ii) the Issuer intends to pledge the Trust Estate (including all Subsequent Timeshare Loans acquired by the Issuer from time to time) to U.S. Bank Trust Company, National Association, a national banking association, as Indenture Trustee (the “Indenture Trustee”), and U.S. Bank National Association, as custodian (the “Custodian”), pursuant to an indenture, dated as of the date hereof (the “Indenture”), by and among the Issuer, Bluegreen Vacations Corporation (“Bluegreen” or the “Club Originator”), a Florida corporation, in its capacity as Servicer (the “Servicer”), Vacation Trust, Inc., a Florida corporation, as Club Trustee (the “Club Trustee”) and the Indenture Trustee, to secure the Issuer’s 4.12% Timeshare Loan‑Backed Notes, Series 2022-A, Class A, 4.61% Timeshare Loan-Backed Notes, Series 2022-A, Class B and 5.35% Timeshare Loan‑Backed Notes, Series 2022-A, Class C (collectively, the “Notes”);
WHEREAS, on each Transfer Date during the Prefunding Period (i) the Depositor intends to sell and the Issuer intends to purchase one or more Subsequent Timeshare Loans and (ii) by operation of the Indenture, the Issuer shall pledge such Subsequent Timeshare Loans to the Indenture Trustee to secure the Issuer’s Notes;
WHEREAS, the Depositor may, and in certain circumstances will be required to, cure, repurchase or substitute and provide Qualified Substitute Timeshare Loans for Defective Timeshare Loans previously sold to the Issuer hereunder and pledged to the Indenture Trustee pursuant to the Indenture; and
WHEREAS, the Depositor may, at the direction of the Club Originator, be required to exercise the Club Originator’s option to purchase or substitute Timeshare Loans that become subject to an Upgrade or Defaulted Timeshare Loans previously sold to the Issuer hereunder 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:
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. |
SECTION 2. Acquisition of Timeshare Loans. |
(b) Subsequent Timeshare Loans. On the related Transfer Date during the Prefunding Period, in return for an amount equal to the Timeshare Loan Acquisition Price of each of the Subsequent Timeshare Loans to be sold on such date, to be paid in part in cash and in part as an increase in the value of the Residual Interest Certificate held by the Depositor, the Depositor does hereby transfer, assign, sell and grant to the Issuer, without recourse (except as provided in Section 6 and Section 8 hereof), any and all of the Depositor’s right, title and interest in and to (i) the Subsequent Timeshare Loans listed on the Schedule of Timeshare Loans attached to the related Subsequent Transfer Notice, (ii) the Receivables in respect of the Subsequent 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
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Security in respect of each Subsequent Timeshare Loan, (v) the Depositor’s rights and remedies under the Bluegreen Purchase Agreement including, but not limited to, its rights with respect to the representations and warranties of the Club Originator therein, together with all rights of the Depositor with respect to any breach thereof including any right to require the Club Originator to cure, repurchase or substitute any Defective Timeshare Loans in accordance with the provisions of the Bluegreen Purchase Agreement, and (vi) all income, payments, proceeds and other benefits and rights related to any of the foregoing (the property in Section 2(a) hereof and this Section 2(b), being the “Assets”). Upon such sale and transfer, the ownership of each Subsequent 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(b) shall immediately vest in the Issuer, its successors and assigns. The Depositor shall not take any action inconsistent with such ownership nor claim any ownership interest in any Subsequent Timeshare Loan for any purpose whatsoever other than for federal and state income tax reporting and GAAP consolidation, if applicable. The parties to this Agreement hereby acknowledge that the “credit risk” of the Subsequent Timeshare Loans conveyed hereunder shall be borne by the Issuer and its subsequent assignees. |
(c) Delivery of Timeshare Loan Documents. In connection with the sale, transfer, assignment and conveyance of any Timeshare Loan hereunder, the Issuer hereby directs the Depositor and the Depositor hereby agrees to deliver or cause to be delivered, on or by 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. |
(e) Limitation of Liability. None of the Issuer, the Depositor or any subsequent assignee of the Issuer shall have any obligation or liability with respect to any Timeshare Loan nor shall the Issuer, 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 Issuer, 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 each transfer of the Timeshare Loans to be made pursuant to the terms hereof shall constitute a sale by the Depositor to the Issuer and not a loan secured by the Timeshare Loans. In the event, however, that a court of competent jurisdiction were to hold
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that any such transfer constitutes a loan and not a sale, it is the intention of the parties hereto that the Depositor shall be deemed to have granted to the Issuer as of the date hereof a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Assets and the QSTL Assets (as hereinafter defined) specified in Section 2 hereof and Section 6(f) hereof, respectively, 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 Depositor as “debtor” and the Issuer 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 Issuer of the Depositor’s entire right, title and interest in and to the Assets and the QSTL Assets.
Each of the Depositor, 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 Timeshare Loans have been transferred to the Issuer, pledged to the Indenture Trustee and constitute a part of the Issuer’s estate in accordance with the terms of the Trust created under the Trust Agreement.
SECTION 4. Conditions Precedent to Acquisition of Timeshare Loans by the Issuer. The obligations of the Issuer to purchase any Timeshare Loans hereunder shall be subject to the satisfaction of the following conditions: |
(a) All representations and warranties of the Depositor contained in Section 5 and in Schedule I hereof, and all information provided in the Schedule of Timeshare Loans or as updated with respect to the related Subsequent Transfer Notice shall be true and correct as of the Closing Date or Transfer Date, as applicable, and the Depositor shall have delivered to the Issuer, the Indenture Trustee and the Initial Purchasers an Officer’s Certificate to such effect. |
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(b) 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 Depositor 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 Depositor shall have delivered or caused to be delivered all other information theretofore required or reasonably requested by the Issuer to be delivered by the Depositor 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 Issuer or the Indenture Trustee to establish and preserve the right, title and interest of the Issuer or the Indenture Trustee, as the case may be, in the related Timeshare Loans. |
(d) On or before the Closing Date, the Issuer, the Servicer, the Club Trustee, the Backup Servicer and the Indenture Trustee shall have entered into the Indenture. |
(e) The Notes shall be issued and sold on the Closing Date, the Issuer shall receive the full consideration due it upon the issuance of the Notes, and the Issuer shall have applied such consideration, to the extent necessary, to pay the Timeshare Loan Acquisition Price for each Initial Timeshare Loan. |
(f) With respect to Subsequent Timeshare Loans, the Issuer shall apply funds from the Prefunding Account, to the extent necessary, to pay the Depositor the Timeshare Loan Acquisition Price for each Subsequent Timeshare Loan. |
(g) Each Subsequent Timeshare Loan conveyed on a Transfer Date shall be an Eligible Timeshare Loan and each of the conditions herein and in the Indenture for the purchase of Subsequent Timeshare Loans shall have been satisfied. |
(h) 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. |
(i) The Issuer shall have received such other certificates and opinions as it shall reasonably request. |
SECTION 5. Representations and Warranties and Certain Covenants of the Depositor. |
(a) The Depositor represents and warrants to the Issuer and the Indenture Trustee for the benefit of the Noteholders, on the Closing Date (with respect to the Initial Timeshare Loans) and on each Transfer Date (with respect to only the
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Subsequent Timeshare Loans or Qualified Substitute Timeshare Loans transferred on such Transfer Date) as follows: |
(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) Company Authority and Power. It has, and at all times during the term of this Agreement will have, all requisite company 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 company power and authority to acquire, own, transfer and convey the Timeshare Loans to the Issuer. |
(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, 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
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constitutes a valid transfer of its interest in the Timeshare Loans to the Issuer 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 Issuer. |
(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 certificate of formation or limited liability company agreement, (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 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 it 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 Issuer therein pursuant to Section 3 hereof. |
(vii) Defaults. It is not in default under any material agreement, contract, instrument or indenture to which it is a party or by which it or its properties is or are bound, or with respect to any order of any court, administrative agency, arbitrator or governmental body, in each case, which would have a material adverse effect on the transactions contemplated hereunder or on its business, operations, financial condition or assets, and no event has
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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. 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 Issuer’s or the Indenture Trustee’s 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 Depositor, 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 Issuer 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 as of each Transfer Date, as applicable, (A) neither the Depositor nor any of its Commonly Controlled Affiliates has or have incurred any “accumulated funding
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deficiency” (as such term is defined under ERISA and the Code for such year), whether or not waived, with respect to any Employee Pension Benefit Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect (as defined below), and, to the Depositor’s Knowledge, no event has occurred or circumstance exists that may result in any accumulated funding deficiency of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (B) neither the Depositor nor any of its Commonly Controlled Affiliates has any unpaid “minimum required contribution” (as such term is defined under ERISA and the Code) with respect to any Employee Pension Benefit Plan, whether or not such unpaid minimum required contribution is waived, that either individually or in the aggregate could Cause a Material Adverse Effect, and, to the Depositor’s Knowledge, no event has occurred or circumstance exists that may result in any unpaid minimum required contribution as of the last day of the current plan year of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (C) the Depositor and each of its Commonly Controlled Affiliates have no outstanding liability for any undisputed contribution required under any Depositor Multiemployer Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect; and (D) the Depositor and each of its Commonly Controlled Affiliates have no outstanding liability for any disputed contribution required under any Depositor Multiemployer Plan that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to the Depositor’s Knowledge (1) neither the Depositor nor any of its Commonly Controlled Affiliates has incurred any Withdrawal Liability (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect, and (2) no event has occurred or circumstance exists that could result in any Withdrawal Liability that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to the Depositor’s Knowledge, neither the Depositor nor any of its Commonly Controlled Affiliates has received notification of the reorganization, termination, partition, or insolvency of any Multiemployer Plan that could either individually or in the aggregate Cause a Material Adverse Effect. For purposes of this subsection (a)(xii), “Cause a Material Adverse Effect” means reasonably be expected to result in a material adverse effect on the Depositor and any of its Commonly Controlled Affiliates in the aggregate; “Commonly Controlled Affiliates” means those direct or indirect affiliates of the Depositor that would be considered a single employer with the Depositor under Section 414(b), (c), (m), or (o) of the Code; “Employee Pension Benefit Plan” means an employee pension benefit plan as such term is defined in Section 3(2) of ERISA that is sponsored, maintained or contributed to by the Depositor or any of its Commonly Controlled Affiliates (other than a Depositor Multiemployer Plan); “Multiemployer Plan” means a multiemployer plan as such term is defined in Section 3(37) of ERISA; “Depositor Multiemployer Plan” means a Multiemployer Plan to which the Depositor or any of its Commonly Controlled Affiliates contributes or in which the Depositor or any of its Commonly Controlled Affiliates participates; and
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“Withdrawal Liability” means liability as determined under ERISA for the complete or partial withdrawal of the Depositor or any of its Commonly Controlled Affiliates from a Multiemployer Plan. |
(xiii) Taxes. It, as of the Closing Date, (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, except where the failure to file or pay will not have a material adverse effect on the rights and interests of the Issuer or any of its subsequent assignees, (B) knows of no basis for any material additional tax, assessment or governmental charge for any fiscal year for which adequate 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. |
(xiv) Place of Business. The principal place of business and chief executive office where it keeps access to its records concerning Timeshare Loans will be 4950 Communication Avenue, Suite 900, Boca Raton, Florida 33431 (or such other place specified by it by written notice to the Issuer and the Indenture Trustee). It is a limited liability company formed under the laws of the State of Delaware. |
(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 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 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
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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 not permitted any such Timeshare Properties to be made subject to any lien or encumbrance; |
(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 Depositor nor the Club Trustee knows of any basis for any additional taxes or assessments against any such property. The Club has
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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 Issuer 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. |
(xvii) Representations and Warranties Regarding Security Interest and Timeshare Loan Files. |
(A) In the event of the characterization of the transfers under this Agreement as a loan, the grant under Section 3 hereof creates a valid and continuing security interest (as defined in the applicable UCC) in the Assets and the QSTL Assets in favor of the Issuer, which security interest is prior to all other Liens arising under the UCC, and is enforceable as such against creditors of the Depositor, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
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moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). |
(B) The Timeshare Loans and the documents evidencing such Timeshare Loans constitute either “accounts”, “chattel paper”, “instruments” or “general intangibles” within the meaning of the applicable UCC. |
(C) The Depositor owns and has good and marketable title to the Assets and the QSTL Assets free and clear of any Lien, claim or encumbrance of any Person, except for Permitted Liens. |
(D) The Depositor has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets and the QSTL Assets granted to the Issuer and by the Issuer to the Indenture Trustee. |
(E) All original executed copies of each Mortgage Note (or an executed Lost Note Affidavit related to such Mortgage Note) that constitute or evidence any Assets or QSTL Assets have been or will be delivered to the Custodian and a Custodian's Certification therefor has been or will be issued, in accordance with the terms of the Custodial Agreement, to Bluegreen and the Indenture Trustee. |
(F) Other than as contemplated by this Agreement and the Indenture, the Depositor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets or QSTL Assets. The Depositor has not authorized the filing of and is not aware of any financing statements against the Depositor that include a description of collateral covering any Assets or QSTL Assets other than any financing statement relating to the security interest granted to the Issuer hereunder, under the Indenture or that has been terminated. |
(G) All financing statements filed or to be filed against the Depositor in favor of the Issuer in connection herewith describing the Assets and QSTL Assets contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Secured Party.” |
(H) None of the Mortgage Notes that constitute or evidence any Assets or QSTL Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than to the Issuer and by the Issuer to the Indenture Trustee. |
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(xviii) The Depositor hereby represents and warrants to the Issuer and the Indenture Trustee that it has entered into the Transfer Agreement and the Bluegreen Purchase Agreement, that the Club Originator has made the representations and warranties in the Transfer Agreement and the Bluegreen Purchase Agreement as set forth therein, that such representations and warranties run to and are for the benefit of the Depositor, the Issuer, the Indenture Trustee and the Noteholders, and that pursuant to Section 2 hereof, the Depositor has transferred and assigned to the Issuer all rights and remedies under the Transfer Agreement and the Bluegreen Purchase Agreement. |
(b) The Transfer Agreement, the Bluegreen Purchase Agreement, and the other Transaction Documents contemplated thereby, are the only agreements pursuant to which the Depositor acquires ownership of the Timeshare Loans. To the Knowledge of the Depositor, the representations and warranties of the Club Originator under the Transfer Agreement and the Bluegreen Purchase Agreement are true and correct. |
(c) In consideration of Sections 5(b) and (c) hereof, the Depositor hereby makes the representations and warranties relating to the Timeshare Loans contained in Schedule I hereto for the benefit of the Issuer and the Indenture Trustee for the benefit of the Noteholders as of the Closing Date (with respect to each Initial Timeshare Loan transferred on the Closing Date) and as of each Transfer Date (with respect to each Subsequent Timeshare Loan or Qualified Substitute Timeshare Loan transferred on such Transfer Date), as applicable. |
(d) It is understood and agreed that the representations and warranties set forth in this Section 5 shall survive the sale of each Timeshare Loan sold hereunder to the Issuer and any assignment of such Timeshare Loan by the Issuer to the Indenture Trustee on behalf of the Noteholders and shall continue so 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 Depositor acknowledges that it has been advised that the Issuer intends to assign all of its right, title and interest in and to each Timeshare Loan sold hereunder and its rights and remedies under this Agreement to the Indenture Trustee on behalf of the Noteholders. The Depositor agrees that, upon any such assignment, the Indenture Trustee may enforce directly, without joinder of the Issuer (but subject to any defense that the Depositor may have under this Agreement) all rights and remedies hereunder. |
(e) With respect to any representations and warranties contained in this Section 5 which are made to the Depositor’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 Issuer 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) hereof. |
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SECTION 6. Repurchases and Substitutions. |
(a) Mandatory Repurchases and Substitutions for Breaches of Representations and Warranties. Upon the receipt of notice by the Depositor of a breach of any of the representations and warranties in Section 5 hereof (on the date on which such representation or warranty was made) which materially and adversely affects the value of a Timeshare Loan or the interests of the Issuer or any subsequent assignee of the Issuer (including the Indenture Trustee on behalf of the Noteholders) therein, the Depositor shall, within 60 days of receipt of such notice, cure in all material respects the circumstance or condition which has caused such representation or warranty to be incorrect or if the breach relates to a particular Timeshare Loan and is not cured in all material respects (such Timeshare Loan, a “Defective Timeshare Loan”) either (i) repurchase such Defective Timeshare Loan at the Repurchase Price, or (ii) provide one or more Qualified Substitute Timeshare Loans and pay the related Substitution Shortfall Amount, if any. It is understood and agreed that the Depositor shall have the right and will enforce such right to require the Club Originator to repurchase or substitute a Defective Timeshare Loan in the event of a breach of any of the representations and warranties in Section 5 hereof which materially and adversely affects the value of a Timeshare Loan or the interests of the Issuer or any subsequent assignee of the Issuer (including the Indenture Trustee on behalf of the Noteholders) in accordance with the provisions of the Transfer Agreement and Bluegreen Purchase Agreement, as applicable. |
Notwithstanding the foregoing, (A) the failure to deliver a policy of lender's title insurance in respect of a Timeshare Loan shall not constitute a breach of representation or warranty in respect of such Timeshare Loan if, within ninety (90) days of the Closing Date or Transfer Date (i) the files related to such Timeshare Loan held by the Custodian contain a binding unconditional commitment to issue a policy of lender's title insurance showing no exceptions to coverage (other than Permitted Liens) (which may be a master commitment referencing one of more mortgages) or (ii) if such actual policy is delivered to the Custodian, as the case may be; provided, however, that if such policy of lender's title insurance was delayed because the related original mortgage (or copy thereof) has not been received from the appropriate recording office prior to the 80th day following the Closing Date or Transfer Date, as the case may be, then such 90-day period shall be extended to a date thirty (30) days after such receipt of the related mortgage and (B) the failure to provide evidence that a mortgage or certificate of title has been recorded and/or stamped in, or has been sent for recording to, as the case may be, the appropriate recording office shall not constitute a breach of representation or warranty in respect of such Timeshare Loan if such evidence is provided not later than the 90th day following the Closing Date or Transfer Date, as the case may be.
(b) Optional Purchases or Substitutions of Club Loans. The Issuer hereby acknowledges that pursuant to the Transfer Agreement and the Bluegreen Purchase Agreement, the Depositor has irrevocably granted to the Club Originator an option to repurchase or substitute Original Club Loans it has thereunder and as described in the following sentence. The Issuer acknowledges that with respect to any Original Club Loans for which the related Obligor has elected to effect and the Club Originator has agreed to effect an Upgrade, the Club Originator will (at its option) either (i) pay the
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Repurchase Price for such Original Club Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Original Club Loan and pay the related Substitution Shortfall Amounts, if any; provided, however, that, in the case of an Obligor's election to upgrade, the Club Originator’s option to substitute one or more Qualified Substitute Timeshare Loans for an Original Club Loan is limited on any date to (x) 15% of the Aggregate Closing Date Collateral Balance less (y) the aggregate Loan Balances of all Original Club Loans previously substituted by the Club Originator on prior Transfer Dates pursuant to this Agreement, the Transfer Agreement or the Bluegreen Purchase Agreement. In addition, the Issuer acknowledges that the Club Originator shall use its best efforts to exercise its substitution option with respect to Original Club Loans prior to exercise of its repurchase option. To the extent that the Club Originator shall elect to substitute Qualified Substitute Timeshare Loans for an Original Club Loan, the Club Originator shall use its best efforts to cause each such Qualified Substitute Timeshare Loan to be, in the following order of priority, (i) the Upgrade Club Loan related to such Original Club Loan and (ii) an Upgrade Club Loan unrelated to such Original Club Loan. |
(c) Optional Purchases or Substitutions of Defaulted Timeshare Loans. The Issuer acknowledges that pursuant to the Transfer Agreement and the Bluegreen Purchase Agreement, the Depositor has irrevocably granted the Club Originator an option to repurchase or substitute Defaulted Timeshare Loans it has thereunder and as described in the following sentence. With respect to Defaulted Timeshare Loans on any date, the Club Originator will have the option, but not the obligation, to either (i) purchase such Defaulted Timeshare Loan at the Repurchase Price of such Defaulted Timeshare Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Defaulted Timeshare Loan and pay the related Substitution Shortfall Amount, if any; provided, however, that the Club Originator’s option to purchase a Defaulted Timeshare Loan or to substitute one or more Qualified Substitute Timeshare Loans for a Defaulted Timeshare Loan is limited on any date to the Optional Purchase Limit and the Optional Substitution Limit, respectively. The Club Originator may irrevocably waive its option to purchase or substitute a Defaulted Timeshare Loan by delivering or causing to deliver to the Indenture Trustee a Waiver Letter in the form of Exhibit A attached hereto. |
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts. The Issuer hereby directs and the Depositor hereby agrees to remit or cause to be remitted all amounts in respect of Repurchase Prices and Substitution Shortfall Amounts payable during the related Due Period in immediately available funds to the Indenture Trustee to be deposited in the Collection Account on the Business Day immediately preceding the related Payment Date for such Due Period in accordance with the provisions of the Indenture. In the event that more than one Timeshare Loan is replaced pursuant to Sections 6(a), (b) or (c) hereof on any Transfer Date, the Substitution Shortfall Amounts and the Loan Balances of Qualified Substitute Timeshare Loans shall be calculated on an aggregate basis for all substitutions made on such Transfer Date. |
(e) Schedule of Timeshare Loans. The Issuer hereby directs and the Depositor hereby agrees, on each date on which a Timeshare Loan has been repurchased, purchased or substituted, to provide or cause to be provided to the Issuer and the Indenture Trustee with an electronic supplement to Schedule III hereto and the Schedule
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of Timeshare Loans reflecting the removal and/or substitution of Timeshare Loans and subjecting any Qualified Substitute Timeshare Loans to the provisions of this Agreement. |
(f) Qualified Substitute Timeshare Loans. Pursuant to Section 6(g) hereof, on the related Transfer Date, the Issuer hereby directs and the Depositor hereby agrees to deliver or to cause the delivery of the Timeshare Loan Files relating to the Qualified Substitute Timeshare Loans to the Indenture Trustee or to the Custodian, at the direction of the Indenture Trustee, in accordance with the provisions of the Indenture and the Custodial Agreement. As of such related Transfer Date, the Depositor does hereby transfer, assign, sell and grant to the Issuer, without recourse (except as provided in Section 6 and Section 8 hereof), any and all of the Depositor’s right, title and interest in and to (i) each Qualified Substitute Timeshare Loan conveyed to the Issuer on such Transfer Date, (ii) the Receivables in respect of the Qualified Substitute Timeshare Loans due after the related Cut-Off Date, (iii) the related Timeshare Loan Documents (excluding any rights as developer or declarant under the Timeshare Declaration, the Timeshare Program Consumer Documents or the Timeshare Program Governing Documents), (iv) all Related Security in respect of such Qualified Substitute Timeshare Loans, (v) the Depositor’s rights and remedies under the Bluegreen Purchase Agreement, the Transfer Agreement and this Agreement, as the case may be, with respect to such Qualified Substitute Timeshare Loan, and (vi) all income, payments, proceeds and other benefits and rights related to any of the foregoing (the property in clauses (i)-(vi), being the “QSTL Assets”). Upon such sale, the ownership of each Qualified Substitute 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 6(f) shall immediately vest in the Issuer, its successors and assigns. The Depositor shall not take any action inconsistent with such ownership nor claim any ownership interest in any Qualified Substitute Timeshare Loan for any purpose whatsoever other than federal and state income tax reporting and GAAP consolidation. The Depositor agrees that such Qualified Substitute Timeshare Loans shall be subject to the provisions of this Agreement and shall thereafter be deemed a “Timeshare Loan” for the purposes of this Agreement. |
(g) Officer’s Certificate for Qualified Substitute Timeshare Loans. The Depositor shall, on each related Transfer Date, certify or cause to be certified in writing to the Issuer and the Indenture Trustee that each new Timeshare Loan meets all the criteria of the definition of “Qualified Substitute Timeshare Loan” and that (i) the Timeshare Loan Files for such Qualified Substitute Timeshare Loans have been delivered to the Custodian or shall be delivered within five Business Days of the applicable Transfer Date, and (ii) the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans have been delivered to the Servicer. |
(h) Subsequent Transfer Notices. The Depositor shall, on each related Transfer Date, deliver a Subsequent Transfer Notice in the form attached as Exhibit J to the Indenture, as specified by Section 4.2 of the Indenture. |
(i) Release. In connection with any repurchase, purchase or substitution of one or more Timeshare Loans contemplated by this Section 6, upon
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satisfaction of the conditions contained in this Section 6, the Issuer and the Indenture Trustee shall execute and deliver or shall cause the execution and delivery of such releases and instruments of transfer or assignment presented to it by the Depositor, in each case, without recourse, as shall be necessary to vest in the Depositor or its designee the legal and beneficial ownership of such Timeshare Loans; provided, however, that with respect to any release of a Timeshare Loan that is substituted by one or more Qualified Substitute Timeshare Loans, the Issuer and the Indenture Trustee shall not execute and deliver or cause the execution and delivery of such releases and instruments of transfer or assignment until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. The Issuer and the Indenture Trustee shall cause the Custodian to release the related Timeshare Loan Files to the Depositor or its designee and the Servicer to release the related Timeshare Loan Servicing Files to the Depositor or its designee; provided, however, that with respect to any Timeshare Loan File or Timeshare Loan Servicing File related to a Timeshare Loan that has been substituted by a Qualified Substitute Timeshare Loan, the Issuer and the Indenture Trustee shall not cause the Custodian and the Servicer to release the related Timeshare Loan File and the Timeshare Loan Servicing File, respectively, until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. |
(j) Sole Remedy. It is understood and agreed that the obligations of the Depositor contained in Section 6(a) hereof to cure a breach, or to repurchase or substitute Defective Timeshare Loans and the obligation of the Depositor to indemnify pursuant to Section 8 hereof , shall constitute the sole remedies available to the Issuer or its subsequent assignees for the breaches of any representation or warranty contained in Section 5 hereof and such remedies are not intended to and do not constitute “credit recourse” to the Depositor. |
SECTION 7. Additional Covenants of the Depositor. The Depositor hereby covenants and agrees with the Issuer as follows: |
(a) It shall comply with all laws, rules, regulations and orders applicable to it and its business and properties except where the failure to comply will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(b) It shall preserve and maintain its existence (corporate or otherwise), rights, franchises and privileges in the jurisdiction of its organization and except where the failure to so preserve and maintain will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
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(c) On the Closing Date and each Transfer Date, as applicable, it shall indicate in its and its Affiliates’ computer files and other records that each Timeshare Loan has been sold to the Issuer. |
(d) It shall respond to any inquiries with respect to ownership of a Timeshare Loan by stating that such Timeshare Loan has been sold to the Issuer and that the Issuer is the owner of such Timeshare Loan. |
(e) On or prior to the Closing Date, it shall file or cause to be filed, at its own expense, financing statements in favor of the Issuer, and, if applicable, the Indenture Trustee on behalf of the Noteholders, with respect to the Timeshare Loans, in the form and manner reasonably requested by the Issuer or its assigns. The Depositor shall deliver file-stamped copies of such financing statements to the Issuer and the Indenture Trustee on behalf of the Noteholders. |
(f) It agrees from time to time, at its expense, to promptly execute and deliver all further instruments and documents, and to take all further actions, that may be necessary, or that the Issuer or the Indenture Trustee may reasonably request, to perfect, protect or more fully evidence the sale of the Timeshare Loans to the Issuer, or to enable the Issuer or the Indenture Trustee to exercise and enforce its rights and remedies hereunder or under any Timeshare Loan including, but not limited to, powers of attorney, UCC financing statements and assignments of mortgage. It hereby appoints the Issuer and the Indenture Trustee as attorneys-in-fact, which appointment is coupled with an interest and is therefore irrevocable, to act on behalf and in the name of the Depositor under this Section 7(f). |
(g) Any change in the legal name of the Depositor and any use by it of any tradename, fictitious name, assumed name or “doing business as” name occurring after the Closing Date shall be promptly (but no later than ten Business Days) disclosed to the Issuer and the Indenture Trustee in writing. |
(h) Upon the discovery or receipt of notice by a Responsible Officer of the Depositor of a breach of any of its representations or warranties and covenants contained herein, the Depositor shall promptly disclose to the Issuer and the Indenture Trustee, in reasonable detail, the nature of such breach. |
(i) In the event that the Depositor shall receive any payments in respect of a Timeshare Loan after the Closing Date or Transfer Date, as applicable, the Depositor shall, within two Business Days of receipt, transfer or cause to be transferred, such payments to the Lockbox Account. |
(j) In the event that the Depositor or the Issuer or any assignee of the Issuer receives actual notice of any transfer taxes arising out of the transfer, assignment and conveyance of a Timeshare Loan to the Issuer, on written demand by the Issuer, or upon the Depositor otherwise being given notice thereof, the Depositor shall pay, and otherwise indemnify and hold the Issuer, or any subsequent assignee harmless, on an after-tax basis, from and against any and all such transfer taxes. |
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(k) The Depositor will keep its principal place of business and chief executive office and the office where it keeps access to its records concerning the Timeshare Loans at the address of the Depositor listed herein and shall notify the parties hereto of any change to the same at least 30 days prior thereto. |
(l) The Depositor authorizes the Issuer and the Indenture Trustee to file continuation statements, and amendments thereto, relating to the Timeshare Loans and all payments made with regard to the related Timeshare Loans without the signature of the Depositor where permitted by law. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by law. The Issuer confirms that it is not its present intention to file a photocopy or other reproduction of this Agreement as a financing statement, but reserves the right to do so if, in its good faith determination, there is at such time no reasonable alternative remaining to it. |
