EXHIBIT 10.27
[EXECUTION COPY]
RECEIVABLES PURCHASE AGREEMENT
dated as of September 28, 2001
Among
TW HOLDINGS III, INC., as Seller,
TRENDWEST RESORTS, INC., as Servicer,
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Custodian,
THE FINANCIAL INSTITUTIONS, party hereto,
JUPITER SECURITIZATION CORPORATION,
BLUE KEEL FUNDING, LLC,
FLEET SECURITIES, INC., as an Investor Agent,
BANK ONE, NA (MAIN OFFICE CHICAGO), as an Investor Agent and as Agent,
and
BANK ONE TRUST COMPANY, NA, as Paying Agent
TABLE OF CONTENTS
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Page
PRELIMINARY STATEMENTS
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility......................................................................2
Section 1.2 Increases. ...........................................................................2
Section 1.3 Decreases..............................................................................3
Section 1.4 Payment Requirements...................................................................3
Section 1.5 Repurchase or Substitution for Charged-Off and Defaulted Receivables...................4
Section 1.6 Upgrades...............................................................................6
Section 1.7 Assignment to Blue Keel................................................................6
ARTICLE II
PAYMENTS AND COLLECTIONS
Section 2.1 Payments...............................................................................7
Section 2.2 Distributions Prior to Amortization Date...............................................8
Section 2.3 Distributions Following Amortization Date.............................................10
Section 2.4 Sharing of Applications...............................................................11
Section 2.5 Payment Recission.....................................................................11
Section 2.6 Maintenance of Purchaser Interests. .................................................11
Section 2.7 Clean Up Call.........................................................................11
Section 2.8 Designated Accounts...................................................................11
Section 2.9 Investment of Amounts in Designated Accounts..........................................12
Section 2.10 Procedures for Substitution and Release of Receivables................................12
Section 2.11 Deemed Collections....................................................................14
Section 2.12 Terminating Purchasers................................................................14
ARTICLE III
CONDUIT FUNDING
Section 3.1 CP Costs..............................................................................15
Section 3.2 CP Costs Payments.....................................................................15
Section 3.3 Calculation of CP Costs and Carrying and Servicing Costs..............................15
ARTICLE IV
FINANCIAL INSTITUTION FUNDING
Section 4.1 Financial Institution Funding.........................................................15
Section 4.2 Yield Payments........................................................................16
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Page
Section 4.3 Selection and Continuation of Tranche Periods.........................................16
Section 4.4 Financial Institution Discount Rates..................................................16
Section 4.5 Suspension of the LIBO Rate...........................................................16
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Trendwest Parties...............................17
ARTICLE VI
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Effectiveness of Agreement....................................23
Section 6.2 Conditions Precedent to All Purchases.................................................23
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of the Trendwest Parties........................................24
Section 7.2 Negative Covenants of the Trendwest Parties...........................................33
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer...............................................................34
Section 8.2 Duties of Servicer....................................................................35
Section 8.3 Collections Following an Amortization Event...........................................36
Section 8.4 Responsibilities of the RPA Seller....................................................37
Section 8.5 Reports...............................................................................37
Section 8.6 Servicing Fees........................................................................37
Section 8.7 TWRI Financial Covenants..............................................................37
ARTICLE IX
HEDGING
Section 9.1 Hedge Event...........................................................................38
Section 9.2 Hedge Accumulation Period.............................................................38
ARTICLE X
AMORTIZATION EVENTS
Section 10.1 Amortization Events...................................................................39
Section 10.2 Remedies..............................................................................42
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Page
ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnities by the Trendwest Parties..................................................42
Section 11.2 Increased Cost and Reduced Return.....................................................45
Section 11.3 Other Costs and Expenses..............................................................46
Section 11.4 Allocations...........................................................................46
ARTICLE XII
THE AGENT
Section 12.1 Authorization and Action..............................................................47
Section 12.2 Delegation of Duties..................................................................47
Section 12.3 Exculpatory Provisions................................................................47
Section 12.4 Reliance by Agent.....................................................................48
Section 12.5 Non-Reliance on Agent and Other Purchasers............................................48
Section 12.6 Reimbursement and Indemnification.....................................................48
Section 12.7 Agent in its Individual Capacity......................................................49
Section 12.8 Successor Agent.......................................................................49
ARTICLE XIII
ASSIGNMENTS; PARTICIPATIONS
Section 13.1 Assignments...........................................................................49
Section 13.2 Participations........................................................................50
ARTICLE XIV
THE INVESTOR AGENTS
Section 14.1 Authorization and Action..............................................................50
Section 14.2 Delegation of Duties..................................................................51
Section 14.3 Exculpatory Provisions................................................................51
Section 14.4 Reliance by Investor Agent............................................................51
Section 14.5 Non-Reliance on Investor Agent and Other Purchasers...................................52
Section 14.6 Reimbursement and Indemnification.....................................................52
Section 14.7 Investor Agent in its Individual Capacity.............................................52
Section 14.8 Successor Investor Agent..............................................................53
ARTICLE XV
THE CUSTODIAN
Section 15.1 Appointment of Custodian; Delivery of Records; Verification...........................53
Section 15.2 Receipts..............................................................................54
Section 15.3 Duties of Custodian...................................................................55
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Page
Section 15.4 Representations and Warranties of Custodian...........................................56
Section 15.5 Adverse Interests.....................................................................57
Section 15.6 Termination or Resignation of Custodian...............................................57
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Waivers and Amendments................................................................58
Section 16.2 Notices...............................................................................59
Section 16.3 Ratable Payments......................................................................59
Section 16.4 Protection of Ownership Interests of the Purchasers...................................60
Section 16.5 Confidentiality.......................................................................61
Section 16.6 Bankruptcy Petition...................................................................61
Section 16.7 Limitation of Liability...............................................................62
Section 16.8 CHOICE OF LAW.........................................................................62
Section 16.9 CONSENT TO JURISDICTION...............................................................62
Section 16.10 WAIVER OF JURY TRIAL..................................................................62
Section 16.11 Integration; Binding Effect; Survival of Terms........................................63
Section 16.12 Counterparts; Severability; Section References........................................63
Section 16.13 Bank Roles............................................................................64
Section 16.14 Characterization......................................................................64
Section 16.15 Nonrecourse Nature of Transactions....................................................65
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Exhibits and Schedules
Exhibit I Definitions
Exhibit II Form of Purchase Notice
Exhibit III Places of Business of the Trendwest Parties; Locations of
Records; Federal Employer Identification Number(s)
Exhibit IV Form of Seller Direction
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Assignment Agreement
Exhibit VII Credit and Collection Policies
Exhibit VIII Forms of Installment Sale Contracts
Exhibit IX Form of Monthly Report
Exhibit X Request for Release
Exhibit XI Receipt
Exhibit XII Account Numbers
Exhibit XIII Schedule of Custodian Fees
Exhibit XIV Form(s) of Mortgage Note(s)
Exhibit XV Form of FI Assignment Document (First Step)
Exhibit XVI Form of FI Assignment Document (Second Step)
Schedule A Commitments of Financial Institutions
Schedule B Documents to be Delivered to the Agent on or Prior to the
Initial Purchase
Schedule C Existing Environmental Claims
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RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement dated as of September 28, 2001 is among
(a) TW Holdings III, Inc., a Delaware corporation ("RPA Seller");
(b) Trendwest Resorts, Inc., an Oregon corporation, as initial Servicer
("TWRI") and, together with the RPA Seller, the "Trendwest Parties";
(c) Wells Fargo Bank Minnesota, National Association, as Custodian;
(d) the funding entities listed on Schedule A to this Agreement (together
with their respective successors and assigns hereunder, the "Financial
Institutions");
(e) Jupiter Securitization Corporation, a Delaware corporation ("Jupiter")
and Blue Keel Funding, LLC, a Delaware limited liability company, ("Blue Keel"),
as Conduits;
(f) Fleet Securities, Inc. ("FSI"), a New York corporation, as an Investor
Agent;
(g) Fleet National Bank ("Fleet") as a Financial Institution; and
(h) Bank One Trust Company, NA, as paying agent to the extent described
herein (the "Paying Agent") and Bank One, NA (Main Office Chicago) as agent for
the Purchasers hereunder or any successor agent hereunder (together with its
successors and assigns hereunder, the "Agent"), as an Investor Agent and as a
Financial Institution.
Unless defined elsewhere herein, capitalized terms used in this Agreement
shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
The RPA Seller has previously sold, transferred and assigned to the Agent
on behalf of Jupiter Purchaser Interests from time to time pursuant to a
Receivables Purchase Agreement dated as of January 7, 2000 among the RPA Seller,
TWRI, Sage Systems, Inc., as Custodian, the Financial Institutions party
thereto, Jupiter, the Paying Agent and the Agent, further amended by Amendment
No. 1 to Receivables Purchase Agreement, dated as of August 2, 2000, Amendment
No. 2 to Receivables Purchase Agreement, dated as of August 8, 2000, and
Amendment No. 3 to Receivables Purchase Agreement, dated as of January 4, 2001
(as so amended, the "Previous Purchase Agreement").
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The parties to the Previous Purchase Agreement desire to amend
and restate the Previous Purchase Agreement and to continue to transfer and
assign Purchaser Interests from time to time, and Blue Keel, FSI and Fleet
desire to become parties thereto.
Jupiter and Blue Keel may, each in its absolute and sole discretion,
purchase Purchaser Interests from the RPA Seller from time to time, in
accordance with their respective Group Limits.
In the event that a Conduit declines to make any purchase its related
Financial Institution shall, at the request of the RPA Seller, purchase
Purchaser Interests from time to time. In addition, each Financial Institution
has agreed to provide a liquidity facility to each Conduit in its Group.
This Agreement shall amend and restate the Previous Purchase Agreement in
its entirety.
In accordance with the terms hereof: Bank One, NA will act as Agent on
behalf of the Investor Agents and Purchasers, Bank One will act as Investor
Agent on behalf of the Purchasers in its Group, and FSI will act as Investor
Agent on behalf of the Purchasers in its Group.
ARTICLE I
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility. Immediately prior to the Assignment
specified in Section 1.7, Bank One as Investor Agent on behalf of Jupiter will
own 100% of the Purchaser Interests Immediately following such assignment, each
Investor Agent on behalf of its related Conduit, will own a portion of the
aggregate Purchaser Interests, apportioned ratably in accordance with its Group
Limit. Upon the terms and subject to the conditions hereof, the RPA Seller may,
at its option, sell and assign further Purchaser Interests to each Investor
Agent for the benefit of one or more of the Purchasers in its applicable Group.
Such sales and assignments shall be made ratably to the Investor Agents, in
accordance with each applicable Group Limit. During the period from the date
hereof to but not including the earlier to occur of the Revolving Period
Termination Date and the Facility Termination Date, in accordance with the terms
and conditions set forth herein, a Conduit may, at its option, instruct its
Investor Agent to purchase on behalf of such Conduit (or if such Conduit shall
decline to purchase, such Investor Agent shall purchase, on behalf of such
Conduit's related Financial Institutions) Purchaser Interests from time to time
in an amount which, when added to the existing Purchaser Interests of such
Group, shall not cause the aggregate Capital of such Group to exceed its Group
Limit.
Section 1.2 Increases. The RPA Seller shall provide the Agent and each
Investor Agent with at least two Business Days' prior notice in a form set forth
as Exhibit II hereto of the Initial
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Purchase (which shall not occur sooner then the Effective Date) and each
Incremental Purchase (a "Purchase Notice"). Each Purchase Notice shall be
subject to Section 6.2 hereof and, except as set forth below, shall be
irrevocable and shall specify (i) the requested Purchase Price (which shall not
be less than $2,500,000) and date of purchase (ii) the allocation of such amount
among each of the Groups (which shall be proportional to the Group Limit of each
Group) and (iii) in the case of an Incremental Purchase to be funded by a
Financial Institution, the requested Discount Rate and Tranche Period. Each
Purchase Notice shall include a Schedule of Receivables for any Receivables
either being sold under the Sale Agreement on the date of such Incremental
Purchase or which were sold under the Sale Agreement since the date of the
preceding Incremental Purchase. The RPA Seller may submit to the Agent and each
Investor Agent no more than two Purchase Notices during any Accrual Period.
Following receipt of a Purchase Notice, the Investor Agent for each Conduit will
determine whether such Conduit agrees to make the purchase. If a Conduit
declines to make a proposed purchase, the RPA Seller may cancel the Purchase
Notice or, in the absence of such a cancellation, the Incremental Purchase of
the Purchaser Interest will be made by the such Conduit's related Financial
Institutions. On the date of each Incremental Purchase, upon satisfaction of the
applicable conditions precedent set forth in Article VI, the applicable
Purchasers shall deposit to an account of the RPA Seller designated by the RPA
Seller in the Purchase Notice, in immediately available funds, an amount equal
to (i) in the case of a Conduit, the aggregate Purchase Price of the Purchaser
Interests such Conduit is then purchasing, with such payment to be initiated no
later than 2:00 p.m. (Chicago time), or (ii) in the case of such Conduit's
related Financial Institutions, each such related Financial Institution's Pro
Rata Share of the aggregate Purchase Price of the Purchaser Interests the
related Financial Institutions are purchasing.
Section 1.3 Decreases. On each Settlement Date prior to the Amortization
Date, the Monthly Available Funds shall be applied to reduce Capital (i) to the
extent described in clause fourth and clause tenth of Section 2.2(a) and (ii) to
the extent determined by the RPA Seller, to the extent Monthly Available Funds
are available to be applied pursuant to clause eleventh of Section 2.2(a). On
each Settlement Date on or following to the Amortization Date, the Amortization
Period Available Funds shall be applied to reduce Capital to the extent
described in clause fourth of Section 2.3. Servicer shall include in the Monthly
Report delivered pursuant to Section 8.5 on each Monthly Report Date the amount
of the Monthly Available Funds or Amortization Period Available Funds, as
applicable, that will be applied pursuant to Section 2.2 or Section 2.3, as
applicable, to reduce Capital on the related Settlement Date. All amounts paid
pursuant to clauses fourth and eleventh of Section 2.2(a) and clause fourth of
Section 2.3 shall be applied to the Purchaser Interests of each Group, ratably
in accordance with the Capital of all Purchaser Interests of such Group. Each
such Group shall apply such amounts to the Purchaser Interests of each Conduit
and its related Financial Institutions in accordance with the amount of Capital
(if any) owing to such Conduit, on the one hand, and the amount of Capital (if
any) owing to such related Financial Institutions (ratably, based on their
respective Pro Rata Shares), on the other hand.
Section 1.4 Payment Requirements. All amounts to be paid or deposited by
any Trendwest Party pursuant to any provision of this Agreement shall be paid or
deposited in
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accordance with the terms hereof no later than 10:00 a.m. (Chicago time) on the
day when due in immediately available funds, and if not received before 10:00
a.m. (Chicago time) shall be deemed to be received on the next succeeding
Business Day. If such amounts are payable in reduction of Capital or otherwise
to a Purchaser they shall be paid to the Investor Agent for such Purchaser's
Group at the address for such Investor Agent indicated on the signature pages to
this Agreement until otherwise notified by such Investor Agent. All computations
of Yield, per annum fees calculated as part of any CP Costs, and per annum fees
hereunder and under the Fee Letters shall be made on the basis of a year of 360
days for the actual number of days elapsed. If any amount hereunder shall be
payable on a day which is not a Business Day, such amount shall be payable on
the next succeeding Business Day.
Section 1.5 Repurchase or Substitution for Charged-Off and Defaulted
Receivables.
(a) On any Settlement Date, the RSA Seller may, at its option, cause the
Investor Agents to convey back to RPA Seller the interest of the Investor Agents
in (x) to the extent permitted pursuant to Section 1.5(d), any Receivable which
constituted a Charged-Off Receivable, an Undocumented Receivable, or a Defaulted
Receivable as of the last day of the related Accrual Period and (y) to the
extent permitted by Section 1.5(f), any Timeshare Interest which constituted a
Repossessed Timeshare Interest as of the last day of the related Accrual Period.
If an Originator chooses to exercise the reconveyance option as permitted by
this Section 1.5, the Servicer shall cause such Originator to provide the Agent
and each Investor Agent with irrevocable written notice on the Monthly Report
Date preceding such Settlement Date of its intention to cause such reconveyance
to occur, which notice shall (i) state the amount of each form of consideration
described in Sections 1.5(b) and 1.5(e) which shall be paid to the Investor
Agent on such Settlement Date, (ii) identify the Charged-Off Receivables,
Undocumented Receivables or Defaulted Receivables to be reconveyed to the RPA
Seller and (iii) otherwise be satisfactory in form and substance to Agent and
the applicable Investor Agent. On such Settlement Date, Agent shall execute a
Request for Release in accordance with Section 2.10 for such Charged-Off
Receivables, Undocumented Receivables or Defaulted Receivables, without
representation or warranty.
(b) As consideration for any reconveyance pursuant to Section 1.5(a)(x)
which occurs on a Settlement Date prior to the earlier to occur of the Revolving
Period Termination Date and the Amortization Date, the RPA Seller shall provide
to each Investor Agent, on behalf of the Purchasers in its Group:
(i) first, additional Purchaser Interests in the RPA Seller's existing
Receivables (so long as such additional Purchaser Interests do not cause the
aggregate Purchaser Interests to exceed 100%);
(ii) second, if the aggregate Purchaser Interests as described in clause
(i) would exceed 100%, then the RPA Seller shall acquire additional Eligible
Receivables pursuant to the Sale Agreement which will cause the aggregate
Purchaser Interests to be equal to or less
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than 100%, to the extent that such Receivables are available to RPA Seller (and
in compliance with all provisions in the Sale Agreement and in this Agreement
for the acquisition of Receivables, including the provisions of Sections
2.10(a)); and
(iii) third, to the extent that the Purchaser Interests would continue to
exceed 100%, the RPA Seller shall pay to the Investor Agents for the Purchasers,
in immediately available funds, an amount to be applied to reduce Capital such
that the Purchaser Interests shall not exceed 100%.
(c) As consideration for any reconveyance which occurs pursuant to Section
1.5(a)(x), on any Settlement Date on or following the earlier to occur of the
Revolving Period Termination Date and the Amortization Date, the RPA Seller
shall deposit into the Collection Account in immediately available funds, an
amount equal to 100% of the Outstanding Balance of such Receivable as of the
last day of the related Accrual Period.
(d) The aggregate Outstanding Balance of Charged-Off Receivables and
Defaulted Receivables reconveyed pursuant to Section 1.5(a)(x) shall (i) at no
time exceed 10% of the result of (A) the aggregate initial Outstanding Balance
of all Receivables conveyed from the RSA Seller to the RPA Seller on all RSA
Purchase Dates reduced by (B) the aggregate Outstanding Balance of all
Receivables subsequently reconveyed from the RPA Seller to the RSA Seller, and
(ii) (A) for the RSA Year beginning January 7, 2001 not exceed $15,000,000 and
(B) for the RSA Year beginning January 7, 2002, and each subsequent RSA Year,
not exceed $17,500,000.
(e) As consideration for any reconveyance pursuant to Section 1.5(a)(y) of
a Repossessed Timeshare Interest, on the applicable Settlement Date, the RPA
Seller shall deposit into the Collection Account in immediately available funds
an amount equal to 25% of the original purchase price paid by the defaulting
Obligor for such Timeshare Interest.
(f) The RPA Seller may not repurchase Repossessed Timeshare Interests at
any time pursuant to Section 1.5(a)(y) unless each of the following conditions
is satisfied:
(i) either the Amortization Date or the Revolving Period Termination Date
has occurred;
(ii) The RPA Seller has theretofore repurchased the maximum amount of
Charged-off Receivables and Defaulted Receivables permitted to be repurchased at
such time pursuant to Sections 1.5(a)(x) and 1.5(d); and
(iii) the aggregate Outstanding Balance of all Charged-off Receivables and
Defaulted Receivables related to Repossessed Timeshare Interests which have been
repurchased pursuant to Section 1.5(a)(y), including the Repossessed Timeshare
Interests to be repurchased on such Settlement Date, does not exceed an amount
equal to 5.0% of the
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Outstanding Balance of Eligible Receivables as of the earlier to occur of the
Amortization Date and the Revolving Period Termination Date.
The RPA Seller may not repurchase any Repossessed Timeshare Interests relating
to a Charged-off Receivable or a Defaulted Receivable unless the RPA Seller
repurchases all of the Repossessed Timeshare Interests relating to such
Charged-off Receivable or Defaulted Receivable at such time.
(g) The rights of the RPA Seller pursuant to this Section 1.5 to repurchase
Charged-off Receivables, Defaulted Receivables, Undocumented Receivables and
Repossessed Timeshare Interests shall be subject and subordinate to the rights
of the Agent pursuant to Section 10.2 to sell, dispose or otherwise liquidate
the Receivables and the Related Security following the occurrence of an
Amortization Event. Such rights of the RPA Seller shall not apply to any
Charged-off Receivables, Defaulted Receivables, Undocumented Receivables or
Repossessed Timeshare Interests which an Investor Agent or any Servicer has
sold, nor shall they apply to any Charged-off Receivables, Defaulted
Receivables, Undocumented Receivables or Repossessed Timeshare Interests as to
which an Investor Agent or any Servicer has provided at least five (5) Business
Days prior notice to the RPA Seller of its intention so to sell (unless, prior
to the expiration of such five (5) Business Days, the RPA Seller has irrevocably
committed to purchase such Charged-off Receivables, Defaulted Receivables,
Undocumented Receivables or Repossessed Timeshare Interests on the next
succeeding Settlement Date).
Section 1.6 Upgrades. In connection with an Upgrade by an Obligor, (i) the
RPA Seller shall acquire the Upgrade Contract from the RSA Seller or the RTA
Seller pursuant to the Sale Agreement or the Transfer Agreement, as applicable,
upon which acquisition each then outstanding Purchaser Interest shall include an
interest in the Receivable (the "Upgrade Receivable") represented by such
Upgrade Contract (and in the Related Security and Collections with respect to
such Upgrade Receivable) and (ii) upon such acquisition by the RPA Seller and
compliance by the RPA Seller with Section 2.10, the Investor Agents shall
release all of their interests in the existing Receivable (the "Pre-Upgrade
Receivable") in respect of which such Upgrade occurred.
Section 1.7 Assignment to Blue Keel.
(a) On the date on which all of the conditions precedent set forth in
Section 6.1 have been satisfied (the "Effective Date"), Jupiter will sell and
assign to Blue Keel, and Blue Keel will purchase from Jupiter, a 42.86%
undivided interest in and to the Purchaser Interest held by Jupiter (excluding
CP Costs and fees accrued to but excluding the Effective Date) for a purchase
price of $15,585,639.97. On the Effective Date, each of the interest so
purchased by Blue Keel and the interest retained by Jupiter shall become a
separate Purchaser Interest for all purposes under the Transaction Documents.
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(b) Jupiter hereby:
(i) represents and warrants that it is now, and on the Effective Date it
will be, the legal and beneficial owner of the interest being assigned by it
under this Section 1.7 and that such interest is free and clear of any Adverse
Claim;
(ii) makes no representation or warranty and assumes no responsibility with
respect to any statement, warranties or representations made in or in connection
with the Previous Purchase Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Previous Purchase Agreement or any
other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Trendwest Parties or the
performance or observance by the Trendwest Parties of any of their obligations
under the Previous Purchase Agreement or any other instrument or document
furnished pursuant thereto.
(c) Blue Keel agrees that it will, independently and without reliance upon
the Agent, any Investor Agent, Jupiter 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 this
Agreement.
ARTICLE II
PAYMENTS AND COLLECTIONS
Section 2.1 Payments. Notwithstanding any limitation on recourse contained
in this Agreement, the RPA Seller shall immediately pay when due, for the
account of the relevant Purchaser or Purchasers on a full recourse basis,
(a) such fees as set forth in the Fee Letters (which fees shall be
sufficient to pay all fees owing to the Financial Institutions);
(b) all amounts payable as Yield;
(c) all amounts payable as Deemed Collections (which shall be applied in
accordance with Sections 2.2 and 2.3 hereof);
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(d) all amounts payable pursuant to Article XI, if any;
(e) all Servicer costs and expenses in connection with servicing,
administering and collecting the Receivables (to the extent not paid directly to
the Servicer);
(f) all Broken Funding Costs;
(g) all fees owing to the Paying Agent;
(h) all Hedging Costs incurred by the Agent or the Purchasers; and
(i) all Default Fees (collectively, the "Obligations").
If any Person fails to pay any of the Obligations when due, such Person
agrees to pay, on demand, the Default Fee in respect thereof until paid.
Notwithstanding the foregoing, no provision of this Agreement or the Fee Letters
shall require the payment or permit the collection of any amounts hereunder in
excess of the maximum permitted by applicable law. If at any time the RPA Seller
receives any Collections or is deemed to receive any Collections, the RPA Seller
shall immediately deposit such Collections or Deemed Collections to the
Collection Account and, at all times prior to such payment, such Collections
shall be held in trust by the RPA Seller for the exclusive benefit of the
Investor Agents, the Purchasers and the Agent.
Section 2.2 Distributions Prior to Amortization Date.
(a) On each Settlement Date prior to the Amortization Date, the Paying
Agent shall distribute all Monthly Available Funds with respect to the preceding
Accrual Period in the following order of priority, based upon the instructions
set forth in the Monthly Report prepared by the Servicer:
first, if TWRI or one of its Affiliates is not then acting as the Servicer,
such Monthly Available Funds shall be applied to the payment of the Successor
Servicer fee;
second, any Monthly Available Funds remaining after the application in
clause first shall be applied to the reimbursement of the Agent's costs of
collection and enforcement of this Agreement;
third, any Monthly Available Funds remaining after the applications in
clauses first and second shall be paid ratably to each Investor Agent (or to an
account designated by such Investor Agent) for the ratable application to all
accrued and unpaid fees under the Fee Letters, CP Costs and Yield;
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fourth, if the aggregate Purchaser Interests exceed 100% as of the last day
of the related Accrual Period, any Monthly Available Funds remaining after the
applications in clauses first through third shall be applied to the reduction of
Aggregate Capital to the extent necessary to reduce the aggregate Purchaser
Interests to 100%;
fifth, any Monthly Available Funds remaining after the applications in
clauses first through fourth shall be applied to ratable payment of all other
unpaid Obligations (other than Servicer fees and costs and Deemed Collections);
sixth, if the amount of Monthly Available Funds on deposit in the Reserve
Account is less than the Reserve Account Required Amount, any Monthly Available
Funds remaining after the applications in clauses first through fifth shall be
deposited in the Reserve Account until the amount therein equals the Reserve
Account Required Amount;
seventh, if a Hedge Accumulation Period is in effect, any Monthly Available
Funds remaining after the applications in clauses first through sixth shall be
deposited in the Hedge Account;
eighth, if an Amortization Event has occurred and is continuing, but the
Agent has not declared the Amortization Date to have occurred pursuant to
Section 10.2, then any Monthly Available Funds remaining after the applications
described in clauses first through seventh shall be deposited in the Reserve
Account;
ninth, any Monthly Available Funds remaining after the applications in
clauses first through eighth shall be applied to payment to the Servicer of the
servicing fee specified in Section 8.6;
tenth, any Monthly Available Funds remaining after the applications in
clauses first through ninth shall be applied to reduce to zero the Capital of
all Purchaser Interests of Terminating Purchasers;
eleventh, any Monthly Available Funds remaining after the applications in
clauses first through tenth shall be applied to reduce Aggregate Capital, to the
extent so specified in a Monthly Report as provided in Section 1.3; and
twelfth, any Monthly Available Funds remaining after the applications in
clauses first through eleventh shall be paid to the RPA Seller.
