as Issuer
as Servicer
as Indenture Trustee and Back-Up Servicer
INDENTURE
Page | ||||
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 2 | |||
Section 1.01 General Definitions | 2 | |||
Section 1.02 Compliance Certificates and Opinions | 2 | |||
Section 1.03 Form of Documents Delivered to Indenture Trustee | 2 | |||
Section 1.04 Acts of Noteholders, etc | 3 | |||
Section 1.05 Notice to Noteholders; Waiver | 4 | |||
Section 1.06 Effect of Headings and Table of Contents | 5 | |||
Section 1.07 Successors and Assigns | 5 | |||
Section 1.08 Governing Law | 5 | |||
Section 1.09 Legal Holidays | 5 | |||
Section 1.10 Execution in Counterparts | 5 | |||
Section 1.11 Inspection | 6 | |||
Section 1.12 Survival of Representations and Warranties | 6 | |||
ARTICLE II THE NOTES | 6 | |||
Section 2.01 General Provisions | 6 | |||
Section 2.02 Global Notes | 7 | |||
Section 2.03 Definitive Notes | 8 | |||
Section 2.04 Registration, Transfer and Exchange of Notes | 8 | |||
Section 2.05 Mutilated, Destroyed, Lost and Stolen Notes | 12 | |||
Section 2.06 Payment of Interest and Principal; Rights Preserved | 13 | |||
Section 2.07 Persons Deemed Owners | 13 | |||
Section 2.08 Cancellation | 14 | |||
Section 2.09 Noteholder Lists | 14 |
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Section 2.10 Treasury Notes | 14 | |||
Section 2.11 Notice to Depository | 14 | |||
ARTICLE III ACCOUNTS; COLLECTION AND APPLICATION OF MONEYS; REPORTS | 15 | |||
Section 3.01 Trust Accounts; Investments by Indenture Trustee | 15 | |||
Section 3.02 Establishment and Administration of the Trust Accounts | 17 | |||
Section 3.03 [Reserved] | 19 | |||
Section 3.04 Distributions | 19 | |||
Section 3.05 Reports to Noteholders | 20 | |||
Section 3.06 Note Balance Write-Down Amounts | 21 | |||
Section 3.07 Withholding Taxes | 21 | |||
ARTICLE IV THE TRUST ESTATE | 21 | |||
Section 4.01 Acceptance by Indenture Trustee | 21 | |||
Section 4.02 Grant of Security Interest; Tax Treatment | 22 | |||
Section 4.03 Further Action Evidencing Assignments | 22 | |||
Section 4.04 Substitution and Repurchase of Timeshare Loans | 23 | |||
Section 4.05 Release of Lien | 24 | |||
Section 4.06 Appointment of Custodian | 25 | |||
Section 4.07 Sale of Timeshare Loans | 25 | |||
ARTICLE V SERVICING OF TIMESHARE LOANS | 25 | |||
Section 5.01 Appointment of Servicer; Servicing Standard | 25 | |||
Section 5.02 Payments on the Timeshare Loans | 25 | |||
Section 5.03 Duties and Responsibilities of the Servicer | 27 | |||
Section 5.04 Servicer Events of Default | 30 | |||
Section 5.05 Accountings; Statements and Reports | 31 | |||
Section 5.06 Records | 33 |
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Section 5.07 Fidelity Bond; Errors and Omissions Insurance | 33 | |||
Section 5.08 Merger or Consolidation of the Servicer | 34 | |||
Section 5.09 Sub-Servicing | 34 | |||
Section 5.10 Servicer Resignation | 34 | |||
Section 5.11 Fees and Expenses | 35 | |||
Section 5.12 Access to Certain Documentation | 35 | |||
Section 5.13 No Offset | 35 | |||
Section 5.14 Cooperation | 35 | |||
Section 5.15 Indemnification; Third Party Claim | 36 | |||
Section 5.16 Back-Up Servicer and Successor Servicer | 36 | |||
Section 5.17 Limitation on Liability | 39 | |||
Section 5.18 Recordation | 39 | |||
Section 5.19 St. Maarten Notice | 39 | |||
ARTICLE VI EVENTS OF DEFAULT; REMEDIES | 39 | |||
Section 6.01 Events of Default | 39 | |||
Section 6.02 Acceleration of Maturity; Rescission and Annulment | 41 | |||
Section 6.03 Remedies | 42 | |||
Section 6.04 Indenture Trustee May File Proofs of Claim | 43 | |||
Section 6.05 Indenture Trustee May Enforce Claims Without Possession of Notes | 44 | |||
Section 6.06 Application of Money Collected | 44 | |||
Section 6.07 Limitation on Suits | 45 | |||
Section 6.08 Unconditional Right of Noteholders to Receive Principal and Interest | 45 | |||
Section 6.09 Restoration of Rights and Remedies | 46 | |||
Section 6.10 Rights and Remedies Cumulative | 46 |
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Section 6.11 Delay or Omission Not Waiver | 46 | |||
Section 6.12 Control by Noteholders | 46 | |||
Section 6.13 Waiver of Events of Default | 47 | |||
Section 6.14 Undertaking for Costs | 47 | |||
Section 6.15 Waiver of Stay or Extension Laws | 47 | |||
Section 6.16 Sale of Trust Estate | 48 | |||
ARTICLE VII THE INDENTURE TRUSTEE | 49 | |||
Section 7.01 Certain Duties | 49 | |||
Section 7.02 Notice of Events of Default and Rapid Amortization Period | 50 | |||
Section 7.03 Certain Matters Affecting the Indenture Trustee | 50 | |||
Section 7.04 Indenture Trustee Not Liable for Notes or Timeshare Loans | 51 | |||
Section 7.05 Indenture Trustee May Own Notes | 52 | |||