SECTION 8. Indemnification. |
(a) The Depositor agrees to indemnify the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers (collectively, the “Indemnified Parties”) against any and all claims, losses, liabilities, (including reasonable legal fees and related costs) that the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers may sustain directly related to any breach of the representations and warranties of the Depositor under Section 5 hereof, including but not limited to the costs of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Depositor (the “Indemnified Amounts”) excluding, however (i) Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Party; (ii) any recourse for any uncollectible Timeshare Loan not related to a breach of representation or warranty; (iii) recourse to the Depositor for a Defective Timeshare Loan so long as the same is cured, substituted or repurchased pursuant to Section 6 hereof; (iv) income, franchise or similar taxes by such Indemnified Party arising out of or as a result of this Agreement or the transfer of the Timeshare Loans; (v) Indemnified Amounts attributable to any violation by an Indemnified Party of any Requirement of Law related to an Indemnified Party; or (vi) the operation or administration of the Indemnified Party generally and not related to the enforcement of this Agreement. The Depositor shall (A) promptly notify the Issuer and the Indenture Trustee if a claim is made by a third party with respect to this Agreement or the Timeshare Loans, and relating to (i) the failure by the Depositor to perform its duties in accordance with the terms of this Agreement or (ii) a breach of the Depositor’s representations, covenants and warranties contained in this Agreement, (B) assume (with the consent of the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers, as applicable, which consent shall not be unreasonably withheld) the defense of any such claim and (C) pay all expenses in connection therewith, including reasonable legal counsel fees and promptly pay, discharge and satisfy any judgment, order or decree which may be entered against it or the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers in respect of such claim. If the Depositor shall have made any indemnity payment pursuant to this Section 8 and the recipient thereafter collects from another Person any amount relating to the matters covered by the foregoing indemnity, the recipient shall promptly repay such amount to the Depositor. |
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(b) The obligations of the Depositor under this Section 8 to indemnify the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers shall survive the termination of this Agreement, the resignation or removal of the parties pursuant to the Transaction Documents and continue until the Notes are paid in full or otherwise released or discharged. |
SECTION 9. No Proceedings. The Depositor hereby agrees that it will not, directly or indirectly, institute, or cause to be instituted, or join any Person in instituting, against the Issuer or any Association, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day since the latest maturing Notes issued by the Issuer. |
SECTION 10. Notices, Etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and mailed or telecommunicated (if telecommunicated electronically, be followed by delivery via overnight courier or U.S. Mail), or delivered as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall not be effective until received by the party to whom such notice or communication is addressed. |
Depositor
BRFC 2022-A LLC
4950 Communication Avenue, Suite 900
Boca Raton, Florida 33431
Attention: Paul Humphrey, President
E-Mail: paul.humphrey@bluegreenvacations.com
Issuer
BXG Receivables Note Trust 2022-A
c/o Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
SECTION 11. No Waiver; Remedies. No failure on the part of the Depositor, the Issuer or any assignee thereof to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any other remedies provided by law. |
SECTION 12. Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of the Depositor, the Issuer and their respective successors and assigns. Any assignee of the Issuer shall be an express third party beneficiary of this Agreement, entitled to directly enforce this Agreement. The Depositor may not assign any of its rights and
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obligations hereunder or any interest herein without the prior written consent of the Issuer and any assignee thereof. The Issuer may, and intends to, assign all of its rights hereunder to the Indenture Trustee on behalf of the Noteholders and the Depositor consents to any such assignment. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until its termination; provided, however, that the rights and remedies with respect to any breach of any representation and warranty made by the Depositor pursuant to Section 5 hereof and the repurchase or substitution and indemnification obligations shall be continuing and shall survive any termination of this Agreement but such rights and remedies may be enforced only by the Issuer and the Indenture Trustee. |
SECTION 13. Amendments; Consents and Waivers. No modification, amendment or waiver of, or with respect to, any provision of this Agreement, and all other agreements, instruments and documents delivered thereto, nor consent to any departure by the Depositor from any of the terms or conditions thereof shall be effective unless it shall be in writing and signed by each of the parties hereto, the written consent of the Indenture Trustee on behalf of the Noteholders is given and confirmation from each Rating Agency that such action will not result in a downgrade, withdrawal or qualification of any rating assigned to a Class of Notes is received. The Issuer shall provide the Indenture Trustee and each Rating Agency with such proposed modifications, amendments or waivers. Any waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand by the Depositor in any case shall, in itself, entitle it to any other consent or further notice or demand in similar or other circumstances. The Depositor acknowledges that in connection with the intended assignment by the Issuer of all of its right, title and interest in and to each Timeshare Loan to the Indenture Trustee on behalf of the Noteholders, the Issuer intends to issue the Notes, the proceeds of which will be used by the Issuer to purchase the Timeshare Loans hereunder. |
SECTION 14. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation, shall not in any way be affected or impaired thereby in any other jurisdiction. Without limiting the generality of the foregoing, in the event that a Governmental Authority determines that the Issuer may not purchase or acquire the Timeshare Loans, the transactions evidenced hereby shall constitute a loan and not a purchase and sale, notwithstanding the otherwise applicable intent of the parties hereto, and the Depositor shall be deemed to have granted to the Issuer as of the date hereof, a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under such Timeshare Loans and the related property as described in Section 2 hereof. |
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION. |
(A)THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
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(B)THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND EACH PARTY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO ITS ADDRESS SET FORTH IN SECTION 10 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE PARTIES HERETO EACH WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE parties to this agreement TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY OF THEM TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 16. WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN. |
SECTION 17. Heading. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. |
SECTION 18. Signatures; Execution in Counterparts. This Agreement shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. Notwithstanding the foregoing, with respect to
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any notice provided for in this Agreement or any instrument required or permitted to be delivered hereunder, any party hereto receiving or relying upon such notice or instrument shall be entitled to request execution thereof by original manual signature as a condition to the effectiveness thereof. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. |
[Remainder of Page Intentionally Left Blank]
KL2 3277538, Sale Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BRFC 2022-A LLC
By: /s/ Paul Humphrey
Name: Paul Humphrey
Title: President
BXG RECEIVABLES NOTE TRUST 2022-A
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Lester E. Hendrix
Name: Lester E. Hendrix
Title: Vice President
Agreed and acknowledged as to
the last paragraph of Section 3
herein only:
BLUEGREEN VACATION CLUB TRUST
By: Vacation Trust, Inc., individually and as Club Trustee
By: /s/ John P. Raney
Name: John P. Raney
Title: President
KL2 3277538, Sale Agreement
Schedule I
Representations and Warranties of the Depositor Regarding the Timeshare Loans
With respect to each Timeshare Loan, as of the Closing Date or the related Transfer Date, as applicable:
(a) |
payments due under such Timeshare Loan are fully-amortizing and payable in level monthly installments; |
(b) |
the payment obligations under such Timeshare Loan bear a fixed rate of interest; |
(c) |
the Obligor thereunder has made total payments (comprised of a down payment and/or principal payments) by cash, check, credit card or otherwise of at least 10% of the actual purchase price (including closing costs) of the related Timeshare Property (which down payment may, (i) in the case of Upgrade Club Loans or conversion in connection with an Introductory Loan be represented in whole or in part by the principal payments and down payment made on, as applicable, such related Original Club Loan or the related Introductory Loan since its date of origination, (ii) in the case of an Upgrade or a conversion in connection with an Introductory Product, be represented in whole or in part by the amount paid where the Obligor has paid in full, whether at the point of sale or otherwise for the original Timeshare Property or Introductory Product (as applicable) and no part of such payment in (i) or (ii) has been made or loaned to the Obligor by Bluegreen, the Seller or an Affiliate thereof, or (iii) in the case of a no equity loan, be represented by equity from a previous purchase); |
(d) |
such Timeshare Loan is not a Defaulted Timeshare Loan and as of the related Cut-Off Date, no principal or interest due with respect to such Timeshare Loan is more than 30 days delinquent; |
(e) |
the Obligor related to such Timeshare Loan is not an Affiliate of Bluegreen or any Subsidiary; provided, that solely for the purposes of this representation, a relative of an employee and employees of Bluegreen or any Subsidiary (or any of its Affiliates) shall not be deemed to be an “Affiliate” of Bluegreen; |
(f) |
immediately prior to the conveyance of such Timeshare Loan to the Issuer, the Depositor will own full legal and equitable title to such Timeshare Loan, and the Timeshare Loan (and the related Timeshare Property) is free and clear of adverse claims, liens and encumbrances and is not subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset, abatement, diminution, recoupment, counterclaim or participation or ownership interest in favor of any other Persons, other than Permitted Liens; |
(g) |
such Timeshare Loan (other than an Aruba Club Loan) is secured directly by a first priority Mortgage on the related purchased Timeshare Property; |
I-1
(h) |
with respect to each Deeded Club Loan, the Timeshare Property mortgaged by or at the direction of the related Obligor constitutes a fractional fee simple timeshare interest in real property at the related Resort or an undivided interest in a Resort (or a phase thereof) associated with a Unit that entitles the holder of the interest to the use of a specific property for a specified number of days each year or every other year, subject to the rules of the Bluegreen Vacation Club; the related Mortgage has been delivered for filing and recordation with all appropriate governmental authorities in all jurisdictions in which such Mortgage is required to be filed and recorded to create a valid, binding and enforceable first Lien on the related Timeshare Property and such Mortgage creates a valid, binding and enforceable first Lien on the related Timeshare Property, subject only to Permitted Liens; and the Depositor is in compliance with any Permitted Lien respecting the right to the use of such Timeshare Property; the Assignment of Mortgage and each related endorsement of the related Mortgage Note constitutes a duly executed, legal, valid, binding and enforceable assignment or endorsement, as the case may be, of such related Mortgage and related Mortgage Note, and all monies due or to become due thereunder, and all proceeds thereof; |
(i) |
with respect to the Obligor related to such Timeshare Loan and the related Timeshare Property purchased by such Obligor, there is only one original Mortgage (or certified true copy of the related recorded Mortgage) and Mortgage Note (or Lost Note Affidavit), in the case of a Deeded Club Loan, and, only one original Owner Beneficiary Agreement (or Lost Note Affidavit), in the case of an Aruba Club Loan; all parties to the related Mortgage and the related Mortgage Note (and, in the case of an Aruba Club Loan, Owner Beneficiary Agreement (or Lost Note Affidavit)) had legal capacity to enter into such Timeshare Loan Documents and to execute and deliver such related Timeshare Loan Documents, and such related Timeshare Loan Documents have been duly and properly executed by such parties; any amendments to such related Timeshare Loan Documents required as a result of any mergers involving the Depositor or its predecessors, to maintain the rights of the Depositor or its predecessors thereunder as a mortgagee (or the Depositor, in the case of an Aruba Club Loan) have been completed; |
(j) |
at the time of origination of such Timeshare Loan, the applicable Originator had full power and authority to originate such Timeshare Loan and the Obligor or the Club Trustee had good and indefeasible fee title or good and marketable fee simple title, or, in the case of an Aruba Club Loan, a cooperative interest, as applicable, to the Timeshare Property related to such Timeshare Loan, free and clear of all Liens, except for Permitted Liens; |
(k) |
the Mortgage (or, in the case of an Aruba Club Loan, the related Owner Beneficiary Agreement) contains customary and enforceable provisions so as to render the rights and remedies of the holder thereof adequate for the realization against the related Timeshare Property of the benefits of the security interests or lender’s contractual rights intended to be provided thereby, including (a) if the Mortgage is a deed of trust, by trustee’s sale, including power of sale, (b)
I-2
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otherwise by judicial foreclosure or power of sale and/or (c) termination of the contract, retention of Obligor deposits and payments towards such Timeshare Loan by the Originator or lender, as the case may be, and expulsion from the Club; in the case of the Deeded Club Loans, there is no exemption available to the related Obligor which would interfere with the mortgagee’s right to sell at a trustee’s sale or power of sale or right to foreclose such related Mortgage, as applicable; |
(l) |
any Mortgage Note related to such Timeshare Loan is not and has not been secured by any collateral except the Lien of the related Mortgage; |
(m) |
if a Mortgage secures such Timeshare Loan, the title to the related Timeshare Property is insured (or a binding commitment, which may be a master commitment referencing one or more Mortgages, for title insurance, not subject to any conditions other than standard conditions applicable to all binding commitments, has been issued) under a mortgagee title insurance policy (which may consist of one master policy referencing one or more such Mortgages) issued by a title insurer qualified to do business in the jurisdiction where the related Timeshare Property is located in a form generally acceptable to prudent originators of similar mortgage loans, insuring the Depositor or its predecessor and its successors and assigns, as to the first priority mortgage Lien of the related Mortgage in an amount equal to the original outstanding Loan Balance of such Timeshare Loan, and otherwise in form and substance acceptable to the Indenture Trustee; the Club Originator or its assignees is a named insured of such mortgagee’s title insurance policy; such mortgagee’s title insurance policy is in full force and effect; no claims have been made under such mortgagee’s title insurance policy and no prior holder of such Timeshare Loan has done or omitted to do anything which would impair the coverage of such mortgagee’s title insurance policy; no premiums for such mortgagee’s title insurance policy, endorsements and all special endorsements are past due; |
(n) |
the Depositor has not taken (or omitted to take), and has no notice that the Obligor related to such Timeshare Loan has taken (or omitted to take), any action that would impair or invalidate the coverage provided by any hazard, title or other insurance policy on the related Timeshare Property; |
(o) |
all applicable intangible taxes and documentary stamp taxes have been paid on such Timeshare Loan; |
(p) |
the proceeds of such Timeshare Loan have been fully disbursed, there is no obligation to make future advances or to lend additional funds under the applicable Originator’s commitment or the documents and instruments evidencing or securing such Timeshare Loan and no such advances or loans have been made since the origination of such Timeshare Loan; |
(q) |
the terms of each Timeshare Loan Document related to such Timeshare Loan have not been impaired, waived, altered or modified in any respect, except (x) by
I-3
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written instruments which are part of the related Timeshare Loan Documents or (y) in accordance with the Credit Policy in effect at the time of origination, the Collection Policy or the Servicing Standard (provided that no Timeshare Loan has been impaired, waived, altered, or modified in any respect more than once). No other instrument has been executed or agreed to which would affect any such impairment, waiver, alteration or modification; the Obligor has not been released from liability on or with respect to such Timeshare Loan, in whole or in part; if required by law or prudent originators of similar loans in the jurisdiction where the related Timeshare Property is located, all waivers, alterations and modifications have been filed and/or recorded in all places necessary to perfect, maintain and continue a valid first priority Lien of the related Mortgage, subject only to Permitted Liens; |
(r) |
other than if it is an Aruba Club Loan, such Timeshare Loan is principally and directly secured by an interest in real property; |
(s) |
such Timeshare Loan was originated by one of the Depositor’s Affiliates in the normal course of its business; was originated and underwritten in accordance with the Depositor’s Affiliates’ underwriting guidelines and the Credit Policy in effect at the time of origination; and to the Depositor’s Knowledge the origination, servicing and collection practices used by the Depositor’s Affiliates with respect to such Timeshare Loan have been in all respects, legal, proper, prudent and customary; |
(t) |
such Timeshare Loan is assignable to and by the obligee and its successors and assigns and the related Timeshare Property is assignable upon liquidation of such Timeshare Loan, without the consent of any other Person (including any Association, condominium association, homeowners’ or timeshare association); |
(u) |
the Mortgage related to such Timeshare Loan is and will be prior to any Lien on, or other interests relating to, the related Timeshare Property subject to Permitted Liens; |
(v) |
to the Depositor’s Knowledge, there are no delinquent or unpaid taxes, ground rents (if any), water charges, sewer rents or assessments outstanding with respect to any of the Timeshare Properties, nor any other outstanding Liens or charges affecting the Timeshare Properties related to such Timeshare Loan that would affect the Lien of the related Mortgage or otherwise materially affect the interests of the Indenture Trustee on behalf of the Noteholders in such Timeshare Loan; |
(w) |
other than with respect to delinquent payments of principal or interest 30 or fewer days past due as of the Cut-Off Date, there is no default, breach, violation or event of acceleration existing under the Mortgage, the related Mortgage Note or any other document or instrument evidencing, guaranteeing, insuring or otherwise securing such Timeshare Loan, and no event which, with the lapse of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration thereunder; and the Depositor
I-4
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has not waived any such material default, breach, violation or event of acceleration under the Owner Beneficiary Agreement, Mortgage, the Mortgage Note or any such other document or instrument, as applicable; |
(x) |
neither the Obligor related to such Timeshare Loan nor any other Person has the right, by statute, contract or otherwise, to seek the partition of the related Timeshare Property; |
(y) |
such Timeshare Loan has not been satisfied, canceled, rescinded or subordinated, in whole or in part; no portion of the related Timeshare Property has been released from the Lien of the related Mortgage, in whole or in part; no instrument has been executed that would effect any such satisfaction, cancellation, rescission, subordination or release; the terms of the related Mortgage do not provide for a release of any portion of the related Timeshare Property from the Lien of the related Mortgage except upon the payment of such Timeshare Loan in full; |
(z) |
the Depositor and any of its Affiliates and, to the Depositor’s Knowledge, each other party which has had an interest in such Timeshare Loan is (or, during the period in which such party held and disposed of such interest, was) in compliance with any and all applicable filing, licensing and “doing business” requirements of the laws of the state wherein the related Timeshare Property is located to the extent necessary to permit the Depositor to maintain or defend actions or proceedings with respect to such Timeshare Loan in all appropriate forums in such state without any further act on the part of any such party; |
(aa) |
there is no current obligation on the part of any other person (including any buy down arrangement) to make payments on behalf of the Obligor in respect of such Timeshare Loan; |
(bb) |
the Associations related to such Timeshare Loan were duly organized and are validly existing; a manager (the “Manager”) manages such Resort and performs services for the Associations, pursuant to an agreement between the Manager and the respective Associations, such contract being in full force and effect; to the Depositor’s Knowledge the Manager and the Associations have performed in all material respects all obligations under such agreement and are not in default under such agreement; |
(cc) |
in the case of the Opinion Resorts and to the Depositor’s Knowledge with respect to the Non-Opinion Resorts, (i) the Resort related to such Timeshare Loan is insured in the event of fire, earthquake, or other casualty for the full replacement value thereof, and in the event that the related Timeshare Property should suffer any loss covered by casualty or other insurance, upon receipt of any insurance proceeds, the Associations at the Resorts are required, during the time such Resort is covered by such insurance, under the applicable governing instruments either to repair or rebuild the portions of the Resort in which the related Timeshare Property is located or to pay such proceeds as their interests may appear to the holders of any related Mortgage secured by the Timeshare Property located at
I-5
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such Resort; (ii) the related Resort, if located in a designated flood plain, maintains flood insurance in an amount not less than the maximum level available (without regard to reasonable deductibles) under the National Flood Insurance Act of 1968, as amended or any applicable laws; (iii) the related Resort has business interruption insurance and general liability insurance in such amounts generally acceptable in the industry; and (iv) the related Resort’s insurance policies are in full force and effect with a generally acceptable insurance carrier; |
(dd) |
the obligee of the related Mortgage related to such Timeshare Loan, and its successors and assigns, has the right to receive and direct the application of insurance and condemnation proceeds received in respect of the related Timeshare Property, except where the related condominium declarations, timeshare declarations, the Club Trust Agreement or applicable state law provide that insurance and condemnation proceeds be applied to restoration or replacement of the improvements or acquisition of similar improvements, as the case may be; |
(ee) |
each rescission period applicable to such Timeshare Loan has expired; |
(ff) |
no selection procedures were intentionally utilized by the Depositor in selecting such Timeshare Loan which the Depositor knew were materially adverse to the Indenture Trustee or the Noteholders; |
(gg) |
except as set forth on Schedule II hereto, in the case of the Opinion Resorts and to the Depositor’s Knowledge with respect to the Non-Opinion Resorts, the Units related to such Timeshare Loan in the related Resort have been completed in all material respects as required by applicable state and local laws, free of all defects that could give rise to any claims by the related Obligors under home warranties or applicable laws or regulations, whether or not such claims would create valid offset rights under the law of the State in which the Resort is located; to the extent required by applicable law, valid certificates of occupancy for such Units have been issued and are currently outstanding; the Depositor or any of its Affiliates have complied in all material respects with all obligations and duties incumbent upon the developers under the related timeshare declaration (each a “Declaration”), as applicable, or similar applicable documents for the related Resort; no practice, procedure or policy employed by the related Association in the conduct of its business violates any law, regulation, judgment or agreement, including, without limitation, those relating to zoning, building, use and occupancy, fire, health, sanitation, air pollution, ecological, environmental and toxic wastes, applicable to such Association which, if enforced, would reasonably be expected to (a) have a material adverse impact on such Association or the ability of such Association to do business, (b) have a material adverse impact on the financial condition of such Association, or (c) constitute grounds for the revocation of any license, charter, permit or registration which is material to the conduct of the business of such Association; the related Resort and the present use thereof does not violate any applicable environmental, zoning or building laws, ordinances, rules or regulations of any governmental authority, or any covenants or restrictions of record, so as to materially adversely affect the value or use of
I-6
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such Resort or the performance by the related Association of its obligations pursuant to and as contemplated by the terms and provisions of the related Declaration; there is no condition presently existing, and to the Depositor’s Knowledge, no event has occurred or failed to occur prior to the date hereof, concerning the related Resort relating to any hazardous or toxic materials or condition, asbestos or other environmental or similar matters which would reasonably be expected to materially and adversely affect the present use of such Resort or the financial condition or business operations of the related Association, or the value of the Notes; |
(hh) |
except if such Timeshare Loan is listed on Schedule II hereto, the original Loan Balance of such Timeshare Loan does not exceed $75,000; |
(ii) |
payments with respect to such Timeshare Loan are to be in legal tender of the United States; |
(jj) |
all monthly payments (as applicable) made with respect to such Timeshare Loan have been made by the Obligor and not by the Depositor or any Affiliate of the Depositor on the Obligor’s behalf; |
(kk) |
such Timeshare Loan relates to a Resort; |
(ll) |
such Timeshare Loan constitutes either “chattel paper”, a “general intangible” or an “instrument” as defined in the UCC as in effect in all applicable jurisdictions; |
(mm) |
the sale, transfer and assignment of such Timeshare Loan and the Related Security does not contravene or conflict with any law, rule or regulation or any contractual or other restriction, limitation or encumbrance, and the sale, transfer and assignment of such Timeshare Loan and the Related Security do not require the consent of the Obligor; |
(nn) |
such Timeshare Loan, the Related Security, related Assignment of Mortgage, related Mortgage, related Mortgage Note, related Owner Beneficiary Agreement (each as applicable) and each other related Timeshare Loan Document are in full force and effect, constitute the legal, valid and binding obligation of the Obligor thereof enforceable against such Obligor in accordance with its terms subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, assignment, liquidation, conservatorship or moratorium, and is not subject to any dispute, offset, counterclaim or defense whatsoever; |
(oo) |
such Timeshare Loan relates to a Completed Unit; such Timeshare Loan and the Related Security do not, and the origination of each Timeshare Loan did not, contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, retail installment sales, truth in lending, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party thereto has been or is in violation of any such law, rule or regulation in
I-7
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any material respect if such violation would impair the collectibility of such Timeshare Loan and the Related Security; no Timeshare Loan was originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer, conveyance or assignment of such Timeshare Loan would be unlawful, void or voidable; |
(pp) |
to the Depositor’s Knowledge, (i) no bankruptcy is currently existing with respect to the Obligor related to such Timeshare Loan, (ii) such Obligor is not insolvent and (iii) such Obligor is not an Affiliate of the Depositor; |
(qq) |
except if such Timeshare Loan is listed on Schedule II hereto, such Timeshare Loan shall not have a Timeshare Loan Rate less than 6% per annum; |
(rr) |
except in the case of an Upgrade Club Loan replacing its related Original Club Loan, the Obligor related to such Timeshare Loan has made at least one required payment with respect to the Timeshare Loan (not including any down payment); |
(ss) |
if a Resort for which Bluegreen is the Manager (other than La Cabana Resort) is subject to a construction loan, the construction lender shall have signed and delivered a non-disturbance agreement (which may be contained in such lender’s mortgage) pursuant to which such construction lender agrees not to foreclose on any Timeshare Properties relating to such Timeshare Loan or by the terms of the construction loan, the related Timeshare Property has been released from the lien created thereby which have been sold pursuant to this Agreement; |
(tt) |
except as set forth on Schedule II hereto, the Timeshare Properties and the Resorts related to such Timeshare Loan are free of material damage and waste and are in good repair, ordinary wear and tear excepted, and fully operational, subject to renovations for improvements from time to time; there is no proceeding pending or threatened for the total or partial condemnation of or affecting any Timeshare Property or taking of the Timeshare Property by eminent domain; the Timeshare Properties and the Resorts in which the Timeshare Properties are located are lawfully used and occupied under applicable law by the owner thereof; |
(uu) |
except as set forth on Schedule II hereto, the portions of the Resorts in which the Timeshare Properties are located which represent the common facilities are free of material damage and waste and are in good repair and condition, ordinary wear and tear excepted, subject to renovations for improvements from time to time; |
(vv) |
no foreclosure or similar proceedings have been instituted and are continuing with respect to such Timeshare Loan or the related Timeshare Property; |
(ww) |
if such Timeshare Loan is an Aruba Club Loan, Bluegreen shall own, directly or indirectly, 100% of the economic and voting interests of the Aruba Originator; |
(xx) |
such Timeshare Loan does not have an original term to maturity in excess of 120 months; |
I-8
(yy) |
to the Depositor’s Knowledge, the capital reserves and maintenance fee levels of the Associations of the Resorts related to such Timeshare Loan are adequate in light of the operating requirements of such Associations; |
(zz) |
except as required by law, such Timeshare Loan may not be assumed without the consent of the obligee; |
(aaa) |
for each Club Loan, the Obligor under such Timeshare Loan does not have its rights under the Club Trust Agreement suspended; |
(bbb) |
the payments under such Timeshare Loan are not subject to withholding taxes imposed by any foreign governments; |
(ccc) |
each entry with respect to such Timeshare Loan as set forth on Schedule II and Schedule III hereof is true and correct. If such Timeshare Loan is a Qualified Substitute Timeshare Loan, each entry with respect to such Qualified Substitute Timeshare Loan as set forth on Schedule II and Schedule III hereof, as revised, is true and correct; |
(ddd) |
if such Timeshare Loan is an Initial Timeshare Loan and relates to a Timeshare Property located in Aruba, a notice has been mailed or will be mailed within 30 days of the Closing Date to the related Obligor indicating that such Timeshare Loan has ultimately been transferred to the Issuer and pledged to the Indenture Trustee for the benefit of the Noteholders; |
(eee) |
if such Timeshare Loan is a Subsequent Timeshare Loan and relates to a Timeshare Property located in Aruba, a notice will be mailed within 30 days of the related Transfer Date to the related Obligor indicating that such Timeshare Loan has ultimately been transferred to the Issuer and pledged to the Indenture Trustee for the benefit of the Noteholders; |
(fff) |
no broker is, or will be, entitled to any commission or compensation in connection with the transfer of such Timeshare Loans hereunder; |
(ggg) |
[RESERVED]; |
(hhh) |
[RESERVED]; |
(iii) |
if such Timeshare Loan is a Subsequent Timeshare Loan when such Timeshare Loan is aggregated with all Timeshare Loans sold to the Issuer pursuant to this Agreement, it satisfies the criteria for Subsequent Timeshare Loans specified in Section 4.3 of the Indenture; |
(jjj) |
if such Timeshare Loan relates to a Timeshare Property located in the State of Michigan and was originated prior to Bluegreen obtaining a license under the Michigan Mortgage Brokers, Lenders and Servicers Licensing Act, Bluegreen shall have confirmed that the interest rate on such Timeshare Loan is enforceable in the manner specified as effective in an opinion by Michigan local counsel; |
I-9
(kkk) |
[RESERVED]; and |
(lll) |
with respect to such Timeshare Loan, there exists a Timeshare Loan File and such Timeshare Loan File contains or will contain each item listed in the definition of Timeshare Loan File with respect to such Timeshare Loan and such Timeshare Loan File is in the possession of the Custodian, subject to the Custodian’s exception report pursuant to the Custodial Agreement. |
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Schedule II
Exceptions
With respect to (gg): Solara Surfside – Surfside, Florida
With respect to (hh):
Loan |
Original Balance |
|
2262040 | $100,500.00 | |
2272916 | $94,950.00 | |
2260603 | $94,500.00 | |
2212773 | $91,840.00 | |
2267916 | $90,297.00 | |
2209886 | $87,099.30 | |
2216593 | $86,400.00 | |
2253283 | $85,000.00 | |
2258501 | $83,690.00 | |
2273734 | $83,500.00 | |
2276145 | $79,999.00 | |
2129813 | $79,828.53 | |
2272474 | $79,120.00 | |
2207407 | $77,440.00 | |
2264699 | $75,348.00 | |
2267993 | $75,252.00 |
II-1
Schedule III
Schedule of Initial Timeshare Loans
[Electronic Schedule of Timeshare Loans on file with the Issuer]
III-1
Exhibit A
FORM OF ROAP WAIVER LETTER
Date:
U.S. Bank National Association, as Indenture Trustee of BXG Receivables Note Trust 2022-A
190 S. LaSalle St., 7th Floor MK-IL-SL7C
Chicago, IL 60603
BXG Receivables Note Trust 2022-A
c/o Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890-0001
BRFC 2022-A LLC,
4950 Communication Avenue, Suite 900
Boca Raton, Florida 33431
Attention:Corporate Trust Services
BXG Receivables Note Trust 2022-A
In accordance with Section 4.6(c) of that certain Indenture (the “Indenture”), dated as of April 28, 2022, by and among BXG Receivables Note Trust 2022-A, as Issuer, Bluegreen Vacations Corporation, as Servicer, Vacation Trust, Inc. as Club Trustee, Concord Servicing LLC, as Backup Servicer, and U.S. Bank Trust Company, National Association, as Indenture Trustee, and U.S. Bank National Association, as Custodian, the undersigned hereby irrevocably waives its option to repurchase and/or substitute any Defaulted Timeshare Loan listed on Exhibit A attached hereto.
