EXHIBIT 10.117
EXECUTION COPY
TRANSFER SUPPLEMENT
TRANSFER SUPPLEMENT, dated as of the date set forth in Item 1 of
Schedule I hereto (this "Supplement"), among the transferor Purchaser set forth
in Item 2 of Schedule I hereto (the "Transferor Purchaser"), the Purchasing
Purchaser set forth in Item 3 of Schedule I hereto (the "Purchasing Purchaser")
and ING Capital LLC ("ING"), as Agent for the Purchasers under, and as defined
in, the Note Purchase Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, this Supplement is being executed and delivered in
accordance with subsection 8.1(e) of the Amended and Restated Note Purchase
Agreement, dated as of April 17, 2002, among BXG RECEIVABLES NOTE TRUST 2001-A,
as Issuer, BLUEGREEN CORPORATION, as Seller and Servicer ("Bluegreen"),
BLUEGREEN RECEIVABLES FINANCE CORPORATION V, as Depositor, the Purchasers
parties thereto and the Agent (as from time to time amended, supplemented or
otherwise modified in accordance with the terms thereof, the "Note Purchase
Agreement"); unless otherwise defined herein, terms defined in the Note Purchase
Agreement are used herein as therein defined;
WHEREAS, there is one outstanding Note issued pursuant to the Note
Purchase Agreement and the Indenture and such Note is registered in the name of
the Agent, as nominee for the Purchasers;
WHEREAS, the Purchasing Purchaser wishes to (i) become a Purchaser
party to the Note Purchase Agreement and (ii) acquire and assume from the
Transferor Purchaser, all of its interests in the Notes and all of the
Transferor Purchaser's rights, obligations and commitments as a Noncommitted
Purchaser under the Note Purchase Agreement;
WHEREAS, the Transferor Purchaser wishes to sell and assign to the
Purchasing Purchaser, such Notes and such rights, obligations and commitments
under the Note Purchase Agreement;
WHEREAS, simultaneous with the effectiveness hereof, ING, in its
capacity as the Committed Purchaser to the Note Purchase Agreement, will assign
to Resort Finance LLC pursuant to a Transfer Supplement dated the date hereof
(the "Other Supplement"), all of such Committed Purchaser's rights and
obligations under the Note Purchase Agreement and, in addition, will resign as
Agent under the Note Purchase Agreement and the other Related Documents.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of five counterparts of this Supplement, to each
of which is attached a fully completed Schedule I and Schedule II, each of
which has been executed
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by the Transferor Purchaser, the Purchasing Purchaser, the Issuer and the
Agent, the Agent will transmit to the Servicer, the Seller, the Issuer,
the Depositor, the Indenture Trustee, the Transferor Purchaser and the
Purchasing Purchaser a Transfer Effective Notice, substantially in the
form of Schedule III to this Supplement (a "Transfer Effective Notice").
Such Transfer Effective Notice shall be executed by the Agent and shall
set forth, inter alia, the date on which the transfer effected by this
Supplement shall become effective (the "Transfer Effective Date"). From
and after the Transfer Effective Date the Purchasing Purchaser shall be a
Purchaser party to the Note Purchase Agreement for all purposes thereof as
a Noncommitted Purchaser or Committed Purchaser and, if applicable, a
Liquidity Provider, as specified on Schedule II to this Supplement.
2. At or before 12:00 Noon, local time of the Transferor Purchaser, on the
Transfer Effective Date, the Purchasing Purchaser shall pay to the
Transferor Purchaser, in immediately available funds, an amount equal to
the Purchase Price, of the portion set forth on Schedule II hereto being
purchased by such Purchasing Purchaser of the outstanding advances under
the Note owned by the Transferor Purchaser (such Purchasing Purchaser's
"Purchase Percentage") and other amounts owing to the Transferor Purchaser
under the Note Purchase Agreement or otherwise in respect of the Notes.
