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EXHIBIT 10.207
SERVICING AGREEMENT
THIS SERVICING AGREEMENT ("Agreement") is effective as of the 16th day
of June, of the year 2000, and is made and entered into by and among BLUEGREEN
CORPORATION, a Massachusetts corporation (hereafter "Servicer"), BLUEGREEN/BIG
CEDAR VACATIONS, LLC, a Delaware limited liability company (hereafter "Company")
and Big Cedar, L.L.C., a Missouri limited liability company (hereafter "Big
Cedar").
WITNESSETH
WHEREAS, Servicer is experienced in the servicing of timeshare
receivables, inclusive of promissory notes and related deeds of trust;
WHEREAS, The Company is in the business of owning and operating a
timeshare resort known as the Big Cedar Timeshare Project (hereinafter the
"Project"), in which timeshare interests are marketed and sold, and in respect
thereto the Company may receive promissory notes and deeds of trust from
purchasers thereof;
WHEREAS, It is desirable that the parties hereto enter into an
agreement respecting the servicing of promissory notes, purchase documents and
deeds of trust received by the Company from certain purchasers of timeshare
interests at the Project (such promissory notes, purchase documents and/or deeds
of trust collectively referred to herein as the "Contracts").
NOW, THEREFORE, in consideration of the above recitals, and of the
representations, warranties and covenants hereafter contained and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Servicer and Company agree as follows:
1. APPLICATION. This Agreement shall apply to all Contracts received from
purchasers of timeshare interests at the Project.
2. APPOINTMENT OF SERVICER AS AN INDEPENDENT CONTRACTOR. The Company
hereby appoints Servicer as an independent contractor to collect, for
the account of Company, all periodic and other payments under the
Contracts. Servicer hereby accepts such appointment and agrees to act
in accordance with the terms hereof. Servicer shall have only the
authority which is expressly conferred upon it by this Agreement.
3. PAYMENTS.
(a) COLLECTION OF PAYMENTS. With respect to all Contracts serviced
under this Agreement, Servicer covenants and agrees that
during the entire term of this Agreement, Servicer will seek,
at its sole cost and expense, to collect promptly all payments
due under the Contracts.
(b) AUTHORIZATION TO ACCEPT PAYMENTS. Servicer is only authorized
to accept payments as provided in the Contracts or as required
by law.
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(c) DEFAULT UNDER CONTRACT. Subject to any reinstatement of the
defaulted Contracts as may take place, Servicer shall, in case
of default of any of the Contracts, forfeit or cancel the
rights of the obligor(s) under such Contracts, or institute or
assist in instituting, possessory, forfeiture, foreclosure or
other proceedings to acquire or terminate the rights of the
obligor(s) in and to the timeshare interest; the Servicer in
so proceeding at the total cost and expense of the Company.
(d) POST OFFICE BOX. Servicer agrees that it shall establish
through the lockbox bank (hereinafter referred to as "Lockbox
Bank") a post office box depository to which payments by
obligors under the Contracts may be made. Such post office box
shall be opened in the name of Company/Servicer (or if
required by hypothecation lender to Company, then Servicer may
open the lockbox in the name determined by such hypothecation
lender). Each obligor, as applicable, will be, as soon as
possible after the date of this Agreement, and thereafter
periodically as determined by Servicer, instructed to mail
their remittances under the Contracts to the above described
post office box. Company agrees to take all steps necessary
or, in Servicer's opinion, desirable to cause the obligors
under the Contracts to mail their remittances to the post
office box.
(e) RECEIPT OF PAYMENTS. On the day received, the Lockbox Bank
will open all mail addressed to the post office box referred
to hereinabove and remove and inspect enclosures. All Checks
and other collection remittances and all return items will be
processed by the Lockbox Bank according to the terms of the
Lockbox Agreement.
(f) PAC ARRANGEMENTS. If payors of Contracts are offered the
opportunity to pay such Contracts by electronic funds
transfer, PAC arrangements or credit card payments, then such
payments shall be processed through the appropriate accounts
as opposed to processing by check collection. Such payments
shall, otherwise, be subject to the terms hereof.