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Indenture.
In Witness Whereof, the undersigned has caused its name to be signed hereby by its duly authorized officer, as of the day and year written above.
BLUEGREEN VACATIONS CORPORATION
By:__________________________________
Name:
Title:
Exhibit A
Exhibit A to Form of ROAP Waiver Letter
Exhibit C
Exhibit D
FORM OF LOST NOTE AFFIDAVIT
STATE OF ___________
COUNTY OF _________
______________ (“Affiant”), on behalf of and as _________________ of BRFC 2022-A LLC, a Delaware limited liability company (the “Seller”), being duly sworn, deposes and says:
1.This Lost Note Affidavit is being delivered by the Affiant pursuant to that certain Sale Agreement (as amended, restated, supplemented, replaced, renewed or otherwise modified from time to time, the “Sale Agreement”), dated as of April 28, 2022, by and between the Seller and BXG Receivables Note Trust 2022-A. Unless otherwise defined herein, capitalized terms have the meanings ascribed to such terms in the Sale Agreement and the Standard Definitions thereto.
2.That ____________________________________________ has issued a [Mortgage Note][Owner Beneficiary Agreement] evidencing a Timeshare Loan dated __________________ in the principal amount of $_________________ [(the “Original Note”)] [(the “Original Agreement”)] to ______________________].
3.The [Original Note][Original Agreement] has been lost, destroyed, or stolen so that it cannot be found or produced, and the Seller has not endorsed, assigned, sold, pledged, hypothecated, negotiated or otherwise transferred the [Original Note][Original Agreement] or an interest therein.
4.That the Seller has made a diligent effort to find the [Original Note][Original Agreement].
5.It is understood by the Seller that if the [Original Note][Original Agreement] is found, that it shall surrender said [Original Note][Original Agreement] to the Custodian or its permitted successors and assigns in exchange for this Lost Note Affidavit.
___________________________________
Printed Name:
The foregoing affidavit was sworn to and subscribed before me this _____ day of _____________, _______, by ______________, as _______________________ of ____________________________________, who is personally known to me or who has produced ____________________ as identification and who did take an oath.
___________________________________
(AFFIX NOTARIAL SEAL)Notary Public, State of __________
(Name)
Commission Number: _________________My Commission Expires
Exhibit D
Execution Copy
(BXG Timeshare I to Depositor - Initial Timeshare Loans)
TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this “Agreement”), dated as of April 28, 2022, is by and among Bluegreen Vacations Corporation, a Florida 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 BRFC 2022-A LLC, a Delaware limited liability company (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 second amended and restated purchase and contribution agreement, dated as of May 1, 2017 (as amended from time to time in accordance with the terms thereof, 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 second amended and restated sale agreement, dated as of May 1, 2017 (as amended from time to time in accordance with the terms thereof, the “Warehouse Sale Agreement”) by and between the Warehouse Depositor and BXG Timeshare I, (iii) that certain sixth amended and restated indenture, dated as of May 1, 2017 (as amended from time to time in accordance with the terms thereof, 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 KeyBank National Association (“KeyBank”) and DZ Bank AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main (“DZ Bank” together with KeyBank, the “Funding Agents”), and (iv) that certain sixth amended and restated note funding agreement, dated as of May 1, 2017 (as amended from time to time in accordance with the terms thereof, the “Warehouse Note Funding Agreement”) by and among BXG Timeshare I, as issuer, Bluegreen, as seller and as servicer, the Warehouse Depositor, the Funding Agents, 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 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;
1
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, transfer and otherwise absolutely convey, and BXG Receivables Note Trust 2022-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 Trust Company, National Association, as indenture trustee (the “Indenture Trustee”) and U.S. Bank National Association, as custodian (the “Custodian”), pursuant to an indenture, dated as of April 28, 2022 (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 4.12% Timeshare Loan‑Backed Notes, Series 2022-A, Class A, 4.61% Timeshare Loan‑Backed Notes, Series 2022-A, Class B and 5.35% Timeshare Loan‑Backed Notes, Series 2022-A, Class C (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 other 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 member 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 and GAAP consolidation, 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 or by 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 or Bluegreen, as applicable, shall deposit or cause to be deposited all collections in respect of the Initial Timeshare Loans and the Qualified Substitute Timeshare Loans (together the “Timeshare Loans”) received by the Seller, Bluegreen 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 into the Lockbox Account. |
(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 or Bluegreen, as applicable, to the Depositor and
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not a loan secured by such 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 and Bluegreen, as applicable, 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 and Bluegreen’s, as applicable, right, title and interest in, to and under the Assets or QSTL Assets (as hereinafter defined), as applicable, specified in Section 2 hereof and Section 6(f) hereof, respectively 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 and Bluegreen 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 and Bluegreen’s entire right, title and interest in and to the Assets and QSTL Assets, respectively.
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
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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. |
(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 Transaction Documents 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
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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. 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
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thereto, constitute legal, valid and binding agreements enforceable against Bluegreen in accordance with their respective terms subject, as to enforceability, to bankruptcy, insolvency, reorganization, liquidation, dissolution, moratorium and other similar applicable laws affecting the enforceability of creditors’ rights generally applicable in the event of the bankruptcy, insolvency, reorganization, liquidation or dissolution, as applicable, of Bluegreen and to general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law. To Bluegreen’s Knowledge, 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 business, operations, financial condition or assets, and no event has occurred which with
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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 “RISK FACTORS—Litigation Risks” in the Offering Circular, 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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(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, (A) neither Bluegreen nor any of its Commonly Controlled Affiliates has or have incurred any “accumulated funding deficiency” (as such term is defined under ERISA and the Code for such years), whether or not waived, with respect to any Employee Pension Benefit Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect (as defined below), and, to Bluegreen’s Knowledge, no event has occurred or circumstance exists that may result in any accumulated funding deficiency of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (B) neither Bluegreen nor any of its Commonly Controlled Affiliates has any unpaid “minimum required contribution” (as such term is defined under ERISA and the Code) with respect to any Employee Pension Benefit Plan, whether or not such unpaid minimum required contribution is waived, that either individually or in the aggregate could Cause a Material Adverse Effect, and, to Bluegreen’s Knowledge for any such year, no event has occurred or circumstance exists that resulted or may result in any unpaid minimum required contribution as of the last day of the current plan year of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (C) Bluegreen and each of its Commonly Controlled Affiliates have no outstanding liability for any undisputed contribution required under any Bluegreen Multiemployer Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect; and (D) Bluegreen and each of its Commonly Controlled Affiliates have no outstanding liability for any disputed contribution required under any Bluegreen Multiemployer Plan that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to Bluegreen’s Knowledge (1) neither Bluegreen nor any of its Commonly Controlled Affiliates has incurred any Withdrawal Liability (as defined below) that either individually or in the aggregate could Cause a Material
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Adverse Effect, and (2) no event has occurred or circumstance exists that could result in any Withdrawal Liability that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to Bluegreen’s Knowledge, neither Bluegreen nor any of its Commonly Controlled Affiliates has received notification of the reorganization, termination, partition, or insolvency of any Multiemployer Plan that could either individually or in the aggregate Cause a Material Adverse Effect. For purposes of this subsection (a)(xii), “Cause a Material Adverse Effect” means reasonably be expected to result in a material adverse effect on Bluegreen and its Commonly Controlled Affiliates in the aggregate; “Commonly Controlled Affiliates” means those direct or indirect affiliates of Bluegreen that would be considered a single employer with Bluegreen under Section 414(b), (c), (m), or (o) of the Code; “Employee Pension Benefit Plan” means an employee pension benefit plan as such term is defined in Section 3(2) of ERISA that is sponsored, maintained or contributed to by Bluegreen or any of its Commonly Controlled Affiliates (other than a Bluegreen Multiemployer Plan); “Multiemployer Plan” means a multiemployer plan as such term is defined in Section 3(37) of ERISA; “Bluegreen Multiemployer Plan” means a Multiemployer Plan to which Bluegreen or any of its Commonly Controlled Affiliates contributes or in which Bluegreen or any of its Commonly Controlled Affiliates participates; and “Withdrawal Liability” means liability as determined under ERISA for the complete or partial withdrawal of Bluegreen or any of its Commonly Controlled Affiliates from a Multiemployer Plan. |
(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, 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 or other governmental charge for any fiscal year for which adequate 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 and has paid all taxes shown to be due and payable on such returns. |
(xiv) Place of Business. As of the Closing Date and as of each Transfer Date, the principal place of business and chief executive office where Bluegreen keeps access to its records concerning the Timeshare Loans will be 4960 Conference Way North, Suite 100, Boca Raton, Florida 33431 (or such other place specified by Bluegreen by written notice to the Depositor and the Indenture Trustee). As of the Closing Date and as of each Transfer Date, Bluegreen is a corporation formed under the laws of the State of Florida. As of the Closing Date and as of each Transfer Date, the Seller keeps access to its records concerning the Timeshare Loans with U.S. Bank, National Association, as custodian, pursuant to that certain Second Amended and Restated Custodial Agreement, dated as of October 23, 2014, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof, by and among the Seller, U.S. Bank, National
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Association and the other parties named therein. As of the Closing Date, the Seller is a statutory trust formed under the laws of the State of Delaware. |
(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 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,
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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 not permitted any such Timeshare Properties to be made subject to any lien or encumbrance; |
(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; |
(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 |
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(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. |
(xvii) As of the Closing Date, Bluegreen is the Warehouse Servicer and has been servicing the Warehouse Timeshare Loans in accordance with the Servicing Standard and the applicable provisions of the Warehouse Indenture and it has not taken or failed to take any action to cause a breach of the representations and warranties set forth in Section 12.2 of the Warehouse Indenture. |
(b) Bluegreen 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 Qualified Substitute Timeshare Loan transferred on such Transfer Date), as applicable. |
(c) It is understood and agreed that the representations and warranties set forth in this Section 5 shall survive the (i) sale of each Timeshare Loan to the Depositor and (ii) any assignment of such Timeshare Loans by the Depositor and shall continue so 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. Each of the Seller and Bluegreen 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 and Bluegreen jointly agree 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 Bluegreen may have under this Agreement) all rights and remedies hereunder. |
(d) With respect to any representations and warranties contained in this Section 5 which are made to Bluegreen’s Knowledge, if it is discovered that any representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of a Warehouse Timeshare Loan or the interests of the 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) hereof. |
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SECTION 6. Repurchases and Substitutions. |
(a) Mandatory Repurchases and Substitutions for Breaches of Representations and Warranties. Upon the receipt of notice by Bluegreen 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 warranty was made) which materially and adversely affects the value of a Timeshare Loan or the interests of the Depositor or any subsequent assignee of the Depositor (including the Issuer and the Indenture Trustee on behalf of the Noteholders) therein, Bluegreen shall within 60 days of receipt of such notice, cure in all material respects the circumstance or condition which has caused such representation or warranty to be incorrect or if the breach relates to a particular Timeshare Loan and is not cured in all material respects (such Timeshare Loan, a “Defective Timeshare Loan”), either (i) repurchase such Defective Timeshare Loan at the Repurchase Price or (ii) provide one or more Qualified Substitute Timeshare Loans and pay the related Substitution Shortfall Amount, if any. Bluegreen and the Seller acknowledge that the Depositor shall, pursuant to the Sale Agreement sell Timeshare Loans and rights and remedies acquired hereunder to the Issuer and that the Issuer shall pledge such Timeshare Loans and rights to the Indenture Trustee for the benefit of the Noteholders. Bluegreen and the Seller further acknowledge that the Indenture Trustee will be appointed attorney in fact under the Indenture and may enforce Bluegreen’s repurchase or substitution obligations if Bluegreen has not complied with its repurchase and substitution obligations under this Agreement within the aforementioned 60 day period. |
(b) Optional Purchases or Substitutions of Club Loans. The Depositor hereby irrevocably grants Bluegreen an option to repurchase or substitute Original Club Loans it has under the Sale Agreement, the Bluegreen Purchase Agreement and as described in the following sentence. With respect to any Original Club Loans for which the related Obligor has elected to effect and Bluegreen has agreed to effect an Upgrade, Bluegreen will (at its option) either (i) pay the Repurchase Price for such Original Club Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Original Club Loan and pay the related Substitution Shortfall Amounts, if any; provided, however, in the case of an Obligor’s election to upgrade, Bluegreen’s option to substitute one or more Qualified Substitute Timeshare Loans for an Original Club Loan is limited on any date to (x) 15% of the Aggregate Closing Date Collateral Balance less (y) the aggregate Loan Balances of all Original Club Loans previously substituted by Bluegreen on prior Transfer Dates pursuant to this Agreement, the Sale Agreement and/or the Bluegreen Purchase Agreement. Bluegreen shall use its best efforts to exercise its substitution option with respect to Original Club Loans prior to exercise of its repurchase option. To the extent that Bluegreen shall elect to substitute Qualified Substitute Timeshare Loans for an Original Club Loan, Bluegreen shall use its best efforts to cause each such Qualified Substitute Timeshare Loan to be, in the following order of priority, (i) the Upgrade Club Loan related to such Original Club Loan and (ii) an Upgrade Club Loan unrelated to such Original Club Loan. |
(c) Optional Purchases or Substitutions of Defaulted Timeshare Loans. The Depositor hereby irrevocably grants Bluegreen an option to repurchase or substitute Defaulted Timeshare Loans it has under the Sale Agreement, the Bluegreen Purchase Agreement and as described in the following sentence. With respect to a Defaulted Timeshare Loan, on any date, Bluegreen will have the option, but not the obligation, to either (i) purchase a Defaulted Timeshare Loan at the Repurchase Price for such Defaulted Timeshare Loan or (ii) substitute one
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or more Qualified Substitute Timeshare Loans for such Defaulted Timeshare Loan and pay the related Substitution Shortfall Amount, if any; provided, however, that Bluegreen’s option to purchase a Defaulted Timeshare Loan or to substitute one or more Qualified Substitute Timeshare Loans for a Defaulted Timeshare Loan is limited on any date to the Optional Purchase Limit and the Optional Substitution Limit, respectively. Bluegreen may irrevocably waive its option to purchase or substitute a Defaulted Timeshare Loan by delivering to the Indenture Trustee a Waiver Letter in the form of Exhibit A attached hereto. |
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts. Bluegreen hereby agrees to remit or cause to be remitted all amounts in respect of Repurchase Prices and Substitution Shortfall Amounts payable during the related Due Period in immediately available funds to the Indenture Trustee to be deposited in the Collection Account on the Business Day immediately preceding the related Payment Date for such Due Period in accordance with the provisions of the Indenture. In the event that more than one Timeshare Loan is replaced pursuant to Sections 6(a), (b) or (c) hereof on any Transfer Date, the Substitution Shortfall Amounts and the Loan Balances of Qualified Substitute Timeshare Loans shall be calculated on an aggregate basis for all substitutions made on such Transfer Date. |
(e) Schedule of Timeshare Loans. Bluegreen hereby agrees, on each date on which a Timeshare Loan has been repurchased, purchased or substituted, to provide or cause to be provided to the Depositor, the Issuer and the Indenture Trustee with an electronic supplement to Schedule III hereto and the Schedule of Timeshare Loans reflecting the removal and/or substitution of Timeshare Loans and subjecting any Qualified Substitute Timeshare Loans to the provisions of this Agreement. |
(f) Qualified Substitute Timeshare Loans. Pursuant to Section 6(g) hereof, on the related Transfer Date, Bluegreen hereby agrees to deliver or to cause the delivery of the Timeshare Loan Files relating to the Qualified Substitute Timeshare Loans to the Indenture Trustee or to the Custodian, at the direction of the Indenture Trustee, in accordance with the provisions of the Indenture and the Custodial Agreement. As of such related Transfer Date, Bluegreen 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 Bluegreen’s right, title and interest in and to (i) each Qualified Substitute Timeshare Loan conveyed to the Depositor on such Transfer Date, (ii) the Receivables in respect of the Qualified Substitute Timeshare Loans due after the related Cut‑Off Date, (iii) the related Timeshare Loan Documents (excluding any rights as developer or declarant under the Timeshare Declaration, the Timeshare Program Consumer Documents or the Timeshare Program Governing Documents), (iv) all Related Security in respect of such Qualified Substitute Timeshare Loans, and (v) all income, payments, proceeds and other benefits and rights related to any of the foregoing (the property in clauses (i) – (v), being the “QSTL Assets”). Upon such sale, the ownership of each Qualified Substitute 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 6(f) shall immediately vest in the Depositor, its successors and assigns. Bluegreen shall not take any action inconsistent with such ownership nor claim any ownership interest in any Qualified Substitute Timeshare Loan for any purpose whatsoever other than federal and state income tax reporting and GAAP consolidation. Bluegreen agrees that such Qualified Substitute
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Timeshare Loans shall be subject to the provisions of this Agreement and shall thereafter be deemed a “Timeshare Loan” for the purposes of this Agreement. |
(g) Officer’s Certificate for Qualified Substitute Timeshare Loans. Bluegreen shall, on each related Transfer Date, certify or cause to be certified in writing to the Depositor, the Issuer and the Indenture Trustee that each new Timeshare Loan meets all the criteria of the definition of “Qualified Substitute Timeshare Loan” and that (i) the Timeshare Loan Files for such Qualified Substitute Timeshare Loans have been delivered to the Custodian or shall be delivered within five Business Days of the applicable Transfer Date, and (ii) the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans have been delivered to the Servicer. |
(h) Release. In connection with any repurchase, purchase or substitution of one or more Timeshare Loans contemplated by this Section 6, upon satisfaction of the conditions contained in this Section 6, the Depositor, the Issuer and the Indenture Trustee shall execute and deliver or shall cause the execution and delivery of such releases and instruments of transfer or assignment presented to it by Bluegreen, in each case, without recourse, as shall be necessary to vest in Bluegreen or its designee the legal and beneficial ownership of such Timeshare Loans; provided, however, that with respect to any release of a Timeshare Loan that is substituted for by one or more Qualified Substitute Timeshare Loans, the Issuer and the Indenture Trustee shall not execute and deliver or cause the execution and delivery of such releases and instruments of transfer or assignment until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. The Depositor, the Issuer and the Indenture Trustee shall cause the Custodian to release the related Timeshare Loan Files to Bluegreen or its designee and the Servicer to release the related Timeshare Loan Servicing Files to Bluegreen or its designee; provided, however, that with respect to any Timeshare Loan File or Timeshare Loan Servicing File related to a Timeshare Loan that has been substituted by a Qualified Substitute Timeshare Loan, the Issuer and the Indenture Trustee shall not cause the Custodian and the Servicer to release the related Timeshare Loan File and the Timeshare Loan Servicing File, respectively, until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. |
(i) Sole Remedy. It is understood and agreed that the obligations of Bluegreen contained in Section 6(a) hereof to cure a breach, or to repurchase or substitute related Defective Timeshare Loans and the obligation of Bluegreen to indemnify pursuant to Section 8 hereof shall constitute the sole remedies available to the Depositor or its subsequent assignees for the breaches of any representation or warranty contained in Section 5 hereof, and such remedies are not intended to and do not constitute “credit recourse” to Bluegreen. |
SECTION 7. Additional Covenants of Bluegreen and the Seller. |
(a) Bluegreen hereby covenants and agrees with the Depositor as follows: |
(i) It shall comply with all laws, rules, regulations and orders applicable to it and its business and properties except where the failure to comply will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the
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transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(ii) It shall preserve and maintain its existence (corporate or otherwise), rights, franchises and privileges in the jurisdiction of its organization and except where the failure to so preserve and maintain will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(iii) On the Closing Date and each Transfer Date, as applicable, it shall indicate in its and its Affiliates’ computer files and other records that each Timeshare Loan has been sold to the Depositor. |
(iv) It shall respond to any inquiries with respect to ownership of a Timeshare Loan by stating that such Timeshare Loan has been sold to the Depositor and that the Depositor is the owner of such Timeshare Loan. |
(v) On or prior to the Closing Date, it shall file or cause to be filed, at Bluegreen's expense, financing statements in favor of the Depositor and, if applicable, the Issuer and the Indenture Trustee on behalf of the Noteholders, with respect to the Timeshare Loans, in the form and manner reasonably requested by the Depositor or its assigns. It shall deliver or cause the Seller to deliver file-stamped copies of such financing statements to the Depositor, the Issuer and the Indenture Trustee on behalf of the Noteholders. |
(vi) It agrees from time to time to, or cause the Seller to, at Bluegreen's expense, promptly execute and deliver all further instruments and documents, and to take all further actions, that may be necessary, or that the Depositor, the Issuer or the Indenture Trustee may reasonably request, to perfect, protect or more fully evidence the sale of the Timeshare Loans to the Depositor, or to enable the Depositor to exercise and enforce its rights and remedies hereunder or under any Timeshare Loan including, but not limited to, powers of attorney, UCC financing statements and assignments of mortgage. Bluegreen hereby appoints the Depositor, the Issuer and the Indenture Trustee as attorneys in fact, which appointment is coupled with an interest and is therefore irrevocable, to act on behalf and in the name of Bluegreen under this Section 7(a)(vi). |
(vii) On the Closing Date, Bluegreen does not have any tradenames, fictitious names, assumed names or “doing business as” names other than “Bluegreen Vacations Corporation of Massachusetts” in Louisiana. After the Closing Date, any change in the legal name of Bluegreen or the use by it of any tradename, fictitious name, assumed name or “doing business as” name other than the foregoing shall be promptly (but no later than ten Business Days) disclosed to the Depositor and the Indenture Trustee in writing. |
(viii) Upon the discovery or receipt of notice by a Responsible Officer of Bluegreen of a breach of any of its representations or warranties and covenants contained
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herein, Bluegreen shall promptly disclose to the Depositor, the Issuer and the Indenture Trustee, in reasonable detail, the nature of such breach. |
(ix) In the event that Bluegreen shall receive any payments in respect of a Timeshare Loan after the Closing Date or a Transfer Date, as applicable, it shall, within two Business Days of receipt, transfer or cause to be transferred, such payments to the Lockbox Account. Payments received by Bluegreen with respect to Credit Card Timeshare Loans, without regard to any discount fees, shall be transferred to the Lockbox Account within five Business Days. |
(x) Bluegreen will keep its principal place of business and chief executive office and the office where it keeps access to its records concerning the Timeshare Loans at the address of Bluegreen listed herein and shall notify the parties hereto of any change to the same at least 30 days prior thereto. |
(xi) In the event that Bluegreen, the Seller or the Depositor or any assignee of the Depositor receives actual notice of any transfer taxes arising out of the transfer, assignment and conveyance of a Timeshare Loan to the Depositor, on written demand by the Depositor, or upon Bluegreen or the Seller otherwise being given notice thereof, Bluegreen shall cause the Seller to pay, and otherwise indemnify and hold the Depositor, or any subsequent assignee harmless, on an after‑tax basis, from and against any and all such transfer taxes. |
(b) The Seller hereby covenants and agrees with the Depositor as follows: |
(i) The Seller authorizes the Depositor, the Issuer, and the Indenture Trustee to file continuation statements, and amendments thereto, relating to the Timeshare Loans and all payments made with regard to the related Timeshare Loans without the signature of the Seller where permitted by law. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by law. The Depositor confirms that it is not its present intention to file a photocopy or other reproduction of this Agreement as a financing statement, but reserves the right to do so if, in its good faith determination, there is at such time no reasonable alternative remaining to it. |
(ii) It shall comply with all applicable laws, rules, regulations and orders applicable to it and its business and properties except where the failure to comply will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(iii) So long as the Warehouse Notes are outstanding, it shall preserve and maintain for itself its existence (corporate or otherwise), rights, franchises and privileges in the jurisdiction of its organization and except where the failure to so preserve and maintain will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a
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party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(iv) Any change in the legal name of the Seller and any use by it of any tradename, fictitious name, assumed name or “doing business as” name occurring after the Closing Date shall be promptly, within 10 Business Days, disclosed to the Depositor and the Indenture Trustee in writing. |
(v) On the Closing Date, it shall indicate in computer files and other records to indicate that each Initial Timeshare Loan has been sold to the Depositor. |
(vi) It shall respond to any inquiries with respect to ownership of an Initial Timeshare Loan by stating that such Timeshare Loan has been sold to the Depositor and that the Depositor is the owner of such Timeshare Loan. |
(vii) In the event that the Seller shall receive any payments in respect of a Timeshare Loan after the Closing Date, it shall, within two Business Days of receipt, transfer or cause to be transferred, such payments to the Lockbox Account. |
(viii) It agrees and authorizes the filing, at Bluegreen's expense, of the financing statements specified in Section 7(a)(v) and (vi) hereof in favor of the Depositor, the Issuer and the Indenture Trustee on behalf of the Noteholders, with respect to the Timeshare Loans. |
(ix) It agrees from time to time to, at Bluegreen's expense, promptly execute and deliver all further instruments and documents, and to take all further actions, that may be necessary, or that the Depositor, the Issuer or the Indenture Trustee may reasonably request, to perfect, protect or more fully evidence the sale of the Timeshare Loans, or to enable the Depositor, the Issuer or the Indenture Trustee to exercise and enforce its rights and remedies hereunder or under any Timeshare Loan including, but not limited to, powers of attorney, UCC financing statements and assignments of mortgage. The Seller hereby appoints Bluegreen, the Depositor, the Issuer and the Indenture Trustee as attorneys-in-fact, which appointment is coupled with an interest and is therefore irrevocable, to act on behalf and in the name of the Seller under this Section 7(b)(ix). |
SECTION 8. Indemnification. |
(a) Bluegreen hereby agrees to indemnify the Depositor, the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers (collectively, the “Indemnified Parties”) against any and all claims, losses, liabilities, (including reasonable legal fees and related costs) that the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers may sustain directly related to any breach of the representations and warranties of Bluegreen under Section 5 hereof, including, but not limited to, the costs of defending any claim or bringing any claim to enforce the indemnification obligations of Bluegreen (the “Indemnified Amounts”) excluding, however (i) Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Party; (ii) any recourse for any uncollectible Timeshare Loan not related to a breach of representation or warranty; (iii) recourse to Bluegreen for a related Defective Timeshare Loan so long as the same is cured, substituted or
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repurchased pursuant to Section 6 hereof; (iv) income, franchise or similar taxes by such Indemnified Party arising out of or as a result of this Agreement or the transfer of the Timeshare Loans; (v) Indemnified Amounts attributable to any violation by an Indemnified Party of any Requirement of Law related to an Indemnified Party; or (vi) the operation or administration of the Indemnified Party generally and not related to the enforcement of this Agreement. The parties hereto shall (A) promptly notify the other parties hereto, the Issuer and the Indenture Trustee if a claim is made by a third party with respect to this Agreement or the Timeshare Loans, and relating to (1) the failure by Bluegreen to perform its duties in accordance with the terms of this Agreement or (2) a breach of Bluegreen’s representations, covenants and warranties contained in this Agreement, (B) assume (with the consent of the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers, as applicable, which consent shall not be unreasonably withheld) the defense of any such claim and (C) pay all expenses in connection therewith, including reasonable legal counsel fees and promptly pay, discharge and satisfy any judgment, order or decree which may be entered against it or the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers in respect of such claim. If Bluegreen shall have made any indemnity payment pursuant to this Section 8 and the recipient thereafter collects from another Person any amount relating to the matters covered by the foregoing indemnity, the recipient shall promptly repay such amount to Bluegreen. |
(b) The obligations of Bluegreen under this Section 8 to indemnify the Depositor, the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers shall survive the termination of this Agreement, the resignation or removal of the parties thereto and continue until the Notes are paid in full or otherwise released or discharged. |
SECTION 9. No Proceedings. Each of the Seller and Bluegreen hereby agrees that it will not, directly or indirectly, institute, or cause to be instituted, or join any Person in instituting, against the Depositor or any Association, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day since the latest maturing Notes issued by the Issuer. |
SECTION 10. Notices, Etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and mailed or telecommunicated (if telecommunicated electronically, be followed by delivery via overnight courier or U.S. Mail), or delivered as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall not be effective until received by the party to whom such notice or communication is addressed. |
Seller
BXG Timeshare Trust I
c/o Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
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Depositor
BRFC 2022-A LLC
4950 Communication Avenue, Suite 900