Effective upon receipt by the Transferor Purchaser of the Purchase Price
from the Purchasing Purchaser, the Transferor Purchaser hereby irrevocably
sells, assigns and transfers to the Purchasing Purchaser, without
recourse, representation or warranty (except as specified herein), and the
Purchasing Purchaser hereby irrevocably purchases, takes and assumes from
the Transferor Purchaser, the Purchasing Purchaser's Purchase Percentage
of (i) the presently outstanding Invested Amount under the Notes owned by
the Transferor Purchaser and other amounts owing to the Transferor
Purchaser in respect of the Notes, together with all instruments,
documents and collateral security pertaining thereto, and (ii) the
Purchasing Purchaser's Purchase Percentage of (A) if the Transferor
Purchaser is a Noncommitted Purchaser, the Noncommitted Purchaser
Percentage of the Transferor Purchaser and the other rights and duties of
the Transferor Purchaser under the Note Purchase Agreement, or (B) if the
Transferor Purchaser is a Committed Purchaser, the Commitment Percentage,
the Liquidity Percentage, if applicable, and the Commitment of the
Transferor Purchaser and other rights, duties and obligations of the
Transferor Purchaser under the Note Purchase Agreement. This Supplement is
intended by the parties hereto to effect a purchase by the Purchasing
Purchaser and sale by the Transferor Purchaser of interests in the Notes,
and it is not to be construed as a loan or a commitment to make a loan by
the Purchasing Purchaser to the Transferor Purchaser. The Transferor
Purchaser hereby confirms that the amount of the Outstanding Amount of the
Notes is $59,394,020.93 and its Percentage Interest thereof is 0%, which
equals $0 as of October 8, 2003; therefore, the parties hereto agree that
the "Purchase Price" is equal to $0. Upon and after the Transfer Effective
Date (until further modified in accordance with the Note Purchase
Agreement), the Noncommitted Purchaser Percentage or Commitment
Percentage, as applicable of the Transferor Purchaser and the Purchasing
Purchaser and the Commitment and the Liquidity Percentage, if applicable,
if any, of the Transferor Purchaser and the Purchasing Purchaser shall be
as set forth in Schedule II to this Supplement.
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3. The Transferor Purchaser has made arrangements with the Purchasing
Purchaser with respect to (i) the portion, if any, to be paid, and the
date or dates for payment, by the Transferor Purchaser to the Purchasing
Purchaser of any fees heretofore received by the Transferor Purchaser
pursuant to the Note Purchase Agreement prior to the Transfer Effective
Date and (ii) the portion, if any, to be paid, and the date or dates for
payment, by the Purchasing Purchaser to the Transferor Purchaser of fees
or interest received by the Purchasing Purchaser pursuant to the Note
Purchase Agreement or otherwise in respect of the Notes from and after the
Transfer Effective Date.
4. All principal payments that would otherwise be payable from and after the
Transfer Effective Date to or for the account of the Transferor Purchaser
in respect of the Notes shall, instead, be payable to or for the account
of the Transferor Purchaser and the Purchasing Purchaser, as the case may
be, in accordance with their respective interests as reflected in this
Supplement. All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor Purchaser from and after the
Transfer Effective Date pursuant to the Note Purchase Agreement or in
respect of the Notes shall, instead, accrue for the account of, and be
payable to or for the account of, the Transferor Purchaser and the
Purchasing Purchaser, as the case may be, in accordance with their
respective interests as reflected in this Supplement. In the event that
any amount of interest, fees or other amounts accruing prior to the
Transfer Effective Date was included in the Purchase Price paid by the
Purchasing Purchaser to the Transferor Purchaser, the Transferor Purchaser
has received such amounts from the Issuer to the extent that it was
entitled thereto and such amounts are received by the Transferor Purchaser
on or after the Transfer Effective Date, the Transferor Purchaser and the
Purchasing Purchaser will make appropriate arrangements for payment by the
Transferor Purchaser to the Purchasing Purchaser of such amount.
5. Concurrently with the execution and delivery hereof, the Purchasing
Purchaser will deliver to the Agent, the Issuer and the Indenture Trustee
an executed investor representation letter certifying that it is an
"accredited investor" as defined by Rule 501 of the Securities Act. The
Issuer acknowledges the foregoing and waives any requirement contained in
the Note Purchase Agreement that the Purchasing Purchaser be a "qualified
institutional buyer" as defined by Rule 144A of the Securities Act.