(b) If, on any Settlement Date prior to the Amortization Date, the Monthly
Available Funds available to be applied pursuant to Section 2.2(a) are less than
the amounts specified in clauses first through fifth of Section 2.2(a) (such
shortfall being a "Monthly Shortfall"), then the Paying Agent shall, as provided
in the Monthly Report, withdraw from the Reserve Account the lesser of (i) the
Monthly Shortfall and (ii) the amount of funds in the Reserve Account, and shall
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apply such withdrawn funds to unpaid amounts specified in clauses first through
fifth of Section 2.2(a), in the order of priority therein specified.
Section 2.3 Distributions Following Amortization Date. On each Settlement
Date on or following the Amortization Date, the Paying Agent shall distribute
all Amortization Period Available Funds with respect to the preceding Accrual
Period in the following order of priority, based upon the instructions set forth
in the Monthly Report prepared by the Servicer:
first, if TWRI or one of its Affiliates is not then acting as the Servicer,
such Amortization Period Available Funds shall be applied to the payment of the
Successor Servicer Fee and to the payment of any fees then due and owing to the
Custodian, such fees to be assessed in accordance with Exhibit XIII hereto;
second, any Amortization Period Available Funds remaining after the
application in clause first shall be paid to the Agent for application to the
reimbursement of the Agent's costs of collection and enforcement of this
Agreement;
third, any Amortization Period Available Funds remaining after the
applications in clauses first and second shall be paid ratably to each Investor
Agent (or to an account designated by such Investor Agent) for the ratable
application to all accrued and unpaid fees under the Fee Letters and all CP
Costs and Yield;
fourth, any Amortization Period Available Funds remaining after the
applications in clauses first through third shall be applied ratably to Capital
to the extent necessary to reduce the Capital of all Purchaser Interests to
zero;
fifth, any Amortization Period Available Funds remaining after the
applications in clauses first through fourth shall be applied ratably for the
ratable payment of all other unpaid Obligations (other than Servicer costs and
Deemed Collections) and other Aggregate Unpaids;
sixth, if TWRI or one of its Affiliates is then acting as the Servicer, any
Amortization Period Available Funds remaining after the applications in clauses
first through fifth shall be paid to the Servicer ratably for the application to
the servicing fee specified in Section 8.6 and to the Custodian for the payment
of any fee then due and owing to the Custodian, such fees to be assessed in
accordance with Exhibit XIII hereto;
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seventh, any Amortization Period Available Funds remaining after the
applications in clauses first through sixth shall be paid to the RPA Seller.
Section 2.4 Sharing of Applications. Monthly Available Funds, Amortization
Period Available Funds and other amounts applied to the payment of Aggregate
Capital and other Aggregate Unpaids pursuant to Section 2.2 and Section 2.3,
shall be distributed in accordance with the aforementioned provisions, and,
giving effect to each of the priorities set forth in such Sections, shall be
shared ratably (within each priority) (i) if such application is made in respect
of Aggregate Capital, then with each Purchaser on the basis of the amount of
Capital of Purchaser Interest of such Purchaser and (ii) if such application is
made in respect of Aggregate Unpaids (other than Aggregate Capital) owing to the
Agent, the Investor Agents and the Purchasers, then in accordance with the
amount of such Aggregate Unpaids (other than Aggregate Capital) owing to each of
them in respect of each such priority.
Section 2.5 Payment Recission. No payment of any of the Aggregate Unpaids
shall be considered paid or applied hereunder to the extent that, at any time,
all or any portion of such payment or application is rescinded by application of
law or judicial authority, or must otherwise be returned or refunded for any
reason. The RPA Seller shall remain obligated for the amount of any payment or
application so rescinded, returned or refunded, and shall promptly pay to the
Agent (for application to the Person or Persons who suffered such recission,
return or refund) the full amount thereof, plus the Default Fee from the date of
any such recission, return or refunding.
Section 2.6 Maintenance of Purchaser Interests. The RPA Seller shall ensure
that the aggregate Purchaser Interests of the Purchasers shall at no time exceed
100%. If the aggregate of the Purchaser Interests of the Purchasers exceeds
100%, the RPA Seller shall immediately pay (ratably, based on the amount of
Capital of Purchaser Interests held by the Purchasers of each Group) to each
Investor Agent an amount to be applied to reduce the Capital of the Purchaser
Interests (as allocated within each Group by the Investor Agent), such that
after giving effect to such payment the aggregate of the Purchaser Interests
equals or is less than 100%.
Section 2.7 Clean Up Call. In addition to the RPA Seller's rights pursuant
to Section 1.3 and Section 1.5, the RPA Seller shall have the right (after
providing written notice to the Agent and the Investor Agents in accordance with
the Required Notice Period), at any time following the reduction of the Capital
to a level that is less than 10.0% of the original Purchase Limit, to repurchase
from the Purchasers all, but not less than all, of the then outstanding
Purchaser Interests. The purchase price in respect thereof shall be an amount
equal to the Aggregate Unpaids through the date of such repurchase, payable in
immediately available funds. Such repurchase shall be without representation,
warranty or recourse of any kind by, on the part of, or against any Purchaser or
Investor Agent or the Agent.
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Section 2.8 Designated Accounts. The Servicer shall establish the Reserve
Account, the Hedge Account, and the Collection Account (collectively, the
"Designated Accounts") as follows:
(a) The Servicer, for the benefit of the Agent, the Investor Agents and the
Purchasers, shall maintain with the corporate trust department of the Paying
Agent a trust account bearing the designation "TW Holdings III, Inc. Reserve
Account" (the "Reserve Account") to include money and other property deposited
and held therein pursuant to Section 2.2 and Section 6.2. The Reserve Account is
and shall be the property of the RPA Seller subject to the rights of the Agent
and the Investor Agents in the property held in the Reserve Account.
(b) The Servicer, for the benefit of the Agent, the Investor Agents and the
Purchasers, shall maintain with the corporate trust department of the Paying
Agent a trust account bearing the designation "TW Holdings III, Inc. Hedge
Account" (the "Hedge Account") to include money and other property deposited and
held therein pursuant to Section 2.2 and Section 9.4. The Hedge Account is and
shall be the property of the RPA Seller subject to the rights of the Agent and
the Investor Agents in the property held in the Hedge Account.
(c) The Servicer, for the benefit of the Agent, the Investor Agents and the
Purchasers, shall maintain with the corporate trust department of the Paying
Agent a trust account bearing the designation "TW Holdings III, Inc. Collection
Account" (the "Collection Account"). The Collection Account is and shall be the
property of the RPA Seller subject to the rights of the Agent and the Investor
Agents in the property held in the Collection Account.
Section 2.9 Investment of Amounts in Designated Accounts. The Servicer
shall direct the Paying Agent, in writing, to invest the amounts in each
Designated Account in Eligible Investments which shall mature on or before the
next following Settlement Date; provided, however, it is understood and agreed
that the Paying Agent shall not be liable for any loss arising from such
investment in Eligible Investments or incurred as a result of the liquidation of
any investment prior to its stated maturity or the failure of the Servicer to
provide timely, written investment direction. In no event shall the Paying Agent
be liable for the selection of Eligible Investments. The Paying Agent shall have
no obligation to invest or reinvest any amounts held hereunder in the absence of
written investment direction. All such Eligible Investments shall be held by the
Paying Agent for the benefit of the Investor Agents on behalf of the Purchasers.
Eligible Investments shall be selected that mature so that such funds will be
available at the opening of business on the day preceding the next following
Settlement Date. On the Business Day preceding each Settlement Date, all
interest and other investment income (net of losses and investment expenses) on
funds on deposit therein shall be withdrawn from each Designated Account and
shall be deposited in the Collection Account.
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Section 2.10 Procedures for Substitution and Release of Receivables.
(a) The obligation of the Agent pursuant to Section 2.10(b) to release its
interests in Receivables described in clauses (i) and (ii) of the definition of
Released Receivables following the acquisition by the RPA Seller of (i) one or
more additional Eligible Receivables for the purpose specified in Section
1.5(a)(ii) or (ii) an Upgrade Receivable as contemplated in Section 1.6 shall be
subject to the satisfaction by the RPA Seller, the Custodian and the RSA Seller
or the RTA Seller (as applicable) of the conditions precedent specified in
Section 15.1 and 15.2 on or before the applicable RSA Purchase Date for any such
additional Eligible Receivable or Upgrade Receivable.
(b) The Agent shall release its interest in each Released Receivable and
the related Receivable Documents by executing and delivering to the Custodian a
request for release substantially in the form attached as Exhibit X (a "Request
for Release") prepared by the Servicer. Pursuant to such Request for Release,
the Agent shall assign to the RPA Seller without representation or warranty and
without recourse its right, title and interest in such Released Receivable and
the related Receivable Documents. Upon such execution and delivery, such
Receivable will be released from the lien of the Agent, the Investor Agents and
the Purchasers.
(c) (i) Upon satisfaction of the conditions precedent specified in Section
2.10(c)(ii), the Agent and each Investor Agent shall each release its interest
in certain Receivables and the related Receivable Documents from time to time
following the delivery to the Agent and the Investor Agents of a certificate of
the RPA Seller (each a "Seller Direction"), substantially in the form of Exhibit
IV hereto. In connection with such release, the Agent shall deliver a Request
for Release to the Custodian, pursuant to which the Agent shall assign without
recourse, representation or warranty, its right, title, and interest in such
Receivables and the Related Receivable Documents. Upon the execution and
delivery of a Seller Direction and Request for Release and satisfaction of the
such conditions precedent, the applicable Receivables shall be released from the
lien of the Agent, the Investor Agents and the Purchasers.
(ii) The Agent shall not effect a release pursuant to Section 2.10(c)(i)
unless each of the following conditions precedent has been satisfied on or prior
to the date of such release:
(A) No Hedge Event, Potential Amortization Event or Amortization Event
shall have occurred and be continuing or shall result from such release;
(B) the RPA Seller shall have deposited into the Collection Account in
respect of such release an amount equal to the Outstanding Balance of all such
Receivables plus all accrued and unpaid interest thereon; and
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(C) other than with respect to a release occurring on a Settlement Date,
the RPA Seller shall have (x) deposited into the Collection Account an amount
equal to Broken Funding Costs with respect to such release and (y) provided to
Agent and the Investor Agents a Seller Direction five days prior to the
requested date for such release.
Section 2.11 Deemed Collections. The RPA Seller hereby agrees to pay all
Deemed Collections immediately to the Servicer on the date on which they are
deemed to be received. Such Deemed Collections shall constitute part of the
Monthly Available Funds, shall be deposited by the Servicer into the Collection
Account within one Business Day of the date they are deemed to be received, and
shall be applied pursuant to Section 2.2 and 2.3. Upon the deposit of such
Deemed Collections into the Collection Account, the Agent shall release its
interest in the related Diluted Receivable as provided in Section 2.10(b).
Section 2.12 Terminating Purchasers.
(a) Terminating Conduits. Any Conduit whose Investor Agent has given at
least one Business Day's notice to the RPA Seller and Agent may give notice of
its intention to not make any further Incremental Purchases reinvestment (a
"Terminating Conduit"). Upon receipt of notice of such termination, unless
revoked pursuant to instructions from such Terminating Conduit's Investor Agent,
no additional Incremental Purchases will be made by such Terminating Conduit.
(b) Terminating Financial Institution. Upon the RPA Seller's request, made
not more than 90 nor less than 45 days prior to the Liquidity Termination Date,
each Financial Institution hereby agrees to deliver written notice to the
Investor Agents and the Agent and the RPA Seller indicating whether such
Financial Institution intends to renew its Commitment hereunder and under its
Liquidity Agreement. Each Financial Institution will deliver such notice not
less than 30 days prior to the Liquidity Termination Date. If any Financial
Institution fails to deliver such notice on or prior to the date that is 30 days
prior to the Liquidity Termination Date, such Financial Institution will be
deemed to have declined to renew its Commitment (each Financial Institution
which has declined or has been deemed to have declined to renew its Commitment
hereunder, a "Terminating Financial Institution"). The Investor Agent and the
Agent shall promptly notify the Conduit and the RPA Seller of each Terminating
Financial Institution.
(c) Upon reduction to zero of the Capital of all of the Purchaser Interests
of a Terminating Purchaser (after application of Collections thereto pursuant to
Sections 2.2 and 2.3) all rights and obligations of such Terminating Purchaser
hereunder shall be terminated and such Terminating Purchaser shall no longer be
a "Financial Institution" or "Conduit", as applicable, hereunder; provided,
however, that the provisions of Article X shall continue in effect for its
benefit with respect to Purchaser Interests held by such Terminating Purchaser
prior to its termination as a Financial Institution or Conduit, as applicable.
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ARTICLE III
CONDUIT FUNDING
Section 3.1 CP Costs. The RPA Seller shall pay CP Costs with respect to the
Capital associated with each Purchaser Interest of a Conduit for each day that
any Capital in respect of such Purchaser Interest is outstanding. Each Purchaser
Interest funded substantially with Allocated Commercial Paper issued by or on
behalf of a Conduit will accrue CP Costs each day on such Allocated Commercial
Paper. Each Purchaser Interest funded substantially with Pooled Commercial Paper
issued by or on behalf of a Conduit will accrue CP Costs each day on a pro rata
basis, based upon the percentage share the Capital in respect of such Purchaser
Interest represents in relation to all assets held by such Conduit and funded
substantially with Pooled Commercial Paper.
Section 3.2 CP Costs Payments. On each Settlement Date, the RPA Seller
shall pay to each Investor Agent (for the benefit of its related Conduits) an
aggregate amount equal to all accrued and unpaid CP Costs in respect of the
Capital associated with all Purchaser Interests of such Conduit for the
immediately preceding Accrual Period in accordance with Article II.
Section 3.3 Calculation of CP Costs and Carrying and Servicing Costs. On
each Determination Date, the Agent shall calculate the aggregate amount of CP
Costs for the applicable Accrual Period and shall notify the RPA Seller and the
Servicer of such aggregate amount. Two Business Days prior to each Determination
Date, each Investor Agent shall calculate for the Purchasers in its Group the
amount of (i) CP Costs for such Accrual Period in respect of the Purchaser
Interests of its Group, (ii) Yield allocable to such Accrual Period in respect
of the Purchaser Interests of its Group and (iii) all fees set forth in the
applicable Fee Letter which are allocable to such Accrual Period, and such
Investor Agent shall deliver a report of such amounts to the Agent. On each
Determination Date, the Agent shall calculate the amount of the Carrying and
Servicing Costs for the applicable Accrual Period (based on such reports and on
its determination of those components of Carrying and Servicing Costs not so
reported) and shall notify the RPA Seller and the Servicer of such amount.
ARTICLE IV
FINANCIAL INSTITUTION FUNDING
Section 4.1 Financial Institution Funding. Each Purchaser Interest held by
a Financial Institution shall accrue Yield for each day during its Tranche
Period at either the LIBO Rate or the Prime Rate in accordance with the terms
and conditions hereof. Until the RPA Seller gives notice to the Agent and the
applicable Investor Agent of another Discount Rate in accordance with Section
4.4, the initial Discount Rate for any Purchaser Interest transferred to a
Financial Institution pursuant to the terms and conditions hereof shall be the
Prime Rate. If a Financial Institution acquires by assignment from a Conduit in
its Group any Purchaser Interest pursuant to a Liquidity Agreement, each
Purchaser Interest so assigned shall each be deemed to have a new Tranche Period
commencing on the date of any such assignment.
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Section 4.2 Yield Payments. On the Settlement Date for each Purchaser
Interest held by a Financial Institution, RPA Seller shall pay to the applicable
Investor Agent (for the benefit of such Financial Institution) an aggregate
amount equal to the accrued and unpaid Yield for the entire Tranche Period of
each such Purchaser Interest in accordance with Article II.
Section 4.3 Selection and Continuation of Tranche Periods.
(a) With consultation from (and approval by) the Investor Agent for the
related Group, the RPA Seller shall from time to time request Tranche Periods
for the Purchaser Interests held by the Financial Institutions of such Group,
provided that, if at any time the Financial Institutions of such Group shall
hold a Purchaser Interest, the RPA Seller shall always request Tranche Periods
such that at least one Tranche Period shall end on the 20th day of each month
(or, if such day is not a Business Day, then on the next Business Day).
(b) The RPA Seller or the applicable Investor Agent may, effective on the
last day of a Tranche Period for any Purchaser Interest (a "Terminating
Tranche"), divide any such Purchaser Interest into multiple Purchaser Interests
or combine any such Purchaser Interest with one or more other Purchaser
Interests which are either ending on such day or are newly created on such day,
provided that, in no event may a Purchaser Interest of a Conduit be combined
with a Purchaser Interest of a Financial Institution.
Section 4.4 Financial Institution Discount Rates. The RPA Seller may select
the LIBO Rate or the Prime Rate for each Purchaser Interest purchased by a
Financial Institution. The RPA Seller shall by 11:00 a.m. (Chicago time): (i) at
least three (3) Business Days prior to the expiration of any Terminating Tranche
with respect to which the LIBO Rate is being requested as a new Discount Rate
and (ii) at least one (1) Business Day prior to the expiration of any
Terminating Tranche with respect to which the Prime Rate is being requested as a
new Discount Rate, give the applicable Investor Agent irrevocable notice of the
new Discount Rate for the Purchaser Interest associated with such Terminating
Tranche.
Section 4.5 Suspension of the LIBO Rate. If any Financial Institution
notifies its Investor Agent and the Agent that it has determined that funding
its Pro Rata Share of the Purchaser Interests of the Financial Institutions at a
LIBO Rate would violate any applicable law, rule, regulation, or directive of
any governmental or regulatory authority, whether or not having the force of
law, or that (i) deposits of a type and maturity appropriate to match fund its
Purchaser Interests at such LIBO Rate are not available or (ii) such LIBO Rate
does not accurately reflect the cost of acquiring or maintaining a Purchaser
Interest at such LIBO Rate, then the Agent shall (solely with respect to the
affected Financial Institution) suspend the availability of such LIBO Rate and
require the RPA Seller to select the Prime Rate for such Financial Institution's
Purchaser Interest accruing Yield at such LIBO Rate.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Trendwest Parties. Each
Trendwest Party hereby represents and warrants to the Agent, the Investor Agents
and the Purchasers, as to
itself, and TWRI hereby represents as to WorldMark (to the extent specific
reference to WorldMark is made) that:
(a) Corporate Existence and Power. Such Trendwest Party is a corporation
duly organized, validly existing and in good standing under the laws of its
state of incorporation, and is duly qualified to do business and is in good
standing as a foreign corporation, and has and holds all corporate power and all
governmental licenses, authorizations, consents and approvals required to carry
on its business in each jurisdiction in which its business is conducted, except
where the failure to so qualify or so hold could not reasonably be expected to
have a Material Adverse Effect.
(b) Power and Authority; Due Authorization Execution and Delivery. The
execution and delivery by such Trendwest Party of this Agreement and each other
Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder and, in the case of the RPA Seller, the RPA
Seller's use of the proceeds of purchases made hereunder, are within its
corporate powers and authority and have been duly authorized by all necessary
corporate action on its part. This Agreement and each other Transaction Document
to which such Trendwest Party is a party has been duly executed and delivered by
such Trendwest Party.
(c) No Conflict. The execution and delivery by such Trendwest Party of this
Agreement and each other Transaction Document to which it is a party, and the
performance of its obligations hereunder and thereunder, do not contravene or
violate (i) its certificate or articles of incorporation or by-laws, (ii) any
law, rule or regulation applicable to it, (iii) any restrictions under any
agreement, contract or instrument to which it is a party or by which it or any
of its property is bound, or (iv) any order, writ, judgment, award, injunction
or decree binding on or affecting it or its property, and do not result in the
creation or imposition of any Adverse Claim on assets of such Trendwest Party or
its Subsidiaries (except as created hereunder); and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the Financing
Statements required hereunder, no authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required for the due execution and delivery by such Trendwest Party of this
Agreement and each other Transaction Document to which it is a party and the
performance of its obligations hereunder and thereunder.
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(e) Actions, Suits.
(i) There are no actions, suits or proceedings pending, or to the best of
such Trendwest Party's knowledge, threatened, against or affecting it, or any of
its properties, in or before any court, arbitrator or other body.
(ii) There are no actions, suits or proceedings pending, or to the best of
such Trendwest Party's knowledge, threatened, against or affecting Servicer, or
any of its or WorldMark's properties, in or before any court, arbitrator or
other body, that could be reasonably expected to have a Material Adverse Effect.
(iii) Such Trendwest Party is not in default with respect to any order of
any court, arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other Transaction Document to
which such Trendwest Party is a party constitute the legal, valid and binding
obligations of such Trendwest Party enforceable against such Trendwest Party in
accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(g) Accuracy of Information. All information heretofore furnished by such
Trendwest Party or any of its Affiliates to the Agent, the Investor Agents or
the Purchasers for purposes of or in connection with this Agreement, any of the
other Transaction Documents or any transaction contemplated hereby or thereby
is, and all such information hereafter furnished by such Trendwest Party or any
of its Affiliates to the Agent, the Investor Agents or the Purchasers will be,
true and accurate in every material respect on the date such information is
stated or certified and does not and will not contain any material misstatement
of fact or omit to state a material fact or any fact necessary to make the
statements contained therein not misleading.
(h) Use of Proceeds. No proceeds of any purchase hereunder will be used (i)
for a purpose that violates, or would be inconsistent with, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve System from time to
time or (ii) to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
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(i) Good Title. Immediately prior to each purchase hereunder, the RPA
Seller shall be the legal and beneficial owner of the Receivables and Related
Security with respect thereto, free and clear of any Adverse Claim, other than
any Adverse Claim as the result of any action taken by any Purchaser or any
Investor Agent or by the Agent. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect the RPA Seller's
ownership interest in each Receivable, its Collections and the Related Security.
(j) Perfection. This Agreement, together with the filing of the Financing
Statements contemplated hereby, is effective to, and shall, upon each purchase
hereunder, transfer to the relevant Investor Agent and Purchaser or Purchasers
(and such Investor Agent and Purchaser or Purchasers shall acquire from the RPA
Seller) a valid and perfected first priority undivided percentage ownership
interest in each Receivable existing or hereafter arising and in the Related
Security and Collections with respect thereto, free and clear of any Adverse
Claim, except as created by the Transaction Documents. There have been duly
filed all Financing Statements or other similar instruments or documents
necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Agent's (on behalf of the Investor Agents and the Purchasers)
ownership interest in the Receivables, the Related Security and the Collections.
(k) Locations. The jurisdiction of organization and principal places of
business of such Trendwest Party and the offices where it keeps all of its
Records are located at the address(es) listed on Exhibit III or such other
locations of which the Agent and the Investor Agents have been notified in
accordance with Section 7.2(a) in jurisdictions where all action required to
register and organize such Trendwest Party has been taken and completed. The RPA
Seller's Federal Employer Identification Number is correctly set forth on
Exhibit III.
(l) Collections. The conditions and requirements set forth in Section 8.2
have at all times been satisfied and duly performed. The name and address of the
bank with which the Clearing Account is established, together with the account
numbers of the Clearing Account and the Collection Account, are listed on
Exhibit XII.
(m) Material Adverse Effect. Since December 31, 2000, no event has occurred
that would have a Material Adverse Effect, including a Material Adverse Effect
regarding the collectibility of the Receivables.
(n) Names. In the past five (5) years, RPA Seller has not used any
corporate names, trade names or assumed names other than the name in which it
has executed this Agreement.
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(o) Ownership of the RPA Seller. TWRI owns, directly or indirectly, 100% of
the issued and outstanding capital stock of the RPA Seller, free and clear of
any Adverse Claim. Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of the RPA Seller.
(p) Not a Holding Company or an Investment Company. Such Trendwest Party is
not a "holding company" or a "subsidiary holding company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or any successor statute. Such Trendwest Party is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or any successor statute.
(q) Compliance with Law. Such Trendwest Party has complied in all respects
with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject. Each Receivable,
together with the Contract related thereto, does not contravene any laws, rules
or regulations applicable thereto (including laws, rules and regulations
relating to truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy), and no part of
such Contract is in violation of any such law, rule or regulation.
(r) Compliance with Credit and Collection Policy. Such Trendwest Party has
complied in all material respects with the Credit and Collection Policy with
regard to each Receivable and the related Contract, and has not made any
material change to such Credit and Collection Policy, except such material
change as to which the Agent and the Investor Agents have been notified in
accordance with Section 7.1(a)(v).
(s) Payments to Originators.
(i) With respect to each Receivable transferred to the RPA Seller under the
Sale Agreement, the RPA Seller has given reasonably equivalent value to the RSA
Seller in consideration therefor, and such transfer was not made for or on
account of an antecedent debt. No transfer by the RSA Seller of any Receivable
under the Sale Agreement is or may be voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. ss.ss. 101 et seq.), as amended.
(ii) With respect to each Receivable transferred to the RSA Seller under
the Transfer Agreement, the RSA Seller has given reasonably equivalent value to
the RTA Seller in consideration therefor, and such transfer was not made for or
on account of an antecedent debt. No transfer by any RTA Seller of any
Receivable under the Transfer Agreement is or may be voidable under any section
of the Bankruptcy Reform Act of 1978 (11 U.S.C. ss.ss. 101 et seq.), as amended.
20
(t) Enforceability of Contracts. Each Contract with respect to each
Receivable is effective to create, and has created, a legal, valid and binding
obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable included in the Net Receivables
Balance as an Eligible Receivable on the RSA Purchase Date was an Eligible
Receivable on such RSA Purchase Date.
(v) Net Receivables Balance. Immediately after giving effect to each
purchase hereunder, the Net Receivables Balance is at least equal to the sum of
(i) the aggregate Capital of all the Purchaser Interests plus (ii) the Aggregate
Reserves.
(w) Mortgages and Mortgage Notes. Each Fractional Interest Receivable is
evidenced by a Mortgage Note and is secured by a Mortgage on the related
Fractional Interest and by no other collateral (unless a first priority
perfected mortgage on or security interest in such other collateral has been
created in favor of the RSA Seller and assigned by the RSA Seller to the RPA
Seller and by the RPA Seller to the Agent). The Obligor under each Fractional
Interest Receivable has been delivered the related deed, which was effective to
convey fee simple title to such Obligor in the related Fractional Interest, and
such deed has been duly recorded or registered in the Applicable Jurisdiction in
accordance with applicable laws. All applicable intangibles taxes and
documentary sales taxes in respect of each Mortgage Note have been paid in full.