Boca Raton, Florida 33431
Attention: Paul Humphrey, President
E-Mail: paul.humphrey@bluegreenvacations.com
Bluegreen
Bluegreen Vacations Corporation
4960 Conference Way North, Suite 100
Boca Raton, Florida 33431
Attention: Paul Humphrey, Senior Vice President, Finance, Capital Markets and Mortgage Operations
E-Mail: paul.humphrey@bluegreenvacations.com
SECTION 11. No Waiver; Remedies. No failure on the part of Bluegreen, the Seller, the Depositor or any assignee thereof to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any other remedies provided by law. |
SECTION 12. Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of the Depositor and its respective successors and assigns. Any assignee of the Depositor shall be an express third party beneficiary of this Agreement, entitled to directly enforce this Agreement. Neither the Seller nor Bluegreen may assign any of their rights and obligations hereunder or any interest herein without the prior written consent of the Depositor and any assignee thereof. The Depositor may, and intends to, assign all of its rights hereunder to the Issuer and each of the Seller and Bluegreen consents to any such assignment. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until its termination (or, in the case of the Seller, so long as the Warehouse Notes are outstanding) provided, however, that the rights and remedies with respect to any breach of any representation and warranty made by Bluegreen pursuant to Section 5 hereof, and the repurchase or substitution and indemnification obligations shall be continuing and shall survive any termination of this Agreement, but such rights and remedies may be enforced only by the Depositor, the Issuer and the Indenture Trustee. |
SECTION 13. Amendments; Consents and Waivers. No modification, amendment or waiver of, or with respect to, any provision of this Agreement, and all other agreements, instruments and documents delivered thereto, nor consent to any departure by the Seller or Bluegreen from any of the terms or conditions thereof shall be effective unless it shall be in writing and signed by each of the parties hereto, the written consent of the Indenture Trustee on behalf of the Noteholders is given and confirmation from each Rating Agency that such action will not result in a downgrade, withdrawal or qualification of any rating assigned to a
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Class of Notes is received. The Seller and Bluegreen shall provide to the Indenture Trustee and each Rating Agency with such proposed modifications, amendments or waivers. Any waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand by the Seller or Bluegreen in any case shall, in itself, entitle it to any other consent or further notice or demand in similar or other circumstances. Each of the Seller and Bluegreen acknowledges that in connection with the intended assignment by the Depositor of all of its right, title and interest in and to each Timeshare Loan to the Issuer, the Issuer intends to issue the Notes, the proceeds of which will be used by the Issuer to purchase the Timeshare Loans from the Depositor under the terms of the Sale Agreement. |
SECTION 14. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation, shall not in any way be affected or impaired thereby in any other jurisdiction. Without limiting the generality of the foregoing, in the event that a Governmental Authority determines that the Depositor may not purchase or acquire Timeshare Loans, the transactions evidenced hereby shall constitute a loan and not a purchase and sale, notwithstanding the otherwise applicable intent of the parties hereto, and the Seller shall be deemed to have granted to the Depositor as of the date hereof, a first priority perfected security interest in all of the Seller’s right, title and interest in, to and under such Timeshare Loans and the related property as described in Section 2 hereof. |
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION. |
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK. |
(B) THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE NON‑EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND EACH PARTY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO ITS ADDRESS SET FORTH IN SECTION 10 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE PARTIES HERETO EACH WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE PARTIES TO THIS AGREEMENT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
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THE RIGHT OF ANY OF THEM TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION. |
SECTION 16. WAIVERS OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT RELATED HERETO AND FOR ANY COUNTERCLAIM THEREIN. |
SECTION 17. Heading. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. |
SECTION 18. Signatures; Execution in Counterparts. This Agreement shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. Notwithstanding the foregoing, with respect to any notice provided for in this Agreement or any instrument required or permitted to be delivered hereunder, any party hereto receiving or relying upon such notice or instrument shall be entitled to request execution thereof by original manual signature as a condition to the effectiveness thereof. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. |
[Remainder of Page Intentionally Left Blank]
KL2 3279456, Transfer Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BRFC 2022-A LLC, as Depositor
By: /s/ Paul Humphrey
Name: Paul Humphrey
Title: President
BXG TIMESHARE TRUST I
By: Wilmington Trust Company,
as Owner Trustee
By: /s/ Lester E. Hendrix
Name: Lester E. Hendrix
Title: Vice President
BLUEGREEN VACATIONS CORPORATION
By: /s/ Raymond Lopez
Name: Raymond S. Lopez
Title: Executive Vice President, Chief Operating Officer, Chief Financial Officer and Treasurer
Agreed and acknowledged as to
the last paragraph of Section 3
herein only:
BLUEGREEN VACATION CLUB TRUST
By: Vacation Trust, Inc., individually and as Club Trustee
By: /s/ John P. Raney
Name: John P. Raney
Title: President
KL2 3279456, Transfer Agreement
Schedule I
Representations and Warranties of Bluegreen Regarding the Timeshare Loans
With respect to each Timeshare Loan, as of the Closing Date or the related Transfer Date, as applicable:
(a) |
payments due under such Timeshare Loan are fully-amortizing and payable in level monthly installments; |
(b) |
the payment obligations under such Timeshare Loan bear a fixed rate of interest; |
(c) |
the Obligor thereunder has made total payments (comprised of a down payment and/or principal payments) by cash, check, credit card or otherwise of at least 10% of the actual purchase price (including closing costs) of the related Timeshare Property (which down payment may, (i) in the case of Upgrade Club Loans or conversion in connection with an Introductory Loan be represented in whole or in part by the principal payments and down payment made on, as applicable, such related Original Club Loan or the related Introductory Loan since its date of origination, (ii) in the case of an Upgrade or a conversion in connection with an Introductory Product, be represented in whole or in part by the amount paid where the Obligor has paid in full, whether at the point of sale or otherwise for the original Timeshare Property or Introductory Product, as applicable) and no part of such payment in (i) or (ii) has been made or loaned to the Obligor by Bluegreen, the Seller or an Affiliate thereof, or (iii) in the case of a no equity loan, be represented by equity from a previous purchase |
(d) |
such Timeshare Loan is not a Defaulted Timeshare Loan and as of the related Cut-Off Date, no principal or interest due with respect to such Timeshare Loan is more than 30 days delinquent; |
(e) |
the Obligor related to such Timeshare Loan is not an Affiliate of Bluegreen or any Subsidiary; provided, that solely for the purposes of this representation, a relative of an employee and employees of Bluegreen or any Subsidiary (or any of its Affiliates) shall not be deemed to be an “Affiliate” of Bluegreen; |
(f) |
immediately prior to the conveyance of such Timeshare Loan to the Depositor, the Seller will own full legal and equitable title to such Timeshare Loan, and the Timeshare Loan (and the related Timeshare Property) is free and clear of adverse claims, liens and encumbrances and is not subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset, abatement, diminution, recoupment, counterclaim or participation or ownership interest in favor of any other Persons, other than Permitted Liens; |
(g) |
such Timeshare Loan (other than an Aruba Club Loan) is secured directly by a first priority Mortgage on the related purchased Timeshare Property; |
(h) |
with respect to each Deeded Club Loan, the Timeshare Property mortgaged by or at the direction of the related Obligor constitutes a fractional fee simple timeshare interest in
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real property at the related Resort or an undivided interest in a Resort (or a phase thereof) associated with a Unit that entitles the holder of the interest to the use of a specific property for a specified number of days each year or every other year, subject to the rules of the Bluegreen Vacation Club; the related Mortgage has been delivered for filing and recordation with all appropriate governmental authorities in all jurisdictions in which such Mortgage is required to be filed and recorded to create a valid, binding and enforceable first Lien on the related Timeshare Property and such Mortgage creates a valid, binding and enforceable first Lien on the related Timeshare Property, subject only to Permitted Liens; and the Seller (or Bluegreen, as the case may be) is in compliance with any Permitted Lien respecting the right to the use of such Timeshare Property; the Assignment of Mortgage and each related endorsement of the related Mortgage Note constitutes a duly executed, legal, valid, binding and enforceable assignment or endorsement, as the case may be, of such related Mortgage and related Mortgage Note, and all monies due or to become due thereunder, and all proceeds thereof; |
(i) |
with respect to the Obligor related to such Timeshare Loan and the related Timeshare Property purchased by such Obligor, there is only one original Mortgage (or certified true copy of the related recorded Mortgage) and Mortgage Note (or Lost Affidavit), in the case of a Deeded Club Loan, and only one original Owner Beneficiary Agreement (or Lost Note Affidavit), in the case of an Aruba Club Loan; all parties to the related Mortgage and the related Mortgage Note (and, in the case of an Aruba Club Loan, Owner Beneficiary Agreement (or Lost Note Affidavit)) had legal capacity to enter into such Timeshare Loan Documents and to execute and deliver such related Timeshare Loan Documents, and such related Timeshare Loan Documents have been duly and properly executed by such parties; any amendments to such related Timeshare Loan Documents required as a result of any mergers involving the Seller or Bluegreen or any of their predecessors, to maintain the rights of the Seller or Bluegreen or their predecessors thereunder as a mortgagee (or a Seller, in the case of an Aruba Club Loan) have been completed; |
(j) |
at the time of origination of such Timeshare Loan, the applicable Originator had full power and authority to originate such Timeshare Loan and the Obligor or the Club Trustee had good and indefeasible fee title or good and marketable fee simple title, or, in the case of an Aruba Club Loan, a cooperative interest, as applicable, to the Timeshare Property related to such Timeshare Loan, free and clear of all Liens, except for Permitted Liens; |
(k) |
the Mortgage (or, in the case of an Aruba Club Loan, the related Owner Beneficiary Agreement) contains customary and enforceable provisions so as to render the rights and remedies of the holder thereof adequate for the realization against the related Timeshare Property of the benefits of the security interests or lender’s contractual rights intended to be provided thereby, including (a) if the Mortgage is a deed of trust, by trustee’s sale, including power of sale, (b) otherwise by judicial foreclosure or power of sale and/or (c) termination of the contract, retention of Obligor deposits and payments towards such Timeshare Loan by the Originator or lender, as the case may be, and expulsion from the Club; in the case of the Deeded Club Loans, there is no exemption available to the related
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Obligor which would interfere with the mortgagee’s right to sell at a trustee’s sale or power of sale or right to foreclose such related Mortgage, as applicable; |
(l) |
any Mortgage Note related to such Timeshare Loan is not and has not been secured by any collateral except the Lien of the related Mortgage; |
(m) |
if a Mortgage secures such Timeshare Loan, the title to the related Timeshare Property is insured (or a binding commitment, which may be a master commitment referencing one or more Mortgages, for title insurance, not subject to any conditions other than standard conditions applicable to all binding commitments, has been issued) under a mortgagee title insurance policy (which may consist of one master policy referencing one or more such Mortgages) issued by a title insurer qualified to do business in the jurisdiction where the related Timeshare Property is located in a form generally acceptable to prudent originators of similar mortgage loans, insuring the Seller (or Bluegreen, as the case may be) or its predecessor and its successors and assigns, as to the first priority mortgage Lien of the related Mortgage in an amount equal to the original outstanding Loan Balance of such Timeshare Loan, and otherwise in form and substance acceptable to the Indenture Trustee; the Club Originator or its assignees is a named insured of such mortgagee’s title insurance policy; such mortgagee’s title insurance policy is in full force and effect; no claims have been made under such mortgagee’s title insurance policy and no prior holder of such Timeshare Loan has done or omitted to do anything which would impair the coverage of such mortgagee’s title insurance policy; no premiums for such mortgagee’s title insurance policy, endorsements and all special endorsements are past due; |
(n) |
the Seller or Bluegreen has not taken (or omitted to take), and has no notice that the Obligor related to such Timeshare Loan has taken (or omitted to take), any action that would impair or invalidate the coverage provided by any hazard, title or other insurance policy on the related Timeshare Property; |
(o) |
all applicable intangible taxes and documentary stamp taxes have been paid on such Timeshare Loan; |
(p) |
the proceeds of such Timeshare Loan have been fully disbursed, there is no obligation to make future advances or to lend additional funds under the applicable Originator’s commitment or the documents and instruments evidencing or securing such Timeshare Loan and no such advances or loans have been made since the origination of such Timeshare Loan; |
(q) |
the terms of each Timeshare Loan Document related to such Timeshare Loan have not been impaired, waived, altered or modified in any respect, except (x) by written instruments which are part of the related Timeshare Loan Documents or (y) in accordance with the Credit Policy in effect at the time of origination, the Collection Policy or the Servicing Standard (provided that no Timeshare Loan has been impaired, waived, altered, or modified in any respect more than once). No other instrument has been executed or agreed to which would affect any such impairment, waiver, alteration or modification; the Obligor has not been released from liability on or with respect to such Timeshare Loan, in whole or in part; if required by law or prudent originators of similar
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loans in the jurisdiction where the related Timeshare Property is located, all waivers, alterations and modifications have been filed and/or recorded in all places necessary to perfect, maintain and continue a valid first priority Lien of the related Mortgage subject only to Permitted Liens; |
(r) |
other than if it is an Aruba Club Loan, such Timeshare Loan is principally and directly secured by an interest in real property; |
(s) |
such Timeshare Loan was originated by Bluegreen or one of its Affiliates in the normal course of its business; was originated and underwritten in accordance with its underwriting guidelines and the Credit Policy in effect at the time of origination; and to Bluegreen’s Knowledge, the origination, servicing and collection practices used by Bluegreen and its Affiliates with respect to such Timeshare Loan have been in all respects, legal, proper, prudent and customary; |
(t) |
such Timeshare Loan is assignable to and by the obligee and its successors and assigns and the related Timeshare Property is assignable upon liquidation of such Timeshare Loan, without the consent of any other Person (including any Association, condominium association, homeowners’ or timeshare association); |
(u) |
the Mortgage related to such Timeshare Loan is and will be prior to any Lien on, or other interests relating to, the related Timeshare Property subject to Permitted Liens; |
(v) |
to Bluegreen’s Knowledge, there are no delinquent or unpaid taxes, ground rents (if any), water charges, sewer rents or assessments outstanding with respect to any of the Timeshare Properties, nor any other outstanding Liens or charges affecting the Timeshare Properties related to such Timeshare Loan that would affect the Lien of the related Mortgage or otherwise materially affect the interests of the Indenture Trustee on behalf of the Noteholders in such Timeshare Loan; |
(w) |
other than with respect to delinquent payments of principal or interest 30 or fewer days past due as of the Cut-Off Date, there is no default, breach, violation or event of acceleration existing under the Mortgage, the related Mortgage Note or any other document or instrument evidencing, guaranteeing, insuring or otherwise securing such Timeshare Loan, and no event which, with the lapse of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration thereunder; and the Seller or Bluegreen has not waived any such material default, breach, violation or event of acceleration under the Owner Beneficiary Agreement, Mortgage, the Mortgage Note or any such other document or instrument, as applicable; |
(x) |
neither the Obligor related to such Timeshare Loan nor any other Person has the right, by statute, contract or otherwise, to seek the partition of the related Timeshare Property; |
(y) |
such Timeshare Loan has not been satisfied, canceled, rescinded or subordinated, in whole or in part; no portion of the related Timeshare Property has been released from the Lien of the related Mortgage, in whole or in part; no instrument has been executed that would effect any such satisfaction, cancellation, rescission, subordination or release; the
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terms of the related Mortgage do not provide for a release of any portion of the related Timeshare Property from the Lien of the related Mortgage except upon the payment of such Timeshare Loan in full; |
(z) |
the Seller and, to Bluegreen’s Knowledge, each other party which has had an interest in such Timeshare Loan is (or, during the period in which such party held and disposed of such interest, was) in compliance with any and all applicable filing, licensing and “doing business” requirements of the laws of the state wherein the related Timeshare Property is located to the extent necessary to permit the Seller to maintain or defend actions or proceedings with respect to such Timeshare Loan in all appropriate forums in such state without any further act on the part of any such party; |
(aa) |
there is no current obligation on the part of any other person (including any buy down arrangement) to make payments on behalf of the Obligor in respect of such Timeshare Loan; |
(bb) |
the Associations related to such Timeshare Loan were duly organized and are validly existing; a manager (the “Manager”) manages such Resort and performs services for the Associations, pursuant to an agreement between the Manager and the respective Associations, such contract being in full force and effect; to Bluegreen’s Knowledge, the Manager and the Associations have performed in all material respects all obligations under such agreement and are not in default under such agreement; |
(cc) |
in the case of the Opinion Resorts and to Bluegreen’s Knowledge with respect to the Non-Opinion Resorts, (i) the Resort related to such Timeshare Loan is insured in the event of fire, earthquake, or other casualty for the full replacement value thereof, and in the event that the related Timeshare Property should suffer any loss covered by casualty or other insurance, upon receipt of any insurance proceeds, the Associations at the Resorts are required, during the time such Resort is covered by such insurance, under the applicable governing instruments either to repair or rebuild the portions of the Resort in which the related Timeshare Property is located or to pay such proceeds as their interests may appear to the holders of any related Mortgage secured by the Timeshare Property located at such Resort; (ii) the related Resort, if located in a designated flood plain, maintains flood insurance in an amount not less than the maximum level available (without regard to reasonable deductibles) under the National Flood Insurance Act of 1968, as amended or any applicable laws; (iii) the related Resort has business interruption insurance and general liability insurance in such amounts generally acceptable in the industry; and (iv) the related Resort’s insurance policies are in full force and effect with a generally acceptable insurance carrier; |
(dd) |
the obligee of the related Mortgage related to such Timeshare Loan, and its successors and assigns, has the right to receive and direct the application of insurance and condemnation proceeds received in respect of the related Timeshare Property, except where the related condominium declarations, timeshare declarations, the Club Trust Agreement or applicable state law provide that insurance and condemnation proceeds be applied to restoration or replacement of the improvements or acquisition of similar improvements, as the case may be; |
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(ee) |
each rescission period applicable to such Timeshare Loan has expired; |
(ff) |
no selection procedures were intentionally utilized by the Seller in selecting such Timeshare Loan, which the Seller knew were materially adverse to the Depositor, the Indenture Trustee or the Noteholders; |
(gg) |
except as set forth on Schedule II hereto, in the case of the Opinion Resorts and to Bluegreen’s Knowledge with respect to the Non-Opinion Resorts, the Units related to such Timeshare Loan in the related Resort have been completed in all material respects as required by applicable state and local laws, free of all defects that could give rise to any claims by the related Obligors under home warranties or applicable laws or regulations, whether or not such claims would create valid offset rights under the law of the State in which the Resort is located; to the extent required by applicable law, valid certificates of occupancy for such Units have been issued and are currently outstanding; the Seller or any of its Affiliates have complied in all material respects with all obligations and duties incumbent upon the developers under the related timeshare declaration (each a “Declaration”), as applicable, or similar applicable documents for the related Resort; no practice, procedure or policy employed by the related Association in the conduct of its business violates any law, regulation, judgment or agreement, including, without limitation, those relating to zoning, building, use and occupancy, fire, health, sanitation, air pollution, ecological, environmental and toxic wastes, applicable to such Association which, if enforced, would reasonably be expected to (a) have a material adverse impact on such Association or the ability of such Association to do business, (b) have a material adverse impact on the financial condition of such Association, or (c) constitute grounds for the revocation of any license, charter, permit or registration which is material to the conduct of the business of such Association; the related Resort and the present use thereof does not violate any applicable environmental, zoning or building laws, ordinances, rules or regulations of any governmental authority, or any covenants or restrictions of record, so as to materially adversely affect the value or use of such Resort or the performance by the related Association of its obligations pursuant to and as contemplated by the terms and provisions of the related Declaration; there is no condition presently existing, and, to Bluegreen’s Knowledge, no event has occurred or failed to occur prior to the date hereof, concerning the related Resort relating to any hazardous or toxic materials or condition, asbestos or other environmental or similar matters which would reasonably be expected to materially and adversely affect the present use of such Resort or the financial condition or business operations of the related Association, or the value of the Notes; |
(hh) |
except if such Timeshare Loan is listed on Schedule II hereto, the original Loan Balance of such Timeshare Loan does not exceed $75,000; |
(ii) |
payments with respect to such Timeshare Loan are to be in legal tender of the United States; |
(jj) |
all monthly payments (as applicable) made with respect to such Timeshare Loan have been made by the Obligor and not by the Seller, Bluegreen or any Affiliates thereof on the Obligor’s behalf; |
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(kk) |
such Timeshare Loan relates to a Resort; |
(ll) |
such Timeshare Loan constitutes either “chattel paper”, a “general intangible” or an “instrument” as defined in the UCC as in effect in all applicable jurisdictions; |
(mm) |
the sale, transfer and assignment of such Timeshare Loan and the Related Security does not contravene or conflict with any law, rule or regulation or any contractual or other restriction, limitation or encumbrance, and the sale, transfer and assignment of such Timeshare Loan and the Related Security do not require the consent of the Obligor; |
(nn) |
such Timeshare Loan, the Related Security, related Assignment of Mortgage, related Mortgage, related Mortgage Note, related Owner Beneficiary Agreement (each as applicable) and each other related Timeshare Loan Document are in full force and effect, constitute the legal, valid and binding obligation of the Obligor thereof enforceable against such Obligor in accordance with its terms subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, assignment, liquidation, conservatorship or moratorium, and is not subject to any dispute, offset, counterclaim or defense whatsoever; |
(oo) |
such Timeshare Loan relates to a Completed Unit; such Timeshare Loan and the Related Security do not, and the origination of each Timeshare Loan did not, contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, retail installment sales, truth in lending, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party thereto has been or is in violation of any such law, rule or regulation in any material respect if such violation would impair the collectibility of such Timeshare Loan and the Related Security; no Timeshare Loan was originated in, or is subject to the laws of, any jurisdiction under which the sale, transfer, conveyance or assignment of such Timeshare Loan would be unlawful, void or voidable; |
(pp) |
to Bluegreen’s Knowledge, (i) no bankruptcy is currently existing with respect to the Obligor related to such Timeshare Loan, (ii) such Obligor is not insolvent and (iii) such Obligor is not an Affiliate of Bluegreen; |
(qq) |
except if such Timeshare Loan is listed on Schedule II hereto, such Timeshare Loan shall not have a Timeshare Loan Rate less than 6% per annum; |
(rr) |
except in the case of an Upgrade Club Loan replacing its related Original Club Loan, the Obligor related to such Timeshare Loan has made at least one required payment with respect to the Timeshare Loan (not including any down payment); |
(ss) |
if a Resort for which Bluegreen is the Manager (other than La Cabana Resort) is subject to a construction loan, the construction lender shall have signed and delivered a non-disturbance agreement (which may be contained in such lender’s mortgage) pursuant to which such construction lender agrees not to foreclose on any Timeshare Properties relating to such Timeshare Loan or by the terms of the construction loan, the related Timeshare Property has been released from the lien created thereby, which have been sold pursuant to this Agreement; |
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(tt) |
except as set forth on Schedule II hereto, the Timeshare Properties and the Resorts related to such Timeshare Loan are free of material damage and waste and are in good repair, ordinary wear and tear excepted, and fully operational, subject to renovations for improvements from time to time; there is no proceeding pending or threatened for the total or partial condemnation of or affecting any Timeshare Property or taking of the Timeshare Property by eminent domain; the Timeshare Properties and the Resorts in which the Timeshare Properties are located are lawfully used and occupied under applicable law by the owner thereof; |
(uu) |
except as set forth on Schedule II hereto, the portions of the Resorts in which the Timeshare Properties are located which represent the common facilities are free of material damage and waste and are in good repair and condition, ordinary wear and tear excepted, subject to renovations for improvements from time to time; |
(vv) |
no foreclosure or similar proceedings have been instituted and are continuing with respect to such Timeshare Loan or the related Timeshare Property; |
(ww) |
if such Timeshare Loan is an Aruba Club Loan, Bluegreen shall own, directly or indirectly, 100% of the economic and voting interests of the Aruba Originator; |
(xx) |
such Timeshare Loan does not have an original term to maturity in excess of 120 months; |
(yy) |
to Bluegreen’s Knowledge, the capital reserves and maintenance fee levels of the Associations of the Resorts related to such Timeshare Loan are adequate in light of the operating requirements of such Associations; |
(zz) |
except as required by law, such Timeshare Loan may not be assumed without the consent of the obligee; |
(aaa) |
for each Club Loan, the Obligor under such Timeshare Loan does not have its rights under the Club Trust Agreement suspended; |
(bbb) |
the payments under such Timeshare Loan are not subject to withholding taxes imposed by any foreign governments; |
(ccc) |
each entry with respect to such Timeshare Loan as set forth on Schedule II and Schedule III hereof is true and correct. If such Timeshare Loan is a Qualified Substitute Timeshare Loan, each entry with respect to such Qualified Substitute Timeshare Loan as set forth on Schedule II and Schedule III hereof, as revised, is true and correct; |
(ddd) |
if such Timeshare Loan relates to a Timeshare Property located in Aruba, a notice has been mailed or will be mailed within 30 days of the Closing Date or the related Transfer Date, as applicable, to the related Obligor indicating that such Timeshare Loan has been transferred to the Depositor and has ultimately been transferred to the Issuer and pledged to the Indenture Trustee for the benefit of the Noteholders; |
(eee) |
no broker is, or will be, entitled to any commission or compensation in connection with the transfer of such Timeshare Loans hereunder. |
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(fff) |
[RESERVED]; |
(ggg) |
if such Timeshare Loan relates to a Timeshare Property located in the State of Michigan and was originated prior to Bluegreen obtaining a license under the Michigan Mortgage Brokers, Lenders and Servicers Licensing Act, Bluegreen shall have confirmed that the interest rate on such Timeshare Loan is enforceable in the manner specified as effective in an opinion by Michigan local counsel; |
(hhh) |
[RESERVED]; |
(iii) |
[RESERVED]; and |
(jjj) |
with respect to such Timeshare Loan, there exists a Timeshare Loan File and such Timeshare Loan File contains or will contain each item listed in the definition of Timeshare Loan File with respect to such Timeshare Loan and such Timeshare Loan File is in the possession of the Custodian, subject to the Custodian’s exception report pursuant to the Custodial Agreement. |
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Schedule II
Exceptions
With respect to (gg): Solara Surfside – Surfside, Florida
With respect to (hh):
Loan |
Original Balance |
|
2262040 | $100,500.00 | |
2272916 | $94,950.00 | |
2260603 | $94,500.00 | |
2212773 | $91,840.00 | |
2267916 | $90,297.00 | |
2209886 | $87,099.30 | |
2216593 | $86,400.00 | |
2253283 | $85,000.00 | |
2258501 | $83,690.00 | |
2273734 | $83,500.00 | |
2276145 | $79,999.00 | |
2129813 | $79,828.53 | |
2272474 | $79,120.00 | |
2207407 | $77,440.00 | |
2264699 | $75,348.00 | |
2267993 | $75,252.00 |
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Schedule III
Schedule of Timeshare Loans
[Electronic Schedule of Timeshare Loans on file with the Depositor]
Schedule 5
Exhibit A
Form of Waiver Letter
Date:
U.S. Bank Trust Company, National Association, as Indenture Trustee of BXG Receivables Note Trust 2022-A
190 S. LaSalle St., 7th Floor
MK-IL-SL7C
Chicago, IL 60603
BXG Receivables Note Trust 2022-A
c/o Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention:Corporate Trust Services
BXG Receivables Note Trust 2022-A
In accordance with Section 6(c) of that certain Transfer Agreement (the “Transfer Agreement”), dated as of April 28, 2022, by and among Bluegreen Vacations Corporation, a Florida 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 BRFC 2022-A LLC, a Delaware limited liability company (the “Depositor”), the undersigned hereby irrevocably waives its option to repurchase and/or substitute any Defaulted Timeshare Loan listed on Exhibit A attached hereto.
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Transfer Agreement.
In Witness Whereof, the undersigned has caused its name to be signed hereby by its duly authorized officer, as of the day and year written above.
BLUEGREEN VACATIONS CORPORATION
By:__________________________________
Name:
Title:
Exhibit A
Exhibit A to Form of ROAP Waiver Letter
Exhibit C
Exhibit D
FORM OF LOST NOTE AFFIDAVIT
STATE OF ___________
COUNTY OF _________
______________ (“Affiant”), on behalf of and as _________________ of BXG Timeshare Trust I, a statutory trust formed under the laws of the State of Delaware (the “Seller”), being duly sworn, deposes and says:
1.This Lost Note Affidavit is being delivered by the Affiant pursuant to that certain Transfer Agreement (as amended, restated, supplemented, replaced, renewed or otherwise modified from time to time, the “Transfer Agreement”), dated as of April 28, 2022, by and among the Seller, Bluegreen Vacations Corporation and BRFC 2022-A LLC. Unless otherwise defined herein, capitalized terms have the meanings ascribed to such terms in the Transfer Agreement and the Standard Definitions thereto.
2.That ____________________________________________ has issued a [Mortgage Note][Owner Beneficiary Agreement] evidencing a Timeshare Loan dated __________________ in the principal amount of $_________________ [(the “Original Note”)] [(the “Original Agreement”)] to ______________________].
3.The [Original Note][Original Agreement] has been lost, destroyed, or stolen so that it cannot be found or produced, and the Seller has not endorsed, assigned, sold, pledged, hypothecated, negotiated or otherwise transferred the [Original Note][Original Agreement] or an interest therein.
4.That the Seller has made a diligent effort to find the [Original Note][Original Agreement].
5.It is understood by the Seller that if the [Original Note][Original Agreement] is found, that it shall surrender said [Original Note][Original Agreement] to the Custodian or its permitted successors and assigns in exchange for this Lost Note Affidavit.
___________________________________
Printed Name:
The foregoing affidavit was sworn to and subscribed before me this _____ day of _____________, _______, by ______________, as _______________________ of ____________________________________, who is personally known to me or who has produced ____________________ as identification and who did take an oath.