Section 7.06 Indenture Trustee’s Fees and Expenses | 52 | |||
Section 7.07 Eligibility Requirements for Indenture Trustee | 52 | |||
Section 7.08 Resignation or Removal of Indenture Trustee | 52 | |||
Section 7.09 Successor Indenture Trustee | 53 | |||
Section 7.10 Merger or Consolidation of Indenture Trustee | 54 | |||
Section 7.11 Appointment of Co-Indenture Trustee or Separate Indenture Trustee | 54 | |||
Section 7.12 Note Registrar Rights | 56 | |||
Section 7.13 Authorization | 56 | |||
ARTICLE VIII COVENANTS | 56 | |||
Section 8.01 Payment of Principal and Interest | 56 | |||
Section 8.02 Maintenance of Office or Agency; Chief Executive Office | 56 | |||
Section 8.03 Money for Payments to Noteholders to be Held in Trust | 57 | |||
Section 8.04 Existence; Merger; Consolidation, etc | 57 |
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Section 8.05 Protection of Trust Estate; Further Assurances | 58 | |||
Section 8.06 Additional Covenants | 59 | |||
Section 8.07 Taxes | 60 | |||
Section 8.08 Treatment of Note as Debt for Tax Purposes | 60 | |||
ARTICLE IX SUPPLEMENTAL INDENTURES | 60 | |||
Section 9.01 Supplemental Indentures without Consent of Noteholders | 60 | |||
Section 9.02 Supplemental Indentures with Consent of Noteholders | 61 | |||
Section 9.03 Execution of Supplemental Indentures | 62 | |||
Section 9.04 Effect of Supplemental Indentures | 62 | |||
Section 9.05 Reference in Notes to Supplemental Indentures | 62 | |||
ARTICLE X REDEMPTION OF NOTES | 63 | |||
Section 10.01 Optional Redemption; Election to Redeem | 63 | |||
Section 10.02 Notice to Indenture Trustee | 63 | |||
Section 10.03 Notice of Redemption by the Issuer | 63 | |||
Section 10.04 Deposit of Redemption Price | 63 | |||
Section 10.05 Notes Payable on Redemption Date | 63 | |||
ARTICLE XI SATISFACTION AND DISCHARGE | 63 | |||
Section 11.01 Satisfaction and Discharge of Indenture | 63 | |||
Section 11.02 Application of Trust Money | 65 | |||
Section 11.03 Trust Termination Date | 65 | |||
ARTICLE XII REPRESENTATIONS AND WARRANTIES | 65 | |||
Section 12.01 Representations and Warranties of the Issuer | 65 | |||
Section 12.02 Representations and Warranties of the Initial Servicer | 68 | |||
Section 12.03 Representations and Warranties of the Indenture Trustee and the Back-Up Servicer | 70 | |||
Section 12.04 Multiple Roles | 72 |
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ARTICLE XIII MISCELLANEOUS | 72 | |||
Section 13.01 Officer’s Certificate and Opinion of Counsel as to Conditions Precedent | 72 | |||
Section 13.02 Statements Required in Certificate or Opinion | 72 | |||
Section 13.03 Notices | 73 | |||
Section 13.04 No Proceedings | 74 | |||
Section 13.05 Limitation of Liability | 74 | |||
Section 13.06 Binding Nature of Indenture; Assignment | 75 | |||
Section 13.07 Entire Agreement | 75 | |||
Section 13.08 Severability of Provisions | 75 | |||
Section 13.09 Indulgences; No Waivers | 75 |
Exhibit A | Form of Notes | |
Exhibit B | Form of Investor Representation Letter | |
Exhibit C | Form of Transfer Certificate for Rule 144A Global Notes to Regulation S Global Notes during Restricted Period | |
Exhibit D | Form of Transfer Certificate for Rule 144A Global Notes to Regulation S Global Notes after Restricted Period | |
Exhibit E | Form of Transfer Certificate for Regulation S Global Notes to Rule 144A Global Note during Restricted Period | |
Exhibit F | Form of Transfer Certificate for Regulation S Global Notes during Restricted Period | |
Exhibit G | Record Layout For Data Conversion | |
Exhibit H | [Reserved] | |
Exhibit I | Credit and Collection Policy | |
Exhibit J | Form of Monthly Servicer Report | |
Exhibit K | Servicing Officer’s Certificate | |
Exhibit L | [Reserved] | |
Exhibit M | [Reserved] |
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Exhibit N | Form of St. Maarten Notice | |
Annex A | Standard Definitions |
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OF GENERAL APPLICATION
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APPLICATION OF MONEYS; REPORTS
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(i) | to the Indenture Trustee and the Custodian, ratably based on their respective entitlements, the Indenture Trustee Fee and the Custodial Fee, respectively, plus any accrued and unpaid Indenture Trustee Fees and the Custodial Fees with respect to prior Payment Dates, and Indenture Trustee Expenses and Custodial Expenses incurred and charged, respectively, by the Indenture Trustee and the Custodian during the related Due Period; | ||
(ii) | to the Back-Up Servicer, the Back-Up Servicing Fee, plus any accrued and unpaid Back-Up Servicing Fees with respect to prior Payment Dates and any Transition Expenses incurred during the related Due Period (up to an aggregate cumulative total of $100,000); | ||