The Mortgage in respect of each Fractional Interest Receivable (i) names the RSA
Seller as the first mortgagee, (ii) creates a valid and enforceable mortgage
lien or deed of trust upon the related Fractional Interest in favor of the RSA
Seller, subject to no liens, encumbrances or claims other than Permitted Liens
and (iii) has not been assigned to any Person prior to the assignments thereof
pursuant to the FI Assignment Documents. The related Mortgage contains customary
and enforceable provisions so as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related FI Unit of
the benefits of the security interests intended to be provided thereby,
including by judicial foreclosure; and there is no exemption available to the
related Obligor which would interfere with the mortgagee's right to foreclose
such Mortgage, other than that which may be available under applicable
bankruptcy, debt relief or homestead statutes.
(x) Accounting. The manner in which such Trendwest Party accounts for the
transactions contemplated by this Agreement and the Sale Agreement does not
jeopardize the true sale analysis.
(y) Title to WorldMark Properties. WorldMark, directly or beneficially,
owns good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, have a Material Adverse Effect. As of the date of this Agreement, the
real and personal property of the RPA Seller is subject to no Adverse Claims
other than Adverse Claims created under the Transaction Documents.
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(z) Liabilities of WorldMark. WorldMark:
(i) has not voluntarily incurred or at any time become voluntarily liable
for any Indebtedness;
(ii) has not voluntarily allowed its property to become subject to any
Adverse Claims, nor is any of its property subject to any Adverse Claims, other
than (A) utility or other easements or licenses unrelated to any debt of
WorldMark or (B) Adverse Claims that do not exceed, in aggregate, $100,000; and
(iii) has not involuntarily incurred and is not involuntarily liable for
any debt, nor is any of its property involuntarily subject to any Liens (other
than utility or similar easements or licenses unrelated to any debt of
WorldMark) that individually or in the aggregate (with respect to all such debt
and the obligations secured by all such Adverse Claims) exceed $1,000,000.
(aa) Environmental Matters. TWRI has conducted its operations and kept and
maintained its property in compliance with all Environmental Laws. TWRI has
performed its duties under its management agreement with WorldMark in material
compliance with all Environmental Laws.
(bb) No Subsidiaries of WorldMark. WorldMark has no subsidiaries.
(cc) Conformity of Receivable Documents. The information set forth on each
Schedule of Receivables is accurate and is consistent with the terms of the
related Receivable Documents delivered to the Custodian.
(dd) Insurance. TWRI in its individual capacity and as property manager for
WorldMark maintains in effect, or causes to be maintained in effect, such
property, casualty and liability insurance covering its and WorldMark's real
property and personal property as TWRI deems appropriate in its good faith
business judgement.
(ee) Compliance with Representations. On and as of the date of each
purchase of a Purchaser Interest hereunder, each Trendwest Party hereby
represents and warrants that all of the other representations and warranties
made by it set forth in this Section 5.1 are true and correct on and as of the
date of such purchase (and after giving effect to such purchase) as though made
on and as of each such date.
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ARTICLE VI
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Effectiveness of Agreement. The
effectiveness of this Agreement is subject to the conditions precedent that
(a) the Agent and the Investor Agents shall have received on or before the
date of such purchase those documents listed on Schedule B;
(b) the Agent and the Investor Agents shall have received all fees and
expenses required to be paid on such date pursuant to the terms of this
Agreement and the Fee Letters; and
(c) the Eagle Crest Acquisition shall have occurred on the terms specified
in the Acquisition Agreement and no litigation shall be filed or threatened
which challenges the Eagle Crest Acquisition.
Section 6.2 Conditions Precedent to All Purchases. Each purchase of a
Purchaser Interest (other than pursuant to a Liquidity Agreement) on and after
the Effective Date shall be subject to the further conditions precedent that:
(a) the Purchaser shall have timely delivered to the Agent and each
Investor Agent a Purchase Notice, as specified in Section 1.2;
(b) in the case of each such purchase, the Servicer shall have delivered to
the Agent and each Investor Agent on or prior to the date of such purchase, in
form and substance satisfactory to the Agent and the Investor Agents, all
Monthly Reports as and when due under Section 8.5, and, upon the Agent's or any
Investor Agent's request, the Servicer shall have delivered to such requesting
Agent or Investor Agent at least three (3) days prior to such purchase an
interim Monthly Report showing the amount of Eligible Receivables;
(c) the representations and warranties of the RPA Seller made in Section
5.1 are true and correct on and as of the date of such purchase as though made
on and as of such date;
(d) the Facility Termination Date shall not have occurred, the Aggregate
Capital shall not exceed the Purchase Limit and the aggregate Purchaser
Interests shall not exceed 100%;
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(e) no event has occurred and is continuing, or would result from such
purchase that constitutes or would constitute an Amortization Event, a Potential
Amortization Event, or an Excess Aged Receivables Event;
(f) all actions and conditions specified in Article XV of this Agreement
which are to be taken or satisfied on or prior to an RSA Purchase Date shall
have been fully performed or satisfied;
(g) the Agent and the Investor Agents shall have received such other
approvals, opinions or documents as they may reasonably request;
(h) the amount of funds in the Reserve Account (including any funds
deposited therein by RPA Seller in connection with such Purchase) shall equal at
least the Reserve Fund Required Amount following such Incremental Purchase; and
(i) the Facility Termination Date shall not have occurred.
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of the Trendwest Parties. Until the
date on which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms, each Trendwest Party hereby
covenants, as to itself, as set forth below:
(a) Financial Reporting. Such Trendwest Party will maintain, for itself and
each of its Subsidiaries, a system of accounting established and administered in
accordance with GAAP, and furnish to the Agent and each Investor Agent:
(i) Annual Reporting. (A) For TWRI, within 90 days after the close of each
of its fiscal years, audited, unqualified financial statements (which shall
include balance sheets, statements of income and retained earnings and a
statement of cash flows) certified in accordance with GAAP by any Big 5
Accounting Firm or any other independent public accountants acceptable to the
RPA Seller, the Investor Agents and Agent, (B) for the RPA Seller, within 90
days after the close of each of its fiscal years, unaudited, unqualified
financial statements (which may be internally prepared and shall include balance
sheets and statements of income) certified by an Authorized Officer, and (C) for
WorldMark, within 120 days after the close of each of its fiscal years audited,
unqualified financial statements (which shall include balance sheets, statements
of income and retained earnings and a statement of cash flows) for such fiscal
year certified in accordance with GAAP by any independent public accountants
acceptable to the RPA Seller and Agent (including Molatore, Pugh, McDaniel,
Scroggin & Co., LLP).
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(ii) Quarterly Reporting. Within 45 days after the close of the first three
(3) quarterly periods of each of its respective fiscal years, (A) for TWRI a
balance sheet as at the close of each such period and statements of income and
retained earnings and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all certified by an
Authorized Officer, and (B) for the RPA Seller and WorldMark, balance sheets of
as at the close of each such period and statements of income for the period from
the beginning of such fiscal year to the end of such quarter, all certified by
an Authorized Officer. All quarterly reports delivered to pursuant to this
Section 7.1(a)(ii) may be unaudited and internally prepared.
(iii) Compliance Certificate. Together with the financial statements
required hereunder, a compliance certificate in substantially the form of
Exhibit V signed by RPA Seller's Authorized Officer and dated the date of such
annual financial statement or such quarterly financial statement, as the case
may be, together with copies of the certificates of TWRI and WorldMark delivered
pursuant to Section 4.1(a)(iii) of the Sale Agreement.
(iv) Shareholders Statements and Reports. Promptly upon the furnishings
thereof to the shareholders of the Originators or their Affiliates, copies of
all financial statements, reports and proxy statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular reports
which TWRI or its Affiliates or any of their Subsidiaries may from time to time
file with the Securities and Exchange Commission.
(vi) Copies of Notices. Promptly upon its receipt of any notice, request
for consent, financial statements, certification, report or other communication
under or in connection with any Transaction Document from any Person other than
the Agent or Conduit, copies of the same.
(vii) Change in Credit and Collection Policy. At least thirty (30) days
prior to the effectiveness of any material change in or amendment to the Credit
and Collection Policy, a copy of the Credit and Collection Policy then in effect
and a notice indicating such change or amendment.
(viii) Other Information. Promptly, from time to time, such other
information, documents, records or reports relating to the Receivables or the
condition or operations, financial or otherwise, of RPA Seller as the Agent may
from time to time reasonably request in order to protect the interests of the
Agent, the Investor Agents and the Purchasers under or as contemplated by this
Agreement.
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(b) Notices. The RPA Seller will notify the Agent and each Investor Agent
in writing of any of the following promptly upon learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken with
respect thereto;
(i) Trigger Events. The occurrence of each Amortization Event, Potential
Amortization Event, Hedge Event and Excess Aged Receivables Event, by a
statement of an Authorized Officer of the RPA Seller.
(ii) Judgment and Proceedings.
(A) The entry of (1) any judgment or decree against the Servicer, WorldMark
or any of their respective Subsidiaries if the aggregate amount of all judgments
and decrees then outstanding against the Servicer, WorldMark and their
Subsidiaries exceeds $1,000,000, or (2) any judgment whatsoever against the RPA
Seller.
(B) The institution of (1) any litigation, arbitration proceeding or
governmental proceeding against the RPA Seller, or (2) any material litigation,
arbitration proceeding or governmental proceeding against Servicer, any of its
Subsidiaries, or WorldMark.
(iii) Material Adverse Effect. The occurrence of any event or condition
that has, or could reasonably be expected to have, a Material Adverse Effect,
including a Material Adverse Effect on the collectibility of the Receivables.
(iv) Amortization Date. The occurrence of the "Amortization Date" under the
Sale Agreement.
(v) Defaults Under Other Agreements. The occurrence of an event of default
under any other material financing arrangement pursuant to which such Trendwest
Party is a debtor or an obligor.
(vi) Downgrade of the RSA Seller. Any downgrade in the rating of any
Indebtedness or asset backed security of the RSA Seller, or any of its
Subsidiaries or Affiliates, as applicable or as may become applicable, by any
nationally recognized rating agency, setting forth the Indebtedness or asset
backed security affected and the nature of such change.
(vii) Default by Custodian. The occurrence of a default or event of default
under Article XV or any other provision of this Agreement by the Custodian.
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(viii) Termination of Concord. The termination of Concord as Subservicer
for the Legacy Eagle Crest Receivables.
(c) Compliance with Laws and Preservation of Corporate Existence. Such
Trendwest Party will comply in all material respects with all applicable laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to
which it may be subject. Such Trendwest Party will preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where its business is conducted.
(d) Audits.
(i) Such Trendwest Party will furnish to the Agent and each Investor Agent
from time to time such information with respect to it and the Receivables as the
Agent or any Investor Agent may reasonably request. Such Trendwest Party will,
from time to time during regular business hours as requested by the Agent or any
Investor Agent upon reasonable notice permit the Agent or any Investor Agent, or
their agents or representatives, (x) to examine and make copies of and abstracts
from all Records in the possession or under the control of such Person relating
to the Receivables and the Related Security, including the related Contracts,
and (y) to visit the offices and properties of such Person for the purpose of
examining such materials described in clause (x) above, and to discuss matters
relating to such Person's financial condition or the Receivables and the Related
Security or any Person's performance under any of the Transaction Documents or
any Person's performance under the Contracts and, in each case, with any of the
officers or employees of the RPA Seller or the Servicer having knowledge of such
matters.
(ii) Prior to the occurrence of an Amortization Event, the Agent and the
Investor Agent shall use reasonable efforts to make one joint request for an
audit per calendar year. Notwithstanding any other provision herein, the cost of
audits conducted pursuant to this Section 7.1(d) shall be borne by the RSA
Seller and TWRI (x) if no Amortization Event has occurred and is continuing,
once per calendar year and (y) at any time when an Amortization Event has
occurred and is continuing.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will maintain and implement administrative and operating
procedures (including an ability to recreate records evidencing Receivables in
the event of the destruction of the originals thereof), and will keep and
maintain or will cause the Custodian to keep and maintain all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Receivables (including records adequate to permit the
immediate identification of each new Receivable and all Collections of and
adjustments to each existing Receivable). The Servicer will give the Agent and
each Investor Agent notice of any material change in the administrative and
operating procedures referred to in the previous sentence.
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(ii) Such Trendwest Party will (A) on or prior to the date hereof, mark its
master data processing records and other books and records relating to the
Purchaser Interests with a legend, acceptable to the Agent and each Investor
Agent, describing the Purchaser Interests and (B) upon the request of the Agent
or each Investor Agent (x) mark each Contract with a legend describing the
Purchaser Interests and (y) deliver to the Custodian all Contracts (including
all multiple originals of any such Contract) relating to the Receivables.
(iii) The Servicer will be responsible for causing the Subservicer to
perform any function required by this Section 7.1(e) to the extent applicable.
(f) Compliance with Contracts and Credit and Collection Policy. Such
Trendwest Party will timely and fully (and, with respect to the Legacy Eagle
Crest Receivables, cause the Subservicer to timely and fully) (i) perform and
comply with all provisions, covenants and other promises required to be observed
by it under the Contracts related to the Receivables, and (ii) comply in all
respects with the Credit and Collection Policy in regard to each Receivable and
the related Contract. RPA Seller will pay when due any taxes payable in
connection with the Receivables, exclusive of taxes on or measured by income or
gross receipts of Conduit, the Agent or any Financial Institution.
(g) Performance and Enforcement of Sale Agreement.
(i) The RPA Seller shall, and shall require the RSA Seller to, perform each
of their respective obligations and undertakings under and pursuant to the Sale
Agreement, shall purchase Receivables thereunder in strict compliance with the
terms thereof and shall vigorously enforce the rights and remedies accorded to
RPA Seller under the Sale Agreement. The RPA Seller shall take all actions to
perfect and enforce its rights and interests (and the rights and interests of
the Agent, the Investor Agents and the Purchasers as assignees of the RPA
Seller) under the Sale Agreement as the Agent or any Investor Agent may from
time to time reasonably request, including making claims to which it may be
entitled under any indemnity, reimbursement or similar provision contained in
the Sale Agreement.
(ii) The RSA Seller shall, and shall require the RTA Seller to, perform
each of their respective obligations and undertakings under and pursuant to the
Transfer Agreement, shall purchase Receivables thereunder in strict compliance
with the terms thereof and shall vigorously enforce the rights and remedies
accorded to the RSA Seller under the Transfer Agreement. The RSA Seller shall
take all actions to perfect and enforce its rights and interests (and the rights
and interests of the Agent, the Investor Agents and the Purchasers as assignees
of the RSA Seller) under the Transfer Agreement as the Agent or any Investor
28
Agent may from time to time reasonably request, including making claims to which
it may be entitled under any indemnity, reimbursement or similar provision
contained in the Transfer Agreement.
(h) Performance and Enforcement of Custodian Duties. The RPA Seller shall,
and shall require the Custodian to, perform each of their respective obligations
and undertakings under and pursuant to Article XV of this Agreement and shall
vigorously enforce the rights and remedies accorded to the RPA Seller under
Article XV of this Agreement. The RPA Seller shall take all actions to perfect
and enforce its rights and interests (and the rights and interests of the Agent,
the Investor Agents and the Purchasers as assignees of the RPA Seller) under
Article XV of this Agreement as the Agent or any Investor Agent may from time to
time reasonably request, including making claims to which it may be entitled
under any indemnity, reimbursement or similar provision contained in Article XV
of this Agreement.
(i) Ownership. The RPA Seller shall take all necessary action under all
applicable laws to (i) vest legal and equitable title to the Receivables, the
Related Security and the Collections purchased under the Sale Agreement
irrevocably in the RPA Seller, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Agent, the Investor Agents and the Purchasers
(including the filing of all Financing Statements or other similar instruments
or documents necessary under the UCC (or any comparable law) in all appropriate
jurisdictions to perfect the RPA Seller's interest in such Receivables, Related
Security and Collections and such other action to perfect, protect or more fully
evidence the interest of the RPA Seller therein as the Agent or any Investor
Agent may reasonably request), and (ii) establish and maintain, in favor of the
Agent, for the benefit of the Investor Agents and the Purchasers, a valid and
perfected first priority undivided percentage ownership interest (and/or a valid
and perfected first priority security interest) in all Receivables, Related
Security and Collections to the full extent contemplated herein, free and clear
of any Adverse Claims other than Adverse Claims in favor of the Agent for the
benefit of the Investor Agents and the Purchasers (including the filing of all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) in all appropriate jurisdictions to perfect the
Agent's interest in such Receivables, Related Security and Collections and such
other action to perfect, protect or more fully evidence the interest of the
Agent as the Agent may reasonably request).
(j) Purchasers' Reliance. The RPA Seller acknowledges that the Purchasers
are entering into the transactions contemplated by this Agreement in reliance
upon the RPA Seller's identity as a legal entity that is separate from any
Originator. Therefore, from and after the date of execution and delivery of this
Agreement, the RPA Seller shall take all reasonable steps, including all steps
that the Agent, any Investor Agent or any Purchaser may from time to time
reasonably request, to maintain the RPA Seller's identity as a separate legal
29
entity and to make it manifest to third parties that the RPA Seller is an entity
with assets and liabilities distinct from those of any Originator and any
Affiliates thereof and not just a division of any Originator. Without limiting
the generality of the foregoing and in addition to the other covenants set forth
herein, the RPA Seller shall:
(i) engage in only the acquisition, ownership, selling, reselling (under
the circumstances contemplated by this Agreement) and pledging of the property
acquired from TWRI pursuant to the Sale Agreement (including the ability to
enter into a new Installment Sale Contract with an Obligor pursuant to an
Upgrade), and causing the issuance and sale of Purchaser Interests pursuant to
this Agreement and the exercise of any powers permitted to corporations under
the General Corporation Law of the State of Delaware, which are incidental to
the foregoing or necessary to accomplish the foregoing;
(ii) maintain its books and records separate from the books and records of
any other entity, and maintain separate bank accounts where no funds of the RPA
Seller shall be commingled with funds of any other entity;
(iii) keep in full effect its existence, rights and franchises as a
corporation under the laws of the State of Delaware and obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement;
(iv) conduct its business from an office or office space separate from the
offices of the Originators and WorldMark and maintain a telephone number
separate from those of the Originators and WorldMark and operate its business
generally so as not to be substantively consolidated with any of its Affiliates;
(v) not own any subsidiary or lend or advance any moneys to or make an
investment in, any Person, or make any capital expenditures;
(vi) not (1) dissolve or liquidate in whole or in part, commence any case,
proceeding or other action under any existing or future bankruptcy, insolvency
or similar law seeking to have an order for relief entered with respect to it,
or seeking reorganization, arrangement, adjustment, wind-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, (2)
seek appointment of a receiver, Paying Agent, custodian or other similar
official for it or any part of its assets, (3) make a general assignment for the
benefit of creditors (other than as contemplated herein), or (4) take any action
in furtherance of, or consenting or acquiescing in, any of the foregoing;
30
(vii) not guarantee (directly or indirectly), endorse or otherwise become
contingently liable (directly or indirectly) for the obligations of, or own or
purchase any stock, obligations or securities of or any other interest in, or
make any capital contribution to, any other Person;
(viii) not merge or consolidate with any other Person;
(ix) not engage in any other action that adversely affects whether the
separate legal identity of any Originator will be respected, including holding
itself out as being liable for the debts of any other party or acting other than
in its corporate name and through its duly authorized officers or agents;
(x) not create, incur, assume, or in any manner become liable in respect of
any indebtedness other than that contemplated herein or trade payables and
expense accruals incurred in the ordinary course of business and which are
incidental to its business purpose;
(xi) at all times have a Board of Directors of three to seven members,
which consists of at least one director who is an Independent Director, and have
at least one executive officer who is an Independent Officer; provided, however,
that (a) such Independent Director may also be the Independent Officer and (b)
such Independent Director and such Independent Officer may serve in similar
capacities for other "special purpose entities" formed by any Originator and its
Affiliates; the RPA Seller's Certificate of Incorporation shall at all times
provide that such Independent Director shall have a fiduciary duty to the
Purchasers;
(xii) compensate all employees, consultants and agents directly, from the
RPA Seller's bank accounts, for services provided to the RPA Seller by such
employees, consultants and agents and, to the extent any employee, consultant or
agent of the RPA Seller is also an employee, consultant or agent of any
Originator, allocate the compensation of such employee, consultant or agent
between the RPA Seller and each such Originator on a basis that reflects the
services rendered to the RPA Seller and each Originator;
(xiii) conduct all transactions with each Originator and the Servicer
(including any delegation of its obligations hereunder as Servicer) strictly on
an arm's-length basis, allocate all overhead expenses (including telephone and
other utility charges) for items shared between the RPA Seller and any
Originator on the basis of actual use to the extent practicable and, to the
extent such allocation is not practicable, on a basis reasonably related to
actual use;
(xiv) observe all corporate formalities as a distinct entity, and ensure
that all corporate actions relating to (A) the selection, maintenance or
replacement of the Independent Director, (B) the dissolution or liquidation of
the RPA Seller or (C) the initiation of, participation in, acquiescence in or
31
consent to any bankruptcy, insolvency, reorganization or similar proceeding
involving the RPA Seller, are duly authorized by unanimous vote of its Board of
Directors (including the Independent Director);
(xv) prepare its financial statements separately from those of the
Originator and insure that any consolidated financial statements of any
Originator or any Affiliate thereof that include the RPA Seller have notes
clearly stating that the RPA Seller is a separate corporate entity and that its
assets will be available first and foremost to satisfy the claims of the
creditors of the RPA Seller and will not be available to satisfy the claims of
the creditors of such Originator;
(xvi) pay all of the RPA Seller's operating expenses from the RPA Seller's
own assets (except for certain payments by the RSA Seller or other Persons
pursuant to allocation arrangements that comply with the requirements of this
Section 7.1(j));
(xvii) maintain the effectiveness of, and continue to perform under the
Sale Agreement, such that it does not amend, restate, supplement, cancel,
terminate or otherwise modify the Sale Agreement, or give any consent, waiver,
directive or approval thereunder or waive any default, action, omission or
breach under the Sale Agreement or otherwise grant any indulgence thereunder,
without (in each case) the prior written consent of the Agent and each Investor
Agent;
(xviii) take such other actions as are necessary on its part to ensure that
the facts and assumptions set forth in the opinion issued by Chapman and Cutler
as counsel for the RPA Seller, in connection with the closing or initial
purchase under this Agreement and relating to substantive consolidation issues,
and in the certificates accompanying such opinion, remain true and correct in
all material respects at all times.
(k) Taxes. Such Trendwest Party shall file all tax returns and reports
required by law to be filed by it and shall promptly pay all taxes and
governmental charges at any time owing.
(l) Insurance. The RPA Seller shall maintain in effect, or cause to be
maintained in effect, at the RPA Seller's own expense, such property, casualty
and liability insurance covering the Trendwest Parties' real property and
personal property as the RPA Seller shall deem appropriate in its good faith
business judgment. The foregoing requirements shall not be construed to negate,
reduce or modify, and are in addition to, the RPA Seller's obligations
hereunder.
(m) Environmental Laws. TWRI shall, and shall cause each of its
Subsidiaries to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws. TWRI shall perform its duties under its
management agreement with WorldMark in compliance with all Environmental Laws.
32
(n) Fractional Interest Receivables. On or before the Undocumented
Receivable Date with respect to each Fractional Interest Receivable, the RPA
Seller shall cause the Servicer to perform the following:
(i) Each of the related deed, the Mortgage and each FI Assignment Document
related to such Fractional Interest Receivable shall have been duly recorded or
registered in the Applicable Jurisdiction in accordance with all applicable laws
and duly executed file stamped originals thereof (which shall include evidence
thereon of payment of all required documentary stamps and intangible taxes, if
any are required) shall have been delivered to the Custodian pursuant to Article
XV; and
(ii) An Acceptable Title Policy shall have been delivered to the Custodian
pursuant to Article XV.
Section 7.2 Negative Covenants of the Trendwest Parties. Until the date on
which the Aggregate Unpaids have been indefeasibly paid in full and this
Agreement terminates in accordance with its terms, each Trendwest Party hereby
covenants, as to itself, that:
(a) Name Change, Offices and Records. Such Trendwest Party will not change
its name, identity or corporate structure or change its chief executive office
or its jurisdiction of organization or relocate any office where Records are
kept, if such action would have the effect (immediately or upon the passage of
time) of causing any of the security interests of the Agent in any of the
Receivables or the Related Security to become unperfected unless it shall have:
(i) given the Agent and each Investor Agent at least forty-five (45) days' prior
written notice thereof, (ii) delivered to the Agent and each Investor Agent all
Financing Statements, instruments and other documents requested by the Agent or
an Investor Agent in connection with such change or relocation and (iii) shall
promptly file appropriate amendments to all previously filed financing and
continuation statements or new financing statements, as applicable.
(b) Modifications to Contracts and Credit and Collection Policy. Such
Trendwest Party will not make any change to the Credit and Collection Policy
that could adversely affect the collectibility of the Receivables or decrease
the credit quality of any newly created Receivables. Except as provided in
Section 8.2(e), the Servicer will not extend, amend or otherwise modify the
terms of any Receivable or any Contract related thereto other than in accordance
with the Credit and Collection Policy.
(c) Sales, Liens. The RPA Seller shall not sell, assign (by operation of
law or otherwise) otherwise dispose of, grant any option with respect to, create
or suffer to exist any Adverse Claim upon (including the filing of any financing
statement) or with respect to any Receivable, Related Security or Collections,
or upon or with respect to any Contract under which any Receivable arises, or
any Collection Account, or assign any right to receive income with respect
thereto (other than, in each case, the creation of the interests therein in
favor of the Agent, the Investor Agents and the Purchasers provided for herein).
The RPA Seller shall defend the right, title and interest of the Agent, the
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Investor Agents and the Purchasers in, to and under any of the foregoing
property, against all claims of third parties claiming through or under the RPA
Seller or any Originator. However, no part of this Section 7.2(c) shall be
construed as prohibiting an assignment pursuant to Section 2.10 or Section 13.1
of this Agreement.
(d) Net Receivables Balance. At no time prior to the Amortization Date
shall the RPA Seller permit the Net Receivables Balance to be less than an
amount equal to the sum of (i) the aggregate Capital of all the Purchaser
Interests plus (ii) the Aggregate Reserves.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer.
(a) The servicing, administration and collection of the Receivables shall
be conducted by such Person (the "Servicer") so designated from time to time in
accordance with this Section 8.1. TWRI is hereby designated as, and hereby
agrees to perform the duties and obligations of, the Servicer pursuant to the
terms of this Agreement. The Agent may at any time following the occurrence and
during the continuation of a Servicer Default designate as Servicer any Person
to succeed TWRI or any successor Servicer.
(b) TWRI shall not be permitted to delegate any of its duties or
responsibilities as Servicer to any Person other than (i) with respect to
Charged-Off Receivables, outside collection agencies in accordance with its
customary practices, and (ii) with the prior written consent of the Agent (such
consent not to be unreasonably withheld), any other sub-servicer appointed by
the Servicer. If at any time the Agent shall designate as Servicer any Person
other than TWRI, all duties and responsibilities theretofore delegated by TWRI
to the Subservicer or to any other sub-servicer may, at the discretion of the
Agent, be terminated forthwith on notice given by the Agent to TWRI and to such
sub-servicer. The Agent hereby consents to the appointment of Concord as
sub-servicer with respect to the Legacy Eagle Crest Receivables.