___________________________________
(AFFIX NOTARIAL SEAL)Notary Public, State of __________
(Name)
Commission Number: _________________My Commission Expires
Exhibit D
Execution Copy
(Bluegreen to Depositor – Initial Timeshare Loans and Subsequent Timeshare Loans)
PURCHASE AND CONTRIBUTION AGREEMENT
This PURCHASE AND CONTRIBUTION AGREEMENT (this “Agreement”), dated as of April 28, 2022, is by and between Bluegreen Vacations Corporation, a Florida corporation (“Bluegreen” or the “Seller”) and BRFC 2022-A LLC, a Delaware limited liability company (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 April 28, 2022 (the “Sale Agreement”), by and between the Depositor and BXG Receivables Note Trust 2022-A, a Delaware statutory trust (the “Issuer”) pursuant to which the Depositor intends to sell to the Issuer the timeshare loans 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 April 28, 2022, 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 April 28, 2022 (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 LLC, as backup servicer, and U.S. Bank Trust Company, National Association, as indenture trustee (the “Indenture Trustee”) and U.S. Bank National Association, as custodian (the “Custodian”), whereby the Issuer will pledge the Trust Estate (as defined in the Indenture) to the Indenture Trustee to secure the Issuer’s 4.12% Timeshare Loan‑Backed Notes, Series 2022-A, Class A, 4.61% Timeshare Loan-Backed Notes, Series 2022-A, Class B and 5.35% Timeshare Loan‑Backed Notes, Series 2022-A, Class C (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 (ii) Bluegreen, as the sole member 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 member of the Depositor, desires to make a contribution of capital pursuant to the terms hereof;
WHEREAS, pursuant to the terms of (i) the Sale Agreement, the Depositor shall sell to the Issuer the Initial Timeshare Loans 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 and the Subsequent Timeshare Loans, as part of the Trust Estate, to the Indenture Trustee to secure the Notes;
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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 an Initial Timeshare Loan or a Subsequent Timeshare Loan that is a Defective Timeshare Loan, 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:
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. |
SECTION 2. Acquisition of Timeshare Loans and Contribution of Capital to the Depositor. |
(a) 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 (the property in clauses (i)-(v), being the “Assets”). 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 and GAAP consolidation, 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. |
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(b) 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 or by 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. |
(c) Collections. The Seller shall deposit or cause to be deposited all collections in respect of the Initial Timeshare Loans, the Subsequent Timeshare Loans and the Qualified Substitute Timeshare Loans (collectively, 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 into the Lockbox Account. |
(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 each transfer of the 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 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, 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 and the QSTL Assets (as hereinafter defined) specified in Section 2(a) hereof and Section 6(f) hereof, respectively, 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
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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 and the QSTL 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 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 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 and correct on such date. |
(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 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 Transaction Documents 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
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respective consideration to the extent necessary, to pay the Timeshare Loan Acquisition Price for each Initial Timeshare Loan. |
(f) 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. |
(g) 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. |
(h) 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. |
(i) The Depositor shall have received such other certificates and opinions as it shall reasonably request. |
SECTION 5. Representations and Warranties and Certain Covenants of the Seller. |
(a) 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. |
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(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, 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
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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 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 “RISK FACTORS—Litigation Risks” in the Offering Circular, 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
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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, (A) neither Bluegreen nor any of its Commonly Controlled Affiliates has or have incurred any “accumulated funding deficiency” (as such term is defined under ERISA and the Code for such years), whether or not waived, with respect to any Employee Pension Benefit Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect (as defined below), and, to Bluegreen’s Knowledge, no event has occurred or circumstance exists that may result in any accumulated funding deficiency of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (B) neither Bluegreen nor any of its Commonly Controlled Affiliates has any unpaid “minimum required contribution” (as such term is defined under ERISA and the Code) with respect to any Employee Pension Benefit Plan, whether or not such unpaid minimum required contribution is waived, that either individually or in the aggregate could Cause a Material Adverse Effect, and, to Bluegreen’s Knowledge for any such year, no event has occurred or circumstance exists that resulted or may result in any unpaid minimum required contribution as of the last day of the current plan year of any such plan that either individually or in the aggregate could Cause a Material Adverse Effect; (C) Bluegreen and each of its Commonly Controlled Affiliates have no outstanding liability for any undisputed contribution required under any Bluegreen Multiemployer Plan (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect; and (D) Bluegreen and each of its Commonly Controlled Affiliates have no outstanding liability for any disputed contribution required under any Bluegreen Multiemployer Plan that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to Bluegreen’s Knowledge (1) neither Bluegreen nor any of its Commonly Controlled Affiliates has incurred any Withdrawal Liability (as defined below) that either individually or in the aggregate could Cause a Material Adverse Effect, and (2) no event has occurred or circumstance exists that could result in any Withdrawal Liability that either individually or in the aggregate could Cause a Material Adverse Effect. As of the Closing Date and as of each Transfer Date, as applicable, to Bluegreen’s Knowledge, neither Bluegreen nor any of its Commonly Controlled Affiliates has received notification of the reorganization, termination, partition, or insolvency of any Multiemployer Plan that could either individually or in the aggregate Cause a Material Adverse Effect. For purposes of this subsection (a)(xii), “Cause a Material Adverse Effect” means reasonably be expected to result in a material adverse effect on Bluegreen and its Commonly Controlled Affiliates in the aggregate; “Commonly Controlled Affiliates” means those direct or indirect affiliates of Bluegreen that would be considered a single employer with Bluegreen under Section 414(b), (c), (m), or (o) of the Code; “Employee Pension Benefit Plan” means an employee pension benefit plan as such term is defined in Section 3(2) of ERISA that is sponsored, maintained or contributed to by Bluegreen or any of its Commonly Controlled Affiliates (other than a Bluegreen Multiemployer Plan); “Multiemployer Plan” means a multiemployer plan as such term is defined in Section 3(37) of ERISA; “Bluegreen Multiemployer Plan” means a Multiemployer Plan to which Bluegreen or any of its Commonly Controlled Affiliates contributes or in which Bluegreen or any of its Commonly Controlled Affiliates participates; and “Withdrawal Liability” means liability as determined under ERISA for the complete or partial withdrawal of Bluegreen or any of its Commonly Controlled Affiliates from a Multiemployer Plan. |
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(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, 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 or other governmental charge 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 access to 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 State of Florida. |
(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 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 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
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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 not permitted any such Timeshare Properties to be made subject to any lien or encumbrance; |
(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 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; |
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(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. |
(b) 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. |
(c) 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 sold hereunder to the Depositor and any assignment of such Timeshare Loan by the Depositor and shall continue so 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 sold hereunder 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. |
(d) With respect to any representations and warranties contained in this 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) hereof. |
SECTION 6. Repurchases and Substitutions. |
(a) 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
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(on the date on which such representation or warranty was made) which materially and adversely affects the value of a Timeshare Loan or the interests of the Depositor or any subsequent assignee of the Depositor (including the Issuer and the Indenture Trustee on behalf of the Noteholders) therein, the Seller shall, within 60 days of receipt of such notice, cure in all material respects the circumstance or condition which has caused such representation or warranty to be incorrect or if the breach relates to a particular Timeshare Loan and is not cured in all material respects (such Timeshare Loan, a “Defective Timeshare Loan”) either (i) repurchase such Defective Timeshare Loan at the Repurchase Price, or (ii) provide one or more Qualified Substitute Timeshare Loans and pay the related Substitution Shortfall Amount, if any. The Seller acknowledges that the Depositor shall, pursuant to the Sale Agreement sell Timeshare Loans and rights and remedies acquired hereunder to the Issuer and that the Issuer shall pledge such Timeshare Loans and rights to the Indenture Trustee for the benefit of the Noteholders. The Seller further acknowledges that the Indenture Trustee will be appointed attorney-in-fact under the Indenture and may enforce the Seller’s repurchase or substitution obligations if the Seller has not complied with its repurchase or substitution obligations under this Agreement within the aforementioned 60-day period. |
(b) Optional Purchases or Substitutions of Club Loans. The Depositor hereby irrevocably grants to the Seller an option to repurchase or substitute Original Club Loans it has under the Sale Agreement, the Transfer Agreement and as described in the following sentence. With respect to any Original Club Loans for which the related Obligor has elected to effect and the Seller has agreed to effect an Upgrade, the Seller will (at its option) either (i) pay the Repurchase Price for such Original Club Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Original Club Loan and pay the related Substitution Shortfall Amounts, if any; provided, however, that, in the case of an Obligor's election to upgrade, the Seller’s option to substitute one or more Qualified Substitute Timeshare Loans for an Original Club Loan is limited on any date to (x) 15% of the Aggregate Closing Date Collateral Balance less (y) the aggregate Loan Balances of all Original Club Loans previously substituted by the Seller on prior Transfer Dates pursuant to this Agreement, the Transfer Agreement and/or the Sale Agreement. The Seller shall use its best efforts to exercise its substitution option with respect to Original Club Loans prior to exercise of its repurchase option. To the extent that the Seller shall elect to substitute Qualified Substitute Timeshare Loans for an Original Club Loan, the Seller shall use its best efforts to cause each such Qualified Substitute Timeshare Loan to be, in the following order of priority, (i) the Upgrade Club Loan related to such Original Club Loan and (ii) an Upgrade Club Loan unrelated to such Original Club Loan. |
(c) Optional Purchases or Substitutions of Defaulted Timeshare Loans. The Depositor hereby irrevocably grants to the Seller an option to repurchase or substitute Defaulted Timeshare Loans it has under the Sale Agreement, the Transfer Agreement and as described in the following sentence. With respect to Defaulted Timeshare Loans on any date, the Seller will have the option, but not the obligation, to either (i) purchase such Defaulted Timeshare Loan at the Repurchase Price for such Defaulted Timeshare Loan or (ii) substitute one or more Qualified Substitute Timeshare Loans for such Defaulted Timeshare Loan and pay the related Substitution Shortfall Amount, if any; provided, however, that the Seller’s option to purchase a Defaulted Timeshare Loan or to substitute one or more Qualified Substitute Timeshare Loans for a Defaulted Timeshare Loan is limited on any date to the Optional Purchase Limit and the Optional Substitution Limit, respectively. The Seller may irrevocably waive its option to
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purchase or substitute a Defaulted Timeshare Loan by delivering or causing to be delivered to the Indenture Trustee a Waiver Letter in the form of Exhibit A attached hereto. |
(d) Payment of Repurchase Prices and Substitution Shortfall Amounts. The Seller hereby agrees to remit or cause to be remitted all amounts in respect of Repurchase Prices and Substitution Shortfall Amounts payable during the related Due Period in immediately available funds to the Indenture Trustee to be deposited in the Collection Account on the Business Day immediately preceding the related Payment Date for such Due Period in accordance with the provisions of the Indenture. In the event that more than one Timeshare Loan is replaced pursuant to Sections 6(a), (b) or (c) hereof on any Transfer Date, the Substitution Shortfall Amounts and the Loan Balances of Qualified Substitute Timeshare Loans shall be calculated on an aggregate basis for all substitutions made on such Transfer Date. |
(e) Schedule of Timeshare Loans. The Seller hereby agrees, on each date on which a Timeshare Loan has been repurchased, purchased or substituted, to provide or cause to be provided to the Depositor, the Issuer and the Indenture Trustee with an electronic supplement to Schedule III hereto and the Schedule of Timeshare Loans reflecting the removal and/or substitution of Timeshare Loans and subjecting any Qualified Substitute Timeshare Loans to the provisions of this Agreement. |
(f) Qualified Substitute Timeshare Loans. Pursuant to Section 6(g) hereof, on the related Transfer Date, the Seller hereby agrees to deliver or to cause the delivery of the Timeshare Loan Files relating to the Qualified Substitute Timeshare Loans to the Indenture Trustee or to the Custodian, at the direction of the Indenture Trustee, in accordance with the provisions of the Indenture and the Custodial Agreement. As of such related Transfer Date, 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) each Qualified Substitute Timeshare Loan conveyed to the Depositor on such Transfer Date, (ii) the Receivables in respect of the Qualified Substitute Timeshare Loans due after the related Cut-Off Date, (iii) the related Timeshare Loan Documents (excluding any rights as developer or declarant under the Timeshare Declaration, the Timeshare Program Consumer Documents or the Timeshare Program Governing Documents), (iv) all Related Security in respect of such Qualified Substitute Timeshare 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 “QSTL Assets”). Upon such sale, the ownership of each Qualified Substitute 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 6(f) 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 Qualified Substitute Timeshare Loan for any purpose whatsoever other than federal and state income tax reporting and GAAP consolidation. The Seller agrees that such Qualified Substitute Timeshare Loans shall be subject to the provisions of this Agreement and shall thereafter be deemed a “Timeshare Loan” for the purposes of this Agreement. |
(g) Officer’s Certificate for Qualified Substitute Timeshare Loans. The Seller shall, on each related Transfer Date, certify or cause to be certified in writing to the Depositor, the Issuer and the Indenture Trustee that each new Timeshare Loan meets all the criteria of the
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definition of “Qualified Substitute Timeshare Loan” and that (i) the Timeshare Loan Files for such Qualified Substitute Timeshare Loans have been delivered to the Custodian or shall be delivered within five Business Days of the applicable Transfer Date, and (ii) the Timeshare Loan Servicing Files for such Qualified Substitute Timeshare Loans have been delivered to the Servicer. |
(h) Subsequent Transfer Notices. The Seller shall, on each related Transfer Date, deliver a Subsequent Transfer Notice in the form attached as Exhibit N to the Indenture, as specified by Section 4.2 of the Indenture. |
(i) Release. In connection with any repurchase, purchase or substitution of one or more Timeshare Loans contemplated by this Section 6, upon satisfaction of the conditions contained in this Section 6, the Depositor, the Issuer and the Indenture Trustee shall execute and deliver or shall cause the execution and delivery of such releases and instruments of transfer or assignment presented to it by the Seller, in each case without recourse, as shall be necessary to vest in the Seller or its designee the legal and beneficial ownership of such Timeshare Loans; provided, however, that with respect to any release of a Timeshare Loan that is substituted for by one or more Qualified Substitute Timeshare Loans, the Issuer and the Indenture Trustee shall not execute and deliver or cause the execution and delivery of such releases and instruments of transfer or assignment until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. The Depositor, the Issuer and the Indenture Trustee shall cause the Custodian to release the related Timeshare Loan Files to the Seller or its designee and the Servicer to release the related Timeshare Loan Servicing Files to the Seller or its designee; provided, however, that with respect to any Timeshare Loan File or Timeshare Loan Servicing File related to a Timeshare Loan that has been substituted by a Qualified Substitute Timeshare Loan, the Issuer and the Indenture Trustee shall not cause the Custodian and the Servicer to release the related Timeshare Loan File and the Timeshare Loan Servicing File, respectively, until the Indenture Trustee and the Servicer receive a Custodian’s Certification for such Qualified Substitute Timeshare Loan. |
(j) Sole Remedy. It is understood and agreed that the obligations of the Seller contained in Section 6(a) hereof to cure a breach, or to repurchase or substitute Defective Timeshare Loans, and the obligation of the Seller to indemnify pursuant to Section 8 hereof, shall constitute the sole remedies available to the Depositor or its subsequent assignees for the breaches of any representation or warranty contained in Section 5 hereof and such remedies are not intended to and do not constitute “credit recourse” to the Seller. |
SECTION 7. Additional Covenants of the Seller. The Seller hereby covenants and agrees with the Depositor as follows: |
(a) It shall comply with all laws, rules, regulations and orders applicable to it and its business and properties except where the failure to comply will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
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(b) It shall preserve and maintain its existence (corporate or otherwise), rights, franchises and privileges in the jurisdiction of its organization and except where the failure to so preserve and maintain will not have a material adverse effect on its business or its ability to perform its obligations under this Agreement or any other Transaction Document to which it is a party or under the transactions contemplated hereunder or thereunder or the validity or enforceability of the Timeshare Loans. |
(c) On the Closing Date and each Transfer Date, as applicable, it shall indicate in its and its Affiliates’ computer files and other records that each Timeshare Loan has been sold to the Depositor. |
(d) It shall respond to any inquiries with respect to ownership of a Timeshare Loan by stating that such Timeshare Loan has been sold to the Depositor and that the Depositor is the owner of such Timeshare Loan. |
(e) On or prior to the Closing Date, it shall file or cause to be filed, at its own expense, financing statements in favor of the Depositor, and, if applicable, the Issuer and the Indenture Trustee on behalf of the Noteholders, with respect to the Timeshare Loans, in the form and manner reasonably requested by the Depositor or its assigns. The Seller shall deliver file-stamped copies of such financing statements to the Depositor, the Issuer and the Indenture Trustee on behalf of the Noteholders. |
(f) It agrees from time to time to, at its expense, promptly execute and deliver all further instruments and documents, and to take all further actions, that may be necessary, or that the Depositor, the Issuer or the Indenture Trustee may reasonably request, to perfect, protect or more fully evidence the sale and contribution of the Timeshare Loans to the Depositor, or to enable the Depositor to exercise and enforce its rights and remedies hereunder or under any Timeshare Loan including, but not limited to, powers of attorney, UCC financing statements and assignments of mortgage. It hereby appoints the Depositor, the Issuer and the Indenture Trustee as attorneys-in-fact, which appointment is coupled with an interest and is therefore irrevocable, to act on behalf and in the name of the Seller under this Section 7(f). |
(g) On the Closing Date, the Seller does not have any tradenames, fictitious names, assumed names or “doing business as” names other than “Bluegreen Corporation of Massachusetts” in Louisiana. After the Closing Date, any change in the legal name of the Seller or the use by it of any tradename, fictitious name, assumed name or “doing business as” name other than the foregoing shall be promptly (but no later than ten Business Days) disclosed to the Depositor and the Indenture Trustee in writing. |
(h) Upon the discovery or receipt of notice by a Responsible Officer of the Seller of a breach of any of its representations or warranties and covenants contained herein, the Seller shall promptly disclose to the Depositor, the Issuer and the Indenture Trustee, in reasonable detail, the nature of such breach. |
(i) In the event that the Seller shall receive any payments in respect of a Timeshare Loan after the Closing Date or a Transfer Date, as applicable, the Seller shall, within
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two Business Days of receipt, transfer or cause to be transferred, such payments to the Lockbox Account. |
(j) The Seller will keep its principal place of business and chief executive office and the office where it keeps access to its records concerning the Timeshare Loans at the address of Bluegreen listed herein and shall notify the parties hereto of any change to the same at least thirty (30) days prior thereto. |
(k) In the event that the Seller or the Depositor or any assignee of the Depositor receives actual notice of any transfer taxes arising out of the transfer, assignment and conveyance of a Timeshare Loan to the Depositor, on written demand by the Depositor, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Depositor, or any subsequent assignee, harmless, on an after-tax basis, from and against any and all such transfer taxes. |
(l) The Seller authorizes the Depositor, the Issuer and the Indenture Trustee to file continuation statements, and amendments thereto, relating to the Timeshare Loans and all payments made with regard to the related Timeshare Loans without the signature of the Seller where permitted by law. A photocopy or other reproduction of this Agreement shall be sufficient as a financing statement where permitted by law. The Depositor confirms that it is not its present intention to file a photocopy or other reproduction of this Agreement as a financing statement, but reserves the right to do so if, in its good faith determination, there is at such time no reasonable alternative remaining to it. |
SECTION 8. Indemnification. |
(a) The Seller agrees to indemnify the Depositor, the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers (collectively, the “Indemnified Parties”) against any and all claims, losses, liabilities, (including reasonable legal fees and related costs) that the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers may sustain directly related to any breach of the representations and warranties of the Seller under Section 5 hereof, including but not limited to the costs of defending any claim or bringing any claim to enforce the indemnification or other obligations of the Seller (the “Indemnified Amounts”) excluding, however (i) Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of such Indemnified Party; (ii) any recourse for any uncollectible Timeshare Loan not related to a breach of representation or warranty; (iii) recourse to the Seller for a Defective Timeshare Loan so long as the same is cured, substituted or repurchased pursuant to Section 6 hereof, (iv) income, franchise or similar taxes by such Indemnified Party arising out of or as a result of this Agreement or the transfer of the Timeshare Loans; (v) Indemnified Amounts attributable to any violation by an Indemnified Party of any Requirement of Law related to an Indemnified Party; or (vi) the operation or administration of the Indemnified Party generally and not related to the enforcement of this Agreement. The Seller shall (A) promptly notify the Depositor and the Indenture Trustee if a claim is made by a third party with respect to this Agreement or the Timeshare Loans, and relating to (i) the failure by the Seller to perform its duties in accordance with the terms of this Agreement or (ii) a breach of the Seller’s representations, covenants and warranties contained in this Agreement, (B) assume (with the consent of the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial
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Purchasers, as applicable, which consent shall not be unreasonably withheld) the defense of any such claim and (C) pay all expenses in connection therewith, including reasonable legal counsel fees and promptly pay, discharge and satisfy any judgment, order or decree which may be entered against it or the Depositor, the Issuer, the Indenture Trustee, the Noteholders or the Initial Purchasers in respect of such claim. If the Seller shall have made any indemnity payment pursuant to this Section 8 and the recipient thereafter collects from another Person any amount relating to the matters covered by the foregoing indemnity, the recipient shall promptly repay such amount to the Seller. |
(b) The obligations of the Seller under this Section 8 to indemnify the Depositor, the Issuer, the Indenture Trustee, the Noteholders and the Initial Purchasers shall survive the termination of this Agreement, the resignation or removal of the parties hereto and continue until the Notes are paid in full or otherwise released or discharged. |
SECTION 9. No Proceedings. The Seller hereby agrees that it will not, directly or indirectly, institute, or cause to be instituted, or join any Person in instituting, against the Depositor or any Association, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law so long as there shall not have elapsed one year plus one day since the latest maturing Notes issued by the Issuer. |
SECTION 10. Notices, Etc. All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing and mailed or telecommunicated (if telecommunicated electronically, be followed by delivery via overnight courier or U.S. Mail), or delivered as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall not be effective until received by the party to whom such notice or communication is addressed. |
Seller
Bluegreen Vacations Corporation
4960 Conference Way North, Suite 100
Boca Raton, Florida 33431
Attention: Paul Humphrey, Senior Vice President, Finance, Capital Markets and Mortgage Operations
E-Mail: paul.humphrey@bluegreenvacations.com
Depositor
BRFC 2022-A LLC
4950 Communication Avenue, Suite 900
Boca Raton, Florida 33431
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Attention: Paul Humphrey, President
E-Mail: paul.humphrey@bluegreenvacations.com
SECTION 11. No Waiver; Remedies. No failure on the part of the Seller, the Depositor or any assignee thereof to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any other remedies provided by law. |
SECTION 12. Binding Effect; Assignability. This Agreement shall be binding upon and inure to the benefit of the Depositor and its respective successors and assigns. Any assignee of the Depositor shall be an express third party beneficiary of this Agreement, entitled to directly enforce this Agreement. The Seller may not assign any of its rights and obligations hereunder or any interest herein without the prior written consent of the Depositor and any assignee thereof. The Depositor may, and intends to, assign all of its rights hereunder to the Issuer and the Seller consents to any such assignment. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until its termination; provided, however, that the rights and remedies with respect to any breach of any representation and warranty made by the Seller pursuant to Section 5 hereof and the repurchase or substitution and indemnification obligations shall be continuing and shall survive any termination of this Agreement but such rights and remedies may be enforced only by the Depositor, the Issuer and the Indenture Trustee. |
SECTION 13. Amendments; Consents and Waivers. No modification, amendment or waiver of, or with respect to, any provision of this Agreement, and all other agreements, instruments and documents delivered thereto, nor consent to any departure by the Seller from any of the terms or conditions thereof shall be effective unless it shall be in writing and signed by each of the parties hereto, the written consent of the Indenture Trustee on behalf of the Noteholders is given and confirmation from each Rating Agency that such action will not result in a downgrade, withdrawal or qualification of any rating assigned to a Class of Notes is received. The Seller shall provide the Indenture Trustee and each Rating Agency with such proposed modifications, amendments or waivers. Any waiver or consent shall be effective only in the specific instance and for the purpose for which given. No consent to or demand by the Seller in any case shall, in itself, entitle it to any other consent or further notice or demand in similar or other circumstances. The Seller acknowledges that in connection with the intended assignment by the Depositor of all of its right, title and interest in and to each Timeshare Loan to the Issuer, the Issuer intends to issue the Notes, the proceeds of which will be used by the Issuer to purchase the Timeshare Loans from the Depositor under the terms of the Sale Agreement. |
SECTION 14. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation, shall not in any way be affected or impaired thereby in any other jurisdiction. Without limiting the generality of the foregoing, in the event that a Governmental Authority determines that the Depositor may not purchase or acquire Timeshare Loans, the transactions evidenced hereby shall constitute a loan and not a purchase and sale and contribution to capital, notwithstanding the otherwise applicable intent of the parties hereto, and the Seller shall be deemed to have granted
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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 such Timeshare Loans and the related property as described in Section 2 hereof. |
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION. |
(A)THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
(B)THE PARTIES TO THIS AGREEMENT HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND EACH PARTY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO its aDDRESS SET FORTH IN secTION 10 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE PARTIES HERETO EACH WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION 15 SHALL AFFECT THE RIGHT OF THE parties to this agreement TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY OF THEM TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 17. Heading. The headings herein are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof. |
SECTION 18. Signatures; Execution in Counterparts. This Agreement shall be valid, binding, and enforceable against a party when executed and delivered by an authorized
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individual on behalf of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature, or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the UCC (collectively, “Signature Law”), in each case to the extent applicable. Each electronic signature faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any electronic signature or faxed, scanned, or photocopied manual signature of any other party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. Notwithstanding the foregoing, with respect to any notice provided for in this Agreement or any instrument required or permitted to be delivered hereunder, any party hereto receiving or relying upon such notice or instrument shall be entitled to request execution thereof by original manual signature as a condition to the effectiveness thereof. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. |
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
BRFC 2022-A LLC, as Depositor
By: /s/ Paul Humphrey
Name: Paul Humphrey
Title: President
BLUEGREEN VACATIONS CORPORATION, as Seller
By: /s/ Raymond Lopez
Name: Raymond S. Lopez
Title: Executive Vice President, Chief Operating Officer, Chief Financial Officer and Treasurer
Agreed and acknowledged as to
the last paragraph of Section 3
herein only:
BLUEGREEN VACATION CLUB TRUST
By: Vacation Trust, Inc., individually and as Club Trustee
By: /s/ John P. Raney
Name: John P. Raney
Title: President
KL2 3279210 Purchase and Contribution Agreement
Schedule I
Representations and Warranties of the Seller Regarding the Timeshare Loans
With respect to each Timeshare Loan, as of the Closing Date or the related Transfer Date, as applicable:
(a) |
payments due under such Timeshare Loan are fully-amortizing and payable in level monthly installments; |
(b) |
the payment obligations under such Timeshare Loan bear a fixed rate of interest; |
(c) |
the Obligor thereunder has made total payments (comprised of a down payment and/or principal payments) by cash, check, credit card or otherwise of at least 10% of the actual purchase price (including closing costs) of the related Timeshare Property (which down payment may, (i) in the case of Upgrade Club Loans or conversion in connection with an Introductory Loan be represented in whole or in part by the principal payments and down payment made on, as applicable, such related Original Club Loan or the related Introductory Loan since its date of origination, (ii) in the case of an Upgrade or a conversion in connection with an Introductory Product, be represented in whole or in part by the amount paid where the Obligor has paid in full, whether at the point of sale or otherwise for the original Timeshare Property or Introductory Product (as applicable) and no part of such payment in (i) or (ii) has been made or loaned to the Obligor by Bluegreen, the Seller or an Affiliate thereof, or (iii) in the case of a no equity loan, be represented by equity from a previous purchase); |
(d) |
such Timeshare Loan is not a Defaulted Timeshare Loan and as of the related Cut-Off Date, no principal or interest due with respect to such Timeshare Loan is more than thirty (30) days delinquent; |
(e) |
the Obligor related to such Timeshare Loan is not an Affiliate of Bluegreen or any Subsidiary; provided, that solely for the purposes of this representation, a relative of an employee and employees of Bluegreen or any Subsidiary (or any of its Affiliates) shall not be deemed to be an “Affiliate” of Bluegreen; |
(f) |
immediately prior to the conveyance of such Timeshare Loan to the Depositor, the Seller will own full legal and equitable title to such Timeshare Loan, and the Timeshare Loan (and the related Timeshare Property) is free and clear of adverse claims, liens and encumbrances and is not subject to claims of rescission, invalidity, unenforceability, illegality, defense, offset, abatement, diminution, recoupment, counterclaim or participation or ownership interest in favor of any other Persons, other than Permitted Liens; |
(g) |
such Timeshare Loan (other than an Aruba Club Loan) is secured directly by a first priority Mortgage on the related purchased Timeshare Property; |
I-1
(h) |
