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EXHIBIT 10.110
CLASS B NOTE
REGISTERED $25,578,000
No. R-2
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION ("BLUE SKY LAWS") OF THE UNITED STATES. BY ITS
ACCEPTANCE OF THIS NOTE THE HOLDER OF THIS NOTE IS DEEMED TO REPRESENT TO THE
INDENTURE TRUSTEE, THE ISSUER AND THE SERVICER THAT IT (i) IS A "QUALIFIED
INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QIB") AND IS ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT
OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS) TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR
(ii) IS OTHERWISE ACQUIRING THIS NOTE IN A TRANSACTION EXEMPT FROM THE
SECURITIES ACT AND APPLICABLE BLUE SKY LAWS.
NO RESALE, PLEDGE OR OTHER TRANSFER OF THIS NOTE (OR ANY INTEREST HEREIN) MAY BE
MADE BY ANY PERSON UNLESS (i) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, SUCH RESALE, PLEDGE OR OTHER
TRANSFER IS MADE TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE
INQUIRY IS A QIB ACTING FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS)
OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBs) TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A AND, IN ANY CASE, IN TRANSACTIONS UNDER AND IN COMPLIANCE WITH RULE
144A OR (ii) SUCH RESALE, PLEDGE OR OTHER TRANSFER IS OTHERWISE MADE IN A
TRANSFER EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE BLUE SKY LAWS, IN WHICH CASE THE INDENTURE TRUSTEE SHALL REQUIRE (A)
THAT BOTH THE PROSPECTIVE TRANSFEROR AND THE PROSPECTIVE TRANSFEREE CERTIFY TO
THE ISSUER IN WRITING THE FACTS SURROUNDING SUCH TRANSFER, WHICH CERTIFICATION
SHALL BE IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, AND (B) A WRITTEN
OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE EXPENSE OF THE ISSUER, THE
SERVICER OR THE INDENTURE TRUSTEE) SATISFACTORY TO THE INDENTURE TRUSTEE AND THE
ISSUER TO THE EFFECT THAT SUCH TRANSFER WILL NOT VIOLATE THE
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SECURITIES ACT OR APPLICABLE BLUE SKY LAWS. ANY ATTEMPTED TRANSFER IN
CONTRAVENTION OF THE IMMEDIATELY PRECEDING RESTRICTIONS WILL BE VOID AB INITIO
AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE TREATED AS THE OWNER OF THE
NOTES FOR ALL PURPOSES. THE PROSPECTIVE TRANSFEROR AND PROSPECTIVE TRANSFEREE,
JOINTLY AND SEVERALLY, AGREE TO INDEMNIFY THE ISSUER, THE INDENTURE TRUSTEE, THE
TRUST DEPOSITOR, BLUEGREEN CORPORATION AND THEIR RESPECTIVE AFFILIATES AGAINST
ANY LIABILITY SUCH PERSON MAY SUFFER AS A RESULT OF A TRANSFER OF A NOTE NOT IN
COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS.
THIS NOTE (AND ANY INTEREST HEREIN) MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
(i) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, ("ERISA")), THAT IS SUBJECT
TO THE PROVISIONS OF TITLE I OF ERISA, (ii) A PLAN DESCRIBED IN SECTION
4975(e)(1) OF THE CODE OR (iii) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY UNLESS THE PURCHASE AND
HOLDING OF THE NOTE WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION
UNDER ERISA OR THE CODE. BY ACCEPTING AND HOLDING THIS NOTE (OR ANY INTEREST
HEREIN), THE HOLDER HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED
THAT EITHER (A) IT IS NOT A BENEFIT PLAN OR (B) SUCH PURCHASE AND HOLDING WILL
NOT RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406(A) OF ERISA
OR SECTION 4975 OF THE CODE.
THIS NOTE HAS BEEN ISSUED PURSUANT TO THE TERMS OF THE INDENTURE (AS DEFINED
BELOW). BY ITS ACCEPTANCE OF THIS NOTE OR ANY INTEREST HEREIN, THE HOLDER AGREES
TO COMPLY WITH THE TERMS OF THE INDENTURE AND THE OTHER TRANSACTION DOCUMENTS
APPLICABLE TO HOLDERS. COPIES OF SUCH DOCUMENTS MAY BE OBTAINED FREE OF CHARGE
UPON WRITTEN REQUEST OF THE ISSUER.
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BXG RECEIVABLES OWNER TRUST 2000
CLASS B NOTE
BXG Receivables Owner Trust 2000, a Delaware business trust (including
any successor, the "ISSUER"), for value received, hereby promises to pay to U.S.