(iii) | on the Payment Date occurring in October of each year only, to the Owner Trustee, the Owner Trustee Fee, and on each Payment Date, the Owner Trustee Expenses incurred and charged by the Owner Trustee during the related Due Period; | ||
(iv) | on the Payment Date occurring in January of each year only, to the Administrator, the Administrator Fee, and on each Payment Date, the Administrator Expenses incurred and charged by the Administrator during the related Due Period; | ||
(v) | to the Servicer, the Servicing Fee, plus any accrued and unpaid Servicing Fees with respect to prior Payment Dates; | ||
(vi) | to the Class A Noteholders, the Class A Interest Distribution Amount; | ||
(vii) | to the Class B Noteholders, the Class B Interest Distribution Amount; | ||
(viii) | to the Class A Noteholders, the Class A Principal Distribution Amount; |
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(ix) | to the Class B Noteholders, the Class B Principal Distribution Amount; | ||
(x) | to the Reserve Account, all remaining amounts until the amounts on deposit in the Reserve Account shall equal the Reserve Account Required Balance; | ||
(xi) | to the Class A Noteholders and the Class B Noteholders, in that order, reimbursement of any unreimbursed Note Balance Write-Down Amounts applied to such Class on prior Payment Dates plus interest at the related Note Rate on such unreimbursed Note Balance Write-Down Amounts; | ||
(xii) | to the Back-Up Servicer, any expenses not paid pursuant to clause (ii) above; and | ||
(xiii) | to the Owner or any subsequent owners of the beneficial interests of the Issuer, any remaining amounts. |
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Section 6.02Acceleration of Maturity; Rescission and Annulment.
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(i) | to the Indenture Trustee and the Custodian, ratably based on their respective entitlements, any unpaid Indenture Trustee Fees, Indenture Trustee Expenses, Custodial Fees or Custodial Expenses incurred and charged and unpaid as of such date; | ||
(ii) | to the Back-Up Servicer, any unpaid Back-Up Servicing Fees and Transition Expenses; | ||
(iii) | to the Owner Trustee, any unpaid Owner Trustee Fees and Owner Trustee Expenses; | ||
(iv) | to the Administrator, any unpaid Administrator Fees; | ||
(v) | to the Servicer, any unpaid Servicing Fees;provided, however, that immediately after receipt of such Servicing Fees, the Servicer shall remit the Issuer’s portion of any then due and owing Lockbox Bank Fees to each Lockbox Bank; |
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(vi) | to the Class A Noteholders, the Class A Interest Distribution Amount; | ||
(vii) | to the Class A Noteholders, all remaining amounts until the Outstanding Note Balance of the Class A Notes is reduced to zero and all Note Balance Write-Down Amounts applied to the Class A Notes have been reimbursed with interest at the related Note Rate; | ||
(viii) | to the Class B Noteholders, the Class B Interest Distribution Amount; | ||
(ix) | to the Class B Noteholders, all remaining amounts until the Outstanding Note Balance of the Class B Notes is reduced to zero and all Note Balance Write-Down Amounts applied to the Class B Notes have been reimbursed with interest at the related Note Rate; and | ||
(x) | to the Owner or any subsequent owners of the beneficial interests in the Issuer, any remaining amounts. |
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c/o U.S Bank Trust National Association
300 Delaware Avenue, 9th Floor
Wilmington, Delaware 19801
Facsimile Number: (302) 576-3717
Telephone Number: (302) 576-3700
With a copy to:
10600 West Charleston Boulevard
Las Vegas, Nevada 89135
Attention: General Counsel
10600 West Charleston Boulevard
Las Vegas, Nevada 89135
Attention: David Womer
10600 West Charleston Boulevard
Las Vegas, Nevada 89135
Attention: General Counsel
MAC N9311-161
Sixth Street & Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust
Services/Asset-Backed Administration
Telephone Number: (612) 667-8058
73
a Standard & Poor’s Financial Services LLC business
55 Water Street, 41st Floor
New York, New York 10041-0003
Attention: Structured Credit Surveillance
Email: servicer_reports@standardandpoors.com
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DIAMOND RESORTS OWNER TRUST 2009-1, as Issuer | ||||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, | |||||||
not in its individual capacity but solely as Owner Trustee | ||||||||
By: | /s/ Diane L. Reynolds | |||||||
Title: Vice President | ||||||||
DIAMOND RESORTS FINANCIAL SERVICES, INC. as Servicer | ||||||||
By: | /s/ David F. Palmer | |||||||