with respect to each Deeded Club Loan, the Timeshare Property mortgaged by or at the direction of the related Obligor constitutes a fractional fee simple timeshare interest in real property at the related Resort or an undivided interest in a Resort (or a phase thereof) associated with a Unit that entitles the holder of the interest to the use of a specific property for a specified number of days each year or every other year, subject to the rules of the Bluegreen Vacation Club; the related Mortgage has been delivered for filing and recordation with all appropriate governmental authorities in all jurisdictions in which such Mortgage is required to be filed and recorded to create a valid, binding and enforceable first Lien on the related Timeshare Property and such Mortgage creates a valid, binding and enforceable first Lien on the related Timeshare Property, subject only to Permitted Liens; and the Seller is in compliance with any Permitted Lien respecting the right to the use of such Timeshare Property; the Assignment of Mortgage and each related endorsement of the related Mortgage Note constitutes a duly executed, legal, valid, binding and enforceable assignment or endorsement, as the case may be, of such related Mortgage and related Mortgage Note, and all monies due or to become due thereunder, and all proceeds thereof; |
(i) |
with respect to the Obligor related to such Timeshare Loan and the related Timeshare Property purchased by such Obligor, there is only one original Mortgage (or certified true copy of the related recorded Mortgage) and Mortgage Note (or Lost Note Affidavit), in the case of a Deeded Club Loan, and, only one original Owner Beneficiary Agreement (or Lost Note Affidavit), in the case of an Aruba Club Loan; all parties to the related Mortgage and the related Mortgage Note (and, in the case of an Aruba Club Loan, Owner Beneficiary Agreement (or Lost Note Affidavit) had legal capacity to enter into such Timeshare Loan Documents and to execute and deliver such related Timeshare Loan Documents, and such related Timeshare Loan Documents have been duly and properly executed by such parties; any amendments to such related Timeshare Loan Documents required as a result of any mergers involving the Seller or its predecessors, to maintain the rights of the Seller or its predecessors thereunder as a mortgagee (or a Seller, in the case of an Aruba Club Loan) have been completed; |
(j) |
at the time of origination of such Timeshare Loan, the applicable Originator had full power and authority to originate such Timeshare Loan and the Obligor or the Club Trustee had good and indefeasible fee title or good and marketable fee simple title, or, in the case of an Aruba Club Loan, a cooperative interest, as applicable, to the Timeshare Property related to such Timeshare Loan, free and clear of all Liens, except for Permitted Liens; |
(k) |
the Mortgage (or, in the case of an Aruba Club Loan, the related Owner Beneficiary Agreement) contains customary and enforceable provisions so as to render the rights and remedies of the holder thereof adequate for the realization against the related Timeshare Property of the benefits of the security interests or lender’s contractual rights intended to be provided thereby, including (a) if the Mortgage is a deed of trust, by trustee’s sale, including power of sale, (b)
I-2
|
otherwise by judicial foreclosure or power of sale and/or (c) termination of the contract, retention of Obligor deposits and payments towards such Timeshare Loan by the Originator or lender, as the case may be, and expulsion from the Club; in the case of the Deeded Club Loans, there is no exemption available to the related Obligor which would interfere with the mortgagee’s right to sell at a trustee’s sale or power of sale or right to foreclose such related Mortgage, as applicable; |
(l) |
any Mortgage Note related to such Timeshare Loan is not and has not been secured by any collateral except the Lien of the related Mortgage; |
(m) |
if a Mortgage secures such Timeshare Loan, the title to the related Timeshare Property is insured (or a binding commitment, which may be a master commitment referencing one or more Mortgages, for title insurance, not subject to any conditions other than standard conditions applicable to all binding commitments, has been issued) under a mortgagee title insurance policy (which may consist of one master policy referencing one or more such Mortgages) issued by a title insurer qualified to do business in the jurisdiction where the related Timeshare Property is located in a form generally acceptable to prudent originators of similar mortgage loans, insuring the Seller or its predecessor and its successors and assigns, as to the first priority mortgage Lien of the related Mortgage in an amount equal to the original outstanding Loan Balance of such Timeshare Loan, and otherwise in form and substance acceptable to the Indenture Trustee; the Club Originator or its assignees is a named insured of such mortgagee’s title insurance policy; such mortgagee’s title insurance policy is in full force and effect; no claims have been made under such mortgagee’s title insurance policy and no prior holder of such Timeshare Loan has done or omitted to do anything which would impair the coverage of such mortgagee’s title insurance policy; no premiums for such mortgagee’s title insurance policy, endorsements and all special endorsements are past due; |
(n) |
the Seller has not taken (or omitted to take), and has no notice that the Obligor related to such Timeshare Loan has taken (or omitted to take), any action that would impair or invalidate the coverage provided by any hazard, title or other insurance policy on the related Timeshare Property; |
(o) |
all applicable intangible taxes and documentary stamp taxes have been paid on such Timeshare Loan; |
(p) |
the proceeds of such Timeshare Loan have been fully disbursed, there is no obligation to make future advances or to lend additional funds under the applicable Originator’s commitment or the documents and instruments evidencing or securing such Timeshare Loan and no such advances or loans have been made since the origination of such Timeshare Loan; |
(q) |
the terms of each Timeshare Loan Document related to such Timeshare Loan have not been impaired, waived, altered or modified in any respect, except (x) by
I-3
|
written instruments which are part of the related Timeshare Loan Documents or (y) in accordance with the Credit Policy in effect at the time of origination, the Collection Policy or the Servicing Standard (provided that no Timeshare Loan has been impaired, waived, altered, or modified in any respect more than once). No other instrument has been executed or agreed to which would affect any such impairment, waiver, alteration or modification; the Obligor has not been released from liability on or with respect to such Timeshare Loan, in whole or in part; if required by law or prudent originators of similar loans in the jurisdiction where the related Timeshare Property is located, all waivers, alterations and modifications have been filed and/or recorded in all places necessary to perfect, maintain and continue a valid first priority Lien of the related Mortgage, subject only to Permitted Liens; |
(r) |
other than if it is an Aruba Club Loan, such Timeshare Loan is principally and directly secured by an interest in real property; |
(s) |
such Timeshare Loan was originated by one of the Seller’s Affiliates in the normal course of its business; was originated and underwritten in accordance with its underwriting guidelines and the Credit Policy in effect at the time of origination; and to the Seller’s Knowledge, the origination, servicing and collection practices used by the Seller’s Affiliates with respect to such Timeshare Loan have been in all respects, legal, proper, prudent and customary; |
(t) |
such Timeshare Loan is assignable to and by the obligee and its successors and assigns and the related Timeshare Property is assignable upon liquidation of such Timeshare Loan, without the consent of any other Person (including any Association, condominium association, homeowners’ or timeshare association); |
(u) |
the Mortgage related to such Timeshare Loan is and will be prior to any Lien on, or other interests relating to, the related Timeshare Property subject to Permitted Liens; |
(v) |
to the Seller’s Knowledge, there are no delinquent or unpaid taxes, ground rents (if any), water charges, sewer rents or assessments outstanding with respect to any of the Timeshare Properties, nor any other outstanding Liens or charges affecting the Timeshare Properties related to such Timeshare Loan that would affect the Lien of the related Mortgage or otherwise materially affect the interests of the Indenture Trustee on behalf of the Noteholders in such Timeshare Loan; |
(w) |
other than with respect to delinquent payments of principal or interest 30 or fewer days past due as of the Cut-Off Date, there is no default, breach, violation or event of acceleration existing under the Mortgage, the related Mortgage Note or any other document or instrument evidencing, guaranteeing, insuring or otherwise securing such related Timeshare Loan, and no event which, with the lapse of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration thereunder; and the Seller has not waived any such material default, breach, violation or event of
I-4
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acceleration under the Owner Beneficiary Agreement, Mortgage, the Mortgage Note or any such other document or instrument, as applicable; |
(x) |
neither the Obligor related to such Timeshare Loan nor any other Person has the right, by statute, contract or otherwise, to seek the partition of the related Timeshare Property; |
(y) |
such Timeshare Loan has not been satisfied, canceled, rescinded or subordinated, in whole or in part; no portion of the related Timeshare Property has been released from the Lien of the related Mortgage, in whole or in part; no instrument has been executed that would effect any such satisfaction, cancellation, rescission, subordination or release; the terms of the related Mortgage do not provide for a release of any portion of the related Timeshare Property from the Lien of the related Mortgage except upon the payment of such Timeshare Loan in full; |
(z) |
the Seller and any of its Affiliates and, to the Seller’s Knowledge, each other party which has had an interest in such Timeshare Loan is (or, during the period in which such party held and disposed of such interest, was) in compliance with any and all applicable filing, licensing and “doing business” requirements of the laws of the state wherein the related Timeshare Property is located to the extent necessary to permit the Seller to maintain or defend actions or proceedings with respect to such Timeshare Loan in all appropriate forums in such state without any further act on the part of any such party; |
(aa) |
there is no current obligation on the part of any other person (including any buy down arrangement) to make payments on behalf of the Obligor in respect of such Timeshare Loan; |
(bb) |
the Associations related to such Timeshare Loan were duly organized and are validly existing; a manager (the “Manager”) manages such Resort and performs services for the Associations, pursuant to an agreement between the Manager and the respective Associations, such contract being in full force and effect; to the Seller’s Knowledge the Manager and the Associations have performed in all material respects all obligations under such agreement and are not in default under such agreement; |
(cc) |
in the case of the Opinion Resorts and to the Seller’s Knowledge with respect to the Non-Opinion Resorts, (i) the Resort related to such Timeshare Loan is insured in the event of fire, earthquake, or other casualty for the full replacement value thereof, and in the event that the related Timeshare Property should suffer any loss covered by casualty or other insurance, upon receipt of any insurance proceeds, the Associations at the Resorts are required, during the time such Resort is covered by such insurance, under the applicable governing instruments either to repair or rebuild the portions of the Resort in which the related Timeshare Property is located or to pay such proceeds as their interests may appear to the holders of any related Mortgage secured by the Timeshare Property located at such Resort; (ii) the related Resort, if located in a designated flood plain,
I-5
|
maintains flood insurance in an amount not less than the maximum level available (without regard to reasonable deductibles) under the National Flood Insurance Act of 1968, as amended or any applicable laws; (iii) the related Resort has business interruption insurance and general liability insurance in such amounts generally acceptable in the industry; and (iv) the related Resort’s insurance policies are in full force and effect with a generally acceptable insurance carrier; |
(dd) |
the obligee of the related Mortgage related to such Timeshare Loan, and its successors and assigns, has the right to receive and direct the application of insurance and condemnation proceeds received in respect of the related Timeshare Property, except where the related condominium declarations, timeshare declarations, the Club Trust Agreement or applicable state law provide that insurance and condemnation proceeds be applied to restoration or replacement of the improvements or acquisition of similar improvements, as the case may be; |
(ee) |
each rescission period applicable to such Timeshare Loan has expired; |
(ff) |
no selection procedures were intentionally utilized by the Seller in selecting such Timeshare Loan which the Seller knew were materially adverse to the Depositor, the Indenture Trustee or the Noteholders; |
(gg) |
except as set forth on Schedule II hereto, in the case of the Opinion Resorts and to the Seller’s Knowledge with respect to the Non-Opinion Resorts, the Units related to such Timeshare Loan in the related Resort have been completed in all material respects as required by applicable state and local laws, free of all defects that could give rise to any claims by the related Obligors under home warranties or applicable laws or regulations, whether or not such claims would create valid offset rights under the law of the State in which the Resort is located; to the extent required by applicable law, valid certificates of occupancy for such Units have been issued and are currently outstanding; the Seller or any of its Affiliates have complied in all material respects with all obligations and duties incumbent upon the developers under the related timeshare declaration (each a “Declaration”), as applicable, or similar applicable documents for the related Resort; no practice, procedure or policy employed by the related Association in the conduct of its business violates any law, regulation, judgment or agreement, including, without limitation, those relating to zoning, building, use and occupancy, fire, health, sanitation, air pollution, ecological, environmental and toxic wastes, applicable to such Association which, if enforced, would reasonably be expected to (a) have a material adverse impact on such Association or the ability of such Association to do business, (b) have a material adverse impact on the financial condition of such Association, or (c) constitute grounds for the revocation of any license, charter, permit or registration which is material to the conduct of the business of such Association; the related Resort and the present use thereof does not violate any applicable environmental, zoning or building laws, ordinances, rules or regulations of any governmental authority, or any covenants or restrictions of record, so as to materially adversely affect the value or use of such Resort or the performance by the related Association of its obligations pursuant to and as
I-6
|
contemplated by the terms and provisions of the related Declaration; there is no condition presently existing, and to the Seller’s Knowledge, no event has occurred or failed to occur prior to the date hereof, concerning the related Resort relating to any hazardous or toxic materials or condition, asbestos or other environmental or similar matters which would reasonably be expected to materially and adversely affect the present use of such Resort or the financial condition or business operations of the related Association, or the value of the Notes; |
(hh) |
except if such Timeshare Loan is listed on Schedule II hereto, the original Loan Balance of such Timeshare Loan does not exceed $75,000; |
(ii) |
payments with respect to such Timeshare Loan are to be in legal tender of the United States; |
(jj) |
all monthly payments (as applicable) made with respect to such Timeshare Loan have been made by the Obligor and not by the Seller or any Affiliate of the Seller on the Obligor’s behalf; |
(kk) |
such Timeshare Loan relates to a Resort; |
(ll) |
such Timeshare Loan constitutes either “chattel paper”, a “general intangible” or an “instrument” as defined in the UCC as in effect in all applicable jurisdictions; |
(mm) |
the sale, transfer and assignment of such Timeshare Loan and the Related Security does not contravene or conflict with any law, rule or regulation or any contractual or other restriction, limitation or encumbrance, and the sale, transfer and assignment of such Timeshare Loan and the Related Security do not require the consent of the Obligor; |
(nn) |
such Timeshare Loan, the Related Security, related Assignment of Mortgage, related Mortgage, related Mortgage Note, related Owner Beneficiary Agreement (each as applicable) and each other related Timeshare Loan Document are in full force and effect, constitute the legal, valid and binding obligation of the Obligor thereof enforceable against such Obligor in accordance with its terms subject to the effect of bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization, assignment, liquidation, conservatorship or moratorium, and is not subject to any dispute, offset, counterclaim or defense whatsoever; |
(oo) |
such Timeshare Loan relates to a Completed Unit; such Timeshare Loan and the Related Security do not, and the origination of each Timeshare Loan did not, contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to usury, retail installment sales, truth in lending, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no party thereto has been or is in violation of any such law, rule or regulation in any material respect if such violation would impair the collectibility of such Timeshare Loan and the Related Security; no Timeshare Loan was originated in,
I-7
|
or is subject to the laws of, any jurisdiction under which the sale, transfer, conveyance or assignment of such Timeshare Loan would be unlawful, void or voidable; |
(pp) |
to the Seller’s Knowledge, (i) no bankruptcy is currently existing with respect to the Obligor related to such Timeshare Loan, (ii) such Obligor is not insolvent and (iii) such Obligor is not an Affiliate of the Seller; |
(qq) |
except if such Timeshare Loan is listed on Schedule II hereto, such Timeshare Loan shall not have a Timeshare Loan Rate less than 6% per annum; |
(rr) |
except in the case of an Upgrade Club Loan replacing its related Original Club Loan, the Obligor related to such Timeshare Loan has made at least one required payment with respect to the Timeshare Loan (not including any down payment); |
(ss) |
if a Resort for which Bluegreen is the Manager (other than La Cabana Resort) is subject to a construction loan, the construction lender shall have signed and delivered a non-disturbance agreement (which may be contained in such lender’s mortgage) pursuant to which such construction lender agrees not to foreclose on any Timeshare Properties relating to such Timeshare Loan or by the terms of the construction loan, the related Timeshare Property has been released from the lien created thereby which have been sold pursuant to this Agreement; |
(tt) |
except as set forth on Schedule II hereto, the Timeshare Properties and the Resorts related to such Timeshare Loan are free of material damage and waste and are in good repair, ordinary wear and tear excepted, and fully operational, subject to renovations for improvements from time to time; there is no proceeding pending or threatened for the total or partial condemnation of or affecting any Timeshare Property or taking of the Timeshare Property by eminent domain; the Timeshare Properties and the Resorts in which the Timeshare Properties are located are lawfully used and occupied under applicable law by the owner thereof; |
(uu) |
except as set forth on Schedule II hereto, the portions of the Resorts in which the Timeshare Properties are located which represent the common facilities are free of material damage and waste and are in good repair and condition, ordinary wear and tear excepted, subject to renovations for improvements from time to time; |
(vv) |
no foreclosure or similar proceedings have been instituted and are continuing with respect to such Timeshare Loan or the related Timeshare Property; |
(ww) |
if such Timeshare Loan is an Aruba Club Loan, Bluegreen shall own, directly or indirectly, 100% of the economic and voting interests of the Aruba Originator; |
(xx) |
such Timeshare Loan does not have an original term to maturity in excess of 120 months; |
I-8
(yy) |
to the Seller’s Knowledge, the capital reserves and maintenance fee levels of the Associations of the Resorts related to such Timeshare Loan are adequate in light of the operating requirements of such Associations; |
(zz) |
except as required by law, such Timeshare Loan may not be assumed without the consent of the obligee; |
(aaa) |
for each Club Loan, the Obligor under such Timeshare Loan does not have its rights under the Club Trust Agreement suspended; |
(bbb) |
the payments under such Timeshare Loan are not subject to withholding taxes imposed by any foreign governments; |
(ccc) |
each entry with respect to such Timeshare Loan as set forth on Schedule II and Schedule III hereof is true and correct. If such Timeshare Loan is a Qualified Substitute Timeshare Loan, each entry with respect to such Qualified Substitute Timeshare Loan as set forth on Schedule II and Schedule III hereof, as revised, is true and correct; |
(ddd) |
if such Timeshare Loan relates to a Timeshare Property located in Aruba, a notice has been mailed or will be mailed within thirty (30) days of the Closing Date or the related Transfer Date, as applicable, to the related Obligor indicating that such Timeshare Loan has been transferred to the Depositor and has ultimately been transferred to the Issuer and pledged to the Indenture Trustee for the benefit of the Noteholders; |
(eee) |
no broker is, or will be, entitled to any commission or compensation in connection with the transfer of such Timeshare Loans hereunder; |
(fff) |
[RESERVED]; |
(ggg) |
if such Timeshare Loan is a Subsequent Timeshare Loan when such Timeshare Loan is aggregated with all Timeshare Loans sold to the Depositor pursuant to this Agreement, it satisfies the criteria for Subsequent Timeshare Loans specified in Section 4.3 of the Indenture; |
(hhh) |
[RESERVED]; |
(iii) |
if such Timeshare Loan relates to a Timeshare Property located in the State of Michigan and was originated prior to Bluegreen obtaining a license under the Michigan Mortgage Brokers, Lenders and Servicers Licensing Act, Bluegreen shall have confirmed that the interest rate on such Timeshare Loan is enforceable in the manner specified as effective in an opinion by Michigan local counsel; |
(jjj) |
[RESERVED]; and |
(kkk) |
with respect to such Timeshare Loan, there exists a Timeshare Loan File and such Timeshare Loan File contains or will contain each item listed in the definition of
I-9
|
Timeshare Loan File with respect to such Timeshare Loan and such Timeshare Loan File is in the possession of the Custodian, subject to the Custodian’s exception report pursuant to the Custodial Agreement. |
(lll) |
|
I-10
Schedule II
Exceptions
With respect to (gg): Solara Surfside – Surfside, Florida
With respect to (hh):
Loan |
Original Balance |
|
2262040 | $100,500.00 | |
2272916 | $94,950.00 | |
2260603 | $94,500.00 | |
2212773 | $91,840.00 | |
2267916 | $90,297.00 | |
2209886 | $87,099.30 | |
2216593 | $86,400.00 | |
2253283 | $85,000.00 | |
2258501 | $83,690.00 | |
2273734 | $83,500.00 | |
2276145 | $79,999.00 | |
2129813 | $79,828.53 | |
2272474 | $79,120.00 | |
2207407 | $77,440.00 | |
2264699 | $75,348.00 | |
2267993 | $75,252.00 |
III-0
Schedule III
Schedule of Timeshare Loans
[Electronic Schedule of Timeshare Loans on file with the Depositor]
Schedule 5
Exhibit A
Form of Waiver Letter
Date:
U.S. Bank Trust Company, National Association, as Indenture Trustee of BXG Receivables Note Trust 2022-A
190 S. LaSalle St. 7th Floor
MK-IL-SL7C
Chicago, Illinois 60603
BXG Receivables Note Trust 2022-A
c/o Wilmington Trust Company, as Owner Trustee
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention:Corporate Trust Services
BXG Receivables Note Trust 2022-A
In accordance with Section 6(c) of that certain Purchase and Contribution Agreement (the “Purchase Agreement”), dated as of April 28, 2022, by and among Bluegreen Vacations Corporation, a Florida corporation (“Bluegreen” or a “Seller”) and BRFC 2022-A LLC, a Delaware limited liability company (the “Depositor”), the undersigned hereby irrevocably waives its option to repurchase and/or substitute any Defaulted Timeshare Loan listed on Exhibit A attached hereto.
Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Purchase Agreement.
In Witness Whereof, the undersigned has caused its name to be signed hereby by its duly authorized officer, as of the day and year written above.
BLUEGREEN VACATIONS CORPORATION
By:__________________________________
Name:
Title:
Exhibit A
Exhibit A to Form of Waiver Letter
Exhibit C
Exhibit D
FORM OF LOST NOTE AFFIDAVIT
STATE OF ___________
COUNTY OF _________
______________ (“Affiant”), on behalf of and as _________________ of Bluegreen Vacations Corporation, a Florida corporation (“Bluegreen”), being duly sworn, deposes and says:
1.This Lost Note Affidavit is being delivered by the Affiant pursuant to that certain Purchase and Contribution Agreement (as amended, restated, supplemented, replaced, renewed or otherwise modified from time to time, the “Bluegreen Purchase Agreement”), dated as of October 8, 2022, by and between Bluegreen and BRFC 2022-A LLC. Unless otherwise defined herein, capitalized terms have the meanings ascribed to such terms in the Bluegreen Purchase Agreement and the Standard Definitions thereto.
2.That ____________________________________________ has issued a [Mortgage Note][Owner Beneficiary Agreement] evidencing a Timeshare Loan dated __________________ in the principal amount of $_________________ [(the “Original Note”)] [(the “Original Agreement”)] to ______________________].
3.The [Original Note][Original Agreement] has been lost, destroyed, or stolen so that it cannot be found or produced, and Bluegreen has not endorsed, assigned, sold, pledged, hypothecated, negotiated or otherwise transferred the [Original Note][Original Agreement] or an interest therein.
4.That Bluegreen has made a diligent effort to find the [Original Note][Original Agreement].
5.It is understood by Bluegreen that if the [Original Note][Original Agreement] is found, that Bluegreen shall surrender said [Original Note][Original Agreement] to the Custodian or its permitted successors and assigns in exchange for this Lost Note Affidavit.
___________________________________
Printed Name:
The foregoing affidavit was sworn to and subscribed before me this _____ day of _____________, _______, by ______________, as _______________________ of ____________________________________, who is personally known to me or who has produced ____________________ as identification and who did take an oath.
___________________________________
(AFFIX NOTARIAL SEAL)Notary Public, State of __________
(Name)
Commission Number: _________________My Commission Expires
Exhibit D
Execution Copy
STANDARD DEFINITIONS
Rules of Construction. In these Standard Definitions and with respect to the Transaction Documents (as defined below), (a) the meanings of defined terms are equally applicable to the singular and plural forms of the defined terms, (b) in any Transaction Document, the words “hereof,” “herein,” “hereunder” and similar words refer to such Transaction Document as a whole and not to any particular provisions of such Transaction Document, (c) any subsection, Section, Article, Annex, Schedule and Exhibit references in any Transaction Document are to such Transaction Document unless otherwise specified, (d) the term “documents” includes any and all documents, instruments, agreements, certificates, indentures, notices and other writings, however evidenced (including electronically), (e) the term “including” is not limiting and (except to the extent specifically provided otherwise) shall mean “including (without limitation)”, (f) unless otherwise specified, in the computation of periods of time from a specified date to a later specified date, the word “from” shall mean “from and including,” the words “to” and “until” each shall mean “to but excluding,” and the word “through” shall mean “to and including” and (g) the words “may” and “might” and similar terms used with respect to the taking of an action by any Person shall reflect that such action is optional and not required to be taken by such Person.
“Act” shall have the meaning specified in Section 1.4 of the Indenture.
“Additional Servicing Compensation” shall mean any late fees related to late payments on the Timeshare Loans, any non-sufficient funds fees, any processing fees and any Liquidation Expenses collected by and due to the Servicer, any refunds paid by the Servicer as a result of overpayments on payoffs and any unpaid out-of-pocket expenses incurred by the Servicer during the related Due Period.
“Adjusted Note Balance” shall equal, for any Class of Notes and any Payment Date, the Outstanding Note Balance of such Class of Notes immediately prior to such Payment Date, less the Note Balance Write-Down Amount; provided, however, to the extent that for purposes of consents, approvals, voting or other similar acts of the Noteholders under any of the Transaction Documents, “Adjusted Note Balance” shall exclude Notes which are held by Bluegreen or any Affiliate thereof, if any.
“Administration Agreement” shall mean the administration agreement, dated as of the Closing Date, by and among the Administrator, the Owner Trustee, the Issuer and the Indenture Trustee, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Administrator” shall mean Bluegreen or any successor under the Administration Agreement.
“Administrator Fee” shall equal on each Payment Date an amount equal to the product of (i) one-twelfth and (ii) (A) if Bluegreen or an affiliate thereof is the Administrator, $1,000.00 and (B) if Wilmington Trust Company is the Administrator, $20,000.00.
“Adverse Claim” shall mean any claim of ownership or any lien, security interest, title retention, trust or other charge or encumbrance, or other type of preferential arrangement
having the effect or purpose of creating a lien or security interest, other than the interests created under the Indenture or any other Transaction Document in favor of the Indenture Trustee and the Noteholders.
“Affiliate” shall mean any Person: (a) which directly or indirectly controls, or is controlled by, or is under common control with such Person; (b) which directly or indirectly beneficially owns or holds five percent (5%) or more of the voting stock of such Person; or (c) for which five percent (5%) or more of the voting stock of which is directly or indirectly beneficially owned or held by such Person; provided, however, that under no circumstances shall (i) the Owner Trustee be deemed to be an Affiliate of the Issuer, or the Depositor, nor shall any of such parties be deemed to be an Affiliate of the Owner Trustee or (ii) Bluegreen be deemed an Affiliate of any 5% or greater shareholder of Bluegreen or any Affiliate of such shareholder who is not a Direct Affiliate (as defined herein) of Bluegreen, nor shall any such shareholder be deemed to be an Affiliate of Bluegreen. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, only entities included in Bluegreen’s GAAP consolidated financial statements shall be Affiliates of Bluegreen (a “Direct Affiliate”).
“Aggregate Closing Date Collateral Balance” shall mean an amount equal to $194,737,250.
“Aggregate Initial Note Balance” shall mean an amount equal to the sum of the Initial Note Balances for all Classes of Notes.
“Aggregate Loan Balance” shall mean an amount equal to the sum of the Loan Balances for all Timeshare Loans (other than Defaulted Timeshare Loans).
“Aggregate Outstanding Note Balance” shall mean an amount equal to the sum of the Outstanding Note Balances for all Classes of Notes.
“Applicable Procedures” shall have the meaning specified in Section 2.4(d)(i) of the Indenture.
“Aruba Club Loans” shall mean all timeshare loans originated by the Aruba Originator each secured by Co-op Shares.
“Aruba Originator” shall mean Bluegreen Properties, N.V., an Aruba corporation.
“Assignment of Mortgage” shall mean, with respect to a Deeded Club Loan, a written assignment of one or more Mortgages from the related Originator or Seller to the Indenture Trustee, for the benefit of the Noteholders, relating to one or more Timeshare Loans in recordable form, and signed by an Authorized Officer of all necessary parties, sufficient under the laws of the jurisdiction wherein the related Timeshare Property is located to give record notice of a transfer of such Mortgage and its proceeds to the Indenture Trustee.
“Association” shall mean the not-for-profit corporation or cooperative association responsible for operating a Resort.
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“Assumption Date” shall have the meaning specified in the Backup Servicing Agreement.
“Authorized Officer” shall mean, with respect to any corporation, limited liability company or partnership, the Chairman of the Board, the President, any Executive Vice President, any Senior Vice President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer, managing member, board of managers and each other officer of such corporation or limited liability company or the general partner of such partnership specifically authorized in resolutions of the board of directors or board of managers of such corporation or limited liability company, as the case may be, to sign agreements, instruments or other documents in connection with the Indenture on behalf of such corporation, limited liability company or partnership, as the case may be.
“Available Funds” shall mean for any Payment Date, (A) all funds on deposit in the Collection Account after making all transfers, deposits or payments from (i) the Lockbox Account pursuant to the Lockbox Agreement, (ii) the General Reserve Account pursuant to Section 3.2(b) of the Indenture, (iii) the Prefunding Account pursuant to Section 3.2(c) of the Indenture, (iv) the Force Majeure Loan Reserve Account pursuant to Section 3.2(e) of the Indenture, (v) the Club Originator or the Depositor, as the case may be, pursuant to Section 4.6 of the Indenture, and (vi) the Servicer pursuant to the Indenture, plus (B) all investment earnings on funds on deposit in the Collection Account from the immediately preceding Payment Date through such Payment Date, if any, less (C) amounts on deposit in the Collection Account related to collections related to any Due Periods subsequent to the Due Period related to such Payment Date, less (D) any Additional Servicing Compensation on deposit in the Collection Account, less (E) Misdirected Deposits, if any. Notwithstanding anything in the Transaction Documents to the contrary, Available Funds shall only include amounts described in the foregoing sentence and not amounts otherwise deposited voluntarily by Bluegreen or any of its Affiliates.
“Backup Servicer” shall mean Concord Servicing LLC, a Delaware LLC, and its permitted successors and assigns.
“Backup Servicing Agreement” shall mean the backup servicing agreement, dated as of the Closing Date, by and among the Issuer, the Depositor, the Servicer, the Backup Servicer and the Indenture Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Backup Servicing Fee” shall on each Payment Date, be equal to:
(A) prior to the removal or resignation of Bluegreen, as Servicer or, if a successor Servicer has been appointed pursuant to the Indenture (that is not the Indenture Trustee), the greater of (i) $750.00 and (ii) the product of (1)(x) $0.10 and (y) the number of Timeshare Loans in the Trust Estate at the end of the related Due Period up to 20,000 and (2)(x) $0.075 and (y) the number of Timeshare Loans in the Trust Estate at the end of the related Due Period in excess of 20,000, and
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(B) after the removal or resignation of Bluegreen, as Servicer, and appointment of the Indenture Trustee as successor Servicer (unless and until another successor Servicer has been appointed pursuant to the Indenture) an amount equal to the product of (i) one-twelfth of 1.50% and (ii) the aggregate Loan Balance of all Timeshare Loans as of the first day of the related Due Period.
“Bankruptcy Code” shall mean the federal Bankruptcy Code, as amended (Title 11 of the United States Code).
“Beneficiary” shall have the meaning specified in the Club Trust Agreement.
“Benefit Plan” shall mean an “employee benefit plan” as defined in Section 3(3) of ERISA or any other “plan” as defined in Section 4975(e)(1) of the Code that is subject to the prohibited transaction rules of ERISA or of Section 4975 of the Code or any plan that is subject to any Similar Law.
“Bluegreen” shall mean Bluegreen Vacations Corporation, a Florida corporation, (fka Bluegreen Corporation), and its permitted successors and assigns.
“Bluegreen Purchase Agreement” shall mean the purchase and contribution agreement, dated as of the Closing Date, between the Club Originator and the Depositor pursuant to which the Club Originator sells certain Initial Timeshare Loans to the Depositor on the Closing Date and Subsequent Timeshare Loans during the Prefunding Period.
“Book-Entry Note” shall mean a beneficial interest in the Notes, ownership and transfers of which shall be made through book-entries by the Depository.