(c) Notwithstanding the foregoing subsection (b), as long as TWRI or its
Subsidiary or Affiliate is Servicer (or the Subservicer is servicing,
administering or collecting the Legacy Eagle Crest Receivables),
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(i) TWRI shall be and remain primarily liable to the Agent, the Investor
Agents and the Purchasers for the full and prompt performance of all duties and
responsibilities of the Servicer hereunder, and
(ii) the Agent, the Investor Agents and the Purchasers shall be entitled to
deal exclusively with TWRI in matters relating to the discharge by the Servicer
of its duties and responsibilities hereunder. The Agent, the Investor Agents and
the Purchasers shall not be required to give notice, demand or other
communication to any Person other than TWRI in order for communication to the
Servicer, the Subservicer or any other sub-servicer or other delegate with
respect thereto to be accomplished. TWRI, at all times that it is the Servicer,
shall be responsible for providing the Subservicer or any other sub-servicer or
other delegate of the Servicer with any notice given to the Servicer under this
Agreement.
Section 8.2 Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as may be
necessary or advisable to collect each Receivable from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy.
(b) (i) The Servicer shall cause each Obligor (other than Obligors of
Legacy Eagle Crest Receivables during the Concord Servicing Period) who does not
remit payments by Automatic Debit Collection to remit his or her payments on the
Receivables to a post office box in the name of Wells Fargo Bank Minnesota,
National Association (in such capacity, the "Clearing Account Agent"). The
Servicer shall cause the Clearing Account Agent to deposit, within one (1)
Business Day of receipt, all payments on the Receivables that are received in
such post office box into a clearing account (the "Clearing Account")
established at Key Bank, National Association, or another bank acceptable to the
Agent in its sole discretion (such bank the "Clearing Account Bank"). The
Servicer shall cause any payments made by Automatic Debit Collection (other than
with respect to Legacy Eagle Crest Receivables during the Concord Servicing
Period) to be deposited directly into the Clearing Account from each Obligor's
relevant account. On each Business Day, the Servicer shall cause the Clearing
Account Bank to remit all good funds on deposit in the Clearing Account related
to the Receivables to the Collection Account.
(ii) Seller shall cause the Subservicer to instruct each Obligor with
respect to the Legacy Eagle Crest Receivables to remit his or her payments to
the Concord Account until the termination of the Concord Servicing Period.
Seller shall instruct any payments with respect to the Legacy Eagle Crest
Receivables made by Automatic Debit Collection to be deposited directly into the
Concord Account from the relevant account of each Obligor. In the event any
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payments relating to Legacy Eagle Crest Receivables are remitted directly to RPA
Seller or the Subservicer or any Affiliate of Seller or the Subservicer, RPA
Seller will remit (or will cause all such payments to be remitted) directly to
the bank where the Concord Account is then established for deposit into the
Concord Account within two (2) Business Days following receipt thereof and, at
all times prior to such remittance, RPA Seller will itself hold or, if
applicable, will cause such payments to be held in trust for the exclusive
benefit of the Agent and the Investor Agents. The Servicer shall cause the
Subservicer to, on each Business Day, remit all good funds on deposit in the
Concord Account related to the Legacy Eagle Crest Receivables to the Collection
Account.
(c) The Servicer shall hold in trust for the benefit of the Agent and the
Investor Agents any payments it receives in respect of the Receivables until
such time as it shall transfer such payments to the Clearing Account. Any
amounts held in the Clearing Account in respect of the Receivables shall be held
in trust for the benefit of the Agent and the Investor Agents.
(d) The Servicer shall administer the Collections in accordance with the
procedures described herein and in Article II.
(e) The Servicer may, in accordance with the Credit and Collection Policy,
extend the maturity of any Receivable or adjust the Outstanding Balance of any
Receivable as the Servicer determines to be appropriate to maximize Collections
thereof; provided, however, that such extension or adjustment shall not alter
the status of such Receivable as a Delinquent Receivable, a Defaulted Receivable
or a Charged-Off Receivable or limit the rights of the Agent or the Purchasers
under this Agreement. Notwithstanding anything to the contrary contained herein,
the Agent shall have the absolute and unlimited right to direct the Servicer to
commence or settle any legal action with respect to any Delinquent Receivable,
Defaulted Receivable or Charged-Off Receivable or to foreclose upon or repossess
any Related Security (including any Vacation Credits).
(f) Any payment by an Obligor in respect of any Indebtedness owed by it to
the Originator or the RPA Seller shall, except as otherwise specified by such
Obligor or otherwise required by contract or law and unless otherwise instructed
by the Agent, be applied as a Collection of any Receivable of such Obligor
(starting with the oldest such Receivable) to the extent of any amounts then due
and payable thereunder before being applied to any other receivable or other
obligation of such Obligor.
(g) The Servicer shall instruct the Paying Agent in writing to make
withdrawals and payments from Collection Account for the purposes of carrying
out the Servicer's duties hereunder.
Section 8.3 Collections Following an Amortization Event. The RPA Seller
hereby authorizes the Agent, and agrees that, upon and following the occurrence
of an Amortization Event, the Agent shall be entitled to (i) endorse the RPA
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Seller's name on checks and other instruments representing Collections, (ii)
enforce the Receivables, the related Contracts and the Related Security, and
(iii) take such action as shall be necessary or desirable to cause all cash,
checks and other instruments constituting Collections of Receivables to come
into the possession of the Agent rather than the RPA Seller.
Section 8.4 Responsibilities of the RPA Seller. Anything herein to the
contrary notwithstanding, the exercise by the Agent and the Purchasers of their
rights hereunder shall not release the Servicer, the Originator or the RPA
Seller from any of their duties or obligations with respect to any Receivables
or under the related Contracts. The Purchasers shall have no obligation or
liability with respect to any Receivables or related Contracts, nor shall any of
them be obligated to perform the obligations of the RPA Seller.
Section 8.5 Reports. The Servicer shall prepare and forward to the Agent,
each Investor Agent and the Paying Agent:
(a) on the 15th day of each month (or, if such day is not a Business Day,
then the next Business Day) and at such other times as the Agent or any Investor
Agent shall request, a Monthly Report, which shall include a certification by
the Servicer that all representations and warranties contained in Section 5.1
are true as of that date, and to the extent the representations and warranties
contained in Section 5.1 are not true as of that date, a detailed description of
the facts and circumstances that have caused any of the representations or
warranties to be untrue as of that date.
(b) at such times as the Agent or any Investor Agent shall request, a
listing by Obligor of all Receivables together with an aging of such
Receivables.
Section 8.6 Servicing Fees. In consideration of TWRI's agreement to act as
Servicer hereunder, the Purchasers hereby agree that, so long as TWRI shall
continue to perform as Servicer hereunder, the RPA Seller shall pay over to TWRI
a servicing fee, as and to the extent provided in Article II. Such servicing fee
shall be payable on each Settlement Date for the preceding Accrual Period in an
amount equal to the lesser of (x) the product of (i) one-twelfth, (ii) 1.75%,
and (iii) the daily average Aggregate Capital during such Accrual Period and (y)
the amount of funds available for payment of such servicing fee pursuant to
Article II. Prior to the Amortization Date, and so long as TWRI shall continue
as Servicer, the Servicer shall pay all fees due and owing to the Custodian as
have been assessed in accordance with Exhibit XIII hereto.
Section 8.7 TWRI Financial Covenants. For so long as TWRI is the Servicer,
TWRI covenants that:
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(a) It shall maintain, as of the close of each of its fiscal quarters, an
Interest Coverage Ratio of not less than 6.0 to 1.0.
(b) It shall maintain, as of the close of each of its fiscal quarters, a
Capitalization Ratio of not greater than 1.0 to 2.0.
(c) It shall maintain at all times a Leverage Ratio of not greater than
0.35 to 1.0.
(d) It shall maintain, as of the close of each of its fiscal quarters, a
Fixed Charge Coverage Ratio of not less than 1.75 to 1.0.
(e) It shall maintain a Consolidated Net Worth of at least $144,774,400
(the "Threshold"). As of the end of each fiscal quarter thereafter, Trendwest
shall maintain a minimum Consolidated Net Worth equal to the Threshold plus the
sum of (i) 75% of TWRI's positive net income for the period commencing on April
1, 2000 and ending on the day preceding such fiscal quarter plus (ii) the dollar
amount of net proceeds received by TWRI from the sale of new common or preferred
equity during such period.
(f) Notwithstanding the foregoing, for so long as Bank One and Fleet are
parties to the Credit Agreement, the definitions in this Agreement of "Fixed
Charge Interest Coverage Ratio" and "Leverage Ratio," and the requisite ratios,
shall be automatically amended, modified, waived, substituted or replaced upon
any amendment, modification or waiver of the equivalent definitions or ratios,
or any substitution for or replacement of the covenants containing such ratios
with other financial covenants under the Credit Agreement (unless the date (the
"Freeze Date") occurs on which either or both of Bank One and Fleet should cease
to be a party to the Credit Agreement, in which case such defined terms and the
requisite ratios shall remain as they existed on the last day prior to the
Freeze Date).
ARTICLE IX
HEDGING
Section 9.1 Hedge Event. A Hedge Event shall occur if, for any Accrual
Period, the Gross Excess Spread Percentage shall be less than 5.00%.
Section 9.2 Hedge Accumulation Period.
(a) Following the occurrence of a Hedge Event, funds shall be deposited
into the Hedge Account to the extent provided in Section 2.2(a) beginning on the
first Settlement Date thereafter
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and ending on the first to occur of (i) the Hedge Event Cure Date and (ii) the
Amortization Date (such period, the "Hedge Accumulation Period").
(b) On any day during the Hedge Accumulation Period, the Agent may, or upon
the direction of any Investor Agent shall, withdraw any or all of the available
funds in the Hedge Account and use such funds for the purpose of acquiring one
or more Purchased Hedges.
(c) If the Hedge Accumulation Period terminates as a result of the
occurrence of the Hedge Event Cure Date, then all funds in the Hedge Account on
such date shall be deposited in the Collection Account and treated as part of
the Monthly Available Funds. If the Hedge Accumulation Period terminates as a
result of the occurrence of the Amortization Date, then at the election of the
Agent, funds in the Hedge Account on such date shall be (x) deposited in the
Collection Account and treated as part of the Amortization Period Available
Funds or (y) retained in the Hedge Account for use in acquiring one or more
Purchased Hedges.
ARTICLE X
AMORTIZATION EVENTS
Section 10.1 Amortization Events. The occurrence of any one or more of the
following events shall constitute an Amortization Event:
(a) Any Trendwest Party shall fail (i) to make any payment or deposit
required hereunder when due, or (ii) to perform or observe any term, covenant or
agreement hereunder (other than as referred to in clause (i) of this paragraph
(a) or in paragraph (k) below) and such failure in the case of this clause (ii)
shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by any
Trendwest Party in this Agreement, any other Transaction Document or in any
other document delivered pursuant hereto or thereto shall prove to have been
incorrect when made or deemed made, and the effects of such have not been cured
within three business days after the date the representation, warranty,
certification or statement was discovered, or should have been discovered, not
to have been correct.
(c) Failure of the RPA Seller to pay any Indebtedness when due or the
failure of any other Trendwest Party to pay any Indebtedness greater than
$1,000,000 when due; or the default by any Trendwest Party in the performance of
any term, provision or condition contained in any agreement under which any such
Indebtedness greater than $1,000,000 was created or is governed, the effect of
which is to cause, or to permit the holder or holders of such Indebtedness to
cause, such Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of any Trendwest Party shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof.
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(d) (i) Any Trendwest Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due or shall admit in writing its inability
to pay its debts generally or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Trendwest
Party or any of its Subsidiaries seeking to adjudicate it bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, paying agent or
other similar official for it or any substantial part of its property or (ii)
any Trendwest Party or any of their Subsidiaries shall take any corporate action
to authorize any of the actions set forth in clause (i) above in this subsection
(d).
(e) WorldMark:
(i) voluntarily incurs or at any time become voluntarily liable for any
Indebtedness;
(ii) voluntarily allows its property to become subject to any Liens, or
subjects any of its property to any Liens, other than (A) utility or other
easements or licenses unrelated to any debt of WorldMark or (B) Liens that in do
not exceed, in aggregate, $100,000; or
(iii) involuntarily incurs or becomes involuntarily liable for any debt, or
subjects any of its property involuntarily to any Liens (other than utility or
similar easements or licenses unrelated to any debt of WorldMark) that
individually or in the aggregate (with respect to all such debt and the
obligations secured by all such Liens) exceed $1,000,000.
(f) As at the end of any Accrual Period, the Three-Month Average
Delinquency Ratio shall exceed 5.0%.
(g) As at the end of any Accrual Period, the Three-Month Average
Consolidated Delinquency Ratio shall exceed 5.0%.
(h) As at the end of any Accrual Period, the Three-Month Average Default
Ratio shall exceed 3.0%.
(i) As at the end of any Accrual Period, the Three-Month Average
Consolidated Default Ratio shall exceed 3.0%.
(j) As of the end of any Accrual Period, the Net Excess Spread Percentage
shall be less than or equal to zero.
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(k) As of the end of any Accrual Period, the Three-Month Average Charge-Off
Ratio shall exceed 5.0%.
(l) As of the end of any Accrual Period, the Three-Month Average
Consolidated Charge- Off Ratio shall exceed 5.0%.
(m) A Hedge Event shall occur and shall continue to exist for six
consecutive months.
(n) The aggregate number of Units decreases to less than 90% of the number
of units in existence on the date of closing or initial purchase under this
Agreement.
(o) As of the end of any fiscal quarter of TWRI at any time that TWRI is
the Servicer, TWRI shall not be in compliance with one or more of the financial
covenants set forth in Section 8.7 of this Agreement.
(p) One or more final judgments for the payment of money shall be entered
against the RPA Seller on claims not covered by insurance or as to which the
insurance carrier has denied its responsibility, and such judgment shall
continue unsatisfied and in effect for fifteen (15) consecutive days without a
stay of execution.
(q) This Agreement shall terminate in whole or in part (except in
accordance with its terms), or shall cease to be effective or to be the legally
valid, binding and enforceable obligation of the Seller, or any Obligor shall
directly or indirectly contest in any manner such effectiveness, validity,
binding nature or enforceability, or the Agent for the benefit of the Investor
Agents and the Purchasers shall cease to have a valid and perfected first
priority security interest in the Receivables, the Related Security, and the
Collections with respect thereto and the Collection Accounts.
(r) The aggregate Purchaser Interests shall exceed 100% and shall continue
as such until the earlier of (i) one Business Day following the date any
Trendwest Party has actual knowledge thereof and (ii) the next Settlement Date.
(s) The "Amortization Date" shall occur under the Sale Agreement or the RSA
Seller shall for any reason cease to transfer, or cease to have the legal
capacity to transfer, or otherwise be incapable of transferring Receivables to
the RPA Seller under the Sale Agreement.
(t) The RPA Seller at any time becomes less than a 100% wholly owned
subsidiary of TWRI.
(u) For any Accrual Period, Collections received by means of Automatic
Debit Collection during such Accrual Period shall be less than 50.0% of the
total Collections received during such Accrual Period.
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(v) A date shall occur which is the earliest of (i) any date following the
occurrence of the Revolving Period Termination Date upon which (x) the Default
Ratio or the Consolidated Default Ratio as of the end of the preceding Accrual
Period exceeds 2.25% or (y) the Delinquency Ratio or the Consolidated
Delinquency Ratio as of the end of the preceding Accrual Period exceeds 4.25%,
(ii) the first anniversary of the occurrence of the Revolving Period Termination
Date, and (iii) the Facility Termination Date.
(w) A date shall occur which is the 90th day following the earlier to occur
of (i) a public announcement of a Change of Control and (ii) the occurrence of a
Change of Control.
Section 10.2 Remedies. Upon the occurrence and during the continuation of
an Amortization Event, funds shall be deposited into the Reserve Account to the
extent provided in Section 2.2, and the Agent may, or upon the direction of any
Investor Agent shall, take any of the following actions: (i) replace the Person
then acting as Servicer, (ii) declare the Amortization Date to have occurred,
whereupon the Amortization Date shall forthwith occur, without demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Trendwest Party; provided, however, that upon the occurrence of an Amortization
Event described in Section 10.1(d), or of an actual or deemed entry of an order
for relief with respect to any Trendwest Party under the Federal Bankruptcy
Code, the Amortization Date shall automatically occur, without demand, protest
or any notice of any kind, all of which are hereby expressly waived by each
Trendwest Party, (iii) to the fullest extent permitted by applicable law,
declare that the Default Fee shall accrue with respect to any of the Aggregate
Unpaids outstanding at such time, (iv) acquire one or more Purchased Hedges, (v)
notify Obligors of the Purchasers' interest in the Receivables, and (vi) sell,
dispose of or otherwise liquidate the Receivables or the Related Security in a
commercially reasonable manner and on commercially reasonable terms. If the
Amortization Date has occurred, all amounts on deposit in the Reserve Account
shall be deposited in the Collection Account and treated as part of the
Amortization Period Available Funds. The aforementioned rights and remedies
shall be in addition to all other rights and remedies of the Agent, the Investor
Agents and the Purchasers available under this Agreement, by operation of law,
at equity or otherwise, all of which are hereby expressly preserved, including
all rights and remedies provided under the UCC, all of which rights shall be
cumulative.
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ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnities by the Trendwest Parties.
(a) Without limiting any other rights that the Agent, the Investor Agents
or any Purchaser may have hereunder or under applicable law, (A) the RPA Seller
hereby agrees to indemnify (and pay upon demand to) the Agent, the Investor
Agents and the Purchasers and their respective assigns, officers, directors,
limited liability company members, agents and employees (each an "Indemnified
Party") from and against any and all damages, losses, claims, taxes,
liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys' fees (which attorneys may be employees of the Agent, the
Investor Agents or such Purchaser) and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them arising out of or as a result of this Agreement, any other
Transaction Document or the transactions contemplated thereby or the use of
proceeds thereon, or the acquisition, either directly or indirectly, by a
Purchaser of an interest in the Receivables, and (B) the Servicer hereby agrees
to indemnify (and pay upon demand) each Indemnified Party for Indemnified
Amounts awarded against or incurred by any of them arising out of the Servicer's
activities as Servicer or the Subservicer's activities as Subservicer hereunder,
however, in all of the foregoing instances under the preceding clauses (A) and
(B):
(i) Indemnified Amounts to the extent a final judgment of a court of
competent jurisdiction holds that such Indemnified Amounts resulted from gross
negligence or willful misconduct on the part of the Indemnified Party seeking
indemnification;
(ii) Indemnified Amounts to the extent the same includes losses in respect
of Receivables that are uncollectible on account of the insolvency, bankruptcy
or lack of creditworthiness of the related Obligor; or
(iii) taxes imposed by the jurisdiction in which such Indemnified Party's
principal executive office is located, on or measured by the overall net income
of such Indemnified Party to the extent that the computation of such taxes is
consistent with the Intended Characterization;
provided, however, that nothing contained in this sentence shall limit the
liability of any Trendwest Party or limit the recourse of the Purchasers to any
Trendwest Party for amounts otherwise specifically provided to be paid by such
Trendwest Party under the terms of this Agreement.
(b) Without limiting the generality of the indemnification contained in
Section 11.1(a), the RPA Seller shall indemnify the Indemnified Parties for
Indemnified Amounts (including losses in respect of uncollectible receivables,
regardless of whether reimbursement therefor would constitute recourse to the
RPA Seller or the Servicer) relating to or resulting from:
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(i) any representation or warranty made by any Trendwest Party, any
Originator, or the Custodian (or any officers of any such Person) under or in
connection with this Agreement, any other Transaction Document or any other
information or report delivered by any such Person pursuant hereto or thereto,
which shall have been false or incorrect when made or deemed made;
(ii) the failure by any Seller, the Servicer, any Originator, any Vacation
Club or the Custodian to comply with any applicable law, rule or regulation with
respect to any Receivable or Contract related thereto, or the nonconformity of
any Receivable or Contract included therein with any such applicable law, rule
or regulation or any failure of the Originator, any Vacation Club or the
Custodian to keep or perform any of their respective obligations, express or
implied, with respect to any Contract;
(iii) any failure of any Seller, the Servicer, any Originator or the
Custodian to perform its duties, covenants or other obligations in accordance
with the provisions of this Agreement or any other Transaction Document;
(iv) any lawsuit or legal claim arising out of or in connection with the
Resorts and Units, any defect in any Vacation Club's ownership of title to, or
leasehold rights in, the real property used in its business, any Obligor's right
to use the Resorts and Units, or any rights or services that are the subject of
any Contract;
(v) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
(including a defense based on such Receivable or the related Contract not being
a legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of the
services or rights related to such Receivable or the furnishing or failure to
provide for such rights or furnish such services;
(vi) the commingling of Collections of Receivables at any time with other
funds;
(vii) any investigation, litigation or proceeding related to or arising
from this Agreement or any other Transaction Document, the transactions
contemplated hereby, the use of the proceeds of a purchase, the ownership of the
Purchaser Interests or any other investigation, litigation or proceeding
relating to any Seller, the Servicer, the Subservicer or any Originator in which
any Indemnified Party becomes involved as a result of any of the transactions
contemplated hereby;
(viii) any inability to litigate any claim against any Obligor in respect
of any Receivable as a result of such Obligor being immune from civil and
44
commercial law and suit on the grounds of sovereignty or otherwise from any
legal action, suit or proceeding;
(ix) any Amortization Event described in Section 10.1(d);
(x) any failure of the RPA Seller to acquire and maintain legal and
equitable title to, including providing Acceptable Title Policies where
applicable, and ownership of, any Receivable and the Related Security and
Collections with respect thereto from the RSA Seller, free and clear of any
Adverse Claim (other than as expressly provided herein); or any failure of the
RPA Seller to give reasonably equivalent value to the RSA Seller under the Sale
Agreement in consideration of the transfer by the RSA Seller of any Receivable,
or any attempt by any Person to void such transfer under statutory provisions or
common law or equitable action;
(xi) any failure to vest and maintain vested in the Agent and the
Purchasers, or to transfer to the Agent and the Investor Agent, for the benefit
of the Purchasers, legal and equitable title to, and ownership of, a first
priority undivided percentage ownership (to the extent of the Purchaser
Interests contemplated hereunder) in the Receivables, the Related Security and
the Collections, free and clear of any Adverse Claim;
(xii) the failure to have filed, or any delay in filing, financing
statements, assignments or other similar instruments or documents under the UCC
of any Applicable Jurisdiction or other applicable laws with respect to any
Receivable, the Related Security and Collections with respect thereto, and the
proceeds of any thereof, whether at the time of any Incremental Purchase or at
any subsequent time;
(xiii) any action or omission by any Trendwest Party which reduces or
impairs the rights of the Agent, the Investor Agents or the Purchasers with
respect to any Receivable or the value of any such Receivable; and
(xiv) any attempt by any Person to void any Incremental Purchase hereunder
under statutory provisions or common law or equitable action.
Any Indemnified Amounts incurred by actions of the Custodian shall be payable by
the Custodian to the applicable Indemnified Party no later than the 30th day
after a demand for payment of such Person is delivered to the Custodian. Any
such Indemnified Amounts not paid by such date shall be immediately payable by
TWRI to the applicable Indemnified Party.
Section 11.2 Increased Cost and Reduced Return. If after the date hereof,
any Funding Source shall be charged any fee, expense or increased cost on
account of the adoption of any applicable law, rule or regulation (including any
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applicable law, rule or regulation regarding capital adequacy) or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency: (i) that subjects any Funding Source to any
charge or withholding on or with respect to any Funding Agreement or a Funding
Source's obligations under a Funding Agreement, or on or with respect to the
Receivables, or changes the basis of taxation of payments to any Funding Source
of any amounts payable under any Funding Agreement (except for changes in the
rate of tax on the overall net income of a Funding Source) or (ii) that imposes,
modifies or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of a Funding Source, or credit extended by a Funding Source pursuant to
a Funding Agreement or (iii) that imposes any other condition the result of
which is to increase the cost to a Funding Source of performing its obligations
under a Funding Agreement, or to reduce the rate of return on a Funding Source's
capital as a consequence of its obligations under a Funding Agreement, or to
reduce the amount of any sum received or receivable by a Funding Source under a
Funding Agreement or to require any payment calculated by reference to the
amount of interests or loans held or interest received by it, then within 10
days, upon written demand by the applicable Investor Agent, the RPA Seller shall
pay to such Investor Agent, for the benefit of the relevant Funding Source, such
amounts charged to such Funding Source or compensate such Funding Source for
such reduction.
Section 11.3 Other Costs and Expenses. The RPA Seller shall pay to the
Agent, any Investor Agent or any Purchaser within 30 days, upon written demand
all costs and out-of-pocket expenses in connection with the preparation,
execution, delivery and administration of this Agreement, the transactions
contemplated hereby and the other documents to be delivered hereunder, including
the cost of any Purchaser's auditors auditing the books, records and procedures
of the RPA Seller, reasonable fees and out-of-pocket expenses of legal counsel
for the Purchasers, the Investor Agents and the Agent (which such counsel may be
employees of a Purchaser or an Investor Agent or the Agent) with respect thereto
and with respect to advising any Purchaser, Investor Agent or the Agent as to
their respective rights and remedies under this Agreement. The RPA Seller shall
pay to the Agent or any Investor Agents on demand any and all costs and expenses
of the Agent any Investor Agent or any Purchaser, if any, including reasonable
counsel fees and expenses in connection with the enforcement of this Agreement
and the other documents delivered hereunder and in connection with any
restructuring or workout of this Agreement or such documents, or the
administration of this Agreement following an Amortization Event. The RPA Seller
shall reimburse any Conduit on demand for all other costs and expenses incurred
by such Conduit ("Other Costs"), including the cost of auditing such Conduit's
books by certified public accountants, the cost of rating the Commercial Paper
by independent financial rating agencies, and the reasonable fees and
out-of-pocket expenses of counsel for such Conduit or any counsel for any
shareholder of such Conduit with respect to advising such Conduit or such
shareholder as to matters relating to such Conduit's operations.
46
Section 11.4 Allocations. Each Conduit shall allocate the liability for
Other Costs among the RPA Seller and other Persons with whom such Conduit has
entered into agreements to purchase interests in receivables ("Other Sellers").
If any Other Costs are attributable to the RPA Seller and not attributable to
any Other Seller, the RPA Seller shall be solely liable for such Other Costs.
However, if Other Costs are attributable to Other Sellers and not attributable
to the RPA Seller, such Other Sellers shall be solely liable for such Other
Costs. All allocations to be made pursuant to the foregoing provisions of this
Article XI shall be made by each Conduit in its sole discretion and shall be
binding on the RPA Seller and the Servicer.