Name: David F. Palmer | ||||||||
Title: Executive Vice President | ||||||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee and Back-Up Servicer | ||||||||
By: | /s/ Joe Nardi | |||||||
Name: Joe Nardi | ||||||||
Title: Vice President |
A - 1
A - 2
TIMESHARE LOAN BACKED NOTES, SERIES 2009-1, CLASS A
Initial Payment Date: October 20, 2009
Stated Maturity: March 20, 2026
Initial Note Balance: Up to $169,200,000
Note No:
CUSIP No: 252727 AA0
ISIN No: US252727AA07
A - 3
A - 4
A - 5
A - 6
TIMESHARE LOAN BACKED NOTES, SERIES 2009-1, CLASS B
Initial Payment Date: October 20, 2009
Stated Maturity: March 20, 2026
Initial Note Balance: Up to $12,800,000
Note No:
CUSIP No: 252727 AB8
ISIN No: US252727AB89
A - 7
A - 8
A - 9
DIAMOND RESORTS OWNER TRUST 2009-1 | ||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee | |||||
By: | ||||||
Title: |
A - 10
Dated: October 15, 2009
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
A - 11
A - 12
TIMESHARE LOAN BACKED NOTES, SERIES 2009-1, CLASS A
Initial Payment Date: October 20, 2009
Stated Maturity: March 20, 2026
Initial Note Balance: Up to $169,200,000
Note No:
CUSIP No: U25266 AA2
ISIN No: USU25266AA23
A - 13
A - 14
A - 15
A - 16
DIAMOND RESORTS OWNER TRUST 2009-1 | ||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee | |||||
By: | | |||||
Title: |
A - 17
Dated: October 15, 2009
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
A - 18
A - 19
TIMESHARE LOAN BACKED NOTES, SERIES 2009-1, CLASS B
Initial Payment Date: October 20, 2009
Stated Maturity: March 20, 2026
Initial Note Balance: $12,800,000
Note No:
CUSIP No: U25266 AB0
ISIN No: USU25266AB06
A - 20
A - 21
A - 22
A - 23
DIAMOND RESORTS OWNER TRUST 2009-1 | ||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee | |||||
By: | ||||||
Title: |
A - 24
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
A - 25
DIAMOND RESORTS OWNER TRUST 2009-1 | ||||||
By: | U.S. BANK TRUST NATIONAL ASSOCIATION, not in its individual capacity but solely as Owner Trustee | |||||
By: | ||||||
Title: |
A - 26
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
A - 27
B - 1
Timeshare Loan Backed Notes, Series 2009-1, Class _
c/o U.S. Bank Trust National Association, as Owner Trustee
300 Delaware Avenue, 9th Floor
Wilmington, DE 19801
MAC N9311-161
Sixth Street & Marquette Avenue
Minneapolis, Minnesota 55479
B - 2
B - 3
Social Security Number |
B - 4
o | Corporation, etc. The Purchaser is a corporation (other than a bank, savings and loan association or similar institution), business trust, partnership, or any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986. | ||
o | Bank. The Purchaser (a) is a national bank or a banking institution organized under the laws of any State, U.S. territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. bank, and not more than 18 months preceding such date of sale for a foreign bank or equivalent institution. | ||
o | Savings and Loan. The Purchaser (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. savings and loan association, and not more than 18 months preceding such date of sale for a foreign savings and loan association or equivalent institution. | ||
o | Broker-dealer. The Purchaser is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934. | ||
o | Insurance Company. The Purchaser is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State, U.S. territory or the District of Columbia. | ||
o | State or Local Plan. The Purchaser is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees. | ||
o | ERISA Plan. The Purchaser is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974. |
1 | Purchaser must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Purchaser is a dealer, and, in that case, Purchaser must own and/or invest on, a discretionary basis at least $10,000,000 in securities. |
B - 5
o | Investment Advisor. The Purchaser is an investment advisor registered under the Investment Advisers Act of 1940. | ||
o | Other. (Please supply a brief description of the entity and a cross-reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A pursuant to which it qualifies. Note that registered investment companies should complete Annex 2 rather than this Annex 1.) |
only for the Purchaser’s own account?
o | o | |
Yes | No |
Print Name of Purchaser | ||||
By: | ||||
Name: | ||||
Title: | ||||
B - 6
o | The Purchaser owned and/or invested on a discretionary basis $ in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). | ||
o | The Purchaser is part of a Family of Investment Companies which owned in the aggregate $ in securities (other than the excluded securities referred to below) as of the end of the Purchaser’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
Note only for the Purchaser’s own account?