“Business Day” shall mean any day other than (i) a Saturday, a Sunday, or (ii) a day on which banking institutions in New York City, St. Paul, Minnesota, Wilmington, Delaware, the State of Florida, the city in which the Servicer is located or the city in which the Corporate Trust Office of the Indenture Trustee is located, are authorized or obligated by law or executive order to be closed.
“BXG Timeshare I” shall mean BXG Timeshare Trust I, a Delaware statutory trust.
“Cede & Co.” shall mean the initial registered holder of the Notes, acting as nominee of The Depository Trust Company.
“Certificate” shall mean the Residual Interest Certificate.
“Certificate Distribution Account” shall have the meaning specified in Section 5.01 of the Trust Agreement.
“Certificate of Trust” shall mean the Certificate of Trust of BXG Receivables Note Trust 2022-A filed with the Delaware Secretary of State on December 14, 2021.
“Certificateholders” shall mean the holders of the Certificate.
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“Class” shall mean, as the context may require, any of the Class A Notes, the Class B Notes or the Class C Notes.
“Class A Notes” shall have the meaning specified in the Recitals of the Issuer in the Indenture.
“Class B Notes” shall have the meaning specified in the Recitals of the Issuer in the Indenture.
“Class C Notes” shall have the meaning specified in the Recitals of the Issuer in the Indenture.
“Closing Date” shall mean April 28, 2022.
“Closing Date Resorts” shall mean those Opinion Resorts in respect of which the Timeshare Property related to an Initial Timeshare Loan is located.
“Club” shall mean the Bluegreen Vacation Club Trust formed pursuant to the Club Trust Agreement doing business as Bluegreen Vacation Club.
“Club Loans” shall mean, collectively, the Deeded Club Loans and the Aruba Club Loans.
“Club Management Agreement” shall mean that certain Amended and Restated Management Agreement between the Club Managing Entity and the Club Trustee, dated as of May 18, 1994, as amended from time to time.
“Club Managing Entity” shall mean Bluegreen Resorts Management, Inc., a Delaware corporation, in its capacity as manager of the Club and owner of the Club’s reservation system, and its permitted successors and assigns.
“Club Originator” shall mean Bluegreen, in its capacity as an Originator and its permitted successors and assigns.
“Club Property” shall mean Timeshare Properties, Owner Beneficiary Rights and Vacation Points, and with respect to the definition of Upgrade, may also mean, as applicable, timeshare property unrelated to Timeshare Loans subject to the Lien of the Indenture.
“Club Trust Agreement” shall mean, collectively, that certain Bluegreen Vacation Club Trust Agreement, dated as of May 18, 1994, by and between the Developer and the Club Trustee, as amended, restated or otherwise modified from time to time, together with all other agreements, documents and instruments governing the operation of the Club.
“Club Trustee” shall mean Vacation Trust, Inc., a Florida corporation, in its capacity as trustee under the Club Trust Agreement, and its permitted successors and assigns.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time and any successor statute.
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“Collection Account” shall mean the account established and maintained by the Indenture Trustee pursuant to Section 3.2(a) of the Indenture.
“Collection Policy” shall mean the collection policy of the initial servicer in effect on the Closing Date attached as Exhibit O to the Indenture, as the same may be amended from time to time in accordance with the Indenture.
“Completed Unit” shall mean a Unit at a Resort which has been fully constructed and furnished, has received a valid permanent certificate of occupancy or its equivalent, is ready for occupancy and is subject to a time share declaration.
“Confidential Information” shall mean information obtained by any Noteholder including, without limitation, the Preliminary Confidential Offering Circular dated April 18, 2022 or the Confidential Offering Circular dated April 22, 2022 related to the Notes and the Transaction Documents, that is proprietary in nature and that was clearly marked or labeled as being confidential information of the Issuer, the Servicer or their Affiliates, provided that such term does not include information that (a) was publicly known or otherwise known to the Noteholder prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Noteholder or any Person acting on its behalf, (c) otherwise becomes known to the Noteholder other than through disclosure by the Issuer, the Servicer or their Affiliates or (d) any other public disclosure authorized by the Issuer or the Servicer.
“Continued Errors” shall have the meaning specified in Section 5.4(b) of the Indenture.
“Co-op Shares” shall mean a share certificate issued by the timeshare cooperative association of La Cabana Resort.
“Corporate Trust Office” shall mean the office of the Indenture Trustee located in the State of Minnesota, which office is at the address set forth in Section 13.3 of the Indenture.
“Credit Card Timeshare Loan” shall mean a Timeshare Loan where the Obligor makes its payments due on such Timeshare Loan with credit card payment arrangements.
“Credit Policy” shall mean the credit and underwriting policy of the Originators in effect on the Closing Date attached as Exhibit G to the Indenture as the same may be amended from time to time in accordance with the Indenture.
“Cumulative Net Default Level” for any Due Period shall be equal to the aggregate Loan Balance of Timeshare Loans that became Defaulted Timeshare Loans since the Initial Cut-Off Date and not repurchased or substituted (less (i) the aggregate Loan Balances of Defaulted Timeshare Loans that subsequently became current prior to such date of determination which are still subject to the lien of the Indenture at such time and (ii) recoveries net of remarketing fees) divided by the Aggregate Closing Date Collateral Balance, expressed as a percentage.
“Custodial Agreement” shall mean the custodial agreement, dated as of the Closing Date, by and among the Issuer, the Depositor, the Servicer, the Backup Servicer, and the
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Indenture Trustee and the Custodian, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof providing for the custody and maintenance of the Timeshare Loan Documents relating to the Timeshare Loans.
“Custodian” shall mean U.S. Bank National Association, a national banking association, or its permitted successors and assigns.
“Custodian’s Certification” shall have the meaning specified in Section 2.2(a) of the Custodial Agreement.
“Custodian Fees” shall mean for each Payment Date, the fee payable by the Issuer to the Custodian set forth in Section 2.4 of the Custodial Agreement.
“Cut-Off Date” shall mean, with respect to (i) the Initial Timeshare Loans, the Initial Cut-Off Date, and (ii) any Qualified Substitute Timeshare Loan or Subsequent Timeshare Loan, the related Subsequent Cut-Off Date.
“Cut-Off Date Loan Balance” shall mean the Loan Balance of a Timeshare Loan on its related Cut-Off Date.
“DBRS Morningstar” shall mean DBRS, Inc.
“Deeded Club Loan” shall mean a timeshare loan originated by the Club Originator and evidenced by a Mortgage Note and secured by a first Mortgage on a fractional fee simple timeshare interest in a Unit or an undivided interest in a Resort (or a phase thereof) associated with a Unit.
“Default” shall mean an event which, but for the passage of time, would constitute an Event of Default under the Indenture.
“Default Level” shall mean for any Due Period, the aggregate Loan Balance (without regard to recoveries) of Timeshare Loans that became Defaulted Timeshare Loans during such Due Period and not repurchased or substituted by the last day of such Due Period (less the Loan Balances of Defaulted Timeshare Loans that subsequently became current during such Due Period which are still subject to the Lien of the Indenture at such time) divided by the Aggregate Loan Balance on the first day of such Due Period, expressed as a percentage.
“Defaulted Timeshare Loan” shall mean a Timeshare Loan (other than a Force Majeure Loan) (i) for which, the Servicer has commenced cancellation or termination proceedings on the related Timeshare Loan after collection efforts have failed in accordance with its collection policies, (ii) for which, all or part of a scheduled payment under the Timeshare Loan is more than 120 days delinquent from the due date, provided, that with respect to this clause (iii), if a Timeshare Loan is not more than 120 days delinquent as of the last day of the Due Period, it shall not be a Defaulted Timeshare Loan as of that date, (iv) that otherwise ceases to be an Eligible Timeshare Loan, or (v) provided that such Timeshare Loan is at least 31 days delinquent from the due date, the Servicer has determined that such Timeshare Loan should be defaulted in accordance with its collection policies.
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“Defective Timeshare Loan” shall have the meaning specified in Section 4.6 of the Indenture.
“Deferred Interest Amount” shall mean, with respect to the Class B Notes and the Class C Notes and a Payment Date, the sum of (i) interest accrued at the related Note Rate during the related Interest Accrual Period on the Note Balance Write-Down Amounts applied to such Class and (ii) any unpaid Deferred Interest Amounts from any prior Payment Date, together with interest thereon at the applicable Note Rate from the date any such Note Balance Write-Down Amount was applied, to the extent permitted by law.
“Definitive Note” shall have the meaning specified in Section 2.2 of the Indenture.
“Delinquency Level” shall mean for any Due Period, the sum of the Loan Balances of Timeshare Loans (other than Defaulted Timeshare Loans or Force Majeure Loans) that are 61 days or more delinquent on the last day of such Due Period divided by the Aggregate Loan Balance on the first day of such Due Period, expressed as a percentage.
“Depositor” shall mean BRFC 2022-A LLC, a Delaware limited liability company, and its permitted successors and assigns.
“Depository” shall mean an organization registered as a “clearing agency” pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The initial Depository shall be DTC.
“Depository Agreement” shall mean the letter of representations dated as of the Closing Date, by and among the Issuer, the Indenture Trustee and the Depository.
“Depository Participant” shall mean a securities broker or dealer, bank, trust company, clearing corporation, other financial institution or other Person for whom from time to time a Depository directly or indirectly effects book-entry transfers and pledges securities deposited with the Depository.
“Determination Date” shall mean, with respect to any Payment Date, the day that is five Business Days prior to such Payment Date.
“Developer” shall mean Bluegreen Vacations Unlimited, Inc., a Florida corporation, and its permitted successors and assigns.
“Domestic Obligor” shall mean an Obligor who is a current resident of the United States, Puerto Rico, the U.S. Virgin Islands, Guam or any of the other territories of the United States.
“DTC” shall mean The Depository Trust Company, and its permitted successors and assigns.
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“Due Period” shall mean with respect to any Payment Date, the period from the 16th day of the preceding calendar month to the 15th day of the current calendar month (the first Due Period being from April 16, 2022 through May 15, 2022.
“Eligible Bank Account” shall mean a segregated account, which may be an account maintained by the Indenture Trustee with itself or at an Affiliate on behalf of the Indenture Trustee, which is maintained with a depository institution or trust company whose long-term issuer rating is at least “BBB” by S&P and whose short-term issuer rating is at least “A-2” by S&P.
“Eligible Investments” shall mean one or more of the following:
(a) obligations of, or guaranteed as to timely payment of principal and interest by, the United States or any agency or instrumentality thereof when such obligations are backed by the full faith and credit of the United States; |
(b) federal funds, certificates of deposit, time deposits and bankers’ acceptances, each of which shall not have an original maturity of more than 90 days, of any depository institution or trust company incorporated under the laws of the United States or any state; provided that the long-term unsecured debt obligations of such depository institution or trust company at the date of acquisition thereof have been rated in one of the three highest rating categories available from S&P; and provided, further, that the short-term obligations of such depository institution or trust company shall be rated in the highest rating category by S&P; |
(c) commercial paper or commercial paper funds (having original maturities of not more than 90 days) of any corporation incorporated under the laws of the United States or any state thereof; provided that any such commercial paper or commercial paper funds shall be rated in the highest short-term rating category by S&P; |
(d) any no-load money market fund (including money market funds managed or advised by the Indenture Trustee or an Affiliate thereof) rated in the highest short-term rating category or equivalent highest long-term rating category by S&P; provided that, Eligible Investments purchased from funds in the Eligible Bank Accounts shall include only such obligations or securities that either may be redeemed daily or mature no later than the Business Day next preceding the next Payment Date; or |
(e) demand and time deposits in, certificates of deposit of, bankers’ acceptances issued by, or federal funds sold by any depository institution or trust company (including the Indenture Trustee or any Affiliate of the Indenture Trustee, acting in its commercial capacity) incorporated under the laws of the United States of America or any State thereof and subject to supervision and examination by federal and/or state authorities, so long as, at the time of such
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|
investment, the commercial paper or other short-term deposits of such depository institution or trust company is rated at least “A-1” by S&P; |
and provided, further, that (i) no instrument shall be an Eligible Investment if such instrument evidences a right to receive only interest payments with respect to the obligations underlying such instrument, and (ii) no Eligible Investment may be purchased at a price in excess of par. Eligible Investments may include those Eligible Investments with respect to which the Indenture Trustee or an Affiliate thereof provides services.
“Eligible Owner Trustee” shall have the meaning specified in Section 10.01 of the Trust Agreement.
“Eligible Timeshare Loan” shall mean a Timeshare Loan which meets all of the criteria set forth in Schedule I of the Sale Agreement.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“Errors” shall have the meaning specified in Section 5.4 of the Indenture.
“Event of Default” shall have the meaning specified in Section 6.1 of the Indenture.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury Regulations promulgated thereunder or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreements entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.
“FATCA Withholding Tax” shall mean any withholding or deduction made in respect of any payment pursuant to FATCA.
“Floor Amount” shall mean the product of 0.25% and the Aggregate Closing Date Collateral Balance.
“Force Majeure Delay” shall mean with respect to the Servicer, any cause or event which is beyond the control and not due to the negligence of the Servicer, which delays, prevents or prohibits such Person’s delivery of the reports required to be delivered or the performance of any other duty or obligation of the Servicer under the Indenture, as the case may be, including, without limitation, computer, electrical and mechanical failures, acts of God or the elements and fire; provided, that no such cause or event shall be deemed to be a Force Majeure Delay unless the Servicer shall have given the Indenture Trustee written notice thereof as soon as practicable after the beginning of such delay.
“Force Majeure Loan” shall mean a Timeshare Loan for which a natural disaster, epidemic or pandemic, government mandated shutdown of economy, act of terror or similar
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occurrences has had a direct impact on the ability of the related Obligor to make payments due to disruption of employment or to place of residence, as determined by the Servicer in accordance with the Servicing Standard and for which the Servicer has determined, in accordance with the Servicing Standard, to defer loan payments for a specified grace period (which grace period shall not exceed two months). A Timeshare Loan shall cease to be a Force Majeure Loan at the end of the grace period granted by the Servicer, in accordance with the Servicing Standard.
“Force Majeure Loan Reserve Account” shall be the account established and maintained by the Indenture Trustee pursuant to Section 3.2(e) of the Indenture.
“Force Majeure Required Reserve Amount” shall mean an amount, if any, by which (i) the aggregate outstanding Loan Balances for all Force Majeure Loans and Post Grace Period Force Majeure Loans (that have not become Defaulted Timeshare Loans) exceeds (ii) 2.50% of the Aggregate Loan Balance.
“Foreclosure Property” shall have the meaning specified in Section 5.3(a)(xiii) of the Indenture.
“Foreign Obligor” shall mean an Obligor who is not a Domestic Obligor.
“GAAP” shall mean generally accepted accounting principles as in effect from time to time in the United States of America.
“General Reserve Account” shall mean the account maintained by the Indenture Trustee pursuant to Section 3.2(b) of the Indenture.
“General Reserve Account Initial Deposit” shall mean an amount equal to 2.50% of the Aggregate Closing Date Collateral Balance.
“General Reserve Account Required Balance” shall equal, for each Payment Date, the greater of (i) the Target Amount and (ii) the Floor Amount; provided, however, that in no event shall the General Reserve Account Required Balance equal an amount greater than the Aggregate Outstanding Note Balance as of such Payment Date regardless of what the Target Amount or the General Reserve Account Required Balance would otherwise be.
“Global Note” shall have the meaning specified in Section 2.2 of the Indenture.
“Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Grant” shall mean to grant, bargain, convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right of set-off against, deposit, set over and confirm.
“Highest Lawful Rate” shall have the meaning specified in Section 3 of the Sale Agreement.
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“Indenture” shall mean the indenture, dated as of the Closing Date, by and among the Issuer, the Club Trustee, the Servicer, the Backup Servicer, the Indenture Trustee and the Custodian, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Indenture Trustee” shall mean U.S. Bank Trust Company, National Association, a national banking association, not in its individual capacity but solely as Indenture Trustee under the Indenture, and any successor as set forth in Section 7.9 of the Indenture.
“Indenture Trustee Fee” shall mean for each Payment Date, the sum of (A) $833.33 and (B) until the Indenture Trustee shall become the successor Servicer, the greater of (i) the product of one-twelfth of 0.016% and the Aggregate Loan Balance as of the first day of the related Due Period and (ii) $1,500.00.
“Initial Cut-Off Date” shall mean the close of business on April 15, 2022.
“Initial Note Balance” shall mean with respect to the Class A Notes, the Class B Notes and the Class C Notes, $70,981,000, $56,474,000 and $44,497,000, respectively.
“Initial Payment Date” shall mean the Payment Date occurring in May 31, 2022.
“Initial Purchasers” shall mean KeyBanc Capital Markets Inc., BofA Securities, Inc., and Truist Securities, Inc.
“Initial Timeshare Loans” shall mean the timeshare loans listed on the Schedule of Timeshare Loans purchased by the Issuer and pledged to the Indenture Trustee on the Closing Date.
“Institutional Accredited Investor” shall mean an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act.
“Intended Tax Characterization” shall have the meaning specified in Section 4.4(b) of the Indenture.
“Interest Accrual Period” shall mean for each Class of Notes with respect to any Payment Date, a period of thirty (30) days, except that the initial Interest Accrual Period shall be the period from and including the Closing Date through but not including the initial Payment Date.
“Interest Distribution Amount” shall equal, for a Class of Notes and on any Payment Date, the sum of (i) interest accrued during the related Interest Accrual Period at the related Note Rate on the Outstanding Note Balance of such Class of Notes immediately prior to such Payment Date (or, in the case of the Class B Notes and the Class C Notes, if any Note Balance Write-Down Amounts have been applied to such Class of Notes, the Adjusted Note Balance of such Class of Notes) and (ii) the amount of unpaid Interest Distribution Amounts from prior Payment Dates for such Class of Notes, plus, to the extent permitted by applicable law, interest on such unpaid amount at the related Note Rate. The Interest Distribution Amount shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
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“Introductory Loan” shall mean a loan originated in connection with an Introductory Product.
“Introductory Product” shall mean certain introductory products with FICO® scores and finance terms that are intended to be held in Bluegreen’s portfolio.
“Issuer” shall mean BXG Receivables Note Trust 2022-A, a statutory trust formed under the laws of the State of Delaware pursuant to the Trust Agreement.
“Issuer Order” shall mean a written order or request delivered to the Indenture Trustee and signed in the name of the Issuer by an Authorized Officer of the Issuer or Administrator.
“Knowledge” shall mean (a) as to any natural Person, the actual awareness of the fact, event or circumstance at issue or receipt of notification by proper delivery of such fact, event or circumstance and (b) as to any Person that is not a natural Person, the actual awareness of the fact, event or circumstance at issue by a Responsible Officer of such Person or receipt, by a Responsible Officer of such Person, of notification by proper delivery of such fact, event or circumstance.
“La Cabana Resort” shall mean the Resort located in Aruba known as the La Cabana Beach and Racquet Club.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment for security, security interest, claim, participation, encumbrance, levy, lien or charge.
“Liquidation” shall mean, with respect to any Timeshare Loan, the sale or compulsory disposition of a Foreclosure Property, following foreclosure, termination or other enforcement action or the taking of a deed-in-lieu of foreclosure, to a Person other than the Servicer or an Affiliate thereof.
“Liquidation Expenses” shall mean, with respect to the Foreclosure Property related to a Defaulted Timeshare Loan, as of any date of determination, any reasonable out-of-pocket expenses (exclusive of overhead expenses) incurred by the Servicer or the Remarketing Agent in connection with the performance of its obligations under Section 5.3(a)(xiii) of the Indenture or the Remarketing Agreement, as applicable, including, but not limited to, (i) any foreclosure, deed-in-lieu of foreclosure or termination and other repossession expenses incurred with respect to such Foreclosure Property, (ii) commissions and marketing and sales expenses incurred by the Servicer or the Remarketing Agent with respect to the remarketing of the related Foreclosure Property (including the Remarketing Fee), and (iii) any other fees and expenses reasonably applied or allocated in the ordinary course of business with respect to the Liquidation of a Foreclosure Property (including any assessed and unpaid Association fees and real estate taxes).
“Liquidation Proceeds” shall mean, with respect to the Liquidation of any Foreclosure Property related to a Defaulted Timeshare Loan, the amounts actually received by the Servicer or the Remarketing Agent in connection with such Liquidation.
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“Loan Balance” shall mean, for any date of determination, with respect to a Timeshare Loan, the outstanding principal balance due under or in respect of such Timeshare Loan (including a Defaulted Timeshare Loan).
“Lockbox Account” shall mean the deposit account maintained at the Lockbox Bank pursuant to the Lockbox Agreement, which shall be a non-interest bearing account.
“Lockbox Agreement” shall mean the deposit account control agreement, by and among the Issuer, the Indenture Trustee and the Lockbox Bank related to the Lockbox Account.
“Lockbox Bank” shall mean Bank of America, N.A., and its permitted successors and assigns.
“Lockbox Fee” shall mean on each Payment Date, the fee payable by the Issuer to the Lockbox Bank in accordance with the Lockbox Agreement.
“Lockout Default Level” shall mean the level specified below for the related Due Period listed below:
“Lockout Event” shall occur on a Determination Date if (i) the average of the Default Levels for the last three Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed) exceeds the related Lockout Default Level and shall continue until the Default Level is equal to or less than the related Lockout Default Level for five consecutive Due Periods, (ii) the Recovery Ratio is less than 25.00% or (iii) the Cumulative Net Default Level as of the last day of any Due Period specified below exceeds the corresponding level specified below and shall continue until the Cumulative Net Default Level is equal to or less than the level specified below for five consecutive Due Periods:
Due Period |
Cumulative Net Default Level |
1 – 6 |
2.250% |
7 – 12 |
3.600% |
13 – 24 |
6.750% |
25 – 36 |
9.375% |
37 – 47 |
14.400% |
48 and thereafter |
18.000% |
|
|
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“Lost Note Affidavit” shall mean the affidavit to be executed in connection with any delivery of a Mortgage Note or, with respect to Aruba Club Loans, an Owner Beneficiary Agreement, in lieu of the original, in the form of Exhibit D attached to each of the Transfer Agreement, the Bluegreen Purchase Agreement and the Sale Agreement.
“Misdirected Deposits” shall mean such payments that have been deposited into the Collection Account in error.
“Monthly Servicer Report” shall have the meaning specified in Section 5.5 of the Indenture.
“Mortgage” shall mean, with respect to a Deeded Club Loan, any purchase money mortgage, deed of trust, purchase money deed of trust, deed to secure debt, or mortgage deed creating a first lien on a Timeshare Property to secure debt granted by the Club Trustee on behalf of an Obligor to the Club Originator with respect to the purchase of such Timeshare Property and/or the contribution of the same to the Club and otherwise encumbering the related Timeshare Property to secure payments or other obligations under such Timeshare Loan.
“Mortgage Note” shall mean, with respect to a Deeded Club Loan, the original, executed promissory note evidencing the indebtedness of an Obligor under a Deeded Club Loan, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement of such note.
“Net Liquidation Proceeds” shall mean with respect to a Liquidation, the positive difference between Liquidation Proceeds and Liquidation Expenses.
“Non-Opinion Resort” shall mean a Resort that is not an Opinion Resort.
“Note Balance Write-Down Amount” shall mean with respect to any Payment Date, an amount equal to the excess, if any, of the Aggregate Outstanding Note Balance after taking account of all distributions of principal on such Payment Date over the sum of (i) the Aggregate Loan Balance as of the end of the Due Period related to such Payment Date and (ii) amounts on deposit in the General Reserve Account and the Prefunding Account. The Note Balance Write-Down Amount shall be applied in the following order of priority: (i) to the Outstanding Note Balance of the Class C Notes immediately following the distribution of Available Funds on each Payment Date until the Adjusted Note Balance of the Class C Notes is reduced to zero and (ii) to the Outstanding Note Balance of the Class B Notes immediately following the distribution of Available Funds on each Payment Date until the Adjusted Note Balance of the Class B Notes is reduced to zero.
“Note Owner” shall mean, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly or as an indirect participant, in accordance with the rules of such Depository).
“Note Purchase Agreement” shall mean that certain note purchase agreement dated April 22, 2022, by and among the Initial Purchasers, Bluegreen, the Depositor and the Issuer.
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“Note Rate” shall mean with respect to the Class A Notes, the Class B Notes and the Class C Notes, 4.12%, 4.61% and 5.35%, respectively.
“Note Register” shall have the meaning specified in Section 2.4(a) of the Indenture.
“Note Registrar” shall have the meaning specified in Section 2.4(a) of the Indenture.
“Noteholder” shall mean any holder of a Note of any Class.
“Noteholder FATCA Information” shall mean information sufficient to eliminate the imposition of, or determine the amount of, FATCA Withholding Tax.
“Noteholder Tax Identification Information” shall mean properly completed and signed tax certifications (generally, in the case of U.S. federal income tax, IRS Form W-9 (or applicable successor form) in the case of a person that is a “United States person” within the meaning of Section 7701(a)(30) of the Code or the appropriate IRS Form W-8 or other applicable form (or applicable successor forms) in the case of a person that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code).
“Notes” shall mean collectively, the Class A Notes, the Class B Notes and the Class C Notes.
“Obligor” shall mean the related obligor under a Timeshare Loan.
“Offering Circular” shall mean that certain Confidential Offering Circular, dated April 22, 2022 related to the Notes and the Transaction Documents.
“Officer’s Certificate” shall mean a certificate executed by a Responsible Officer of the applicable party.
“Opinion of Counsel” shall mean a written opinion of counsel, in each case acceptable to the addressees thereof.
“Opinion Resorts” shall mean a Resort even if Bluegreen no longer owns substantial vacation ownership interests in the Resort and includes the following resorts: Casa del Mar Beach Resort, Daytona SeaBreeze™, The Fountains, Lake Eve Resort, Grande Villas at World Golf Village™, The Hammocks at Marathon™, Orlando’s Sunshine Resort™ I & II, BG Club 36™ Resort, Carolina Grande™, Harbour LightsTM, SeaGlass TowerTM, The Lodge Alley Inn™, Shore Crest Vacation VillasTM, Laurel CrestTM, MountainLoftTM I and II, Shenandoah CrossingTM, Bluegreen Wilderness Traveler at ShenandoahTM, BG Patrick Henry Square™, Bluegreen at Tradewinds, Eilan Hotel & Spa and King 583, Blue Ridge Village, and Parkside.
“Optional Purchase Limit” shall mean, on any date, an amount equal to (x) 15% of the Aggregate Closing Date Collateral Balance, less (y) the aggregate Loan Balances (as of the related purchase dates or release dates, as applicable) of all Defaulted Timeshare Loans (i) previously purchased by the Club Originator pursuant to the Sale Agreement, the Transfer
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Agreement or the Bluegreen Purchase Agreement or (ii) previously released pursuant to Section 4.7(c) of the Indenture.
“Optional Redemption Date” shall mean the first date in which the Aggregate Outstanding Note Balance is less than or equal to 15% of the Aggregate Initial Note Balance.
“Optional Substitution Limit” shall mean, on any date, an amount equal to (x) 20% of the Aggregate Closing Date Collateral Balance less (y) the aggregate Loan Balances (as of the related Transfer Dates) of all Defaulted Timeshare Loans previously substituted by the Club Originator pursuant to the Sale Agreement, the Transfer Agreement or the Bluegreen Purchase Agreement.
“Original Club Loan” shall mean a Timeshare Loan for which the related Obligor has elected to effect and the Club Originator has agreed to effect an Upgrade.
“Originator” shall mean either the Club Originator or the Aruba Originator.
“Outstanding” shall mean, with respect to the Notes, as of any date of determination, all Notes theretofore authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation; |
(b) Notes or portions thereof for whose payment money in the necessary amount has been theretofore irrevocably deposited with the Indenture Trustee in trust for the holders of such Notes; and |
(c) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a Person in whose hands the Note is a valid obligation; provided, however, that in determining whether the holders of the requisite percentage of the Outstanding Note Balance of the Notes have given any request, demand, authorization, direction, notice, consent, or waiver under the Indenture, Notes owned by the Issuer or any Affiliate of the Issuer shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver, only Notes that a Responsible Officer of the Indenture Trustee actually has notice are so owned shall be so disregarded. |
“Outstanding Note Balance” shall mean as of any date of determination and Class of Notes, the Initial Note Balance of such Class of Notes less the sum of principal payments actually distributed to the Noteholders of such Class of Notes as of such date; provided, however, to the extent that for purposes of consents, approvals, voting or other similar act of the Noteholders under any of the Transaction Documents, “Outstanding Note Balance” shall exclude Notes which are held by Bluegreen or any Affiliate thereof.
“Owner Beneficiary” shall have the meaning specified in the Club Trust Agreement.
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“Owner Beneficiary Agreement” shall mean the purchase agreement entered into by each Obligor and the Developer with respect to the Club Loans.
“Owner Beneficiary Rights” shall have the meaning specified in the Club Trust Agreement.
“Owner Trustee” shall mean Wilmington Trust Company, a Delaware banking corporation, or any successor thereof, acting not in its individual capacity but solely as owner trustee under the Trust Agreement.
“Owner Trustee Corporate Trust Office” shall mean 1100 North Market Street, Wilmington, Delaware 19890-0001.
“Owner Trustee Fee” shall mean an annual fee equal to (a) prior to the Owner Trustee becoming successor Administrator, $6,000.00 and (b) upon the Owner Trustee becoming successor Administrator, $5,000.00, which fee shall be due and payable on the first Payment Date of each year during the term hereof occurring after the Issuer’s receipt of an invoice therefor.
“Paying Agent” shall mean any Person authorized under the Indenture to make the distributions required under Sections 3.4 of the Indenture, which such Person initially shall be the Indenture Trustee.
“Payment Date” shall mean the 28th day of each month, or, if such date is not a Business Day, then the next succeeding Business Day, commencing on the Initial Payment Date.