ARTICLE XII
THE AGENT
Section 12.1 Authorization and Action. Each Investor Agent and each
Purchaser hereby designates and appoints Bank One to act as its agent hereunder
and under each other Transaction Document, and authorizes the Agent to take such
actions as agent on its behalf and to exercise such powers as are delegated to
the Agent by the terms of this Agreement and the other Transaction Documents
together with such powers as are reasonably incidental thereto. The Agent shall
not have any duties or responsibilities, except those expressly set forth herein
or in any other Transaction Document, or any fiduciary relationship with any
Person, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Agent shall be read into this
Agreement or any other Transaction Document or otherwise exist for the Agent. In
performing its functions and duties hereunder and under the other Transaction
Documents, the Agent shall act solely as agent for the Purchasers and does not
assume nor shall be deemed to have assumed any obligation or relationship of
trust or agency with or for any Trendwest Party or any of such Trendwest Party's
successors or assigns. The Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement,
any other Transaction Document or applicable law. The appointment and authority
of the Agent hereunder shall terminate upon the indefeasible payment in full of
all Aggregate Unpaids. Each Investor Agent and Purchaser hereby authorizes the
Agent to execute all Financing Statements on behalf of such Investor Agent and
Purchaser (the terms of which shall be binding on such Investor Agent or
Purchaser).
Section 12.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement and each other Transaction Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Section 12.3 Exculpatory Provisions. Neither the Agent nor any of its
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with
47
this Agreement or any other Transaction Document (except for its, their or such
Person's own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Investor Agents or Purchasers for any recitals, statements,
representations or warranties made by any Trendwest Party contained in this
Agreement, any other Transaction Document or any certificate, report, statement
or other document referred to or provided for in, or received under or in
connection with, this Agreement, or any other Transaction Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, or any other Transaction Document or any other document
furnished in connection herewith or therewith, or for any failure of any
Trendwest Party to perform its obligations hereunder or thereunder, or for the
satisfaction of any condition specified in Article VI, or for the perfection,
priority, condition, value or sufficiency of any collateral pledged in
connection herewith. The Agent shall not be under any obligation to any Investor
Agent or Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement or any other Transaction Document, or to inspect the
properties, books or records of the Trendwest Parties. The Agent shall not be
deemed to have knowledge of any Amortization Event or Potential Amortization
Event unless the Agent has received notice from the RPA Seller or an Investor
Agent or a Purchaser.
Section 12.4 Reliance by Agent. The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to the RPA Seller), independent accountants and other experts
selected by the Agent. The Agent shall in all cases be fully justified in
failing or refusing to take any action under this Agreement or any other
Transaction Document unless it shall first receive such advice or concurrence of
the Investor Agents, the Conduits, the Required Financial Institutions or all of
the Purchasers, as applicable, as it deems appropriate and it shall first be
indemnified to its satisfaction by the Purchasers, provided that unless and
until the Agent shall have received such advice, the Agent may take or refrain
from taking any action, as the Agent shall deem advisable and in the best
interests of the Purchasers. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of any
Investor Agent, any Conduit, of the Required Financial Institutions or all of
the Purchasers, as applicable, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Investor Agents, Conduits
and Purchasers.
Section 12.5 Non-Reliance on Agent and Other Purchasers. Each Purchaser and
each Investor Agent expressly acknowledges that neither the Agent, nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by the Agent
hereafter taken, including any review of the affairs of any Trendwest Party,
48
shall be deemed to constitute any representation or warranty by the Agent. Each
Purchaser and each Investor Agent represents and warrants to the Agent that it
has and will, independently and without reliance upon the Agent or any other
Purchaser or Investor Agent and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the RPA Seller and made its own decision to enter into this
Agreement, the other Transaction Documents and all other documents related
hereto or thereto.
Section 12.6 Reimbursement and Indemnification. The Financial Institutions
agree to reimburse and indemnify the Agent and its officers, directors,
employees, representatives and agents ratably according to their Pro Rata
Shares, to the extent not paid or reimbursed by the Trendwest Parties (i) for
any amounts for which the Agent, acting in its capacity as Agent, is entitled to
reimbursement by the Trendwest Parties hereunder and (ii) for any other expenses
incurred by the Agent, in its capacity as Agent and acting on behalf of the
Investor Agents and the Purchasers, in connection with the administration and
enforcement of this Agreement and the other Transaction Documents.
Section 12.7 Agent in its Individual Capacity. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the RPA Seller or any Affiliate of the RPA Seller as though the
Agent were not the Agent hereunder. With respect to the acquisition of Purchaser
Interests pursuant to this Agreement, the Agent shall have the same rights and
powers under this Agreement in its individual capacity as any Purchaser and may
exercise the same as though it were not the Agent, and the terms "Financial
Institution," "Purchaser," "Financial Institutions" and "Purchasers" shall
include the Agent in its individual capacity.
Section 12.8 Successor Agent. The Agent may, upon five days' notice to the
RPA Seller, the Investor Agents and the Purchasers, and the Agent will, upon the
direction of all of the Investor Agents (other than the Agent, in its individual
capacity) resign as Agent. If the Agent shall resign, then the Investor Agents
during such five-day period shall appoint from among the Purchasers a successor
agent. If for any reason no successor Agent is appointed by the Required
Financial Institutions during such five-day period, then effective upon the
termination of such five day period, the remaining Investor Agents shall perform
all of the duties of the Agent hereunder and under the other Transaction
Documents and the RPA Seller and the Servicer (as applicable) shall make all
payments in respect of the Aggregate Unpaids directly to the applicable
Purchasers and for all purposes shall deal directly with the Purchasers. After
the effectiveness of any retiring Agent's resignation hereunder as Agent, the
retiring Agent shall be discharged from its duties and obligations hereunder and
under the other Transaction Documents and the provisions of this Article XII and
Article XI shall continue in effect for its benefit with respect to any actions
taken or omitted to be taken by it while it was Agent under this Agreement and
under the other Transaction Documents.
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ARTICLE XIII
ASSIGNMENTS; PARTICIPATIONS
Section 13.1 Assignments.
(a) The RPA Seller and each Financial Institution hereby agree and consent
to the complete or partial assignment by any Conduit of all or any portion of
its rights under, interest in, title to and obligations under this Agreement to
the Financial Institutions pursuant to a Liquidity Agreement or to any other
Person, and upon such assignment, the applicable Conduit shall be released from
its obligations so assigned. Further, the RPA Seller and each Financial
Institution hereby agree that any assignee of any Conduit of this Agreement or
all or any of the Purchaser Interests of the applicable Conduit shall have all
of the rights and benefits under this Agreement as if the term "Conduit"
explicitly referred to such party, and no such assignment shall in any way
impair the rights and benefits of any Conduit hereunder. Neither the RPA Seller
nor the Servicer shall have the right to assign its rights or obligations under
this Agreement.
(b) Any Financial Institution may at any time and from time to time assign
to one or more Persons ("Purchasing Financial Institutions") all or any part of
its rights and obligations under this Agreement pursuant to an assignment
agreement, substantially in the form set forth in Exhibit VII hereto (the
"Assignment Agreement") executed by such Purchasing Financial Institution and
such selling Financial Institution. The consent of the Investor Agents shall be
required prior to the effectiveness of any such assignment. Each assignee of a
Financial Institution must have a short- term debt rating of A-1 or better by
S&P and P-1 by Moody's and must agree to deliver to the Agent, promptly
following any request therefor by the Agent or an Investor Agent, an
enforceability opinion in form and substance satisfactory to the Agent or such
Investor Agent. Upon delivery of the executed Assignment Agreement to the Agent
such selling Financial Institution shall be released from its obligations
hereunder to the extent of such assignment. Thereafter the Purchasing Financial
Institution shall for all purposes be an Financial Institution party to this
Agreement and shall have all the rights and obligations of an Financial
Institution under this Agreement to the same extent as if it were an original
party hereto and no further consent or action by the RPA Seller, the Purchasers,
the Investor Agents or the Agent shall be required.
Section 13.2 Participations. Any Financial Institution may, in the ordinary
course of its business at any time sell to one or more Persons (each a
"Participant") participating interests in its Pro Rata Share of the Purchaser
Interests of the Financial Institutions in its Group, its obligation to pay its
related Conduit amounts owed with respect to the acquisition of the Purchaser
Interests from such Conduit interest of such Financial Institution hereunder.
Notwithstanding any such sale by a Financial Institution of a participating
interest to a Participant, such Financial Institution's rights and obligations
under this Agreement shall remain unchanged, such Financial Institution shall
remain solely responsible for the performance of its obligations hereunder, and
RPA Seller, the related Conduit and the Agent shall continue to deal solely and
directly with such Financial Institution in connection with such Financial
Institution's rights and obligations under this Agreement. Each Financial
50
Institution agrees that any agreement between such Financial Institution and any
such Participant in respect of such participating interest shall not restrict
such Financial Institution's right to agree to any amendment, supplement, waiver
or modification to this Agreement, except for any amendment, supplement, waiver
or modification described in Section 16.1(b)(i).
ARTICLE XIV
THE INVESTOR AGENTS
Section 14.1 Authorization and Action. Each Conduit and each Financial
Institution which belong to the same Group hereby appoint and authorize the
Investor Agent for such Group to take such actions as agent on its behalf and to
exercise such powers as are delegated to the Investor Agent by the terms of this
Agreement and the other Transaction Documents together with such powers as are
reasonably incidental thereto. No Investor Agent shall have any duties or
responsibilities, except those expressly set forth herein or in any other
Transaction Document, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities on the part of the Investor Agent shall be
read into this Agreement or any other Transaction Document or otherwise exist
for the Investor Agent. In performing its functions and duties hereunder and
under the other Transaction Documents, an Investor Agent shall act solely as
agent for the Purchasers in its Group and does not assume nor shall be deemed to
have assumed any obligation or relationship of trust or agency with or for the
Subservicer or any Person not in its Group, or any Trendwest Party or such
Person's successors or assigns. The Investor Agent shall not be required to take
any action that exposes the Investor Agent to personal liability or that is
contrary to this Agreement, any other Transaction Document or applicable law.
Section 14.2 Delegation of Duties. An Investor Agent may execute any of its
duties under this Agreement and each other Transaction Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. No Investor Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
Section 14.3 Exculpatory Provisions. No Investor Agent nor any of its
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with
this Agreement or any other Transaction Document (except for its, their or such
Person's own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Conduits or Financial Institutions for any recitals,
statements, representations or warranties made by any Trendwest Party contained
in this Agreement, any other Transaction Document or any certificate, report,
statement or other document referred to or provided for in, or received under or
51
in connection with, this Agreement, or any other Transaction Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, or any other Transaction Document or any other document
furnished in connection herewith or therewith, or for any failure of the
Subservicer or any Trendwest Party to perform its obligations hereunder or
thereunder, or for the satisfaction of any condition specified in Article VI, or
for the perfection, priority, condition, value or sufficiency of any collateral
pledged in connection herewith. No Investor Agent shall be under any obligation
to any Conduit or Financial Institution to ascertain or to inquire as to the
observance or performance of any of the agreements or covenants contained in, or
conditions of, this Agreement or any other Transaction Document, or to inspect
the properties, books or records of the Subservicer or the Trendwest Parties. No
Investor Agent shall be deemed to have knowledge of any Amortization Event or
Potential Amortization Event unless the Investor Agent has received notice from
the RPA Seller or a Purchaser.
Section 14.4 Reliance by Investor Agent. An Investor Agent shall in all
cases be entitled to rely, and shall be fully protected in relying, upon any
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the RPA
Seller), independent accountants and other experts selected by such Investor
Agent. An Investor Agent shall in all cases be fully justified in failing or
refusing to take any action under this Agreement or any other Transaction
Document unless it shall first have received such advice or concurrence of the
Purchasers in its Group, as it deems appropriate and it shall first be
indemnified to its satisfaction by the Financial Institutions in its Group,
provided that unless and until an Investor Agent shall have received such
advice, such Investor Agent may take or refrain from taking any action it shall
deem advisable and in the best interests of the Purchasers in its Group. An
Investor Agent shall in all cases be fully protected in acting, or in refraining
from acting, in accordance with a request of the Purchasers in its Group, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Purchasers in its Group.
Section 14.5 Non-Reliance on Investor Agent and Other Purchasers. Each
Purchaser expressly acknowledges that neither the Investor Agent of its Group,
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
such Investor Agent hereafter taken, including, without limitation, any review
of the affairs of the Subservicer or any Trendwest Party, shall be deemed to
constitute any representation or warranty by such Investor Agent. Each Purchaser
represents and warrants to the Investor Agent of its Group that it has and will,
independently and without reliance upon such Investor Agent, the Agent, any
other Investor Agent or any Purchaser and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, prospects, financial and
other conditions and creditworthiness of the RPA Seller and made its own
decision to enter into this Agreement, the other Transaction Documents to which
it is a party and all other documents related hereto or thereto.
Section 14.6 Reimbursement and Indemnification. Each Financial Institution
agrees to reimburse and indemnify the Investor Agent for its Group and its
officers, directors, employees, representatives and agents ratably according to
its Pro Rata Share, to the extent not paid or reimbursed by the Trendwest
52
Parties (i) for any amounts for which the Investor Agent, acting in its capacity
as Investor Agent, is entitled to reimbursement by the Trendwest Parties
hereunder and (ii) for any other expenses incurred by the Investor Agent, in its
capacity as Investor Agent and acting on behalf of the Purchasers in its Group,
in connection with the administration and enforcement of this Agreement and the
other Transaction Documents.
Section 14.7 Investor Agent in its Individual Capacity. An Investor Agent
and its Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the RPA Seller or any Affiliate of the RPA Seller
as though such Investor Agent were not the Investor Agent hereunder. With
respect to the acquisition of Purchaser Interests pursuant to this Agreement, an
Investor Agent shall have the same rights and powers under this Agreement in its
individual capacity as any Conduit or Financial Institution and may exercise the
same as though it were not an Investor Agent, and the terms "Financial
Institution," "Purchaser," "Financial Institutions" and "Purchasers" shall
include the Investor Agent in its individual capacity.
Section 14.8 Successor Investor Agent. An Investor Agent may, upon 30 days'
notice to the RPA Seller, the Agent, the Conduits and the Financial Institutions
in such Group, resign as Investor Agent. Such resignation shall not become
effective until a successor investor agent is appointed by the Purchasers in
such Group and such appointment is accepted. After the effectiveness of any
retiring Investor Agent's resignation hereunder as Investor Agent, the retiring
Investor Agent shall be discharged from its duties and obligations hereunder and
under the other Transaction Documents and the provisions of this Article XIV and
Article XI shall continue in effect for its benefit with respect to any actions
taken or omitted to be taken by it while it was an Investor Agent under this
Agreement and under the other Transaction Documents.
ARTICLE XV
THE CUSTODIAN
Section 15.1 Appointment of Custodian; Delivery of Records; Verification.
(a) The RPA Seller hereby initially appoints Wells Fargo Bank Minnesota,
National Association, in its independent corporate capacity, as the Custodian,
to act as custodian and bailee with respect to the Receivable Documents that are
related to the Receivables. The Custodian hereby accepts such appointment and
agrees to maintain and hold all such Receivable Documents received by it for the
exclusive benefit of the Sellers, the Servicer, the Agent and the Purchasers.
With respect to such Receivable Documents, the Custodian agrees to act in
accordance with this Agreement and in accordance with any directions of any
Seller, Servicer or Agent. Under no circumstances shall the Custodian (i)
deliver possession of any Receivable Documents to the Servicer or any other
53
Person, or (ii) take any directions with respect to any Receivable Documents
from any Seller, the Servicer or any other Person, without the express written
consent of the Agent.
(b) On a date at least five Business Days prior to a proposed RSA Purchase
Date, the RSA Seller shall deliver or cause to be delivered (A) to the
Custodian, the RPA Seller, the Investor Agents and the Agent a Draft Schedule of
Receivables pursuant to the Sale Agreement, which shall list the Receivables the
RSA Seller proposes to transfer to the RPA Seller, and (B) to the Custodian,
each Receivable Document listed in the definition of "Receivable Documents,"
other than any Unrecorded Documents, with respect to each Receivable included on
such Draft Schedule of Receivables.
(c) Upon receipt of the documents described in Section 15.1(b), the
Custodian shall verify, within two Business Days of the proposed RSA Purchase
Date that (i) all documents required to be delivered to it pursuant to this
Agreement are in the Custodian's possession, and that (ii) such documents appear
regular on their face and relate to the appropriate Receivable and none of the
Receivable Documents contain evidence of any claims, liens, security interests
or encumbrances (other than the lien of this Agreement).
(d) Not less than two Business Days prior to the proposed RSA Purchase
Date, the Custodian shall deliver to the RSA Seller, the RPA Seller, the
Investor Agents and the Agent (in both hard copy and electronic format
acceptable to the Agent) a confirmation and schedule (the "Schedule of
Exceptions") on which the Custodian shall both confirm that it has performed the
verification described in Section 15.1(c) and note any discrepancy or deficiency
which exists with respect to any Receivable Document. The delivery of such
Schedule of Exceptions shall be the Custodian's representation that, other than
the discrepancies and deficiencies described in such Schedule of Exceptions, all
Receivable Documents required to be delivered hereunder are in the possession of
the Custodian. No Receivable which is listed on a Schedule of Exceptions shall
constitute an Eligible Receivable unless each of the Agent and each Investor
Agent, in its sole discretion, has consented in writing to the treatment of such
Receivable as an Eligible Receivable.
(e) On each RSA Purchase Date, the Custodian shall ensure that all
Receivable Documents related to Receivables conveyed on an RSA Purchase Date
will be marked and placed in files which pertain only to Receivables conveyed to
the RPA Seller under the Sale Agreement or to the RSA Seller under the Transfer
Agreement, which files are physically separated from the files relating to other
receivables which the Custodian holds on behalf of itself or others, including
other Serviced Receivables.
(f) For each Fractional Interest Receivable, promptly (but in no event more
than five Business Days) following the date on which the Custodian has received
all documents required to be delivered to it pursuant to Section 7.1(n), the
Custodian shall deliver to the Agent and the RPA Seller a confirmation that it
has received all such documents (provided that the Custodian shall have no
responsibility for determining whether such documents satisfy the definitions of
the terms contained therein). If, by the Undocumented Receivables Date for any
54
Fractional Interest Receivable, the Custodian has not received all such
documents, the Custodian shall deliver on the next following Business Day to the
Agent, the Investor Agents and the RPA Seller a notice describing the documents
which it has not received with respect to such Fractional Interest Receivable.
Section 15.2 Receipts. On the Business Day immediately preceding an RSA
Purchase Date, the Custodian shall deliver (in both hard copy and electronic
format acceptable to the Agent) (i) an original certification and receipt in the
form attached hereto as Exhibit XI (a "Receipt") to the RSA Seller, and (ii)
copies of the Receipt to the RPA Seller, the Investor Agents and Agent. Each
Receipt shall include a list of all Receivables, including such newly sold
Receivables, for which the Custodian is holding Receivable Documents.
Section 15.3 Duties of Custodian.
(a) Covenant of Custodian. Until this Agreement has terminated, the
Custodian shall maintain the Master Schedule of Receivables at its office set
forth on the signature page hereof for inspection during normal business hours
by interested parties.
(b) Standard of Care. The Custodian shall use due care in the custody of
the Receivable Documents and shall segregate and maintain continuous custody of
such Receivable Documents in secure facilities in accordance with such standards
as are customary for such custody in the banking industry and in the Custodian's
care of installment sale contracts and promissory notes pledged for its benefit.
With respect to the Receivable Documents, the Custodian shall (i) act
exclusively as the Custodian for, and the bailee of, the Agent, (ii) hold all
Receivable Documents received by it for the sole and exclusive use and benefit
of the Agent and (iii) make dispositions thereof only in accordance with the
terms of this Agreement or written instructions from the Agent.
(c) Facilities. The Custodian shall maintain continuous custody of all
items delivered to it in secure fire resistant facilities, which (i) until no
later than December 31, 2001, will be located at Sixth and Marquette Street, MAC
Code N9311-160; Minneapolis, Minnesota 55479 and (ii) no sooner than December 1,
2001, will be relocated to 769 Kasota Avenue, MAC Code N9328-011, Minneapolis,
Minnesota 55414. The Custodian will notify Agent of any change of address to any
other location no less than 90 days in advance of any relocation of these
facilities. The Custodian shall provide access to the facilities to the RPA
Seller and the Agent or their related representatives at such time as each may
reasonably request upon two (2) Business Days notice. Upon presentation of
written demand for such access, the Custodian may be reimbursed for reasonable,
documented out-of-pocket expenses incurred by it in providing access to its
facilities to the RPA Seller or the Agent. The Agent may subsequently recover
from the RPA Seller such expenses it pays to the Custodian.
55
(d) Reviews. Once each calendar year, the RPA Seller shall cause the
Custodian to conduct, or cause to be conducted reviews of all items held by it
under this Agreement in such a manner as shall enable the RPA Seller and the
Agent to verify the accuracy of the Custodian's record keeping. The Custodian
shall immediately report to the RPA Seller, the Investor Agents and the Agent
any defect with respect to a Receivable Document or any failure on its part to
hold the Receivable Documents as herein provided. The Agent, the Investor Agents
or the Servicer may request the Custodian to conduct, or cause to be conducted,
reviews that are additional to the annual review provided for above. Such
additional reviews shall be conducted solely at the expense of the Servicer.
(e) Release of Documents. Upon receipt of a Request for Release as provided
in Section 2.10 of this Agreement, the Custodian shall, within five Business
Days, deliver the requested Receivable Documents as directed in such Request for
Release. Receivable Documents properly released as provided in Section 2.10
shall be free of the interests of the Agent for the benefit of the Purchasers
under this Agreement. Upon written notice of a the declaration of the
Amortization Date, and if TWRI or any of its Subsidiaries or Affiliates is no
longer acting as Servicer, the Custodian shall cooperate to effect the transfer
of the Records to such third parties as is necessary.
(f) Insurance. The Custodian shall, at its own expense, maintain at all
times during the existence of this Agreement, and keep in full force and effect
(a) fidelity insurance, (b) theft of document insurance, (c) forgery insurance,
and (d) insurance covering the risk of errors and omissions. All such insurance
shall be in amounts, with standard coverage and subject to deductibles, as are
customary for insurance typically maintained by custodians in similar
transactions. A certificate of the respective insurer as to each such policy
shall be furnished to the Agent, upon request, stating that such policy is in
full force and effect.
(g) Updated Receipt and Receivable Data. On each Determination Date and
within two Business Days of a written request from the Agent, the Custodian
shall provide (i) an updated Receipt (in both hard copy and electronic format
acceptable to the Agent) to the Agent, as to the Receivable Documents in its
possession and (ii) such electronic data regarding the Receivables as is
reasonably requested by the Agent in a format acceptable to the Agent.
(h) Copies of Receivable Documents. Upon request from the Agent, the
Custodian shall, at the expense of the Servicer, provide copies of Receivable
Documents to such Agent.
Section 15.4 Representations and Warranties of Custodian. The Custodian, in
its individual corporate capacity, represents and warrants to the Agent, the
Investor Agents and the Purchasers that:
(a) The Custodian (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and (ii) has
full corporate power and authority to conduct its business and affairs as a
Custodian;
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(b) The Custodian does not control, is not controlled by nor is under
common control with, the RPA Seller; and
(c) This Agreement, when executed and delivered by the Custodian, shall
constitute the valid, legal and binding obligation of the Custodian, enforceable
against the Custodian in accordance with its terms, except as the enforcement
thereof may be limited by applicable receivership or similar debtor relief laws
and that certain equitable remedies may not be available regardless of whether
enforcement is sought in equity or at law.
Section 15.5 Adverse Interests. By execution of this Agreement, the
Custodian represents, warrants and covenants that it does not currently hold,
and during the existence of this Agreement shall not hold, any adverse interest,
by way of security or otherwise, in any Receivable, and hereby waives and
releases any such interest that it may have in any Receivable as of the date
hereof. Notwithstanding any other provisions of this Agreement and without
limiting the generality of the foregoing, the Custodian shall not at any time
exercise or seek to enforce any claim, right or remedy, including any statutory
or common law rights of set-off, if any, that the Custodian may otherwise have
against all or any part of a Record, Receivable or proceeds of either.
Section 15.6 Termination or Resignation of Custodian .
(a) The Agent may, without cause, request that the Custodian be replaced
with a successor custodian. Upon receipt of written directions from Required
Financial Institutions desiring to remove the Custodian, the Agent shall
promptly notify the Custodian that all its rights and obligations under this
Agreement are terminated and the RPA Seller, with the consent of the Required
Financial Institutions, shall immediately appoint the successor custodian as
Custodian.
(b) On and after the Closing Date, the Custodian may at any time resign and
terminate its obligations under this Agreement upon at least 60 days prior
written notice to the Agent, the Servicer and the RPA Seller. Such resignation
shall not be effective until a successor Custodian, acceptable to the Agent and
the Investor Agents, shall have assumed the duties of Custodian hereunder.
Promptly after receipt of notice of the Custodian's resignation, the Agent shall
appoint by written instrument, a successor Custodian. If the Agent fails to
appoint a successor Custodian within 60 days of such notice of resignation, the
Custodian may petition a court of competent jurisdiction to appoint a successor
Custodian.
(c) Upon receipt of such notice of its termination pursuant to paragraph
(a) above or its resignation pursuant to paragraph (b) above, the Custodian will
take such actions as are necessary to best facilitate the transition of the
performance of the Custodian's activities to the successor Custodian, and the
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RPA Seller and the Custodian shall assist the successor custodian to assume and
perform the duties of the Custodian hereunder (including the immediate delivery
of all Receivable Documents to the successor custodian).
Section 15.7 Rights of Custodian.
(a) The Custodian may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or other documents
delivered to it and which in good faith it reasonably believes to be genuine and
which has been signed by the proper party or parties. The Custodian may rely
conclusively on and shall be protected in acting upon the written instructions
of any designated officer of the Agent or the Servicer.
(b) Each of the RPA Seller (solely to the extent that Monthly Available
Funds are paid to the RPA Seller pursuant to Section 2.2 or Amortization Period
Available Funds are paid to the RPA Seller pursuant to Section 2.3) and the
Servicer shall hold the Custodian harmless from and against all liabilities,
damages, losses, fees (including reasonable attorney's fees) and costs and
expenses incurred by the Custodian as a result of any legal proceedings or in
defending against any action or claim relating to the performance of its duties
hereunder, unless such liabilities, damages, losses, fees, costs and expenses
shall arise from the Custodian's negligence or willful misconduct. The
Custodian's rights to indemnification shall survive the termination of this
Agreement.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Waivers and Amendments.