o | o | |
Yes | No |
B - 7
Print Name of Purchaser or Adviser | ||||
By: | ||||
Name: | ||||
Title: | ||||
IF AN ADVISER: | ||||
Print Name of Purchaser | ||||
Date: |
B - 8
REGULATION S GLOBAL NOTES DURING THE RESTRICTED PERIOD
C - 1
GLOBAL NOTE DURING THE RESTRICTED PERIOD
MAC# N9303-121
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
Re: | Diamond Resorts Owner Trust 2009-1; Transfer of Class_Note |
(1) | the offer of the Notes was not made to a person in the United States, | |
(2) | [at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States] (the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the transferor nor any person acting on its behalf knows that the transaction was pre-arranged with a buyer in the United States],** | |
(3) | the transferee is not a U.S. Person within the meaning of Rule 902(k) of Regulation S nor a Person acting for the account or benefit of a U.S. Person, | |
(4) | no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable, | |
(5) | the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act, and |
* | Select appropriate depository. | |
** | Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. |
C - 2
(6) | upon completion of the transaction, the beneficial interest being transferred as described above will be held with the Depository through [Euroclear] [Clearstream].*** |
*** | Select appropriate depository. |
C - 3
[Insert Name of Transferor] | ||||
By: | ||||
Title: | ||||
Dated: |
C - 4
NOTES TO REGULATION S GLOBAL NOTES AFTER RESTRICTED PERIOD
D - 1
FROM RULE 144A GLOBAL NOTE TO REGULATION S
GLOBAL NOTE AFTER THE RESTRICTED PERIOD
MAC# N9303-121
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
Re: | Diamond Resorts Owner Trust 2009-1; Transfer of Class_Note |
* | Select appropriate depository. | |
** | Insert one of these two provisions, which come from the definition of “offshore transaction” in Regulation S. |
D - 2
[Insert Name of Transferor] | ||||
By: | ||||
Name: | ||||
Title: | ||||
D - 3
NOTES TO 144A GLOBAL NOTES DURING RESTRICTED PERIOD
E - 1
FROM REGULATION S GLOBAL NOTE
TO RULE 144A GLOBAL NOTE
MAC# N9303-121
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
Re: | Diamond Resorts Owner Trust 2009-1; Transfer of Class_Note | |
Ladies and Gentlemen: |
[Insert Name of Transferor] | ||||
By: | ||||
Name: | ||||
Title: | ||||
* | Select appropriate depository. |
E - 2
REGULATION S GLOBAL NOTES DURING RESTRICTED PERIOD
F - 1
GLOBAL CERTIFICATE DURING RESTRICTED PERIOD
MAC# N9303-121
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
Attention: Corporate Trust Services
Re: | Diamond Resorts Owner Trust 2009-1; Transfer of Class_Note | |
Ladies and Gentlemen: |
[Insert Name of Transferee] | ||||
By: | ||||
Name: | ||||
Title: | ||||
F - 2
Lender Code
Account Number
Account Code
Account Code Date
Resort
Obligor Name
Obligor Address
Obligor City
Obligor Zip Code
Obligor State Code
Obligor State Description
Obligor Country Code
Obligor Country Description
Credit Score
Days Delinquent
Purchase Price
Down Payment
Original Balance
Original Term
Interest Rate
Principal and Interest Monthly Payment
Monthly Impound
Late Charge Balance
Current Balance
Remaining Term
Contract Date
First Payment Date
Last Payment Date
Last Payment Amount
Next Payment Date
Payments Made
Default
Default Date
G - 1
H - 1
I - 1
Summary of collection timeline:
Upon boarding | Customer service team conducts welcome calls. | |
10 Days Past Due | A past due notice is generated and mailed. Collection calls commence. | |
30 Days Past Due | A letter is sent advising that 2 payments are now due and payable within 7 days. Continue collection calls. | |
60 Days Past Due | A letter is sent advising the customer that the loan balance has been accelerated and that legal action will commence within 30 days if delinquency is not resolved. | |
90 Days Past Due | Account is transferred to loss mitigation for recovery efforts. | |
90 – 180 Days Past Due | Telegram like letter is sent / Last chance. Deed in lieu of foreclosure or foreclosure process begins. | |
180 Days + | Charge offs |
(by underlying inventory type)
Inventory Type | Cancelation Schedule / Timeline | |
Deeded / Fee Simple Title Loans that reach 181+ or are canceled prior to reaching 181 are charged off and go into our default calculations | 90 Days:Referred to Loss Mitigation Group for full reinstatement (loan brought current), work-out/payment plan, or deed in lieu of foreclosure(if we get a DIL from our obligor we will transfer the inventory into one of our Points based trusts to be resold and cancel the loan within 45 days). 120-130 Days:Forwarded to outside legal counsel to start foreclosure proceedings. 240-430 Days: Foreclosure Sale Complete/Loan is canceled(wide range is based on individual state requirements). 285-475 Days:Deeded inventory transferred to one of the Points based trusts to be resold. | |
