Transfer Supplement Agreement among ING Capital LLC, Transferor Purchaser, and Purchasing Purchaser under Note Purchase Agreement

Summary

This agreement is between ING Capital LLC (as Agent), a Transferor Purchaser, and a Purchasing Purchaser. It facilitates the transfer of the Transferor Purchaser’s interests, rights, and obligations in certain notes under an existing Note Purchase Agreement to the Purchasing Purchaser. The Purchasing Purchaser pays the agreed purchase price and assumes all related commitments. The agreement specifies the effective date of the transfer and outlines how future payments and obligations will be divided between the parties. The transfer is not a loan but a sale of interests in the notes.

EX-10.117 4 d57501_ex10-117.txt TRANSFER SUPPLEMENT (NONCOMMITTED) 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 -1- 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. -2- 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, -3- 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. -4- 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/ SALAH SAABNEH -------------------------------------- Name: SALAH SAABNEH Title: VICE PRESIDENT RESORT FINANCE LLC, as Purchasing Purchaser By: /S/ THOMAS A. PERROTT -------------------------------------- Name: THOMAS A. PERROTT Title: VICE PRESIDENT -1- CONSENTED TO AND ACCEPTED BY: ING CAPITAL LLC, as Agent By: /S/ SALAH SAABNEH ------------------------------------------- Name: Title: BXG RECEIVABLES NOTE TRUST 2001-A By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /S/ JEANNE OLLER ------------------------------------------- Name: JEANNE M. OLLER Title: FINANCIAL SERVICES OFFICER BLUEGREEN CORPORATION, as Seller and Servicer By: /S/ ALLAN J. HERZ ------------------------------------------- Name: ALLAN J. HERZ Title: VICE PRESIDENT BLUEGREEN RECEIVABLES FINANCE CORPORATION V, as Depositor By: /S/ ALLAN J. HERZ ------------------------------------------- Name: ALLAN J. HERZ Title: PRESIDENT & SECRETARY U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee and Custodian By: /S/ TAMARA SCHULTZ-FUGH ------------------------------------------- Name: TAMARA SCHULTZ-FUGH Title: VICE PRESIDENT -2- 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 -1- 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 -2- 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 4 Marshall Street, North Adams, MA 02147 Attn: Tracy A. Gaylord, President Investing Office: Resort Finance LLC 4 Marshall Street, North Adams, MA 02147 Attn: Tracy A. Gaylord, President -3- 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/ SALAH SAABNEH --------------------- Name: Title: i