4. BLUEGREEN/BIG CEDAR VACATIONS, LLC CONTRACTS ACCOUNT.
(a) DEPOSIT OF PAYMENTS. All money orders, checks, drafts and
other orders of payment ("Checks") respecting payment on
Contracts, and all money and other funds ("Monies") (including
electronic fund transfer, PACs, credit card payments or
similar arrangements) respecting payment on Contracts received
by Servicer or the Lockbox Bank, in accordance with its usual
and customary procedures, will be deposited by Servicer or the
Lockbox Bank into an account at the bank maintained in the
name of Bluegreen/Big Cedar Vacations, LLC (hereinafter the
"Account"). In addition to Servicer's or Lockbox Bank's
deposit of all Checks and Monies received by it or in the post
office box, respectively, to the Account, Company agrees that
it will make or cause the obligors under the respective
Contracts who are unable or unwilling to remit payments due to
the post office box or by electronic fund transfer, PAC
arrangements or credit card payments, to instead pay Company
directly or by way of transfers to an account of Company and
to make deposits into the Account of all such payments.
Charges respecting the Account or the post office box and any
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other charges, costs or fees incurred pursuant to this
Agreement will be billed to and paid directly by Company, and
Servicer will not be liable for any such charges, costs or
fees. Servicer may deduct from the foregoing payments its fees
pursuant to the preceding sentence or to paragraph 5
hereinbelow. The Account shall be opened as an
interest-bearing account, if possible, and all such interest
shall accrue to the benefit of the Company. If an
interest-bearing account is not possible, Servicer shall seek
to have a periodic sweep to an interest-bearing account or
sweep directly to an account as directed by any hypothecation
lender.
(b) MONIES TO BE HELD IN TRUST. All Checks and Monies received by
Servicer are to be held in trust for Company until deposited.
All Checks and Monies deposited into the Account will become
the property of Company upon deposit, and Servicer will have
no interest in or control over the Checks and Monies,
excepting for its rights of setoff set forth in paragraph 4(a)
hereinabove, as applicable.
(c) WITHDRAWALS. Withdrawals from the Account are restricted, and
may be made only by way of draft, wire transfer or electronic
funds transfer payable to Company or pursuant to paragraph
4(a). To the extent that a hypothecation lender does not
otherwise direct, Servicer will arrange to wire transfer to
Company all collected funds received in the Account each
Wednesday to the Company's account number __________ at
_______________, bank transit number ___________, reference
______________, or as may otherwise be specifically directed
by Company. Company and Servicer understand and agree that
Servicer has exclusive control over transfers from the
account. The Servicer shall seek to set up an automated
repetitive wire agreement in respect to the foregoing
transfers.
(d) ACCEPTABLE PAYEE. Servicer or Lockbox Bank will deposit into
the Account all Checks on which the payee or endorsee is
Company or a reasonable variation of Company ("Acceptable
Payee"). Servicer or Lockbox Bank has the right, in its sole
discretion, to determine what is a reasonable variation of
Acceptable Payee. If the payee is not an Acceptable Payee,
Servicer or Lockbox Bank will not deposit the Check in the
aforereferenced account. Company agrees to indemnify and hold
Servicer or Lockbox Bank harmless from and against all losses,
costs, attorney's fees, claims or suits suffered by Servicer
or Lockbox Bank arising out of, or in connection with, its
depositing Checks payable to or endorsed in favor of
Acceptable Payees, except to the extent such damages and
losses are as a result of Servicer's or Lockbox Bank's gross
negligence or willful acts or omissions.
(e) PAYMENTS RECEIVED BY COMPANY. Company shall cause all payments
on Contracts to be made to the Account, and any payment on
Contracts which are received by Company shall be delivered by
Company to Servicer within two (2) business days after receipt
thereof.
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(f) ACCOUNTING. Within fifteen (15) days after the end of each
fiscal month of the Servicer during the term of this
Agreement, Servicer shall deliver to Company a statement
showing the then-current balance of the Account and all
deposits into and withdrawals from the Account during the
immediately preceding calendar month. After the end of each
fiscal month, during the term of this Agreement, Servicer
shall deliver to Company (a) a trial balance on each of the
Contracts including the payments received if any, delinquency
status, and a complete breakdown of the payment record as to
principal and interest and the outstanding principal balance
of each contract; (b) an aging report on each of the
Contracts; (c) a collection report on each of the Contracts;
and (d) a report on the status of the Contracts, including new
sales, forfeitures, foreclosures and cancellations. On or
before the fifteenth (15th) day of each fiscal month, Servicer
shall deliver to Company a true, correct and complete list of
all Contracts which Servicer received in the immediately
preceding month.