Points Based/ Beneficial Interest Loans that reach 181+ or are canceled prior to reaching 181 are charged off and go into our default calculations Extra time is given to foreign obligors (non-US or Canada) and this extra time is not reflected in this timetable. | 90 Days: Referred to Loss Mitigation Group for full reinstatement (loan brought current), work-out/payment plan, or mutual release agreement(if we get a MRA from our obligor, the Points inventory will be made available to be resold and loan canceled within 14 days). 120-130 Days: Send certified demand letter (expires after 30 days). | |
157-169 Days:Demand period complete. Revocation notice sent (Revocation notice gives obligors 14 days to demand that we commence with a UCC foreclosure) if obligor does not respond they forfeit rights to a UCC foreclosure, which is more costly and time consuming. | ||
181-195 Days:Defaults where obligor does not force a UCC foreclosure – Loan is canceled and Points inventory made available to be resold. | ||
271-285 Days:Defaults where obligor does force a UCC foreclosure – UCC foreclosure complete/ Loan is canceled and points inventory made available to be resold. (note: We have very few forced UCC foreclosures and often they are converted to workouts or the obligor signs a mutual release agreement) | ||
Right to Use/ Lease Hold Loans that reach 181+ or are canceled prior to reaching 181 are charged off and go into our default calculations | 90 Days:Referred to Loss Mitigation Group for full reinstatement (loan brought current) or work-out/payment plan. 120-130 Days:Send certified demand letter (expires after 30 days for US residents and 60 days for foreign obligors). 130-140 Days:Send termination of lease notice. 145-155 Days:Transfer leases to one of the Points based trusts to be resold/ Loan is canceled. |
- | Please note that consumer bankruptcies, loans that fall under the soldiers and sailors act, hardship forbearances, and accounts needing legal research are exceptions to the timeline in the above table. | |
- | All Canceled Loans in a loan facility are repurchased, replaced, or remarketed. | |
- | Accounts in a loan facility get equal or more attention when compared to the company’s in house portfolio (equal or higher priority). |
J - 1
MONTHLY SERVICER REPORT
$12,800,000 12.00% Timeshare Loan Backed Notes, Series 2009-1, Class B
Due Period Determination Date Payment Date Interest Accrual Period (# Days) | 30 |
A. TOTAL COLLECTIONS | ||||
Available Funds | 0.00 | |||
Total Principal Collections | ||||
Total Interest Collections | ||||
Total Other Collections | ||||
Reserve Account Draw Amount | 0.00 | |||
Total Available Funds and Reserve Account Draw Amount in Collection Account | 0.00 | |||
B. DISTRIBUTIONS | ||||
(i) Indenture Trustee and Custodian Fee and any accrued and unpaid fees | 0.00 | |||
(ii) Back-Up Servicer Fee and any accrued and unpaid fees and transition expenses | 0.00 | |||
(iii) Owner Trustee Fee (to be paid in October of each year) and Owner Trustee Expenses | 0.00 | |||
(iv) Administrator Fee (to be paid in January of each year) and certain expenses | 0.00 | |||
(v) Servicing Fee and any accrued and unpaid fees | 0.00 | |||
(vi) Class A Interest Distribution Amount | 0.00 | |||
(vii) Class B Interest Distribution Amount | 0.00 | |||
(viii) Class A Principal Distribution Amount | 0.00 | |||
(ix) Class B Principal Distribution Amount | 0.00 | |||
(x) Deposit into Reserve Account | 0.00 | |||
(xi) Payment to Unreimbursed Note Balance Write Down Amounts | 0.00 | |||
(xii) Back-up Servicer expenses not paid in (II) | 0.00 | |||
(xiii) Remaining amounts to the Seller | 0.00 | |||
C. OUTSTANDING NOTE BALANCES | ||||
Class A Notes | ||||
Beginning Class A Note Balance | 169,200,000.00 | |||
Beginning Class A Percentage Interest | 92.97 | % | ||
Class A Principal Distribution Amount Paid | 0.00 | |||
Class A Note Balance Write Down Amount | 0.00 | |||
Ending Class A Outstanding Note Balance | 169,200,000.00 | |||
Reimbursed Class A Note Balance Write Down Amount | 0.00 | |||
Interest on Unreimbursed Class A Note Balance Write Down Amount | 0.00 | |||
Unreimbursed Interest on Class A Note Balance Write Down Amount Outstanding | 0.00 | |||
Unreimbursed Class A Note Balance Write Down Amount Outstanding | 0.00 | |||
Class A Note Rate | 9.31 | % | ||
Class A Interest Accrued during the related Interest Accrual Period | 0.00 | |||
Unpaid Interest Distribution Amounts from prior Payment Dates | 0.00 | |||
Class A Interest Distribution Amount | 0.00 | |||
Class B Notes | ||||
Beginning Class B Note Balance | 12,800,000.00 | |||
Beginning Class A Percentage Interest | 7.03 | % | ||
Class B Principal Distribution Amount Paid | 0.00 | |||
Class B Note Balance Write Down Amount | 0.00 | |||
Ending Class B Outstanding Note Balance | 12,800,000.00 | |||
Reimbursed Class B Note Balance Write Down Amount | 0.00 | |||
Interest on Unreimbursed Class B Note Balance Write Down Amount | 0.00 | |||
Unreimbursed Interest on Class A Note Balance Write Down Amount Outstanding | 0.00 | |||
Unreimbursed Class B Note Balance Write Down Amount | 0.00 | |||