(a) No failure or delay on the part of the Agent, any Investor Agent or any
Purchaser in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and remedies herein
provided shall be cumulative and nonexclusive of any rights or remedies provided
by law. Any waiver of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended, supplemented, modified
or waived except in writing in accordance with the provisions of this Section
16.1(b). The Servicer, the RPA Seller, the Investor Agents and the Agent, at the
direction of the Required Financial Institutions, may enter into written
modifications or waivers of any provisions of this Agreement, provided, however,
that no such modification or waiver shall:
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(i) without the consent of each affected Purchaser, (A) extend the
Liquidity Termination Date or the date of any payment or deposit of Collections
by the RPA Seller or the Servicer, (B) reduce the rate or extend the time of
payment of Yield (or any component thereof), (C) reduce any fee payable to the
Agent or Investor Agent for the benefit of the Purchasers, (D) except pursuant
to Article XIII hereof, change the amount of the Capital of any Purchaser, any
Financial Institution's Pro Rata Share (except pursuant to a Liquidity
Agreement) or any Financial Institution's Commitment, (E) amend, modify or waive
any provision of the definition of Required Financial Institutions or this
Section 16.1(b), (F) consent to or permit the assignment or transfer by the RPA
Seller of any of its rights and obligations under this Agreement, (G) change the
definition of "Eligible Receivable", "Aggregate Reserves", "Reserve Fund
Required Amount", "Hedge Event", "Hedge Accumulation Period", "Net Excess Spread
Percentage", "Three-Month Average Delinquency Ratio", "Three-Month Consolidated
Delinquency Ratio", "Three-Month Average Default Ratio", "Three-Month Average
Consolidated Default Ratio", "Three-Month Average Charge-Off Ratio", and
"Three-Month Consolidated Charge-Off Ratio" or (H) amend or modify any defined
term (or any defined term used directly or indirectly in such defined term) used
in clauses (A) through (G) above in a manner that would circumvent the intention
of the restrictions set forth in such clauses; or
(ii) without the written consent of the then Agent, amend, modify or waive
any provision of this Agreement if the effect thereof is to affect the rights or
duties of such Agent.
Notwithstanding the foregoing, (i) the Agent and any Investor Agent may, with
the consent of the RPA Seller and the Servicer, amend this Agreement solely to
add additional Persons as Financial Institutions for such Investor Agent's Group
hereunder and (ii) the Agent, the Required Financial Institutions and the
Conduits may enter into amendments to modify any of the terms or provisions of
Article XII, Article XIII, Section 16.13 or any other provision of this
Agreement without the consent of the RPA Seller and the Servicer, provided that
such amendment has no negative impact upon such Person. Any modification or
waiver made in accordance with this Section 16.1 shall apply to each of the
Purchasers equally and shall be binding upon the RPA Seller, the Purchasers, the
Investor Agents and the Agent.
Section 16.2 Notices. Except as provided below, all communications and
notices provided for hereunder shall be in writing (including bank wire,
telecopy or electronic facsimile transmission or similar writing) and shall be
given to the other parties hereto at their respective addresses or telecopy
numbers set forth on the signature pages hereof or at such other address or
telecopy number as such Person may hereafter specify for the purpose of notice
to each of the other parties hereto. Each such notice or other communication
shall be effective (i) if given by telecopy, upon the receipt thereof, (ii) if
given by mail, at the time such communication is received via first class mail
or (iii) if given by any other means, when received at the address specified in
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this Section 16.2. The RPA Seller hereby authorizes each Investor Agent to
effect purchases and Tranche Period and Discount Rate selections based on
telephonic notices made by any Person whom the Agent or such Investor Agent in
good faith believes to be acting on behalf of the RPA Seller. The RPA Seller
agrees to deliver promptly to the Agent and each Investor Agent a written
confirmation of each telephonic notice signed by an authorized officer of the
RPA Seller; however, the absence of such confirmation shall not affect the
validity of such notice. If the written confirmation differs from the action
taken by the Agent or such Investor Agent, the records of the Agent and such
Investor Agent shall govern absent manifest error.
Section 16.3 Ratable Payments. If any Purchaser, whether by setoff or
otherwise, has payment made to it with respect to any portion of the Aggregate
Unpaids owing to such Purchaser (other than payments received pursuant to
Section 11.2 or 11.3) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of such Aggregate Unpaids held by the other Purchasers so
that after such purchase each Purchaser will hold its ratable proportion of such
Aggregate Unpaids; provided that if all or any portion of such excess amount is
thereafter recovered from such Conduit or Financial Institution, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.
Section 16.4 Protection of Ownership Interests of the Purchasers.
(a) The RPA Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents, and take all
actions, that may be necessary or desirable, or that the Agent or any Investor
Agent may reasonably request, to perfect, preserve, maintain, protect or more
fully evidence the Purchaser Interests, or to enable the Agent, any Investor
Agent or the Purchasers to exercise and enforce their rights and remedies
hereunder. At any time after the occurrence or during the continuation of an
Amortization Event, the Agent may, or the Agent may, direct the RPA Seller or
Servicer to, notify the Obligors of Receivables, at the RPA Seller's expense,
that the Agent is acting on behalf of the ownership interests of the Purchasers
under this Agreement and may also direct that payments of all amounts due or
that become due under any or all Receivables be made directly to the Agent or
its designee. The RPA Seller or the Servicer (as applicable) shall, at any
Purchaser's request, withhold the identity of such Purchaser (but not of the
Agent) in any such notification.
(b) If any Trendwest Party fails to perform any of its obligations
hereunder, the Agent, any Investor Agent or any Purchaser may (but shall not be
required to) perform, or cause performance of, such obligation, and the Agent's
or such Investor Agent's or such Purchaser's costs and expenses incurred in
connection therewith shall be payable by the RPA Seller as provided in Section
11.3. Each Trendwest Party irrevocably authorizes the Agent at any time and from
time to time in the sole discretion of the Agent, and appoints the Agent as its
attorney-in-fact, to act on behalf of such Trendwest Party (i) to execute on
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behalf of the RPA Seller as debtor and to file financing statements necessary or
desirable in the Agent's sole discretion to perfect and to maintain the
perfection and priority of the interest of the Purchasers in the Receivables and
(ii) to file a carbon, photographic or other reproduction of this Agreement or
any financing statement with respect to the Receivables as a financing statement
in such offices as the Agent in its sole discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the interests of the
Purchasers in the Receivables. This appointment is coupled with an interest and
is irrevocable.
(c) If, at any time following an Amortization Event, in connection with the
sale, liquidation or disposition by the Agent, any Purchaser or any Servicer of
any Receivables, Timeshare Interests, or other Related Security, it is necessary
to obtain any license or to register or qualify any such Person or any such
collateral under any applicable law or regulation, each Trendwest Party shall,
at the expense of such Trendwest Party, take all actions that may be necessary
or desirable, or that the Agent may reasonably request, to assist in any such
licensing, registration or qualification, and the Trendwest Parties shall
reimburse such Agent or Investor Agent, each Purchaser and any such Servicer
(other than Trendwest or any Affiliate thereof) for any fees, costs or expenses
incurred thereby.
(d) Each Investor Agent and each Purchaser (i) acknowledges that the Agent
is and will be the "secured party of record" (as defined in the applicable UCC)
for purposes of any Financing Statement filed with respect to the Receivables,
Related Security and Collections, and (ii) authorizes the Agent to
execute,deliver or consent to (x) any Financing Statements or other
documentation necessary to perfect, amend or release or terminate such security
interests, (y) any Request for Release pursuant to Section 2.10 and (z) any
other release provided for in the Agreement with respect to the Receivables.
Section 16.5 Confidentiality.
(a) Each Trendwest Party and each Purchaser shall maintain and shall cause
each of its employees and officers to maintain the confidentiality of this
Agreement and the other confidential proprietary information with respect to the
Agent, the Investor Agents and Conduits and their respective businesses obtained
by it or them in connection with the structuring, negotiating and execution of
the transactions contemplated herein, except that such Trendwest Party and such
Purchaser and its officers and employees may disclose such information to such
Trendwest Party's and such Purchaser's external accountants and attorneys and as
required by any applicable law or order of any judicial or administrative
proceeding.
(b) Anything herein to the contrary notwithstanding, each Trendwest Party
and the Subservicer hereby consent to the disclosure of any nonpublic
information with respect to it (i) to the Agent, the Investor Agents, the
Financial Institutions or a Conduit by each other, (ii) by the Agent, the
Investor Agents or the Purchasers to any prospective or actual assignee or
participant of any of them or to any prospective successor Servicer, or (iii) by
the Agent or any Investor Agent or any Conduit to any rating agency, Commercial
Paper dealer or provider of a surety, guaranty or credit or liquidity
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enhancement to the Conduits or any entity organized for the purpose of
purchasing, or making loans secured by, financial assets for which Bank One or
Fleet acts as the administrative agent and to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing. In
addition, the Purchasers, the Investor Agents and the Agent may disclose any
such nonpublic information pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law).
Section 16.6 Bankruptcy Petition. The RPA Seller, the Servicer, the Agent,
each Investor Agent, each Conduit, the Custodian and each Financial Institution
hereby covenants and agrees that, prior to the date that is one year and one day
after the payment in full of all outstanding senior Indebtedness of any Conduit,
it will not institute against, or join any other Person in instituting against,
any other Conduit any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States. The provisions of this Section 16.6
shall survive the termination of this Agreement.
Section 16.7 Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of any Conduit, the
Agent, any Investor Agent or any Financial Institution, no claim may be made by
any Trendwest Party or any other Person against any Conduit, the Agent, any
Investor Agent or any Financial Institution or their respective Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or any other theory of liability arising out of or related to the transactions
contemplated by this Agreement, or any act, omission or event occurring in
connection therewith; and each Trendwest Party hereby waives, releases, and
agrees not to sue upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
Section 16.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE
OF ILLINOIS.
Section 16.9 CONSENT TO JURISDICTION. EACH TRENDWEST PARTY HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH OF TRENDWEST PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
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NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY PURCHASER TO BRING
PROCEEDINGS AGAINST ANY TRENDWEST PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY ANY ORIGINATING PARTY AGAINST THE AGENT OR ANY
PURCHASER OR ANY AFFILIATE OF THE AGENT OR A PURCHASER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH ORIGINATING PARTY PURSUANT TO
THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
Section 16.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY THE
SELLER PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
Section 16.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement amends and restates in its entirety the Previous
Purchase Agreement. Reference to this specific Agreement need not be made in any
agreement, document, instrument, letter, certificate, the Previous Purchase
Agreement itself, or any communication issued or made pursuant to or with
respect to the Previous Purchase Agreement, any reference to the Previous
Purchase Agreement being sufficient to refer to the Previous Purchase Agreement
as amended and restated hereby. This Agreement, each Collection Account
Agreement, each Liquidity Agreement and each Fee Letter contain the final and
complete integration of all prior expressions by the parties hereto with respect
to the subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns (including
any Paying Agent in bankruptcy). This Agreement shall create and constitute the
continuing obligations of the parties hereto in accordance with its terms and
shall remain in full force and effect until terminated in accordance with its
terms; provided, however, that the rights and remedies with respect to (i) any
breach of any representation and warranty made by any Trendwest Party or
Subservicer pursuant to Article V, (ii) the indemnification and payment
provisions of Article XI, and Sections 16.3 and 16.4 shall be continuing and
shall survive any termination of this Agreement.
Section 16.12 Counterparts; Severability; Section References. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
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to be an original and all of which when taken together shall constitute one and
the same Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
Section 16.13 Bank Roles.
(a) Each of the Financial Institutions in the Bank One Group acknowledges
that Bank One acts, or may in the future act, (i) as administrative agent for
Conduits in the Bank One Group, (ii) as issuing and paying agent for the
Commercial Paper of certain Conduits, (iii) as Paying Agent, (iv) to provide
credit or liquidity enhancement for the timely payment for the Commercial Paper
of certain Conduits and (v) to provide other services from time to time for
Conduits in the Bank One Group (collectively, the "Bank One Roles"). Without
limiting the generality of this Section 16.13, each Financial Institution in the
Bank One Group hereby acknowledges and consents to any and all Bank One Roles
and agrees that in connection with any Bank One Role, Bank One may take, or
refrain from taking, any action that it, in its discretion, deems appropriate,
including in its role as administrative agent for the Investor Agents and
Purchasers, and the giving of notice to the Agent of a mandatory purchase
pursuant to a Liquidity Agreement.
(b) Each of the Financial Institutions in the Fleet Group acknowledges that
Fleet acts, or may in the future act, (i) as issuing and paying agent for the
Commercial Paper of certain Conduits, (ii) to provide credit or liquidity
enhancement for the timely payment for the Commercial Paper of certain Conduits
and (iii) to provide other services from time to time for Conduits in the Fleet
Group (collectively, the "Fleet Roles"). Without limiting the generality of this
Section 16.13, each Financial Institution in the Fleet Group hereby acknowledges
and consents to any and all Fleet Roles and agrees that in connection with any
Fleet Role, Fleet may take, or refrain from taking, any action that it, in its
discretion, deems appropriate.
(c) Each of the Financial Institutions in the Fleet Group acknowledges that
FSI acts, or in the future may act as administrative agent for Conduits in the
Fleet Group. Without limiting the generality of this Section 16.13, each
Financial Institution in the Fleet Group hereby acknowledges and consents to
this role of FSI and agrees that in connection with this role, FSI may take, or
refrain from taking, any action that it in its discretion, deems appropriate,
including acting as administrative agent for the Purchasers and the giving of
notice to the Agent of a mandatory purchase pursuant to a Liquidity Agreement.
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Section 16.14 Characterization.
(a) It is the intention of the parties hereto that each purchase hereunder
shall constitute and be treated as an absolute and irrevocable sale, which
purchase shall provide the applicable Purchaser with the full benefits of
ownership of the applicable Purchaser Interest. Except as specifically provided
in this Agreement, each sale of a Purchaser Interest hereunder is made without
recourse to the RPA Seller; provided, however, that (i) the RPA Seller shall be
liable to each Purchaser, the Investor Agent and the Agent for all
representations, warranties and covenants made by the RPA Seller pursuant to the
terms of this Agreement, and (ii) such sale does not constitute and is not
intended to result in an assumption by any Purchaser, the Investor Agent or the
Agent or any assignee thereof of any obligation of the RPA Seller or any
Originator or any other person arising in connection with the Receivables, the
Related Security, or the related Contracts, or any other obligations of the RPA
Seller or any Originator.
(b) If the conveyance by the RPA Seller to the Investor Agents for the
benefit of the Purchasers of interests in Receivables hereunder shall be
characterized as a secured loan and not a sale, it is the intention of the
parties hereto that this Agreement shall constitute a security agreement under
applicable law. In furtherance of the foregoing, the RPA Seller hereby grants to
the Agent for the ratable benefit of the Purchasers a valid and perfected
security interest in all of the RPA Seller's right, title and interest in, to
and under the Receivables, the Collections, each Collection Account, all Related
Security, all other rights and payments relating to the Receivables, and all
proceeds of any thereof prior to all other liens on and security interests
therein to secure the prompt and complete payment of the Aggregate Unpaids.
After an Amortization Event, the Agent, the Investor Agents and the Purchasers
shall have, in addition to the rights and remedies that they may have under this
Agreement, all other rights and remedies provided to a secured creditor after
default under the UCC and other applicable law, which rights and remedies shall
be cumulative.
Section 16.15 Nonrecourse Nature of Transactions. Each of the parties
hereto hereby acknowledges and agrees that all transactions with the Conduits
hereunder shall be without recourse of any kind to such Conduit. Each Conduit
shall have no obligation to pay any amounts owing hereunder unless and until
such Conduit has received such amounts pursuant to the Agreement. In addition,
each party agrees that each Conduit shall have no obligation to pay any party,
any amounts constituting fees, a reimbursement for expenses of indemnities,
(collectively, "Expense Claims") and such Expense Claims shall not constitute a
claim against such Conduit (as defined in Section 101 of Title 11 of the United
States Bankruptcy Code), unless or until such Conduit has received amounts
sufficient to pay such Expense Claims pursuant to the Agreement or the Liquidity
Agreement and such amounts are not required to pay the Commercial Paper issued
on behalf of such Conduit. This provision shall survive termination of the
Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
TW HOLDINGS III, INC., as RPA Seller
By:__________________________________
Name:
Title:
Address: 9805 Willows Road
Redmond, WA 98052
TRENDWEST RESORTS INC., as Servicer, an Originator
and RSA Seller
By:__________________________________
Name:
Title:
Address: 9805 Willows Road
Redmond, WA 98052
JUPITER SECURITIZATION CORPORATION, as a
Conduit
By:__________________________________
Authorized Signatory
Address: c/o Bank One, NA (Main Office Chicago),
as Agent
Asset Backed Finance
Suite 0079, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-0019
Fax: (312) 732-1844
66
BANK ONE, NA (MAIN OFFICE CHICAGO), as a
Financial Institution, an Investor Agent and as Agent
By:__________________________________
Name:
Title:
Address: Bank One, NA (Main Office Chicago)
Asset Backed Finance
Suite 0596, 1-21
1 Bank One Plaza
Chicago, Illinois 60670-0596
Fax: (312) 732-4487
BANK ONE TRUST COMPANY, NA, as Paying Agent
By:__________________________________
Name:
Title:
Address: Bank One Trust Company, NA
Attn: Darlington Cummings
235 West Schrock Road
Westerville, OH 43081
Fax: (602) 221-1711
67
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Custodian
By:__________________________________
Name:
Title:
Address: Sixth Street and Marquette
MAC N9311-161
Minneapolis, Minnesota 55479
Attn: Corporate Trust Services,
Asset Backed Administration
Fax: (612) 667-3464
BLUE KEEL FUNDING, LLC, as a Conduit
By:__________________________________
Name:
Title:
Address: c/o Global Securitization Services, LLC
114 West 47th Street, Suite 1715
New York, New York 10036
Fax:
FLEET NATIONAL BANK, as a Financial Institution and an
Investor Agent
By:__________________________________
Name:
Title:
Address: 115 Perimeter Center Place NE
Atlanta, Georgia 30346
Attn: Andrew Stickney
Fax: (770) 390-8434
Phone: (770) 390-6529
68
FLEET SECURITIES, INC., as an Investor Agent
By:__________________________________
Name:
Title:
Address: 100 Federal Street
Boston, MA 02110
Attn: David Ruote
Fax: (617) 434-1533
Phone: (617) 434-4016
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EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Acceptable Title Policy" means, with respect to a Fractional Interest, a
title insurance policy (i) issued by a title insurance company qualified to
write such title insurance policy in the relevant jurisdiction; (ii) insuring
that the Mortgage in respect thereof is a valid first mortgage lien on such
Fractional Interest, subject only to Permitted Liens; (iii) in full force and
effect; (iv) freely assignable; (v) which will inure to the benefit of the Agent
as mortgagee of record; (vi) in respect of which no prior mortgagee has done, by
act or omission, anything which would impair the coverage of any such title
insurance policy; (vii) is on an ALTA 1992 form (or the equivalent in the
Applicable Jurisdiction, omitting or waiving any arbitration requirement and the
"creditor's rights" exclusion) with an effective date as of the date of the
recording of the Mortgage; and (viii) containing endorsements (A) insuring that
no building restriction, easement, covenant or other similar exception to title
disclosed on such title insurance policy has been violated and that any
violation thereof would not create or result in any reversion, reverter or
forfeiture of title, (B) with respect to zoning in the form typically issued in
the Applicable Jurisdiction (unless other evidence of compliance with zoning
requirements has been provided to the satisfaction of the Agent); (C) insuring
over any environmental super lien or similar lien upon all or any portion of the
related FI Resort and (D) insuring over violation of usury laws.
"Accrual Period" means each calendar month, provided that the initial
Accrual Period hereunder means the period from (and including) the date of the
initial purchase hereunder to (and including) the last day of the calendar month
thereafter.
"Accrued Balance" means, with respect to a Receivable as of any date of
determination, the Outstanding Balance of such Receivable plus the amount of any
accrued and unpaid interest on such Receivable on such date.
"Acquisition Agreement" means the Acquisition Agreement, dated as of May 4,
2001, by and among Eagle Crest, Eagle Crest Vacation Club, Running Y Resort,
TWRI and WorldMark.
"Adverse Claim" means a lien, security interest, charge or encumbrance, or
other right or claim in, of or on any Person's assets or real or personal
properties in favor of any other Person, other than the rights created under the
Transaction Documents.
"Affected Financial Institution" has the meaning specified in Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person or any
Exh. I-1
Subsidiary of such Person. A Person shall be deemed to control another Person if
the controlling Person owns 10.0% or more of any class of voting securities of
the controlled Person or possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aged Receivable" means, at the end of any Accrual Period, an Eligible
Receivable which was assigned from the RSA Seller to the RPA Seller pursuant to
the Sale Agreement on an RSA Purchase Date which occurred 24 months or more
prior to the end of such Accrual Period. In the case of an Upgrade Receivable,
such 24 months shall be measured from the RSA Purchase Date upon which the
related Pre-Upgrade Receivable was assigned from the RPA to the RPA Seller.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Aggregate Capital" means, at any time, an amount equal to the sum of the
Capital of each Purchaser Interest at such time.
"Aggregate Reserves" means the sum of Aggregate Reserves (Legacy Eagle
Crest Receivables) and Aggregate Reserves (Basic Receivables).
"Aggregate Reserves (Legacy Eagle Crest Receivables)" means, at any time,
an amount equal to 23% of the Net Receivables Balance (Legacy Eagle Crest
Receivables) as of the close of business of the Servicer on such date.
"Aggregate Reserves (Basic Receivables)" means, on any date, an amount
equal to the product of (i) the Basic Receivables Operative Enhancement Factor
multiplied by (ii) the Net Receivables Balance (Basic Receivables) as of the
close of business of the Servicer on such date.
"Aggregate Unpaids" means, at any time, an amount equal to the sum of all
accrued and unpaid fees under the Fee Letters, all CP Costs, Yield, Aggregate
Capital and all other unpaid Obligations (whether due or accrued) at such time.
"Agreement" means this Receivables Purchase Agreement, as it may be amended
or modified and in effect from time to time.
"Allocated Commercial Paper" means Commercial Paper issued by or on behalf
of a Conduit which is allocated to the Purchaser Interests of such Conduit.
"Amortization Date" means the earlier to occur of (i) the Business Day
specified in a written notice from the Agent delivered pursuant to Section 10.2
following the occurrence of any Amortization Event, and (ii) the date which is
30 Business Days after the Agent's receipt of written notice from the RPA Seller
that it wishes to terminate the facility evidenced by this Agreement.
"Amortization Event" has the meaning specified in Section 10.1.
Exh. I-2
"Amortization Period Available Funds" shall mean, on any Settlement Date on
or following the Amortization Date, the aggregate of (i) the Monthly Available
Funds for such Settlement Date, (ii) all amounts on deposit in the Reserve
Account and (iii) if so determined by the Agent pursuant to Section 9.1(c), all
amounts then on deposit in the Hedge Account.
"Applicable Declaration" means, with respect to a Resort, the declaration
of condominium, declaration of covenants, conditions, and restrictions, master
deed, or similar document, together with any amendments or restatements thereof,
that establishes the underlying form of ownership of such Resort and, if
required by applicable law, that is recorded in the appropriate public records
of the Applicable Jurisdiction.
"Applicable Jurisdiction" means, with respect to a Resort or a Unit, the
state, county, municipality, and/or other governmental jurisdiction (including a
foreign jurisdiction if applicable) in which such Resort or Unit is located.
"Applicable Timeshare Documents" means all Applicable Declarations and
other documents and instruments relating to a Resort and Unit, Common Elements,
if any, Common Furnishings, if any, including, but not limited to, the project
documents, registrations and other approvals, business licenses, Contracts,
homeowners association agreements, and corporate documents and other documents
to the extent used in the marketing, sale, and financing of such Timeshare
Interests. Each Applicable Timeshare Document shall be in form and content
acceptable to the Agent. Promptly upon the request of the Agent or any Investor
Agent, the Servicer shall deliver to the Agent or such Investor Agent true,
correct, and complete copies of all Applicable Timeshare Documents and any
material amendments thereto.
"Assignment Agreement" has the meaning set forth in Section 13.1(b).
"Authorized Officer" shall mean, with respect to any Trendwest Party, its
respective corporate controller, chief financial officer or any other designated
officer acceptable to the Agent.
"Automatic Debit Collection" means the payment under a Contract by an
Obligor by means of automatic electronic funds transfer from the Obligor's bank
account to the Clearing Account.
"Bank One" means Bank One, NA (Main Office Chicago), in its individual
capacity, and its successors.
"Bank One Group" means the Group for which Bank One or its successor serves
as Investor Agent.
"Basic Receivables" means all Receivables other than Legacy Eagle Crest
Receivables.
Exh. I-3
"Basic Receivables Operative Enhancement" means, on any date, the greater
of (A) 10% and (B) the Credit Enhancement Factor then in effect minus 2%
"Big 5 Accounting Firm" means any of the independent public accounting
firms of Arthur Andersen, Deloitte & Touche, Ernst & Young, KPMG LLP,
PriceWaterhouseCoopers, or their successors.
"Blue Keel " has the meaning set forth in the preamble to this Agreement.
"Broken Funding Costs" means for any Purchaser Interest which (X) (i) has
its Capital reduced or terminated without compliance with the notice
requirements hereunder, (ii) has its Capital reduced or terminated in connection
with a release pursuant to Section 2.10(c)(i) (other than a release occurring on
a Settlement Date) or (iii) is assigned pursuant to a Liquidity Agreement or
terminated prior to the date it was originally scheduled, the excess, if any, of
(A) the CP Costs or Yield (as applicable) that would have accrued during the
remainder of the tranche periods for Commercial Paper determined by the
applicable Investor Agent to relate to such Purchaser Interest subsequent to the
date of such reduction or termination on the Capital of such Purchaser Interest
if such reduction or termination had not occurred, over (B) the sum of (x) to
the extent all or a portion of such Capital is allocated to another Purchaser
Interest, CP Costs or Yield (as applicable) actually accrued during such periods
on such Capital for the new Purchaser Interest, and (y) to the extent such
Capital is not allocated to another Purchaser Interest, the income, if any,
actually received during such period by the holder of such Purchaser Interest
from investing the portion of such Capital not so allocated; or (Y) does not
become subject to reduction following the delivery of a Monthly Report
describing a reduction (as provided in Section 1.3), the amount of CP Costs or
Yield, swap costs or other interest or hedging expense that accrues for
Commercial Paper or other funding sources determined by the applicable Investor
Agent to relate to such Purchaser Interest subsequent to the date such reduction
was designated to occur pursuant to such Monthly Report on the Capital of such
Receivable Interest. In the event that the amount referred to in clause (X) (B)
exceeds the amount referred to in clause (X) (A), the relevant Purchaser or
Purchasers agree to pay to the RPA Seller the amount of such excess. All Broken
Funding Costs shall be due and payable hereunder upon demand.
"Business Day" means any day on which banks are not authorized or required
to close in New York, New York or Chicago, Illinois and The Depository Trust
Company of New York is open for business and, if the applicable Business Day
relates to any computation or payment to be made with respect to the LIBO Rate,
any day on which dealings in dollar deposits are carried on in the London
interbank market.
"Capital" of any Purchaser Interest means, at any time, (A) the Purchase
Price of such Purchaser Interest, minus (B) the sum of the aggregate amount of
Collections and other payments received by the Agent which in each case are
applied to reduce such Capital in accordance with the terms and conditions of
this Agreement; provided that such Capital shall be restored (in accordance with
Section 2.5) in the amount of any Collections or other payments so received and
applied if at any time the distribution of such Collections or payments are
rescinded, returned or refunded for any
Exh. I-4
reason.
"Capitalization Ratio" means the ratio of (a) Consolidated Indebtedness to
(b) Consolidated Net Worth.