(g) CHECK DEPOSIT REQUIREMENTS. Subject to any lockbox agreement
and legal requirements, Servicer and Lockbox Bank will agree
to abide by the following requirements and limitations when
depositing Checks in the Account:
(i) In the absence of a Check date, Lockbox Bank will
insert the current date with the date stamp and
process the check as provided in this Agreement.
Lockbox Bank will not deposit Checks postdated three
(3) or more days, or Checks with dates six (6) months
or older.
(ii) If a Check's written and numerical amounts differ,
Lockbox Bank will credit the account respecting such
Contract for the written amount.
(iii) If the drawer's signature is missing or the Check
contains no indication of drawer, Lockbox Bank will
not deposit the Check. Otherwise, Servicer will
deposit the Check and affix a stamp impression
requesting the drawee bank to contact drawer for
authority to pay.
(iv) Lockbox Bank will attempt to identify and segregate
altered Checks and Checks bearing restrictive
notations, such as "payment in full," "balance on
account," or "final settlement." All Checks so
identified will not be deposited. However, Lockbox
Bank will have no liability to any person, including
Company, should it process and deposit an altered
Check or a Check bearing any such restrictive
notation.
(v) Checks drawn in foreign currency will be referred to
Servicer.
(vi) Prior to deposit, Lockbox Bank will endorse Checks
"Credited to the Account of Within Named Payee,
Absence of Endorsement Guaranteed."
(vii) Checks deposited in the account which are returned
unpaid because of "insufficient funds," "uncollected
funds," or similar reasons, will be redeposited once
by Lockbox Bank. If redeposit is not warranted for
reasons such as "account closed," or "payment
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stopped" or if a Check is returned a second time or
there are any other charges or debits resulting from
returned or otherwise dishonored Checks, such amounts
will be debited from the account.
(viii) All deposited Checks must be microfilmed by Lockbox
Bank. Lockbox Bank will retain such microfilmed
records for four (4) years as provided hereinabove.
(ix) No services concerning the Account will be provided
on any bank holiday prescribed by the Federal Reserve
district in which the account is located.
5. SERVICING FEE. Company shall be liable for the payment of a monthly
servicing fee to Servicer in the amount of one-twelfth (1/12) of two
percent (2%) of the outstanding principal balance at the beginning of
the servicing period (the Servicer's fiscal month) of the Contracts.
Except as provided in paragraphs 3(c) and 4(a), Company shall have no
responsibility or liability for any payment of fees or expenses other
than that aforesaid. Servicer shall be entitled to deduct from funds of
Company in its possession any of the aforesaid fees which become due
from time to time under or pursuant to this Agreement. Servicer shall
have all rights, whether statutory, common law or contractual, to set
off any indebtedness of Company to Servicer against any of the funds of
Company it may have in its possession from time to time.
6. OBLIGATION TO PROVIDE NOTICE.
(a) NOTICE UPON SALE, TRANSFER OR ASSIGNMENT. Servicer will notify
Company of any information received by Servicer of the sale,
transfer or assignment of any timeshare interest, together
with the date of the instrument or order transferring title to
the timeshare interest respecting any Contract serviced by
Servicer.
(b) NOTICE UPON CONDEMNATION OR EMINENT DOMAIN PROCEEDINGS.
Servicer will promptly report and forward to Company any
notices or pleadings received in connection with any
condemnation or eminent domain proceeding affecting any
timeshare interest. Servicer shall also advise Company as to
the extent of taking and its effect on such property and shall
give its recommendation as to action with respect to such
proceedings.
7. UNAUTHORIZED ACTS OF SERVICER. Except as otherwise provided herein,
Servicer is not authorized or empowered to waive or vary the terms of
any of the Contracts in any material way, and will not at any time
waive or consent to the postponement of strict compliance on the part
of any obligor with respect to any material term, provision or
covenant of any Contract, nor grant, in any other manner, indulgence
with respect to any such material term, provision or covenant, without
the express written approval of the Company, or an authorized
representative of the Company.
8. SERVICER AS MEMBER OF COMPANY. It is recognized and agreed that
Servicer is a member of the Company and that to the extent Servicer,
in its capacity as a member of the Company, acts as a member, then
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Servicer, in its capacity as Servicer, may accept such action as that
of the Company. The rights of the Servicer hereunder shall be
independent from the rights of Servicer, as a member of the Company,
and in no way shall the terms of this Agreement be deemed to limit or
restrict the rights of Servicer as a member of the Company.