Class B Note Rate | 12.00 | % | ||
Class A Interest Accrued during the related Interest Accrual Period | 0.00 | |||
Unpaid Interest Distribution Amounts from prior Payment Dates | 0.00 | |||
Class B Interest Distribution Amount | 0.00 | |||
MONTHLY SERVICER REPORT
$12,800,000 12.00% Timeshare Loan Backed Notes, Series 2009-1, Class B
Due Period Determination Date Payment Date Interest Accrual Period (# Days) | 30 |
D. CREDIT ENHANCEMENT | ||||||||
Overcollateralization Amount for Such Payment Date(Payment Daten) | 42,691,810.45 | |||||||
Aggregate Loan Balance of Timeshare Loans at end of the Due Period | 224,691,810.45 | |||||||
Aggregate Outstanding Note Balance after Distributions on such Payment Date | 182,000,000.00 | |||||||
Reserve Account Balance after Making Distributions on Payment Date | 2,246,918.10 | |||||||
Total Credit Enhancement | 44,938,728.55 | |||||||
Total Credit Enhancement % of Agg. Loan Balance of Timeshare Loans at end of the Due Period | 20.00 | % | ||||||
E. COLLECTIONS DETAIL | ||||||||
Total Principal Collections | 0.00 | |||||||
Scheduled Principal Collections | 0.00 | |||||||
Prepayments | 0.00 | |||||||
Repurchase Price paid by Seller to repurchase Defaulted Timeshare Loans | 0.00 | |||||||
Repurchase Price paid by Seller to repurchase Defective Timeshare Loans | 0.00 | |||||||
Substitution Shortfall Amounts | 0.00 | |||||||
Total Interest Collections | 0.00 | |||||||
Interest Collections | 0.00 | |||||||
Accrued Interest relating to repurchases by the Seller | 0.00 | |||||||
Total Other Collections | 0.00 | |||||||
Remarketing proceeds received in respect of Defaulted Timeshare Loans not repurchased/substituted for | 0.00 | |||||||
Excess of Cash over Reserve Account Required Balance released to Collection Account (if any) | 0.00 | |||||||
Total Available Funds in the Collection Account | 0.00 | |||||||
F. COLLATERAL DETAIL | ||||||||
Aggregate Loan Balance as of the Initial Cut-off Date | 224,691,810.45 | |||||||
Aggregate Loan Balance of Timeshare Loans as of the beginning of the related Due Period | 224,691,810.45 | |||||||
Total Principal Collections | 0.00 | |||||||
Loans that became Defaulted Loans during the Due Period that were not repurchased/substituted for | 0.00 | |||||||
Loans that became Defaulted Loans during the related Due Period (Aggregate Loan Balance) | 0.00 | |||||||
Qualified Substitute Loans substituted for loans that became Defaulted Loans during the Due Period (Agg Loan Balance) | 0.00 | |||||||
Defaulted Timeshare Loans that were repurchased by the Seller | 0.00 | |||||||
Defective Timeshare Loans that were repurchased by the Seller (Agg. Loan Balance) | 0.00 | |||||||
Aggregate Loan Balance of Timeshare Loans as of the end of the related Due Period | 224,691,810.45 | |||||||
G. RESERVE ACCOUNT DETAIL | ||||||||
Reserve Account Required Balance | 2,246,918.10 | |||||||
Beginning Balance of Reserve Account | 2,246,918.10 | |||||||
Interest Received during Collection Period | 0.00 | |||||||
Beginning Balance of Reserve Account (including interest received during Interest Accrual Period) | 2,246,918.10 | |||||||
Excess of Cash over Reserve Account Required Balance released to Collection Account (if any) | 0.00 | |||||||
Remaining Balance of Reserve Account after Excess of Cash released to Collection Account | 2,246,918.10 | |||||||
Deposit from Payment Waterfall to meet Reserve Account Required Balance (if any) | 0.00 | |||||||
Reserve Account Draw Amount (if any) | 0.00 | |||||||
Ending Balance of Reserve Account | 2,246,918.10 | |||||||
MONTHLY SERVICER REPORT
$12,800,000 12.00% Timeshare Loan Backed Notes, Series 2009-1, Class B
Due Period Determination Date Payment Date Interest Accrual Period (# Days) | 30 |
% of Agg. Loan Balance | ||||||||
Agg. Loan Balance | as of End of Due Period | |||||||
H. TIMESHARE LOAN PERFORMANCE STATUS | ||||||||
31-60 days Delinquent Timeshare Loans | 0.00 | 0.00 | % | |||||
61-90 days Delinquent Timeshare Loans | 0.00 | 0.00 | % | |||||
91-120 days Delinquent Timeshare Loans | 0.00 | 0.00 | % | |||||
121-150 days Delinquent Timeshare Loans | 0.00 | 0.00 | % | |||||
151-180 days Delinquent Timeshare Loans | 0.00 | 0.00 | % | |||||
61 - 180 days Delinquent Timeshare Loans (Delinquency Level) | 0.00 | 0.00 | % | |||||
% of Agg. Loan Balance as | ||||||||
Agg. Loan Balance | of Due Period Beginning | |||||||
Timeshare Loans that Became Defaulted Timeshare Loans During the Due Period | 0.00 | 0.00 | % | |||||
Defaulted Timeshare Loans thatwere repurchased/substituted for by the Seller | 0.00 | 0.00 | % | |||||
Defaulted Timeshare Loans thatwere notrepurchased/substituted for by the Seller | 0.00 | 0.00 | % | |||||
Remarketing Proceeds Received During the Due Period | 0.00 | 0.00 | % | |||||
Default Level for Current Due Period | 0.00 | 0.00 | % | |||||
% of Agg. Loan Balance | ||||||||
as of Initial Cut-Off Date | Agg. Loan Balance | |||||||