"Carrying and Servicing Costs" means, for any Accrual Period, the sum of
(i) all CP Costs for such Accrual Period, (ii) all Yield allocable to such
Accrual Period, (iii) all fees set forth in the Fee Letters which are allocable
to such Accrual Period and (iv) the servicing fees and expenses payable to the
Servicer for such Accrual Period pursuant to Section 8.6 of this Agreement or
otherwise.
"Change of Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of any
Trendwest Party or any Originator.
"Charge-Off Factor" means, with respect to any Accrual Period, a fraction
of which the numerator is 365 and the denominator is the number of days in such
Accrual Period.
"Charge-Off Ratio" means, with respect to any Accrual Period, a fraction,
expressed as a percentage on a per annum basis, the numerator of which is the
product of (x) the Charge-off Factor for such Accrual Period, and (y) the
Outstanding Balance of all Receivables that became Charged-Off Receivables
during such Accrual Period (but excluding the Outstanding Balance of all
Charged-off Receivables that were repurchased by any Originator pursuant to
Section 1.5 on the Settlement Date related to such Accrual Period) and the
denominator of which is the average Outstanding Balance of all Receivables for
such Accrual Period (but excluding any such repurchased Receivables).
"Charged-Off Receivable" means a Receivable: (i) as to which the Obligor
thereof has taken any action, or suffered any event to occur, of the type
described in Section 10.1(d) (as if references to Trendwest Party therein refer
to such Obligor); (ii) as to which the Obligor thereof, if a natural person, is
deceased; (iii) which, consistent with the Credit and Collection Policy, would
be written off TWRI's books as uncollectible; (iv) which has been identified by
the RPA Seller as uncollectible; or (v) as to which any payment, or part
thereof, remains unpaid for 179 days or more from the original due date for such
payment.
"Charged-Off Serviced Receivable" means a Serviced Receivable: (i) as to
which the Obligor thereof has taken any action, or suffered any event to occur,
to that of the type described in Section 10.1(d) or a similar event (as if
references to Trendwest Party therein refer to such Obligor); (ii) as to which
the Obligor thereof, if a natural person, is deceased, (iii) which, consistent
with the Credit and Collection Policy, would be written off an Originator's
books as uncollectible, (iv) which has been identified by the RPA Seller as
uncollectible or (v) as to which any payment, or part thereof, remains unpaid
for 179 days or more from the original due date for such payment.
Exh. I-5
"Clearing Account" has the meaning set forth in Section 8.2(b).
"Clearing Account Agent" shall have the meaning set forth in Section
8.2(b).
"Clearing Account Bank" shall have the meaning set forth in Section 8.2(b).
"Collection Account" has the meaning set forth in Section 2.9(a).
"Collections" means, with respect to any Receivable, all cash collections
and other cash proceeds in respect of such Receivable, including all yield,
finance charges or other related amounts accruing in respect thereof, all
proceeds of repurchases pursuant to Section 1.5 of this Agreement, all payments
made by or on behalf of the RPA Seller in respect of Deemed Collections and all
cash proceeds of Related Security with respect to such Receivable.
"Commercial Paper" means promissory notes of a Conduit issued by or on
behalf of a Conduit in the commercial paper market.
"Commitment" means, for each Financial Institution, the commitment of such
Financial Institution to purchase its Pro Rata Share of Purchaser Interests from
(i) the RPA Seller and (ii) the Conduits in its Group (the Capital associated
with such Pro Rata Share of such Purchaser Interests not to exceed, in the
aggregate, the product of (x) the result of 100.0 divided by 102.0 and (y) of
the amount set forth opposite such Financial Institution's name on Schedule A to
this Agreement, as such amount may be modified in accordance with the terms
hereof).
"Common Elements" means the common areas and facilities, as defined or
provided for in the Applicable Declaration or other Applicable Timeshare
Documents, including, without limitation, the land and all improvements thereto
except for the Units that have been dedicated to a timeshare regime or
comparable form of ownership, as well as any limited common elements, as those
terms are defined and used in the Applicable Declaration.
"Common Furnishings" means all furniture, furnishings, fixtures,
appliances, carpeting, and equipment located in a Unit or elsewhere within a the
Resorts and Units and available for use by Obligors in accordance with the terms
and conditions of the Applicable Timeshare Documents.
"Concord" means Concord Servicing Corporation, an Arizona corporation.
"Concord Account" means the account described as the "Concord Account" on
Exhibit XII to the Agreement.
"Concord Servicing Agreement" means the time period during which Concord is
acting as Subservicer for the Legacy Eagle Crest Receivables.
Exh. I-6
"Concord's Collection Policy" means Concord's collection policies and
practices relating to Contracts and Receivables (including Legacy Eagle Crest
Receivables) existing on the date hereof and summarized in Exhibit XII to the
Sale Agreement, as modified from time to time in accordance with the Agreement.
"Conduit" means each of (i) Jupiter, (ii) Blue Keel and (iii) each other
issuer of asset-backed commercial paper that, at the consent of the RPA Seller
or TWRI, becomes the owner by assignment or otherwise of a Purchaser Interest
and, to the extent of the undivided interests so purchased, shall include any
participants.
"Consolidated Charge-Off Ratio" means, for any Accrual Period, a fraction,
expressed as a percentage on a per annum basis, the numerator of which is the
product of (x) the Charge-off Factor for such Accrual Period, and (y) the
Outstanding Balance of all Serviced Receivables that became Charged-Off
Receivables during such Accrual Period and the denominator of which is the
average Outstanding Balance of all Serviced Receivables for each day in such
Accrual Period.
"Consolidated Default Ratio" means, at any time, a percentage equal to (i)
the aggregate Outstanding Balance of all Serviced Receivables that were
Defaulted Serviced Receivables at such time divided by (ii) the aggregate
Outstanding Balance of all Serviced Receivables at such time.
"Consolidated Delinquency Ratio" means, at any time, a percentage equal to
(i) the aggregate Outstanding Balance of all Serviced Receivables that were
Delinquent Serviced Receivables at such time divided by (ii) the aggregate
Outstanding Balance of all Serviced Receivables at such time.
"Consolidated Indebtedness" means the consolidated Indebtedness of TWRI and
its consolidated Subsidiaries.
"Consolidated Net Worth" means the consolidated shareholders' equity of
TWRI and its consolidated Subsidiaries.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including any comfort letter, operating agreement, take-or-pay
contract or application for a letter of credit.
"Contract" means (in the case of a Fractional Interest Receivable) a
Mortgage Note or (in the case of Receivables other than Fractional Interest
Receivables) an Installment Sale Contract and (in either case) and any and all
other instruments, agreements, invoices, or other
Exh. I-7
writings pursuant to which Indebtedness of an Obligor to any Originator arises
or which evidences such Indebtedness.
"CP Costs" means:
(a) with respect to Jupiter, for each day the sum of (i) discount accrued
on Pooled Commercial Paper issued by Jupiter on such day, plus (ii) any and all
accrued commissions in respect of placement agents and Commercial Paper dealers,
and issuing and paying agent fees incurred, in respect of such Pooled Commercial
Paper for such day, plus (iii) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase facilities which are
funded by such Pooled Commercial Paper for such day, minus (iv) any accrual of
income net of expenses received on such day from investment of collections
received under all receivable purchase facilities funded substantially with such
Pooled Commercial Paper, minus (v) any payment received on such day net of
expenses in respect of Broken Funding Costs related to the prepayment of any
Receivables Interest of Jupiter pursuant to the terms of any receivable purchase
facilities funded substantially with Pooled Commercial Paper issued by Jupiter,
plus (vi) upon the occurrence and during the continuation of an Amortization
Event or an Excess Aged Receivables Event, an amount equal to the daily
equivalent of 2.0% per annum of total outstanding Capital of Purchaser Interests
of Jupiter. In addition to the foregoing costs, if the RPA Seller shall request
any Incremental Purchase during any period of time determined by Jupiter's
Investor Agent in its sole discretion to result in incrementally higher CP Costs
applicable to such Incremental Purchase, the Capital associated with any such
Incremental Purchase shall, during such period, be deemed to be funded by
Jupiter in a special pool (which may include capital associated with other
receivable purchase facilities) for purposes of determining such additional CP
Costs applicable only to such special pool and charged each day during such
period against such Capital; and
(b) with respect to Blue Keel, for any Accrual Period (or portion thereof),
the discount which may be paid or payable by Blue Keel from time to time as (i)
interest on or otherwise (by means of hedge agreements or otherwise) in respect
of Allocated Commercial Paper during such Accrual Period as determined by or on
behalf of Blue Keel, and (ii) interest on such interest since the last
Settlement Date, as determined by or on behalf of Blue Keel, which discount
shall reflect and give affect to the commissions of placement agents and dealers
in respect of such Allocated Commercial Paper and to net payments owed or
received by Blue Keel under any hedge agreements entered into by or on behalf of
Blue Keel in connection with such Allocated Commercial paper; and
(c) with respect to any other issuer of asset-backed commercial paper which
becomes a Conduit hereunder, the amount specified in the agreement by which such
asset-backed commercial paper issuer becomes a party hereunder.
"Credit Agreement" means that certain Credit Agreement dated as of August
14, 2000, among TWRI, Trendwest South Pacific Party, Ltd., Key Bank National
Association, Bank One, N.A., Fleet and other financial institutions party
thereto, as it may be amended from time to time and any replacements thereof.
Exh. I-8
"Credit and Collection Policy" means TWRI's credit and collection policies
and practices relating to Contract and Receivables and related contracts
existing on the date hereof and summarized in Exhibit VIII hereto, as modified
from time to time in accordance with this Agreement.
"Credit Enhancement Factor" means a percentage based on the levels of
aggregate reserves utilized in the most recently completed offering of rated,
intermediate term asset-backed securities backed by receivables originated
primarily by TWRI (the "Most Recent Offering"), as reasonably determined by the
Agent. The new Credit Enhancement Factor shall go into effect on the Settlement
Date immediately following the closing date of the Most Recent Offering. The
Credit Enhancement Factor shall be determined using the following formula:
BBB Enhancement Level + 1% + (A Enhancement Level - BBB Enhancement Level)
2 where:
A Enhancement Level = the percentage of aggregate reserves required to
achieve a "A" credit rating (or its equivalent) from each nationally recognized
rating agency rating the Most Recent Offering.
BBB Enhancement Level = the percentage of aggregate reserves required to
achieve a "BBB" credit rating (or its equivalent) from each nationally
recognized rating agency rating the Most Recent Offering.
"Custodian" means at any time the Person then authorized pursuant to
Article XV to act as custodian and bailee with respect to the Receivable
Documents.
"Deemed Collections" means the aggregate of all amounts the RPA Seller
shall have been deemed to have received as a Collection of a Receivable. Unless
a Receivable has been repurchased pursuant to Section 1.5 or such Receivable has
been the subject of an Upgrade which complies with Section 1.6 of this
Agreement, the RPA Seller shall be deemed to have received a Collection in full
of a Receivable if at any time (i) the Outstanding Balance of any such
Receivable is either (x) reduced as a result of any defective or rejected goods
or services (including an Obligor's inability to exercise the Obligor's rights
to use Resorts and Units), any discount or any adjustment or otherwise by the
RPA Seller (other than cash Collections on account of the Receivables) or (y)
reduced or canceled as a result of a setoff in respect of any claim by any
Person (whether such claim arises out of the same or a related transaction or an
unrelated transaction) or (ii) any of the representations or warranties in
Article V are no longer true with respect to any Receivable. The RPA Seller
shall be deemed to have received such Collection contemporaneously with the
occurrence of such event.
"Default Fee" means with respect to any amount due and payable by the RPA
Seller
Exh. I-9
in respect of any Aggregate Unpaids, an amount equal to the greater of (i) $1000
and (ii) interest on any such unpaid Aggregate Unpaids at a rate per annum equal
to 2.0% above the Prime Rate.
"Defaulted Receivable" means a Receivable on which payment of all or part
of the amount due remains unpaid for more than 90 and less than 179 days but
which is not a Charged-Off Receivable.
"Defaulted Serviced Receivable" means, a Serviced Receivable on which
payment of all or part of the amount due remains unpaid for more than 90 and
less than 179 days but which is not a Charged-Off Serviced Receivable.
"Default Ratio" means, at any time, a percentage equal to (i) the aggregate
Outstanding Balance of all Receivables that were Defaulted Receivables at such
time divided by (ii) the aggregate Outstanding Balance of all Receivables at
such time.
"Delinquency Ratio" means, at any time, a percentage equal to (i) the
aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time divided by (ii) the aggregate Outstanding Balance of
all Receivables at such time.
"Delinquent Receivable" means a Receivable as to which any payment, or part
thereof, remains unpaid for 31 days or more from the original due date for such
payment but which is not a Charged-Off Receivable.
"Delinquent Serviced Receivable" means a Serviced Receivable as to which
any payment, or part thereof, remains unpaid for 31 or more days or more from
the original due date for such payment but which is not a Charged-Off Serviced
Receivable.
"Designated Accounts" shall have the meaning set forth in Section 2.8 of
this Agreement.
"Determination Date" means, with respect to an Accrual Period, the 10th day
of the month following such Accrual Period, or if such day is not a Business Day
then the next succeeding Business Day.
"Diluted Receivable" shall mean any Receivable in respect of which one or
more of the events specified in clause (i) or clause (ii) of the definition of
"Deemed Collections" shall have occurred.
Exh. I-10
"Discount Rate" means the LIBO Rate or the Prime Rate, as applicable, with
respect to each Purchaser Interest held by a Financial Institution, except that
upon the occurrence and during the continuation of an Amortization Event or an
Excess Aged Receivables Event, Discount Rate shall mean the Prime Rate plus
2.0%.
"Draft Schedule of Receivables" has the meaning set forth in Section 1.1 of
the Sale Agreement.
"Eagle Crest" means Eagle Crest, Inc., an Oregon corporation.
"Eagle Crest Acquisition" means the transaction contemplated by and
consummated pursuant to the Acquisition Agreement.
"Eagle Crest Vacation Club" means Eagle Crest Vacation Club, Inc., an
Oregon not- for-profit corporation.
"Effective Date" has the meaning set forth in Section 1.7 of this
Agreement.
"Eligible Investment" shall mean, at any time, any one or more of the
following types of investments, each of which shall mature on or prior to the
next succeeding Settlement Date:
(i) direct marketable obligations of the United States having a maturity of
not more than 30 days from the date of acquisition;
(ii) marketable obligations directly and fully guaranteed by the United
States as to the full and timely payment of principal and interest having a
maturity of not more than 30 days from the date of acquisition;
(iii) bankers' acceptances and certificates of deposit denominated in U.S.
Dollars in each case having a maturity of not more than 30 days from the date of
acquisition, and issued by any bank with capital, surplus and undivided profits
aggregating at least $100,000,000, the short-term unsecured securities of which
are rated at least A-1 by S&P and P-1 by Moody's;
(iv) commercial paper having a maturity of not more than 30 days and which
is rated at least A-1 by S&P and P-1 by Moody's;
(v) freely redeemable shares in no-load money market funds which invest
solely in obligations, bankers' acceptances, certificates of deposit and
commercial paper of the types described in clauses (i) through (iv), without
regard to the limitations as to the maturity of such obligations, bankers'
acceptances, certificates of deposit or commercial paper set forth in such
clauses, rated at least AAAm by S&P and Aaa by Moody's; and
Exh. I-11
(vi) any money market fund so long as it shall be rated by each of S&P and
Moody's as either AAAm, Aaa, as an eligible investment for AAA/Aaa rate
transactions, or in the highest short-term rating assigned by S&P or Moody's.
"Eligible Receivable" means, at any time, an Originated Receivable:
(i) the Obligor of which (a) if a natural person, is a resident of the
United States or any Canadian province other than Quebec, (b) if a corporation
or other business organization, is organized under the laws of the United States
or any Canadian province other than Quebec or any political subdivision thereof
and has its chief executive office in the United States or any Canadian province
other than Quebec; (c) is not an Affiliate of any of the parties hereto; and (d)
is not a government or a governmental subdivision or agency,
(ii) the Obligor of which is not the Obligor of any Delinquent Receivable,
Defaulted Receivable or Charged-Off Receivable,
(iii) which is not more than 30 days past due and which has never been more
than 30 days past due,
(iv) each payment (notwithstanding any payments made by the Obligor at the
time of entering into a Contract) under which by its terms is due and payable
within no more than 45 days of the original billing date therefor,
(v) which has not had its payment terms extended (other than in the case of
an Upgrade Contract),
(vi) the remaining term of which is not greater than 120 months,
(vii) on which the Obligor has made at least one payment (other than in the
case of an Upgrade Contract),
(viii) which is an "account," "chattel paper," "instrument," "general
intangible" or "payment intangible" within the meaning of the UCC of all
Applicable Jurisdictions,
(ix) which is denominated and payable only in United States dollars in the
United States,
(x) which arises under a Contract which is in substantially the form of one
of the form contracts set forth on Exhibit IX hereto or which has been otherwise
approved by the Agent in writing, which, together with such Receivable, is in
full force and effect and constitutes the legal, valid and binding obligation of
the related Obligor enforceable against such Obligor in accordance with its
terms subject to no offset, counterclaim or other defense,
Exh. I-12
(xi) which arises under a Contract which (A) does not require the Obligor
under such Contract to consent to the transfer, sale or assignment of the rights
and duties of the RPA Seller under such Contract and (B) does not contain a
confidentiality provision that purports to restrict the ability of any Purchaser
to exercise its rights under this Agreement, including its right to review the
Contract,
(xii) which arises under a Contract that contains an obligation to pay a
specified sum of money,
(xiii) which, together with the Contract related thereto, does not
contravene any law, rule or regulation applicable thereto (including any law,
rule and regulation relating to truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation,
(xiv) which satisfies all applicable requirements of the Credit and
Collection Policy,
(xv) which was generated in the ordinary course of business of the
Originator thereof,
(xvi) which arises solely from the purchase of Timeshare Interests by an
Obligor or from an Upgrade by an Obligor,
(xvii) as to which the Agent has not notified the RPA Seller that the Agent
has determined that such Receivable or class of Receivables is not acceptable as
an Eligible Receivable, including because such Receivable arises under a
Contract that is not acceptable to the Agent,
(xviii) as to which, if such Receivable has been listed on a Schedule of
Exceptions delivered by the Custodian pursuant to Section 15.1(d) of this
Agreement, the Agent has consented in writing to the treatment of such
Receivable as an Eligible Receivable,
(xix) the Receivables File for which, as of the RSA Purchase Date, includes
all related Receivable Documents, other than Unrecorded Documents,
(xx) which, if such Receivable is a Fractional Interest Receivable, does
not constitute an Undocumented Receivable as of the related Undocumented
Receivables Date,
(xxi) with respect to such Receivable, there exists a Receivable File and a
copy of such Receivable File is in the possession of Custodian, and
(xxii) is not a Non-TWRI Receivable unless the Agent and each Investor
Agent has
Exh. I-13
consented in writing to the inclusion of such non-TWRI Receivable.
Notwithstanding the foregoing, the Legacy Eagle Crest Receivables shall not
constitute Eligible Receivables until such time as the Agent has delivered
written notice to the Seller that (x) it has received and reviewed UCC lien
searches conducted in the States of Washington and Oregon against the RTA
Sellers and (y) such results are satisfactory in all respects to the Agent.
"Environmental Claims" means all claims, however asserted, by any
governmental authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authorities, in each case
relating to environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
An "Excess Aged Receivables Event" will occur on any date if (i) the
Aggregate Capital on such date exceeds (ii) the result of the Fresh Receivables
Balance on such date minus the Aggregate Reserves on such date.
"Excess Concentration Balances" means the sum of Excess Concentration
Balance (Canadian Obligors), Excess Concentration Balance (Non-TWRI Receivables)
and Excess Concentration Balance (Legacy Eagle Crest Receivables).
"Excess Concentration Balance (Canadian Obligors)" means, at any time, the
amount (if any) by which the aggregate Outstanding Balance of the Eligible
Receivables of all Obligors which are (i) natural persons resident in Canada or
(ii) business organizations organized under the laws of Canada or any
jurisdiction therein or which have their chief executive office in Canada or any
jurisdiction therein exceeds 10.0% of the aggregate Outstanding Balance of
Eligible Receivables.
"Excess Concentration Balance (Extended Term Receivables)" means the amount
(if any) by which (a) the aggregate Outstanding Balance of the Eligible
Receivables that are Extended Term Receivables exceeds (b) 10.0% of the
aggregate Outstanding Balance of Eligible Receivables.
"Excess Concentration Balance (Legacy Eagle Crest Receivables)" means (i)
from the date of this Agreement until February 28, 2002, the amount (if any) by
which (a) the aggregate Outstanding Balance of the Eligible Receivables that are
Legacy Eagle Crest Receivables exceeds (b) 25.0% of the aggregate Outstanding
Balance of Eligible Receivables and (ii) on and after March 1, 2002, the amount
(if any) by which (a) the Aggregate Outstanding Balance of the Eligible
Receivables that are Legacy Eagle Crest Receivables exceeds (b) 10.0% of the
aggregate Outstanding
Exh. I-14
Balance of Eligible Receivables.
"Excess Concentration Balance (Non-TWRI Receivables)" means, at any time,
the amount (if any) by which (a) the aggregate Outstanding Balance of the
Eligible Receivables that are Non-TWRI Receivables exceeds (b) 10.0% of the
aggregate Outstanding Balance of Eligible Receivables.
"Expense Claims" has the meaning set forth in Section 16.15.
"Extended Term Receivable" means any Receivable, the remaining term of
which is greater than 84 months but not greater than 120 months.
"Facility Termination Date" means the earliest of (i) the occurrence of an
Amortization Event, (ii) 30 Business Days after the receipt of written
notification from the RPA Seller to the Agent of the RPA Seller's intention to
terminate the Liquidity Facility, and (iii) the Liquidity Termination Date.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period equal to (a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day which is a Business Day, the average of the quotations at
approximately 10:30 a.m. (Chicago time) for such day on such transactions
received by the Reference Bank from three federal funds brokers of recognized
standing selected by it.
"Fee Letters" means (i) the letter agreement dated as of the date hereof
among the RPA Seller, TWRI and Bank One, (ii) the letter agreement dated as of
the date hereof among the RPA Seller, TWRI and Fleet, and (iii) any fee letter
between the RPA Seller, TWRI and any Financial Institution or Investor Agent
that shall become a party hereunder pursuant to Section 13.1, as such may be
amended or modified and in effect from time to time.
"FI Assignment Document (First Step)" means, with respect to a Fractional
Interest Receivable, an absolute and unconditional assignment in the form
attached hereto as Exhibit XV relating to the sale, assignment, transfer and
conveyance of such Fractional Interest Receivable from the RSA Seller to the RPA
Seller.
"FI Assignment Document (Second Step)" means, with respect to a Fractional
Interest Receivable, an absolute and unconditional assignment in the form of the
attached Exhibit XVI relating to the sale, assignment, transfer and conveyance
of such Fractional Interest Receivable from the RPA Seller to Investor Agents on
behalf of the Purchasers in each Investor Agent's applicable Group.
Exh. I-15
"FI Assignment Documents" means, with respect to a Fractional Interest
Receivable, the related FI Assignment Document (First Step) and the related FI
Assignment Document (Second Step).
"FI Resort" means the Depoe Bay resort located in Depoe Bay, Oregon and
each other property from time to time designated hereafter by TWRI to the Agent
as an FI Resort.
"FI Unit" means a Unit at an FI Resort that has been designated in the
Applicable Declaration as reserved for Fractional Interest usage.
"Finance Charge Receivable" means a Receivable in respect of Finance
Charges.
"Finance Charges" means, with respect to a Contract, any finance, interest,
late payment charges or similar charges owing by an Obligor to an Originator
pursuant to such Contract or any service fees owed to an Originator related to
such Contract. Finance Charges do not include WorldMark membership dues owed by
Obligors.
"Financial Institutions" means Bank One, Fleet, and any Purchasing
Financial Institution that shall become a party to this Agreement pursuant to
Section 13.1.
"Financing Statement" means a UCC financing statement, amendment,
continuation statement, release, termination or other filing under the UCC.
"Fleet" means Fleet National Bank, a national banking association.
"Fleet Group" means the Group for which FSI or its successor serves as
Investor Agent.
"Fractional Interest" means an undivided fee simple timeshare interest in a
particular FI Resort or FI Unit, as a tenant in common with other owners of
undivided interests in such FI Resort or FI Unit, together with all rights,
benefits, privileges, and interests appurtenant thereto, including but not
limited to the right to use and occupy an FI Unit within a development and the
Common Elements and Common Furnishings, if any, appurtenant to such FI Unit or
the development during a reserved or assigned use period, all as more
specifically described in the Applicable Declaration or other Applicable
Timeshare Documents.
"Fractional Interest Receivable" means a Receivable arising out of the
purchase by an Obligor of a Fractional Interest.
"Fresh Receivables Balance" means, at any time, (i) the aggregate
Outstanding Balance of all Eligible Receivables at such time reduced by (ii) the
Outstanding Balance of all Aged Receivables at such time.
Exh. I-16
"FSI" has the meaning set forth in the preamble to the Agreement.
"Funding Agreement" means this Agreement and any agreement or instrument
executed by any Funding Source with or for the benefit of Conduit.
"Funding Source" means (i) any Financial Institution or (ii) any insurance
company, bank or other funding entity providing liquidity, credit enhancement or
back-up purchase support or facilities to Conduit.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.
"Gross Excess Spread" means, for any Accrual Period, the total Collections
in respect of Finance Charge Receivables for such Accrual Period, minus the
Carrying and Servicing Costs for such Accrual Period.
"Gross Excess Spread Percentage" means, for any Accrual Period, the
percentage equivalent of a fraction, the numerator of which is the product of
twelve and the Gross Excess Spread for such Accrual Period, and the denominator
of which is the average daily Outstanding Balance of all Receivables during such
Accrual Period.
"Group" means, for each group of Purchasers, the group consisting of one or
more Conduits, related Financial Institutions an Investor Agents and their
respective assigns and participants. On the Effective Date, (i) Jupiter, its
Investor Agent and its related Financial Institutions are one Group, and (ii)
Blue Keel, its Investor Agent and its related Financial Institutions are another
Group.
"Group Limit" means with respect to a Group, the product of (x) the result
of 100 divided by 102 and (y) the aggregate Commitments set forth with respect
to such Group's related Financial Institutions on Schedule A.
"Hedge Account" shall have the meaning set forth in Section 2.8(b) of this
Agreement.
"Hedge Accumulation Period" has the meaning set forth in Section 9.2(a) of
this Agreement.
"Hedge Event" shall have the meaning set forth in Section 9.1 of this
Agreement.
"Hedge Event Cure Date" means the first Settlement Date following the
occurrence of a Hedge Event which is both (x) the third consecutive Settlement
Date on which no Hedge Event has been in existence and (y) a date on which no
Amortization Event or Potential Amortization Event is then in existence.
Exh. I-17
"Hedge Receipts" shall mean, with respect to any Settlement Date, the
aggregate amount of payments received by the Agent or in the Collection Account
from the counterparty under any Purchased Hedge since the preceding Settlement
Date.