Bank Trust National Association (as Paying Agent on behalf of Heller Financial,
Inc. (the "Noteholder") and its successors and assigns), or registered assigns,
the principal sum of TWENTY-FIVE MILLION FIVE HUNDRED SEVENTY-EIGHT THOUSAND
DOLLARS or, if less, the aggregate unpaid Outstanding Amount of this Note
partially payable on each Payment Date in an amount equal to the aggregate
amount, if any, payable from the Collection Account in respect of principal on
the Class B Notes pursuant to SECTION 3.1 of the Indenture; PROVIDED, HOWEVER,
that the entire unpaid principal amount of this Note shall be due and payable on
the earliest to occur of the Facility Termination Date, the Class B Note Final
Scheduled Maturity Date and the Redemption Date, if any, pursuant to SECTION
10.1 of the Indenture. The Issuer will pay interest on this Note at the floating
rate, at the times and in the manner provided in the Indenture and the other
Transaction Documents, on each Payment Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in SECTION 3.1 of the Indenture. Principal and interest on this Note
shall be paid in the manner specified in the Indenture and the Sale and
Servicing Agreement.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
manually or in facsimile, by its Authorized Officer.
Dated: October 16, 2000
BXG RECEIVABLES OWNER TRUST
2000
By: Wilmington Trust Company, not in
its individual capacity, but solely
as Owner Trustee
By: /s/ Jill K. Morrison
---------------------------------
Name: Jill K. Morrison
Title: Financial Services
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
mentioned Indenture.
Dated: October 16, 2000
U.S. BANK TRUST NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Indenture Trustee
By: /s/ Tamara Schultz-Fugh
----------------------------------------
Authorized Signatory
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[REVERSE OF NOTE]
This Note is one of a duty authorized issue of Notes of the Issuer,
designated as its Class B Notes (herein called the "CLASS B NOTES" or the
"NOTES"), all issued under an Indenture dated as of September 1, 2000 (such
Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and U.S. Bank Trust National Association, not in its
individual capacity but solely as trustee (the "INDENTURE TRUSTEE", which term
includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are not otherwise
defined herein and that are defined in the Indenture shall have the meanings
assigned to them in or pursuant to the Indenture.
The Notes are and will be equally and ratably secured by the Collateral
as security therefor as provided in the Indenture.
As provided in the Indenture, the Notes may be redeemed pursuant to
SECTION 10.1 of the Indenture, in whole, but not in part, if the Trust Depositor
exercises its option to purchase the Receivables and the other Collateral on any
Payment Date if the Receivables Balance of all Receivables in the Asset Pool is
then less than 10% of the Receivables Balance of the Receivables purchased under
the Sale and Servicing Agreement when so purchased.
Each Noteholder, by acceptance of a Note (or an interest therein),
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer or the Indenture Trustee on the Notes
or under the Indenture or any certificate or other writing delivered in
connection therewith, against: (i) the Indenture Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of: (a) the
Indenture Trustee in its individual capacity, (b) any holder of a beneficial
interest in the Issuer, or the Indenture Trustee or of (c) any successor or
assign of the Indenture Trustee in its individual capacity, except as any such
Person may have expressly agreed.
It is the intent of the Issuer and the Noteholders that, for purposes
of Federal and State income tax and any other tax measured in whole or in part
by income, the Notes will qualify as indebtedness of the Issuer. Each
Noteholder, by acceptance of a Note, agrees to treat, and to take no action
inconsistent with the treatment of, the Notes for such tax purposes as
indebtedness of the Issuer.
Each Noteholder, by acceptance of a Note (or an interest therein),
covenants and agrees that by accepting the benefits of the Indenture that such
Noteholder will not at any time institute against the Issuer, or join in any
institution against the Issuer of, any bankruptcy, reorganization or
arrangement, insolvency or liquidation proceedings under any United States
Federal or State bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents and will
comply with the terms of the Transaction Documents applicable to Noteholders.
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This Note and the Indenture shall be construed in accordance with the
laws of the State of Illinois, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws. To the extent
permitted by applicable law, each of the Issuer, the Indenture Trustee and the
Noteholder waives any right to have a jury participate in resolving any dispute
sounding in contract, tort or otherwise between the parties arising out of,
connected with, related to, or incidental to the relationship between any of
them in connection with this Note or the Indenture. Instead, any such dispute
resolved in court will be resolved in a bench trial without a jury.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Transaction Documents, neither the Indenture Trustee, in its
individual capacity, any owner of a beneficial interest in the Issuer, nor any
of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture, it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Indenture Trustee for the sole purposes of binding the interests of the
Indenture Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof, each agrees that, except as expressly provided in the
Transaction Documents, in the case of an Event of Default under the Indenture,
the Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; PROVIDED, HOWEVER, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
