EXHIBIT 10.116
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, 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 the Transferor Purchaser's rights, obligations and
commitments, as a Committed Purchaser under the Note Purchase Agreement;
WHEREAS, the Transferor Purchaser wishes to sell and assign to the
Purchasing Purchaser such rights, obligations and commitments under the Note
Purchase Agreement;
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, simultaneous with the effectiveness hereof, the
Noncommitted Purchasers to the Note Purchase Agreement will, pursuant to a
Transfer Supplement dated the date hereof (the "Other Supplement") assign to
Resort Finance LLC, all of such Noncommitted Purchasers' rights and obligations
under the Note Purchase Agreement and their beneficial interest in the Note and
will instruct the Agent, upon receipt of the Purchase Price, to surrender the
Note to the Indenture Trustee for transfer and registration in the name of the
Purchasing Purchaser, as successor Agent;
WHEREAS, the Transferor Purchaser is also the Agent under the Note
Purchase Agreement and wishes to, simultaneously with the consummation of the
transactions described in the immediately preceding paragraphs, resign as Agent.
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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 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 (as defined below) 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 (A) the amount of the Outstanding Amount of
the Notes is $59,394,020.93 and its Percentage Interest thereof is 100%,
which equals $59,394,020.93 as of October 8, 2003, and (B) the amount of
accrued interest to October 8, 2003 is equal to $27,846.59; therefore, the
parties hereto agree that the "Purchase Price" is equal to $59,421,867.52.
Upon and after the Transfer Effective Date (until further modified in
accordance with the Note Purchase Agreement), the
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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.
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.
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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, 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 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. Effective simultaneously with the delivery by the Transferor Purchaser, as
Agent, of the Transfer Effective Notice pursuant to paragraph 1 above and
the effectiveness of the Other Supplement, the following shall be deemed
to occur automatically and without further action by any Person: (i) ING
shall resign as Agent under the Note Purchase Agreement and the other
Related Documents and assign its rights and obligations as Agent
thereunder to the Purchasing Purchaser as successor Agent (it being
understood that ING, as Agent and Transferor Purchaser, shall retain the
benefits of the various indemnities and exculpatory provisions in the Note
Purchase Agreement and the Related Documents, to the extent applicable),
(ii) ING, as Agent and Transferor shall release the Issuer and Bluegreen
of all their respective obligations related to the Notes (it being
understood that ING, as Agent and Transferor Purchaser, shall retain the
benefits of the
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various indemnities and exculpatory provisions in the Note Purchase
Agreement and the Related Documents, to the extent applicable), (iii) the
Purchasing Purchaser, as the Required Noteholder and Required Purchaser,
shall appoint itself as successor Agent, (iv) the Purchasing Purchaser
shall assume all rights and obligations of the Agent arising from and
after the Transfer Effective Date under the Note Purchase Agreement and
the other Related Documents, and (v) ING, as Agent and Transferor
Purchaser shall no longer be a party to the Note Purchase Agreement or any
Related Document and all of its duties and obligations thereunder shall be
terminated, without any other further act or deed on the part of ING or
any of the parties to this Supplement. In furtherance of the foregoing,
the parties hereto hereby waive the ten day notice period for the
resignation of the Agent required by Section 7.9 of the Note Purchase
Agreement, and, upon the effectiveness of this Supplement, the Purchasing
Purchaser, as the Required Noteholder and Required Purchaser, hereby
appoints itself as successor Agent and shall be the "Agent" with respect
to the Note Purchase Agreement, Sale and Servicing Agreement, the
Indenture, the Custodial Agreement, the Backup Servicing Agreement and all
other Related Documents with all related rights, powers and duties
thereunder.
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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
RESORT FINANCE LLC, as Purchasing Purchaser
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
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CONSENTED TO AND ACCEPTED BY:
ING CAPITAL LLC, as Agent
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
BXG RECEIVABLES NOTE TRUST 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as Owner Trustee
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: FINANCIAL SERVICES OFFICER
BLUEGREEN CORPORATION, as Seller and Servicer
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT
BLUEGREEN RECEIVABLES FINANCE CORPORATION V, as Depositor
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: PRESIDENT & SECRETARY
U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee and Custodian
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: VICE PRESIDENT
CONCORD SERVICING CORPORATION
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇. PINK
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Name: ▇▇▇▇▇▇▇▇▇ ▇. PINK
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: No
If applicable:
Noncommitted Purchaser Percentage: N/A
Transferor Purchaser
Noncommitted Purchaser Percentage
Prior to Sale: N/A
Noncommitted Purchaser Percentage Sold: N/A
Noncommitted Purchaser Percentage Retained: N/A
Liquidity Providers and Liquidity Percentages after Sale:
______________________ N/A
______________________ N/A
______________________ N/A
B. Committed Purchaser: Yes
If applicable:
Commitment Percentage:
Transferor Purchaser Commitment Percentage
Prior to Sale: 100%
Commitment Percentage Sold: 100%
Commitment Percentage Retained: 0%
Commitment:
Transferor Purchaser Commitment
Prior to Sale: $75,000,000
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Commitment Sold: $75,000,000
Commitment Retained $0
C. Liquidity Commitment: N/A%
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: No
If applicable:
Initial Noncommitted Purchaser Percentage: N/A
Liquidity Providers and Liquidity Percentages after Sale:
______________________ N/A
______________________ N/A
______________________ N/A
B. Committed Purchaser: Yes
If applicable:
Committed Percentage: 100%
Commitment: $75,000,000
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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
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Investing Office: Resort Finance LLC
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 Amended and Restated 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 LLC, as Agent
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
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