“Payment Default Event” shall have occurred if (i) each Class of Notes shall become due and payable pursuant to Section 6.2(a) of the Indenture or (ii) each Class of Notes shall otherwise become due and payable following an Event of Default under the Indenture and the Indenture Trustee has, in its good faith judgment, determined that the value of the assets comprising the Trust Estate is less than the Aggregate Outstanding Note Balance.
“Percentage Interest” for a Class of Notes on each Payment Date shall mean the then Outstanding Note Balance of such Class of Notes divided by the sum of the then Aggregate Loan Balance and the then Prefunding Loan Balance (each calculated as of the close of business on the day immediately prior to the related Due Period), expressed as a percentage (which initially, for the Class A Notes, the Class B Notes and the Class C Notes shall be approximately 36.45%, 29.00% and 22.85%, respectively).
“Permitted Liens” shall mean (a) with respect to Timeshare Loans in the Trust Estate, (i) Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or such exceptions as may be set forth in any related lender’s title insurance policy or in any related lender’s title insurance commitment as of the Closing Date or a Transfer Date, as applicable, (ii) Liens in favor of the Depositor and the Issuer created pursuant to the Transaction Documents, and (iii) Liens in favor of the Trust and the Indenture Trustee created pursuant to the Indenture; (b) with respect to the related Timeshare Property, (i) materialmen’s, warehousemen’s, mechanic’s and other Liens arising by operation of law in the ordinary course of business for sums not due, (ii) Liens for state, municipal or other local taxes if such taxes shall
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not at the time be due and payable, and (iii) the Obligor’s interest in the Timeshare Property under the Timeshare Loan whether pursuant to the Club Trust Agreement or otherwise; and (c) with respect to Timeshare Loans and Related Security in the Trust Estate, any and all rights of the Beneficiaries referred to in the Club Trust Agreement under such Club Trust Agreement.
“Person” shall mean an individual, general partnership, limited partnership, limited liability partnership, corporation, business trust, joint stock company, limited liability company, trust, unincorporated association, joint venture, Governmental Authority, or other entity of whatever nature.
“Post Grace Period Force Majeure Loan” shall mean a Timeshare Loan that, as a result of the end of the grace period granted by the Servicer, ceased to be a Force Majeure Loan, but for which the related Obligor has not yet made two consecutive current payments. Upon the related Obligor making two consecutive current payments, such Post Grace Period Force Majeure Loan shall cease to be a Post Grace Period Force Majeure Loan.
“Predecessor Servicer Work Product” shall have the meaning specified in Section 5.4(b) of the Indenture.
“Prefunding Account” shall be the account maintained by the Indenture Trustee pursuant to Section 3.2(c) of the Indenture.
“Prefunding Account Initial Deposit” shall equal $8,597,991.75.
“Prefunding Loan Balance” shall mean the excess of the maximum aggregate Cut-Off Date Loan Balances of Subsequent Timeshare Loans that may be purchased during the Prefunding Period over the aggregate Cut-Off Date Loan Balances of Subsequent Timeshare Loans that have been purchased during the Prefunding Period.
“Prefunding Period” shall mean the period commencing on the Closing Date and ending on the Prefunding Termination Date.
“Prefunding Termination Date” shall mean the Determination Date immediately following the earliest of (i) 120 days after the Closing Date, (ii) the date on which the amount on deposit into the Prefunding Account is less than $10,000 and (iii) the date on which an Event of Default occurs.
“Principal Advance Rate Percentage” shall mean the lesser of (i) 88.30% and (ii) a fraction, expressed as a percentage, the numerator of which is the excess of (A) the sum of the Aggregate Loan Balance and the Prefunding Loan Balance, each as of the last day of the related Due Period over (B) the product of 1.00% and the Aggregate Closing Date Collateral Balance, and the denominator of which is the sum of the Aggregate Loan Balance and the Prefunding Loan Balance, each as of the last day of the related Due Period.
“Principal Advance Reduction Amount” shall mean for any Payment Date, the amount by which the Aggregate Outstanding Note Balance (determined after giving effect to the payments of the Principal Distribution Amounts on such Payment Date) exceeds the product of
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(i) the Principal Advance Rate Percentage and (ii) the sum of the Aggregate Loan Balance and the Prefunding Loan Balance, each as of the last day of the related Due Period.
“Principal Distribution Amount” shall equal for any Payment Date and Class of Notes, the sum of the following, without duplication, with respect to any Timeshare Loan:
(i) |
the product of (a) such Class’ Percentage Interest and (b) the amount of principal collected in respect of each Timeshare Loan during the related Due Period (including, but not limited to, principal in respect of scheduled payments, partial prepayments, prepayments in full, liquidations, Substitution Shortfall Amounts and Repurchase Prices, if any, but excluding principal received in respect of Timeshare Loans that became Defaulted Timeshare Loans during prior Due Periods that have not been released from the Lien of the Indenture) or, if the Cut-Off Date for a Qualified Substitute Timeshare Loan shall have occurred during the related Due Period, the amount of principal collected in respect of such Qualified Substitute Timeshare Loan after such Cut-Off Date; |
(ii) |
the product of (a) such Class’ Percentage Interest and (b) the aggregate Loan Balance of all Timeshare Loans which became Defaulted Timeshare Loans during the related Due Period less the sum of (x) the aggregate Loan Balance of all Qualified Substitute Timeshare Loans which were conveyed to the Trust Estate in respect of Defaulted Timeshare Loans during the related Due Period, (y) the principal portion of Repurchase Prices paid in respect of Defaulted Timeshare Loans during the related Due Period, and (z) the principal portion of Liquidation Proceeds received during the related Due Period; |
(iii) |
on the first Payment Date after the Prefunding Termination Date, the product of (a)(1) such Class’ Percentage Interest divided by (2) 88.30% and (b) the amount deposited into the Collection Account from the Prefunding Account pursuant to Section 3.2(c) of the Indenture, if any; and |
(iv) |
any unpaid Principal Distribution Amounts for such Class from prior Payment Dates. |
“Qualified Institutional Buyer” shall have the meaning specified in Rule 144A.
“Qualified Substitute Timeshare Loan” shall mean a timeshare loan (i) that, when aggregated with other Qualified Substitute Timeshare Loans being substituted on such Transfer Date, has a Loan Balance, after application of all payments of principal due during or prior to the month of substitution, not in excess of the Loan Balance of the substituted Timeshare Loan on the related Transfer Date, (ii) that complies, as of the related Transfer Date, with each of the representations and warranties set forth in the Transfer Agreement and the Bluegreen Purchase Agreement, including that such Qualified Substitute Timeshare Loan is an Eligible Timeshare Loan, provided, however, that there will be no seasoning requirement if a Qualified Substitute
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Timeshare Loan is an Upgrade Club Loan replacing an Original Club Loan with the same Obligor, (iii) that shall not cause the weighted average coupon rate of the Timeshare Loans to be less than 14.0% after such substitution, (iv) that shall not cause the weighted average months of age on the Timeshare Loans to be less than 10 months after such substitution, (v) that shall not cause the weighted average remaining term to maturity of the Timeshare Loans to be equal to or greater than 111 months, (vi) that does not have a stated maturity later than September 2035, and (vii) that has a FICO® score and, when aggregated with other Qualified Substitute Timeshare Loans being substituted on such Transfer Date, has a weighted average FICO® score of at least 710.
“Rating Agency” shall mean each of S&P and DBRS Morningstar.
“Receivables” shall mean the payments required to be made pursuant to a Timeshare Loan.
“Record Date” shall mean, with respect to any Payment Date (i) for Global Notes, the close of business on the Business Day immediately preceding such Payment Date and (ii) for Definitive Notes, the close of business on the last Business Day of the month preceding the month in which such Payment Date occurs.
“Recovery Ratio” shall mean, for any Determination Date, (i) if any Timeshare Loans became Defaulted Timeshare Loans during the three immediately preceding Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed), the percentage equivalent of a fraction (a) the numerator of which is equal to the sum of (x) the aggregate Loan Balance of all Timeshare Loans that became Defaulted Timeshare Loans during the three immediately preceding Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed) that were substituted for or repurchased by the Club Originator prior to such Determination Date (with the Loan Balance of each Defaulted Timeshare Loan determined as of the day immediately preceding the date on which such Timeshare Loan became a Defaulted Timeshare Loan) and (y) all Net Liquidation Proceeds received during the three immediately preceding Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed) in respect of Defaulted Timeshare Loans that were not substituted or repurchased by the Club Originator prior to such Determination Date and (b) the denominator of which is the aggregate Loan Balance of all Timeshare Loans that became Defaulted Timeshare Loans during the three immediately preceding Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed); and (ii) if no Timeshare Loans became Defaulted Timeshare Loans during the three immediately preceding Due Periods (or if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed), 100%.
“Redemption Date” shall mean with respect to the redemption of the Notes on or after the Optional Redemption Date, the date fixed pursuant to Section 10.1 of the Indenture.
“Redemption Price” shall mean, with respect to each Class of Notes, the sum of the Outstanding Note Balance of such Class of Notes, together with interest accrued and unpaid thereon at the applicable Note Rate up to and including the Redemption Date.
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“Regulation S” shall have the meaning specified in the Securities Act.
“Regulation S Global Note” shall have the meaning specified in Section 2.2 of the Indenture.
“Related Security” shall mean with respect to any Timeshare Loan, (i) all of the Issuer’s interest in the Timeshare Property arising under or in connection with the related Mortgage, if any, Owner Beneficiary Rights, Vacation Points and the related Timeshare Loan Files, (ii) all other security interests or liens and property subject thereto from time to time purporting to secure payment of such Timeshare Loan, together with any Mortgages, signed by the Club Trustee on behalf of an Obligor describing any collateral securing such Timeshare Loan, (iii) all guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Timeshare Loan, (iv) any assignments of Mortgages and any financing statements, and (v) all other security and books, records and computer tapes relating to the foregoing.
“Remarketing Agent” shall mean Bluegreen.
“Remarketing Agreement” shall mean that certain remarketing agreement, dated as of the Closing Date, by and among, the Servicer, the Issuer, the Remarketing Agent and the Indenture Trustee, as the same may be amended, modified, or supplemented from time to time in accordance with the terms thereof.
“Repurchase Price” shall mean with respect to any Timeshare Loan to be repurchased by the Club Originator pursuant to the Transfer Agreement, the Bluegreen Purchase Agreement or the Sale Agreement, an amount equal to the Loan Balance of such Timeshare Loan as of the date of such purchase or repurchase, together with all accrued and unpaid interest on such Timeshare Loan at the related Timeshare Loan Rate to, but not including, the due date for such interest in the then current Due Period.
“Request for Release” shall be a request for release of Timeshare Loan Documents in the form required by the Custodial Agreement.
“Required Payments” shall mean each of the items described in (i) through (xiv) of Section 3.4 of the Indenture.
“Reservation System” shall mean the reservation system utilized by the Club and owned by the Club Managing Entity or the services contracted by the Club Managing Entity with a third party.
“Residual Interest Certificate” shall mean the certificate issued under the Trust Agreement, which represents the economic residual interest of the Trust formed thereunder.
“Residual Interest Owner” shall mean the owner of the Residual Interest Certificate issued by the Issuer pursuant to the Trust Agreement, which shall initially be the Depositor.
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“Resort” shall mean, as the context shall require, the resort at which the Timeshare Property related to a Timeshare Loan is located.
“Resort Interests” shall have the meaning specified in the Club Trust Agreement.
“Responsible Officer” shall mean (a) when used with respect to the Owner Trustee or the Indenture Trustee, any officer assigned to the Owner Trustee Corporate Trust Office or the Corporate Trust Office, respectively, and having direct responsibility for the administration of the Trust Agreement or the Indenture, as applicable, including any Managing Director, Senior Vice President, Vice President, Assistant Vice President, Secretary, Assistant Secretary, Assistant Treasurer, any trust officer or any other officer such Person customarily performing functions similar to those performed by any of the above designated officers, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject; (b) when used with respect to the Servicer, the Chief Financial Officer, an Executive Vice President, a Senior Vice President, a Vice President, an Assistant Vice President, the Chief Accounting Officer or the Secretary of the Servicer; and (c) with respect to any other Person, the chairman of the board, chief financial officer, the president, a vice president, the treasurer, an assistant treasurer, the secretary, an assistant secretary, the controller, general partner, trustee or the manager of such Person.
“Restricted Period” shall mean the 40-day period prescribed by Regulation S commencing on the later of (i) the date upon which the Notes are first offered to persons other than the Initial Purchasers and any other distributor (as such term in defined in Regulation S) of the Notes and (ii) the Closing Date.
“Rule 144A” shall have the meaning specified in the Note Purchase Agreement.
“Rule 144A Global Note” shall have the meaning specified in Section 2.2 of the Indenture.
“S&P” shall mean S&P Global Ratings, a business unit of Standard & Poor's Financial Services, LLC or its successor.
“Sale Agreement” shall mean that certain sale agreement, dated as of the Closing Date, between the Depositor and the Issuer pursuant to which the Depositor sells the Initial Timeshare Loans on the Closing Date, and the Subsequent Timeshare Loans during the Prefunding Period, to the Issuer.
“Schedule of Timeshare Loans” shall mean the list of Timeshare Loans delivered pursuant to the Sale Agreement, as amended from time to time to reflect repurchases, substitutions, Subsequent Timeshare Loans and Qualified Substitute Timeshare Loans conveyed pursuant to the terms of the Indenture, which list shall set forth the information with respect to each Timeshare Loan as of the related Cut-Off Date, as applicable, in numbered columns.
If the Schedule of Timeshare Loans is provided in electronic format, it shall be in a format reasonably acceptable to the Custodian (which, in any event, shall contain all the information specified above).
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“Securities Act” shall mean the Securities Act of 1933, as amended.
“Seller” shall mean with respect to (i) the Transfer Agreement, BXG Timeshare I, (ii) the Bluegreen Purchase Agreement, Bluegreen and (iii) the Sale Agreement, the Depositor.
“Sequential Pay Event” shall mean either a Payment Default Event or a Trust Estate Liquidation Event.
“Servicer” shall mean Bluegreen in its capacity as servicer under the Indenture, the Backup Servicing Agreement, the Remarketing Agreement and the Custodial Agreement, and its permitted successors and assigns.
“Servicer Event of Default” shall have the meaning specified in Section 5.4 of the Indenture.
“Servicing Fee” shall mean for any Payment Date, the product of (i)(A) if Bluegreen or an affiliate thereof is the Servicer, one-twelfth of 1.500% and (B) if the Indenture Trustee is the successor Servicer, one-twelfth of 1.560%, and (ii) the aggregate Loan Balance of all Timeshare Loans owned by the Issuer as of the first day of the related Due Period; provided that if the Indenture Trustee is the successor Servicer, it shall, after payment of the Backup Servicing Fee, be entitled to a minimum monthly payment of $5,500.00.
“Servicing Officer” shall mean those officers of the Servicer involved in, or responsible for, the administration and servicing of the Timeshare Loans, as identified on the list of Servicing Officers furnished by the Servicer to the Indenture Trustee and the Noteholders from time to time.
“Servicing Standard” shall mean, with respect to the Servicer and the Backup Servicer a servicing standard which complies with applicable law, the terms of the Transaction Documents, the terms of the respective Timeshare Loans and, to the extent consistent with the foregoing, to the best knowledge of the Servicer, is materially consistent with the customary standard of prudent servicers of loans secured by timeshare interests similar to the Timeshare Properties, but in no event lower than the standards employed by it when servicing loans for its own account or other third parties, but, in any case, without regard for (i) any relationship that it or any of its Affiliates may have with the related Obligor, and (ii) its right to receive compensation for its services under the Indenture or with respect to any particular transaction.
“Servicer Termination Costs” shall mean any extraordinary out-of-pocket expenses incurred by the Indenture Trustee associated with the transfer of servicing.
“Similar Law” shall mean any provision of federal, state or local law that is substantially similar to the prohibited transaction rules under ERISA or section 4975 of the Code.
“Stated Maturity” shall mean the Payment Date occurring in September 28, 2037.
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“Statutory Trust Statute” shall mean the Delaware Statutory Trust Act, Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq., as the same may be amended from time to time.
“Subsequent Cut-Off Date” shall mean with respect to any Transfer Date, (i) the close of business on the last day of the Due Period immediately preceding such Transfer Date or (ii) such other date prior to the Transfer Date as designated by the Servicer.
“Subsequent Timeshare Loans” shall mean the timeshare loans meeting the criteria specified in Section 4.3 of the Indenture, sold by the Depositor, purchased by the Issuer and pledged to the Indenture Trustee on a Transfer Date during the Prefunding Period.
“Subsequent Transfer Notice” shall have the meaning specified in Section 4.2(a) of the Indenture.
“Substitution Shortfall Amount” shall mean with respect to any Transfer Date, an amount equal to the excess of the aggregate Loan Balances of the substituted Timeshare Loans over the aggregate Loan Balances of the Qualified Substitute Timeshare Loans.
“Target Amount” shall mean, for any Payment Date, an amount equal to the product of (i) the Target Amount Percentage and (ii) the sum of the Aggregate Loan Balance and the Prefunding Loan Balance, each as of the last day of the related Due Period.
“Target Amount Percentage” shall mean (i) prior to the occurrence and continuance of a Lockout Event, for the first twelve Payment Dates following the Closing Date, 2.50%, for the 13th Payment Date following the Closing Date, 2.00%, for the 14th Payment Date following the Closing Date, 1.50%, and thereafter, 1.00% (ii) during the continuance of a Lockout Event, 5.00%, and (iii) if a Lockout Event has occurred, but is no longer continuing, (A) 4.00% for the first Payment Date thereafter, (B) 3.00% for the second Payment Date thereafter, (C) 2.00% for the third Payment Date thereafter and (D) 1.00% thereafter.
“Temporary Regulation S Global Note” shall have the meaning set forth in Section 2.2 of the Indenture.
“Timeshare Declaration” shall mean the declaration or other document recorded in the real estate records of the applicable municipality or government office where a Resort is located for the purpose of creating and governing the rights of owners of Timeshare Properties related thereto, as it may be in effect from time to time.
“Timeshare Loan” shall mean an Initial Timeshare Loan, a Subsequent Timeshare Loan or a Qualified Substitute Timeshare Loan, subject to the Lien of the Indenture. As used in the Transaction Documents, the term “Timeshare Loan” shall include the related Mortgage Note, Mortgage, if any, the Owner Beneficiary Agreement and other Related Security contained in the related Timeshare Loan Documents.
“Timeshare Loan Acquisition Price” shall mean on any date of determination, with respect to any Timeshare Loan, an amount equal to the fair market value of such Timeshare
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Loan as determined by BXG Timeshare I under the Transfer Agreement, by Bluegreen under the Bluegreen Purchase Agreement and by the Depositor under the Sale Agreement, as applicable.
“Timeshare Loan Documents” shall mean with respect to each Timeshare Loan and each Obligor, the related (i) Timeshare Loan Files, and (ii) Timeshare Loan Servicing Files.
“Timeshare Loan Files” shall mean, with respect to a Timeshare Loan, all documents related to such Timeshare Loan, including:
1. |
with respect to a Club Loan (other than an Aruba Club Loan), the original Mortgage Note, or a Lost Note Affidavit with respect thereto, executed by the Obligor, endorsed either as (i) “Pay to the order of ________, without recourse, representation or warranty” (either directly on the Mortgage Note or on an allonge placed with such Mortgage Note), by an Authorized Officer of the related Seller (such Authorized Officer’s signature may be computer generated), or (ii) a chain of endorsement substantially as follows: “Pay to the order of BRFC 2022-A LLC, without recourse, representation or warranty”, “Pay to the order of BXG Receivables Note Trust 2022-A, without recourse, representation or warranty” and “Pay to the order of U.S. Bank Trust Company, National Association, as Indenture Trustee, without recourse, representation or warranty except as provided in the Indenture dated as of April 28, 2022” (either directly on the Mortgage Note or on an allonge placed with such Mortgage Note), by an Authorized Officer of the related Seller, the Depositor and the Issuer (such Authorized Officer’s signature may be computer generated), respectively (in the case of both clauses (i) and (ii) above, together with a complete chain of endorsements from the original payee to the related Seller, if applicable); |
2. |
with respect to a Club Loan (other than an Aruba Club Loan), (i) an original Mortgage with evidence that such Mortgage has been recorded in the appropriate recording office (or an electronic copy of the mortgage including evidence of recording) or (ii) if such Mortgage has not yet been returned to the related Seller by such recording office, a copy of the unrecorded Mortgage that has been delivered to such recording office; |
3. |
with respect to a Club Loan (other than an Aruba Club Loan), (i) an original or electronic copy of the Assignment(s) of Mortgage as recorded or in recordable form, which, if recorded, include evidence of such recording (which may be a part of a blanket assignment of more than one Club Loan in which case, a copy thereof, with the original or electronic copy of the blanket Assignments of Mortgage held by the Custodian in the related master pool header file), showing the assignment of such Club Loan from the record mortgagee to the Indenture Trustee, or (ii) if such Assignments of Mortgage have been sent, but not yet been returned by the related recording office, a copy of the unrecorded Assignments of Mortgage that have been delivered to such recording office (which may be a part of a blanket assignment of more than one Club Loan), showing the
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|
assignment of such Club Loan from the record mortgagee to the Indenture Trustee, or (iii) if the related Mortgage has not yet been returned such that the related Assignment(s) of Mortgage cannot yet be filed, Assignments of Mortgage in recordable form (other than the Mortgage recording information) duly executed by the last record holder of the Mortgage showing the assignment of such Club Loan from the record mortgagee to the Indenture Trustee; provided, however, that with respect to clauses (ii) and (iii) of this paragraph 3, photocopies or electronic copies held by the Custodian in the related investor file shall be sufficient. |
4. |
with respect to a Club Loan (other than an Aruba Club Loan), the UCC financing statement, if any, evidencing that the security interest granted under such Timeshare Loan, if any, has been perfected under applicable state law; |
5. |
with respect to a Club Loan (other than an Aruba Club Loan), (i) a copy of any recorded warranty deed transferring legal title to the related Timeshare Property to the Club Trustee, or (ii) if such recorded warranty deed has not yet been returned to the related Seller, a copy of a warranty deed sent for recording; |
6. |
with respect to a Club Loan (other than an Aruba Club Loan), either (i) a final original or electronic copy of the lender’s title insurance policy (which may consist of one master policy referencing one or more Mortgages) showing no exceptions to coverage (other than Permitted Liens) or (ii) a binding unconditional commitment to issue a title insurance policy showing no exceptions to coverage (other than Permitted Liens) (which may be a master commitment referencing one or more Mortgages, the original or electronic copy of the master commitment to be held by the Custodian in the related master pool header file), in all cases referencing such Timeshare Loan and insuring Bluegreen Vacations Corporation and its successors and/or assigns; |
7. |
the original of any related assignment or guarantee or, if such original is unavailable, a copy thereof certified by an Authorized Officer of the related Seller to be a true and correct copy, current and historical computerized data files; |
8. |
the original of any assumption agreement or any refinancing agreement; |
9. |
all related Owner Beneficiary Agreements, finance applications, sale and escrow documents executed and delivered by the related Obligor with respect to the purchase of a Timeshare Property; |
10. |
all other papers and records of whatever kind or description, whether developed or originated by an Originator or another Person, required to document, service or enforce a Timeshare Loan; and |
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11. |
any additional amendments, supplements, extensions, modifications or waiver agreements required to be added to the Timeshare Loan Files pursuant to the Indenture, the Credit Policy, the Collection Policy or the other Transaction Documents, if any. |
Where documents are not required to be originals, the copies of the same that are a part of any Timeshare Loan File may be in electronic or paper format.
“Timeshare Loan Rate” shall mean with respect to any Timeshare Loan, the specified coupon rate thereon.
“Timeshare Loan Servicing Files” shall mean with respect to each Timeshare Loan and each Obligor, the portion of the Timeshare Loan Files necessary for the Servicer to service such Timeshare Loan including but not limited to (i) a copy of the applicable truth-in-lending disclosure statement executed by such Obligor, as applicable, (ii) all writings pursuant to which such Timeshare Loan arises or which evidences such Timeshare Loan and not delivered to the Custodian, (iii) all papers and computerized records customarily maintained by the Servicer in servicing timeshare loans comparable to the Timeshare Loans in accordance with the Servicing Standard and (iv) each Timeshare Program Consumer Document (not the original), if applicable, related to the applicable Timeshare Property.
“Timeshare Program” shall mean the program under which (1) an Obligor has purchased a Timeshare Property and (2) an Obligor shares in the expenses associated with the operation and management of such program.
“Timeshare Program Consumer Documents” shall mean, as applicable, the Owner Beneficiary Agreement, Mortgage Note, Mortgage, any rescission right notices, public offering statements and other documents and disclosures used or to be used by an Originator in connection with the sale of Timeshare Properties.
“Timeshare Program Governing Documents” shall mean the articles of organization or articles of incorporation of each Association, the rules and regulations of each Association, the Timeshare Program management contract between each Association and a management company, and any subsidy agreement by which an Originator is obligated to subsidize shortfalls in the budget of a Timeshare Program in lieu of paying assessments, as they may be from time to time in effect and all amendments, modifications and restatements of any of the foregoing.
“Timeshare Property” shall mean (i) with respect to a Deeded Club Loan, a fractional fee simple timeshare interest in a Unit in a Resort (or phase thereof) or an undivided interest in a Resort (or a phase thereof) associated with a Unit and (ii) with respect to an Aruba Club Loan, Co-op Shares.
“Transaction Documents” shall mean the Indenture, the Bluegreen Purchase Agreement, the Transfer Agreement, the Sale Agreement, the Lockbox Agreement, the Backup Servicing Agreement, the Administration Agreement, the Remarketing Agreement, the Custodial Agreement, the Note Purchase Agreement and all other agreements, documents or instruments
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(other than the Timeshare Loan Documents) delivered in connection with the transactions contemplated thereby.
“Transfer Agreement” shall mean the transfer agreement, dated as of the Closing Date, by and among Bluegreen, the Depositor and BXG Timeshare I pursuant to which certain Initial Timeshare Loans are sold to the Depositor.
“Transfer Date” shall mean with respect to (i) a Subsequent Timeshare Loan, the date during the Prefunding Period on which the Issuer purchases such Subsequent Timeshare Loan from a Seller and pledges such Subsequent Timeshare Loan to the Indenture Trustee to be included as part of the Trust Estate, and (ii) a Qualified Substitute Timeshare Loan, the date on which the Club Originator substitutes one or more Timeshare Loans in accordance with Section 4.6 of the Indenture.
“Treasury Regulations” shall mean the regulations, included proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
Due Period |
|
1 – 6 |
0.90% |
7 – 18 |
1.20% |
19 and thereafter |
1.50% |
“Trigger Default Level” shall mean the level specified below for the related Due Period listed below:
“Trigger Event” shall occur on any Determination Date if (a) the average of the Delinquency Levels for the last three Due Periods (or, if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed) is greater than 6.00% and shall continue until the Delinquency Level is equal to or less than 6.00% for three consecutive Due Periods, (b) the average of the Default Levels for the last three Due Periods (or, if fewer than three Due Periods have elapsed, the actual number of Due Periods which have elapsed) exceeds the related Trigger Default Level and shall continue until the Default Level is equal to or less than the related Trigger Default Level for five consecutive Due Periods, (c) a Note Balance Write-Down Amount is applied in respect of the Class C Notes or (d) the Cumulative Net Default Level as of the last day of any Due Period specified below exceeds the corresponding level specified below and shall continue until the Cumulative Net Default Level is equal to or less than the level specified below for five consecutive Due Periods:
Due Period |
Cumulative Net Default Level |
1 – 6 |
2.75% |
7 – 12 |
4.10% |
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13 – 15 |
7.50% |
16 – 18 |
8.50% |
19 – 21 |
9.00% |
22 – 24 |
9.50% |
25 – 36 |
12.50% |
37 – 47 |
16.00% |
48 and thereafter |
19.00% |
“Trust” shall mean the Issuer.
“Trust Accounts” shall mean collectively, the Lockbox Account, the Collection Account, the General Reserve Account, the Prefunding Account and the Force Majeure Loan Reserve Account.
“Trust Agreement” shall mean the amended and restated trust agreement, dated as of the Closing Date, by and among the Depositor and the Owner Trustee.
“Trust Estate” shall have the meaning specified in the Granting Clause of the Indenture.
“Trust Estate Liquidation Event” shall have the meaning specified in Section 6.6(b) of the Indenture.
“Trust Paying Agent” shall have the meaning specified in Section 3.09 of the Trust Agreement.
“UCC” shall mean the Uniform Commercial Code as from time to time in affect in the applicable jurisdiction or jurisdictions.
“Unit(s)” shall mean one individual air-space condominium unit, cabin, villa, cottage, townhome, platform tent, cabin, campsite for recreational vehicle or lot within a Resort, together with all furniture, fixtures and furnishings therein, if applicable, and together with any and all interests in common elements appurtenant thereto, as provided in the related Timeshare Program Governing Documents.
“Upgrade” shall mean the process in which (A) an obligor of an Original Club Loan elects to (i)(a) reconvey the existing Club Property for new Club Property (such new Club Property having a greater dollar value than the existing Club Property) and (b) cancel the Original Club Loan in exchange for an Upgrade Club Loan secured by such new Club Property or (ii)(a) acquires additional Club Property and (b) cancels the Original Club Loan in exchange for an Upgrade Club Loan from the Club Originator secured by the existing Club Property and the additional Club Property or (B) an owner of existing Club Property that is fully paid elects to (i) reconvey such Club Property for new Club Property (such new Club Property having a greater dollar value than the existing Club Property) or (ii) acquires additional Club Property.
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“Upgrade Club Loan” shall mean the new timeshare loan originated by the Club Originator in connection with an Upgrade.
“Vacation Points” shall have the meaning specified in the Club Trust Agreement.
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