6. Each of the parties to this Supplement agrees and acknowledges that (i) at
any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in
order to effect the purposes of this Supplement, and (ii) the Agent shall
apply each payment made to it under the Note Purchase Agreement, whether
in its individual capacity or as Agent, in accordance with the provisions
of the Note Purchase Agreement, as appropriate.
7. (A) By executing and delivering this Supplement, the Purchasing Purchaser
confirms and agrees with the Transferor Purchaser and the Agent as
follows: (i) each Purchasing Purchaser confirms that it has received a
copy of such documents and information as it has deemed appropriate to
make its own credit analysis and, based on such analysis, has made the
decision to enter into this Supplement; (ii) each Purchasing Purchaser
will,
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independently and without reliance upon the Agent, the Transferor
Purchaser or any other Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Note
Purchase Agreement or the Indenture; (iii) each Purchasing Purchaser
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Note Purchase Agreement and
the Indenture as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto, all in accordance
with Section 7 of the Note Purchase Agreement; and (iv) each Purchasing
Purchaser agrees (for the benefit of the Transferor Purchaser, the Issuer,
the Agent, the Purchasers, the Indenture Trustee, the Depositor, the
Seller, the Servicer and the Issuer) that it will perform in accordance
with their terms all of the obligations which by the terms of the Note
Purchase Agreement are required to be performed by it as a Purchaser.
(B) By executing and delivering this Supplement, the Transferor Purchaser
confirms and agrees with the Purchasing Purchaser as follows: (i) it is
the legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, (ii) it has not received written notice
from Bluegreen stating that an Amortization Event (NPA) has occurred, and
(iii) it has not received any written notice from Bluegreen stating that a
material adverse event has occurred which would affect the financial
condition of the Seller, the Servicer, the Depositor, the Issuer or the
Indenture Trustee or their respective abilities to perform or observe
their obligations under the Transaction Documents.
8. Schedule II hereto sets forth the revised Noncommitted Purchaser
Percentage or the revised Commitment Percentage, the revised Liquidity
Percentage, if applicable, and Commitment of the Transferor Purchaser, as
applicable, the Noncommitted Purchaser Percentage or the Commitment
Percentage, the Liquidity Percentage, if applicable, Commitment and
Commitment Expiration Date of the Purchasing Purchaser, as applicable, and
the initial Investing Office of the Purchasing Purchaser, as well as
administrative information with respect to the Purchasing Purchaser.
9. Simultaneously with the delivery by the Transferor Purchaser, as Agent, of
the Transfer Effective Notice pursuant to paragraph 1 above and receipt of
the Purchase Price as defined herein and in the Other Supplement, ING as
Agent and nominee for the Purchasers, is hereby instructed to surrender
the Note to the Indenture Trustee for transfer, without recourse, to
Resort Finance LLC, as successor Agent under the Note Purchase Agreement.
10. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
executed by their respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.
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SCHEDULE I TO
TRANSFER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Re: Amended and Restated Note Purchase Agreement, dated as of
April 17, 2002, among BXG RECEIVABLES NOTE TRUST 2001-A,
BLUEGREEN CORPORATION, as Seller and Servicer, BLUEGREEN
RECEIVABLES FINANCE CORPORATION V, as Depositor, the
Purchasers party thereto and ING CAPITAL LLC, as Agent.