Maximum Cumulative Repurchases of Defaulted Timeshare Loans Permitted since the Closing Date | 15.00 | % | 33,703,771.57 | |||||
Cumulative Repurchases of Defaulted Timeshare Loans since the Closing Date | 0.00 | |||||||
Maximum Cumulative Repurchases of Defaulted Timeshare Loans Remaining | 33,703,771.57 | |||||||
Cumulative Repurchases in Compliance with Transaction Limit? (Yes/No) | Yes |
% of Agg. Loan Balance | ||||||||
as of Initial Cut-Off Date | Agg. Loan Balance | |||||||
Maximum Cumulative Substitutions of Defaulted Timeshare Loans Permitted since the Closing Date | 20.00 | % | 44,938,362.09 | |||||
Cumulative Substitutions of Defaulted Timeshare Loans since the Closing Date | 0.00 | |||||||
Maximum Cumulative Substitutions of Defaulted Timeshare Loans Remaining | 44,938,362.09 | |||||||
Cumulative Substitutions in Compliance with Transaction Limit? (Yes/No) | Yes | |||||||
I. Cash Accumulation Event Calculations | ||||||||
Delinquency Level for Related Due Period(periodn) | 0.00 | % | ||||||
Delinquency Level for Previous Due Period(periodn-1) | 0.00 | % | ||||||
Delinquency Level for Due Period Prior to Previous Due Period(periodn-2) | 0.00 | % | ||||||
Averageof Delinquency Levels for the Last 3 Due Periods | 0.00 | % | ||||||
Cash Accumulation Event Delinquency Level Trigger | 7.00 | % | ||||||
Cash Accumulation Event? (Yes/No) | No | |||||||
J. Rapid Amortization Event Calculations | ||||||||
Default Level for related Due Period(periodn) | 0.00 | % | ||||||
Default Level for Previous Due Period(periodn-1) | 0.00 | % | ||||||
Default Level for Due Period Prior to Previous Due Period(periodn-2) | 0.00 | % | ||||||
Average of Default Levels for the Last 3 Due Periods | 0.00 | % | ||||||
Rapid Amortization Period Default Level Trigger | 0.75 | % | ||||||
Rapid Amortization Period in Effect for Default Level? (Yes/No) | No | |||||||
Timeshare Loans that have become Defaulted Timeshare Loans Since the Closing Date | 0.00 | |||||||
Defaulted Timeshare Loans thathave beenrepurchased or substituted for by the Seller since the Closing Date | 0.00 | |||||||
Defaulted Timeshare Loans thathave not beenrepurchased or substituted for by the Seller since the Closing Date | 0.00 | |||||||
Remarketing Proceeds received in respect of Defaulted Timeshare Loans since the Closing Date | 0.00 | |||||||
Cumulative Default Level for Such Determination Date | 0.00 | % | ||||||
Rapid Amortization Period Cumulative Default Level Trigger | 20.00 | % | ||||||
Rapid Amortization Period in Effect for Cumulative Default Level? (Yes/No) | No | |||||||
Overcollateralization Amount for Previous Payment Date(Payment Daten-1) | 42,691,810.45 | |||||||
Overcollateralization Amount for Previous Payment Date(Payment Daten-2) | 42,691,810.45 | |||||||
Required Overcollateralization Amount | 42,691,810.45 | |||||||
Rapid Amortization Period in Effect for Previous Two OC Amounts Less than Required OC Amount? (Yes/No) | No |
K - 1
DIAMOND RESORTS FINANCIAL SERVICES, INC. | ||||
By: | ||||
Name: | ||||
Title: |
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<Name>
<Address>
<City, State, Zip>
<Country>
Re: | Your St. Maarten Timeshare – Loan # <Contract Number> |
On behalf of AKGI St. Maarten NV, Diamond Resorts Corporation, Diamond Resorts Finance Holding Company, Diamond Resorts Seller 2009-1 LLC and the Issuer
* | This transfer was made in a sequential manner as follows: AKGI St. Maarten N.V., the creditor of your loan, pursuant to an instrument of transfer, transferred and assigned all of its right, title, and interest to the loan to Diamond Resorts Corporation, a Maryland corporation. Diamond Resorts Corporation, pursuant to an instrument of transfer, transferred and assigned all of its right, title and interest to the loan to Diamond Resorts Finance Holding Company, a Delaware corporation. Diamond Resorts Finance Holding Company pursuant to a purchase agreement sold all of its right, title, and interest to the loan to Diamond Resorts Seller 2009-1 LLC, a Delaware limited liability company. After these transfers, Diamond Resorts Seller 2009-1 LLC, pursuant to a sale agreement, transferred and assigned all of its right, title and interest to the loan to Diamond Resorts Owner Trust 2009-1 (the “Issuer”), and the Issuer, pursuant to an indenture, pledged all of its right, title and interest to the loan to Wells Fargo Bank, National |
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Association, as indenture trustee for the benefit of the Noteholders, as security for its obligations under the indenture. |
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1 | Loan/Contract Number | ||
2 | Name of Obligor | ||
3 | Unit(s)/Week(s)/Point(s), as applicable | ||
4 | Interest Rate Per Annum | ||
5 | Date of Origination | ||
6 | Original Loan Balance | ||
7 | Maturity Date | ||
8 | Monthly Payment Amount | ||
9 | Original Term (in months) | ||
10 | Outstanding Loan Balance | ||
11 | Right to Use/Mortgage Loan | ||
12 | Name of Originator |
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