9. INDEMNIFICATION. The Company, by execution hereof, waives any conflict
of interest as may exist between Servicer, in its capacity as Servicer,
and Servicer acting as a member of the Company, and agrees to save and
hold harmless, to defend and to indemnify, Servicer against all
actions, proceedings, claims, demands, losses, outlays, damages or
expenses, including legal fees, of any nature and character as may
arise or be made against Servicer as a result of Servicer acting in
accordance with this Agreement, or which it may in any way incur in
defending or prosecuting, settling or discontinuing any such
proceeding, action, claim, damage, expense or outlay arising out of any
act or omission of Servicer, including any claim arising from Servicer
acting as Servicer while being a member of the Company. Company agrees
to indemnify and hold Servicer harmless from any loss of any checks or
other payments in its possession from whatever cause, except those
losses resulting from acts or omissions not within reasonably prudent,
common collection practices. Servicer, by execution hereof, agrees to
save and hold harmless, Company and to indemnify Company against all
actions, proceedings, claims, demands, losses, outlays, damages or
expenses, including legal fees of any nature and character as may arise
or be made against Company as a result of Servicer's gross negligence
or willful acts or omissions in performance of its responsibilities
hereunder.
10. AUDIT OF SERVICER'S BOOKS AND RECORDS. Servicer agrees that, during and
subsequent to the term of this Agreement, representatives or agents of
the Company may, at any time during ordinary business hours, but not
more than twice in any one calendar year, and without unreasonable
interference with the day-to-day operations of Servicer, examine, audit
and make copies of all books, records and documents maintained by
Servicer relating to the Contracts. Servicer agrees to maintain all
such books, records and documents, including computer tapes, disks and
hard copies of all such computer data, in readable form necessary to
access and process such data, where they are maintained at the
inception of the terms hereof, for a period of four (4) years following
termination of this Agreement.
11. TERM. The term of this Agreement shall commence on the date it is
executed and delivered by the parties, and shall continue until all
Contracts are fully paid, provided, however, that this Agreement may be
terminated at any time by Big Cedar, L.L.C. in the event of provable
fraud or bad faith of Servicer or by mutual agreement by both Company
and Servicer In the event Company and Servicer mutually agree to the
termination of this Agreement, Company shall have the right to appoint
a successor servicer which shall execute an agreement substantially
similar to this Agreement. Fees, costs and expenses charged by any
successor servicer shall be payable by Company. Servicer shall deliver
to Company (or any subsequent servicer) all existing books, records and
documents, including computer readable memory as may be maintained by
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Servicer for the continued servicing of the Contracts after any
termination of this Agreement. Servicer agrees that such books and
records relating to any Contracts shall, following termination of this
Agreement, be delivered to Company, provided, however, Company agrees
that Servicer shall have the right to maintain copies of such books and
records for its own account.
12. CUSTODY OF CONTRACTS AND RELATED DOCUMENTS. Custody of the originals
of all Contracts and executed instruments related thereto shall be
delivered into the custody of Servicer to hold for and on behalf of
the Company in accordance with the terms hereof; provided, however,
that the same may be delivered to an acquiror or pledgee thereof,
pursuant to the terms of any applicable sale, hypothecation or loan
agreement or documents related thereto, including but not limited to
any applicable custodial agreement. Servicer agrees to hold such
instruments delivered to Servicer subject to the terms hereof, or
otherwise subject to the terms of the aforereferenced documents.
13. DUTY OF CARE. Servicer will exercise the same degree of care, and will
give the same attention of performance of the obligations pursuant to
this Agreement in a manner consistent with the level of skill and care
as reasonably may be required in performance of services to be
provided hereunder. Servicer shall not be liable for consequential or
incidental damages resulting from the inaccuracy of any information
furnished to Company or any errors or mistakes in reports prepared by
Servicer, except for those caused by the gross negligence or willful
misconduct of Servicer, its employees or independent contractors.
14. SECURITY INTEREST. Company acknowledges that so long as any amounts
are due by Company to Servicer, or any affiliate of Servicer, Servicer
will have a security interest covering the Account and all proceeds
thereof to the extent of such indebtedness.
15. ASSIGNMENT. Servicer may assign its rights and delegate the
performance of its duties under this Agreement, in part or in full, to
any transferee of any of the Contracts, or to any other corporation or
entity controlled by, controlling by or under the common control of
Servicer, so long as such assignee is able to perform in the same
manner as Servicer. The respective rights and duties of Company under
this Agreement may not be assigned nor delegated.