Item 1: Date of Transfer Supplement: October 8, 2003
Item 2: Transferor Purchaser: ING Capital LLC
Item 3: Purchasing Purchaser: Resort Finance LLC
Item 4: Signatures of Parties to Agreement:
ING CAPITAL LLC, as Transferor Purchaser
By: /S/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
Title: VICE PRESIDENT
RESORT FINANCE LLC, as Purchasing Purchaser
By: /S/ XXXXXX X. XXXXXXX
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Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT
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CONSENTED TO AND ACCEPTED BY:
ING CAPITAL LLC, as Agent
By: /S/ XXXXX XXXXXXX
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Name:
Title:
BXG RECEIVABLES NOTE TRUST 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as Owner Trustee
By: /S/ XXXXXX XXXXX
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Name: XXXXXX X. XXXXX
Title: FINANCIAL SERVICES OFFICER
BLUEGREEN CORPORATION, as Seller and Servicer
By: /S/ XXXXX X. XXXX
-------------------------------------------
Name: XXXXX X. XXXX
Title: VICE PRESIDENT
BLUEGREEN RECEIVABLES FINANCE CORPORATION V, as Depositor
By: /S/ XXXXX X. XXXX
-------------------------------------------
Name: XXXXX X. XXXX
Title: PRESIDENT & SECRETARY
U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee and Custodian
By: /S/ XXXXXX XXXXXXX-XXXX
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Name: XXXXXX XXXXXXX-XXXX
Title: VICE PRESIDENT
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SCHEDULE II TO
TRANSFER SUPPLEMENT
LIST OF INVESTING OFFICES, ADDRESSES
FOR NOTICES, ASSIGNED INTERESTS, PURCHASE
AND COMMITMENT PERCENTAGES AND PURCHASE PRICE
ING CAPITAL LLC
A. Noncommitted Purchaser: Yes
If applicable:
Noncommitted Purchaser Percentage:
Transferor Purchaser
Noncommitted Purchaser Percentage
Prior to Sale: 100%
Noncommitted Purchaser Percentage Sold: 100%
Noncommitted Purchaser Percentage Retained: 0%
Liquidity Providers and Liquidity Percentages after Sale:
______________________ N/A
______________________ N/A
______________________ N/A
B. Committed Purchaser: No
If applicable:
Commitment Percentage:
Transferor Purchaser Commitment Percentage
Prior to Sale: N/A
Commitment Percentage Sold: N/A
Commitment Percentage Retained: N/A
Commitment:
Transferor Purchaser Commitment
Prior to Sale: N/A
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Commitment Sold: N/A
Commitment Retained N/A
C. Liquidity Commitment:
Related Noncommitted Purchaser: N/A
Liquidity Percentage Prior to Sale: N/A
Liquidity Percentage Sold: N/A
Liquidity Percentage Retained: N/A
D. Outstanding Amount of Notes:
Transferor Purchaser
Outstanding Amount of Notes Prior to Sale: $59,394,020.93
Outstanding Amount of Notes Sold: $59,394,020.93
Outstanding Amount of Notes Retained: $0
E. Purchase Percentage: 100%
Resort Finance LLC
A. Noncommitted Purchaser: Yes
If applicable:
Initial Noncommitted Purchaser Percentage: N/A
Liquidity Providers and Liquidity Percentages after Sale:
______________________ N/A
______________________ N/A
______________________ N/A
B. Committed Purchaser: No
If applicable:
Committed Percentage: N/A
Commitment: N/A
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Related Noncommitted Purchaser: N/A
Liquidity Percentage: N/A
C. Outstanding Amount of Notes Owned Immediately After Sale: $59,394,020.93
Address for Notices: Resort Finance LLC
0 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, President
Investing Office: Resort Finance LLC
0 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, President
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SCHEDULE III TO
TRANSFER SUPPLEMENT
Form of
Transfer Effective Notice
To: BXG Note Receivables Trust 2001-A
Bluegreen Corporation
U.S. Bank National Association
Resort Finance LLC
ING Capital LLC
The undersigned, as Agent under the Note Purchase Agreement (the
"Note Purchase Agreement"), dated as of April 17, 2002, among BXG RECEIVABLES
NOTE TRUST 2001-A, as Issuer, BLUEGREEN CORPORATION, as Seller and Servicer,
BLUEGREEN RECEIVABLES FINANCE CORPORATION V, as Depositor, the Purchasers
parties thereto and ING Capital LLC, as Agent for the Purchasers thereunder,
acknowledges receipt of five executed counterparts of a completed Transfer
Supplement. Terms defined in such Supplement are used herein as therein defined.
Pursuant to such Transfer Supplement, you are advised that the
Transfer Effective Date will be October 8, 2003.
Effective immediately, ING Capital LLC resigns as Agent under the
Note Purchase Agreement.
Very truly yours,
ING CAPITAL, as Agent
By: /S/ XXXXX XXXXXXX
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Name:
Title:
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