16. MODIFICATION. This Agreement represents the entire agreement with
respect to the servicing of Contracts and supersedes all prior
agreements related thereto. This Agreement may not be changed or
terminated orally and no modification, termination or attempted waiver
shall be valid unless in writing and signed by all parties or in the
case of waiver, signed by the party against whom the same is sought to
be enforced.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one agreement.
18. ATTORNEY'S FEES. If any attorney is engaged (a) to collect any sums due
or enforce any obligations of Servicer under this Agreement, whether or
not legal proceedings thereafter have been instituted; (b) to represent
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Servicer in any bankruptcy, reorganization, receivership or other
proceeding affecting creditor's rights and involving a claim under this
Agreement or any Contract, except in the event of Servicer's
bankruptcy, reorganization or receivership; or (c) to represent
Servicer in any other proceedings whatsoever in connection with this
Agreement, including post-judgment proceedings, to enforce any judgment
related to this Agreement; or (d) in connection with seeking an
out-of-court workout or settlement of any of the foregoing, then
Company shall pay to Servicer all costs, reasonable attorneys fees and
expenses in connection therewith, in addition to all other amounts due
hereunder; provided, however, that the Company shall not be responsible
for payment as aforesaid if the attorney's fees, costs and expenses are
incurred as a result of Servicer's gross negligence or willful acts or
omissions.
19. EXECUTION OF ADDITIONAL DOCUMENTS. Company and Servicer agree to
execute and deliver to each other, from time to time, any additional
instruments and documents necessary or desirable to effectuate,
finalize, record or perfect the transactions contemplated under this
Agreement.
20. PERFORMANCE BY LOCKBOX BANK. Any performances by Servicer hereunder
may be performed by the Lockbox Bank.
21. NOTICES. Any notice or communication required or permitted to be given
hereunder shall be in writing, addressed to the respective party as set
forth below, or such different address as any party may, from time to
time, give notice of, in accordance with the provisions of this
section, and may be personally served, telecopied or sent by overnight
courier or U.S. mail, and shall be deemed given: (a) if served in
person, when served; (b) if telecopied, on the date of transmission if
before 3:00 p.m. Boca Raton, Florida time (any notice received after
such time shall be deemed received on the next business day), provided
that a hard copy of such notice is also sent pursuant to clause (c) or
(d); (c) if by overnight courier, on the first business day after
delivery by the courier; or (d) if by U.S. mail, on the fourth day
after deposit in the mail, postage prepaid, certified mail, return
receipt requested.
If to Servicer: Bluegreen Corp.
4960 Blue Lake Drive
Boca Raton, Florida 33431
Attn: Mr. Patrick Rondeau
If to Company: Bluegreen/Big Cedar Vacations, LLC
C/o Bluegreen Corp.
4960 Blue Lake Drive
Boca Raton, Florida 33431
With copy to: Big Cedar, L.L.C.
2500 East Kearney Street
Ridgedale, Missouri 65898
Attn: Toni Miller
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22. BENEFIT. This Agreement shall bind and inure to the benefit of
Servicer and Company, and to their respective successors and permitted
assignees.
23. INTERPRETATION. This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of Missouri.
24. FORCE MAJEURE. Servicer shall not be liable to Company nor be deemed to
have defaulted under or breached this Agreement for failure or delay in
fulfilling or performing any term of the Agreement, provided such
failure or delay is caused by or results from a Force Majeure. As used
herein, "Force Majeure" shall mean any event that is beyond the
reasonable control of and not the fault of Servicer, including without
limitation, acts of God or nature, acts of public enemy, civil or
military conflicts, labor disturbances, communications line failure and
acts or inactions of a governmental authority or a third party.
Notwithstanding the foregoing, this paragraph does not limit a party's
right to terminate this Agreement under paragraph 11 hereinabove.
IN WITNESS WHEREOF the parties hereto have executed and delivered this
Agreement as of the date first written above.
SERVICER:
BLUEGREEN CORPORATION, a Massachusetts
corporation
By: /s/ George F. Donovan
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Print Name: George F. Donovan
Title: President / CEO
COMPANY:
BLUEGREEN/BIG CEDAR VACATIONS, LLC, a
Delaware limited liability company
By: /s/ Patrick E. Rondeau
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Print Name: Patrick E. Rondeau
Title: President
BIG CEDAR, L.L.C., a Missouri limited
liability company
By: Three Johns Company, its sole member
By: /s/ Toni M. Miller
------------------------------------
Print Name: Toni M. Miller
Title: Vice President Finance
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