"Hedging Costs" shall mean all costs incurred in the acquisition of a
Purchased Hedge pursuant to Section 9.2 of this Agreement and, if such Purchased
Hedge requires the RPA Seller, the Servicer, the Agent or any Purchaser to make
subsequent periodic or lump sum payments, any such payments.
"Incremental Purchase" means the initial purchase of a Purchaser Interest
and any subsequent purchase of one or more Purchaser Interests which increases
the total outstanding Capital hereunder.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iii) obligations,
whether or not assumed, secured by liens or payable out of the proceeds or
production from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or other instruments, (v)
capitalized lease obligations, (vi) net liabilities under interest rate swap,
exchange or cap agreements, (vii) Contingent Obligations and (viii) liabilities
in respect of unfunded vested benefits under plans covered by Title IV of ERISA.
"Indemnified Amounts" has the meaning set forth in Section 11.1.
"Indemnified Party" has the meaning set forth in Section 11.1.
"Independent Director" shall mean a member of the Board of Directors of the
RPA Seller who is not at such time, and has not been at any time during the
preceding five (5) years, (A) a director, officer, employee or affiliate of RPA
Seller, any Originator, or any of their respective Subsidiaries or Affiliates,
except as (i) an Independent Officer of the RPA Seller or (ii) an independent
director or independent officer of any "special purpose entity" formed by any
Originator and its Affiliates, or (B) the beneficial owner (at the time of such
individual's appointment as an Independent Director or at any time thereafter
while serving as an Independent Director) of any of the outstanding common
shares of the RPA Seller, any Originator, or any of their respective
Subsidiaries or Affiliates, having general voting rights nor is a sibling,
parent, child or spouse of the foregoing.
"Independent Officer" shall mean an executive officer of the RPA Seller who
is not at such time, and has not been at any time during the preceding five (5)
years, (A) a director, officer, employee or affiliate of the RPA Seller, any
Originator, or any of their respective Subsidiaries or Affiliates, except as (i)
an Independent Director of the RPA Seller or (ii) an independent director or
independent officer of any "special purpose entity" formed by any Originator and
its Affiliates, or (B) the beneficial owner (at the time of such individual's
appointment as an Independent Officer or
Exh. I-18
at any time thereafter while serving as an Independent Officer) of any of the
outstanding common shares of the RPA Seller, any Originator, or any of their
respective Subsidiaries or Affiliates, having general voting rights, nor is a
sibling, parent, child or spouse of the foregoing.
"Installment Sale Contract" shall mean (i) a vacation owner agreement
executed by TWRI, WorldMark and an Obligor, (ii) a vacation owner agreement
executed by Eagle Crest, Eagle Crest Vacation Club and an Obligor, or (iii) a
vacation owner agreement executed by Running Y Resort, Eagle Crest Vacation Club
and an Obligor.
"Interest Coverage Ratio" means, as of the close of each fiscal quarter of
TWRI, the ratio of (a) the consolidated net income of TWRI and its consolidated
Subsidiaries, determined in accordance with GAAP but without deducting expenses
for interest, taxes on income, depreciation, or amortization, for such fiscal
quarter and the preceding three consecutive fiscal quarters of the Servicer to
(b) the consolidated interest expense of TWRI and its consolidated Subsidiaries
for such period.
"Investor Agent" means (a) with respect to Jupiter and its related
Financial Institutions, Bank One or any successor investor agent designated by
such parties, (b) with respect to Blue Keel and its related Financial
Institutions, FSI or any successor investor agent designated by such parties and
(c) with respect to any other Group whose related Purchasers become parties to
this Agreement, the Person identified as such in the agreement by which such
Purchasers became parties to this Agreement.
"Jupiter" has the meaning set forth in the preamble to this Agreement.
"Legacy Eagle Crest Receivables" shall mean, as of any time, all right to
use timeshare receivables which (i) were originated by Eagle Crest or Running Y
Resort on or before May 4, 2001, other than receivables that have been paid in
full or charged off, and (ii) are listed on the Schedule of Legacy Eagle Crest
Receivables delivered to the Agent and the Investor Agents on or before the
Effective Date.
"LIBO Rate" means the rate per annum equal to the sum of (i) (a) the rate
at which deposits in U.S. Dollars appears on the Telerate Service page 3750 at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of the relevant Tranche Period, such deposits being in the approximate amount of
the Capital of the Purchaser Interest to be funded or maintained, divided by (b)
one minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) which is imposed against the Reference
Bank in respect of Eurocurrency liabilities, as defined in Regulation D of the
Board of Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Tranche Period plus (ii) 1.0% per
annum. The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of
1.0%.
"Liquidity Agreement" means the liquidity agreement, secondary market
agreement,
Exh. I-19
asset purchase agreement or other similar agreement between a Conduit and a
financial institution evidencing the obligation of such financial institution to
provide liquidity support to such Conduit in connection with the issuance by or
on behalf of such Conduit of Commercial Paper.
"Liquidity Termination Date" means September 26, 2002.
"Master Schedule of Receivables" shall mean a composite schedule of all
Receivables conveyed from the RSA Seller to the RPA Seller pursuant to the Sale
Agreement, excluding any Receivables (i) subsequently repurchased or substituted
for, (ii) which were the subject of Upgrade Contracts, or (iii) the Outstanding
Balance on which has been reduced to zero.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of any Trendwest Party and its Subsidiaries,
(ii) the ability of any Trendwest Party to perform its obligations under this
Agreement, (iii) the legality, validity or enforceability of this Agreement or
any other Transaction Document, (iv) the Agent's, any Investor Agent's or any
Purchaser's interest in the Receivables generally or in any significant portion
of the Receivables, the Related Security or the Collections with respect
thereto, or (v) the collectibility of the Receivables generally or of any
material portion of the Receivables.
"Monthly Available Funds" shall mean, on any Settlement Date, the aggregate
of (i) the aggregate Collections received with respect to Receivables during the
related Accrual Period, (ii) all Deemed Collections with respect to such Accrual
Period (to the extent actually deposited in the Collection Account by or on
behalf of the RPA Seller on or prior to such Settlement Date) and any unpaid
Deemed Collections with respect to any earlier Accrual Period (to the extent
actually deposited in the Collection Account by or on behalf of the RPA Seller
since the preceding Settlement Date), (iii) all amounts deposited in the
Collection Account pursuant to Section 1.5 in respect of the conveyance by Agent
to the RPA Seller of Charged-Off Receivables on such Settlement Date, (iv) all
investment earnings on funds in the Designated Accounts, including in any
subaccount thereof, (v) Hedge Receipts for such Settlement Date and (vi) all
amounts transferred to the Collection Account and treated as Monthly Available
Funds pursuant to Section 9.2 or Section 9.4.
"Monthly Report" means a report, in substantially the form of Exhibit IX
hereto (appropriately completed), furnished by the Servicer to the Agent, the
Investor Agents and the Paying Agent pursuant to Section 8.5. In addition to
such other information as may be included therein, each Monthly Report shall set
forth the information specified in Section 1.2(c) of the Sale Agreement and the
amounts to be distributed pursuant to each clause of Section 2.2(a) or Section
2.3, as applicable.
"Monthly Report Date" means the date specified in Section 8.5(a) on which
the Servicer will forward to the Agent, the Investor Agents and the Paying Agent
the Monthly Report.
"Monthly Shortfall" has the meaning specified in Section 2.2(b).
Exh. I-20
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a properly recorded or registered mortgage, deed of trust,
or other security instrument customary in the timeshare industry in the
Applicable Jurisdiction that creates a valid and enforceable first priority lien
against the Fractional Interest identified therein in accordance with all
applicable laws and secures the payment of all principal, interest, and other
amounts owed by an Obligor.
"Mortgage Note" means the promissory note or other instrument or agreement
executed by an Obligor that evidences the indebtedness of such Obligor incurred
in connection with the purchase of a Fractional Interest.
"Net Excess Spread" means, for any Accrual Period, the total Collections in
respect of Finance Charge Receivables for such Accrual Period, minus the sum of
(i) the Carrying and Servicing Costs for such Accrual Period, and (ii) the
Accrued Balance of all Receivables which became Charged-Off Receivables during
such Accrual Period (determined for each such Receivable immediately prior to
the time such Receivable became a Charged-Off Receivable).
"Net Excess Spread Percentage" means, for any Accrual Period, the
percentage equivalent of a fraction, the numerator of which is the product of
twelve and the Net Excess Spread for such Accrual Period, and the denominator of
which is the average daily Outstanding Balance of all Receivables during such
Accrual Period.
"Net Receivables Balance" means the sum of Net Receivables Balance (Legacy
Eagle Crest Receivables) and Net Receivables Balance (Basic Receivables) reduced
by Excess Concentration Balances.
"Net Receivables Balance (Basic Receivables)" means, at any time, the
aggregate Outstanding Balance of all Eligible Receivables that are Basic
Receivables at such time reduced by the Outstanding Balance of all Aged
Receivables that are Basic Receivables.
"Net Receivables Balance (Legacy Eagle Crest Receivables)" means, at any
time, the aggregate Outstanding Balance of all Eligible Receivables that are
Legacy Eagle Crest Receivables reduced by the Outstanding Balance of all Aged
Receivables that are Legacy Eagle Crest Receivables.
"Non-Renewing Financial Institution" has the meaning set forth in Section
2.12.
"Non-TWRI Receivables" shall mean, as of any time, all Vacation Credit
receivables originated or marketed by Eagle Crest or Running Y Resort (other
than Legacy Eagle Crest Receivables) and serviced, administered and collected by
TWRI, other than receivables that have been charged-off or paid in full.
Exh. I-21
"Obligations" shall have the meaning set forth in Section 2.1.
"Obligor" means any Person obligated to make payments pursuant to a
Contract.
"Originated Receivable" means the Indebtedness and other obligations owed
by an Obligor to an Originator (without giving effect to any transfer or
conveyance under the Sale Agreement or the Transfer Agreement) or the RPA Seller
(after giving effect to the transfers under the Sale Agreement or the Transfer
Agreement) whether constituting an account, chattel paper, instrument, payment
intangible or general intangible, arising under a contract and includes the
obligation to pay any Finance Charges with respect thereto. Indebtedness and
other rights and obligations arising from any one transaction, including
Indebtedness and other rights and obligations represented by an individual
invoice, shall constitute an Originated Receivable separate from an Originated
Receivable consisting of the Indebtedness and other rights and obligations
arising from any other transaction.
"Originator" means each of (i) TWRI in its capacity as the RSA Seller under
the Sale Agreement and (ii) each of Eagle Crest and Running Y Resort in its
capacity as an RTA Seller under the Transfer Agreement.
"Other Sellers" has the meaning set forth in Section 11.4.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Paying Agent" has the meaning set forth in the preamble to this Agreement.
"Permitted Liens" means, with respect to a Fractional Interest, those
ordinary and customary Adverse Claims which do not materially interfere with the
value or current use of such Fractional Interest.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof or other entity.
"Pooled Commercial Paper" means Commercial Paper notes of a Conduit subject
to any particular pooling arrangement by a Conduit, but excluding Commercial
Paper issued by Conduit for a tenor and in an amount specifically requested by
any Person in connection with any agreement effected by a Conduit.
"Potential Amortization Event" means an event which, with the passage of
time or the giving of notice, or both, would constitute an Amortization Event.
"Pre-Upgrade Receivable" has the meaning set forth in Section 1.6 of this
Agreement.
Exh. I-22
"Previous Purchase Agreement" has the meaning set forth in the recitals to
this Agreement.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Pro Rata Share" means, for each Financial Institution in a Group, the
Commitment of such Financial Institution divided by the applicable Group Limit,
adjusted as necessary to give effect to the application of the terms of Section
2.12.
"Purchase Limit" means the sum of all Group Limits.
"Purchase Notice" has the meaning set forth in Section 1.2.
"Purchase Price" means, with respect to any Incremental Purchase of a
Purchaser Interest, the amount paid to the RPA Seller for such Purchaser
Interest which shall not exceed the least of (i) the amount requested by the RPA
Seller in the applicable Purchase Notice, (ii) the excess, if any, of the
Purchase Limit over the Aggregate Capital immediately prior to such proposed
Incremental Purchase and (iii) the excess, if any, of the Outstanding Balance of
Eligible Receivables (less the Aggregate Reserves) on the applicable purchase
date over the aggregate outstanding amount of Capital determined as of the date
of the most recent Monthly Report, adjusted on a pro forma basis to give effect
to such proposed Incremental Purchase.
"Purchased Hedge" means any interest rate swap, cap, option, hedge, or
other derivative instrument, purchased by or on behalf of the RPA Seller, at the
direction of the Agent and acceptable to the Agent, for the primary purpose of
reducing the risk to the RPA Seller or to the Purchaser Interests of changes in
interest rates.
"Purchaser" means any Conduit or Financial Institution, as applicable.
"Purchaser Interest" means, at any time, an undivided percentage ownership
interest (computed as set forth below) expressed with a designated amount of
Capital, selected pursuant to the terms and conditions hereof in (i) all
Receivables arising prior to the time of the most recent computation or
recomputation of such undivided interest, (ii) all Related Security with respect
to such Receivables, and (iii) all Collections with respect to, and other
proceeds of, such Receivables. Each such undivided percentage interest shall
equal:
Exh. I-23
where: C
----------------------
NRB - AR
C = the Capital of such Purchaser Interest.
AR = the Aggregate Reserves.
NRB = the Net Receivables Balance.
Such undivided percentage ownership interest shall be initially computed on its
date of purchase. Thereafter, until its Amortization Date, each Purchaser
Interest shall be automatically recomputed (or deemed to be recomputed) on each
day prior to its Amortization Date. The variable percentage represented by any
Purchaser Interest as computed ( or deemed recomputed) as of the close of the
business day immediately preceding its Amortization Date shall remain constant
at all times after such date.
"Receipt" has the meaning set forth in Section 15.2 of this Agreement.
"Receivable" means an Originated Receivable that has been identified for
sale to the RPA Seller or sold to the RSA Seller or the RPA Seller, as the
context may require, but shall not include any Removed Receivable from and after
the date on which such Removed Receivable is repurchased by an Originator
hereunder.
"Receivable Documents" shall mean with respect to each Receivable and each
Obligor:
(i) each original Installment Sale Contract or Mortgage Note, as
applicable;
(ii) a notice of sale and assignment affixed to the Installment Sale
Contract or Mortgage Note, as applicable, stating either (a) if such Installment
Sale Contract or Mortgage Note was delivered to the Custodian on or before the
Effective Date, stating:
The Receivable described herein has been sold to TW Holdings III, Inc.
pursuant to a Sale Agreement dated as of January 7, 2000 between Trendwest
Resorts, Inc. and TW Holdings III, Inc. Undivided interests in the Receivable
described have further been sold by TW Holdings III, Inc. to Bank One, NA, as
Agent, pursuant to a Receivables Purchase Agreement dated as of January 7, 2000
among TW Holdings III, Inc., Trendwest Resorts, Inc., Wells Fargo Bank
Minnesota, National Association, Juniper Securitization Corporation, Bank One,
NA (Main Office Chicago) and the Purchasers named therein.
or (b) otherwise, stating:
Exh. I-24
The Receivable described herein has been sold to TW Holdings III, Inc. pursuant
to a Receivables Sale Agreement dated as of September 28, 2001 between Trendwest
Resorts, Inc. and TW Holdings III, Inc. Undivided interests in the Receivable
described have further been sold by TW Holdings III, Inc., pursuant to a
Receivables Purchase Agreement dated as of September 28, 2001.
(iii) to the extent such has been executed by the applicable Originator, an
original of each guarantee, assumption, modification or substitution agreement,
if any, which relates to the related Receivable (or copy thereof certified by an
officer of the applicable Originator to be a true and correct copy);
(iv) if such Receivable is a Fractional Interest Receivable, each original
of the related Mortgage and FI Assignment Documents, the related Acceptable
Title Policy and a copy of the related deed; and
(v) to the extent such are in the possession of the applicable Originator
prior to the transfer of the related to the Receivable to the Custodian, copies
of all other Receivable Files related to such Receivable.
"Receivable Files" shall mean the documents and other papers and
computerized records customarily maintained by the Servicer in servicing
receivables comparable to the Receivables.
"Records" means, with respect to any Receivable, all Contracts, other
Receivable Documents and other documents, books, records and other information
(including computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Reduction Percentage" means, for any Purchaser Interest acquired by the
Financial Institutions from Conduit for less than the Capital of such Purchaser
Interest, a percentage equal to a fraction the numerator of which is the Conduit
Transfer Price Reduction for such Purchaser Interest and the denominator of
which is the Capital of such Purchaser Interest.
"Reference Bank" means Bank One or such other bank as the Agent shall
designate with the consent of the RPA Seller.
"Related Security" means, with respect to any Receivable:
(a) all security interests, liens and Mortgages, and the property subject
thereto from time to time, if any, purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such Receivable or
otherwise, together with all financing statements and security agreements
describing any collateral securing such Receivable,
Exh. I-25
(b) all guaranties, insurance and other agreements or arrangements of
whatever character from time to time supporting or securing payment of such
Receivable whether pursuant to the Contract related to such Receivable or
otherwise,
(c) all service contracts and other contracts and agreements associated
with such Receivable,
(d) all Records related to such Receivable,
(e) all of the RPA Seller's right, title and interest in, to and under the
Sale Agreement in respect of such Receivable, and
(f) all income and proceeds of any of the foregoing.
"Released Receivable" shall mean any Receivable which (i) is a Defaulted
Receivable or a Charged-Off Receivable for which the RPA Seller has paid the
consideration specified in Section 1.5, (ii) is a Pre-Upgrade Receivable in
respect of which an Upgrade has occurred and the Upgrade Receivable has been
assigned in accordance with Section 1.6, (iii) is a Diluted Receivable in
respect of which all Deemed Collections have been paid in accordance with
Section 2.11, (iv) is a Charged-off Receivable or a Defaulted Receivable with
respect to which the Timeshare Interests have become Repossessed Timeshare
Interests and have been repurchased pursuant to Section 1.5(a)(y) or (v) has
been paid in full.
"Removed Receivable" means any Receivable conveyed to the RPA Seller from
the RSA Seller pursuant to Section 1.1 of the Sale Agreement but subsequently
repurchased or substituted for pursuant to Section 1.5 or otherwise reconveyed
from the RPA Seller to the RSA Seller.
"Repossessed Timeshare Interests" means, with respect to a Charged-off
Receivable or a Defaulted Receivable, the related Timeshare Interests which have
been repossessed from or returned by the Obligor on such Receivable (whether
through foreclosure, repossession, deed in lieu of foreclosure, or other means).
"Required Financial Institutions" means, at any time, Financial
Institutions with Commitments in excess of 66-2/3% of the aggregate Commitments.
"Required Notice Period" means two days.
"Reserve Account" has the meaning set forth in Section 2.8 of this
Agreement.
"Reserve Fund Required Amount" shall mean, as of any date, an amount equal
to 2.0% of the Aggregate Capital outstanding on such date.
Exh. I-26
"Resort" means an FI Resort or a VC Resort, as applicable.
"Resorts and Units" means, collectively, FI Resorts, FI Units, VC Resorts
and VC Units.
"Revolving Period Termination Date" means September 26, 2002, or as
extended upon written notice from the Agent, on behalf of the Purchasers, to the
RPA Seller.
"RPA Seller" has the meaning set forth in the preamble to this Agreement.
"RSA Purchase Date" means (i) a date that is a "Purchase Date" under the
Sale Agreement and (ii) any date on which the RPA Seller acquires any Upgrade
Receivable pursuant to the Sale Agreement.
"RSA Seller" means TWRI in its capacity as the Seller under the Sale
Agreement.
"RSA Year" means a one-year period, measured from and including January 7,
2000, or the anniversary of such date, as applicable.
"RTA Purchase Date" means a date that is the "RTA Effective Date" under the
Transfer Agreement.
"RTA Seller" means each of Eagle Crest and Running Y Resort, each in its
capacity as transferor under the Transfer Agreement.
"Running Y Resort" means Running Y Resort, Inc., an Oregon corporation.
"S&P" means Standard & Poor's Ratings Services.
"Sale Agreement" means that certain Receivables Sale Agreement, dated as of
the date hereof, between the Originator and the RPA Seller.
"Schedule of Exceptions" has the meaning set forth in Section 15.1(d) of
this Agreement.
"Schedule of Receivables" has the meaning set forth in Section 1.1 of the
Sale Agreement.
"Seller" means each of the RPA Seller, the RTA Seller and the RSA Seller.
"Serviced Receivables" shall mean, as of any time, all right to use
timeshare, Fractional Interests or Vacation Credit receivables originated or
serviced by or on behalf of any Originator other than receivables that have been
paid in full or charged off and including the
Exh. I-27
Receivables.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect
Receivables.
"Settlement Date" means (A) the 20th day of each month (or, if such day is
not a Business Day, then the next Business Day), and (B) the last day of the
relevant Tranche Period in respect of each Purchaser Interest of the Financial
Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest of
Conduit, the immediately preceding Accrual Period, and (B) in respect of each
Purchaser Interest of the Financial Institutions, the entire Tranche Period of
such Purchaser Interest.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, limited liability company, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of TWRI.
"Subservicer" means Concord or any other Person appointed by TWRI to
administer, service and collect the Legacy Eagle Crest Receivables.
"Successor Servicer Fee" shall mean, at any time, that TWRI or one of its
Affiliates is not then active as the Servicer, the fees and other amounts
required to provide reasonable compensation to the Servicer in connection with
servicing, administering and collecting the Receivables, which fees and other
amounts shall have been agreed upon by Agent and such Servicer.
"Term Offering" has the meaning set forth in Section 2.10(c)(ii)(C).
"Terminating Conduit" shall have the meaning given to it in Section 2.12.
"Terminating Financial Institution" has the meaning set forth in Section
2.12.
"Terminating Purchaser" means a Terminating Conduit or Terminating
Financial Institution, as applicable.
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"Three-Month Average Consolidated Charge-Off Ratio" means, as at the end of
any Accrual Period, the average of the Consolidated Charge-off Ratios for such
Accrual Period and each of the two immediately preceding Accrual Periods.
Exh. I-28
"Three-Month Average Consolidated Delinquency Ratio" means, as at the end
of any Accrual Period, the average of the Consolidated Delinquency Ratio for
such Accrual Period and each of the two immediately preceding Accrual Periods.
"Three-Month Average Consolidated Default Ratio" means, as at the end of
for any Accrual Period, the average of the Consolidated Default Ratios for such
Accrual Period and each of the two immediately preceding Accrual Periods.
"Three-Month Average Charge-Off Ratio" means, as at the end of any Accrual
Period, the average of the Charge-Off Ratios for such Accrual Period and each of
the two immediately preceding Accrual Periods.
"Three-Month Average Delinquency Ratio" means, as at the end of any Accrual
Period, the average of the Delinquency Ratio for such Accrual Period and each of
the two immediately preceding Accrual Periods.
"Three-Month Average Default Ratio" means, as at the end of any Accrual
Period, the average of the Default Ratios for such Accrual Period and each of
the two immediately preceding Accrual Periods.
"Timeshare Interests" means each of Vacation Credits or Fractional
Interests or, with the consent of the Investor Agents, other Vacation Club
ownership interests, as applicable.
"Tranche Period" means, with respect to any Purchaser Interest held by a
Financial Institution:
(a) if Yield for such Purchaser Interest is calculated on the basis of the
LIBO Rate, a period of one, two, three or six months, or such other period as
may be mutually agreeable to the applicable Investor Agent and the RPA Seller,
commencing on a Business Day selected by the RPA Seller or the Agent pursuant to
this Agreement. Such Tranche Period shall end on the day in the applicable
succeeding calendar month which corresponds numerically to the beginning day of
such Tranche Period, provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Tranche Period shall end on the
last Business Day of such succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the basis of the
Prime Rate, a period commencing on a Business Day selected by the RPA Seller and
agreed to by the applicable Investor Agent, provided no such period shall exceed
one month.
If any Tranche Period would end on a day which is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, provided, however,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day. In the case of any Tranche
Exh. I-29
Period for any Purchaser Interest of which commences before the Amortization
Date and would otherwise end on a date occurring after the Amortization Date,
such Tranche Period shall end on the Amortization Date. The duration of each
Tranche Period which commences after the Amortization Date shall be of such
duration as selected by the Agent.
"Transaction Documents" means, collectively, this Agreement, each Purchase
Notice, the Sale Agreement, each Liquidity Agreement, each Collection Account
Agreement, each Fee Letter, the Subordinated Note (as defined in the Sale
Agreement), the FI Assignment Documents, and all other instruments, documents
and agreements executed and delivered in connection herewith.
"Transfer Agreement" means that certain Receivable Transfer Agreement dated
as of the date hereof among Eagle Crest, Running Y Resort and TWRI.
"Trendwest Parties" has the meaning set forth in the preamble to this
Agreement.
"TWRI" shall have the meaning it is given in the preamble.
"UCC" means the Uniform Commercial Code as from time to time in effect in
the specified jurisdiction.
"Unit" means an apartment, condominium unit, or other structure that is
affixed to real property and designed and available, pursuant to applicable law,
for use and occupancy as a vacation residence by one (1) or more individuals,
together with all related Common Elements, if any, and Common Furnishings, if
any, easements, and other appurtenances thereto.
"Undocumented Receivable" means any Fractional Interest Receivable as to
which all actions and deliveries specified in Section 7.1(j) have not occurred
by the related Undocumented Receivable Date.
"Undocumented Receivable Date" shall mean, with respect to a Fractional
Interest Receivable, the date which is 90 days after the date on which such
Receivable was originated.
"Unrecorded Document" means, with respect to a Fractional Interest
Receivable on any date, each document described in Section 7.1(n) which has not
at such date been recorded or registered in the Applicable Jurisdiction.
"Upgrade" means the cancellation of an existing Contract (other than a
Contract with respect to Fractional Interests) and entry into a new, 84-month
Contract by an Obligor, WorldMark and an Originator, pursuant to which the
Obligor purchases additional Vacation Credits.
"Upgrade Contract" means the new Contract entered into by an Obligor, TWRI
and WorldMark related to an Upgrade by such Obligor.
Exh. I-30
"Upgrade Receivable" has the meaning set forth in Section 1.6 of this
Agreement.
"Vacation Club" means each of WorldMark and Eagle Crest Club. References
herein to a Vacation Club being "related" to an Originator shall be construed as
follows: (i) WorldMark is "related" (a) to TWRI with respect to all Receivables
originated by TWRI and (b) to Running Y and Eagle Crest with respect to
Receivables originated by Running Y and Eagle Crest on and after the
effectiveness of the Eagle Crest Acquisition; and (ii) Eagle Crest Club is
"related" to Eagle Crest and Running Y with respect to all Receivables
originated by Eagle Crest or Running Y before the effectiveness of the Eagle
Crest Acquisition.
"VC Resorts" means those properties owned in fee simple by WorldMark or in
which WorldMark has a valid leasehold interest, which an Obligor who is a
Vacation Credit owner has limited rights to use under the terms of an
Installment Sale Contract between an Originator, WorldMark and such Obligor as
more fully described in the Applicable Declaration and other Applicable
Timeshare Documents. This definition includes all VC Resorts in existence as of
the date of this Agreement or which come into existence during the term of this
Agreement. To the extent that a particular property has both VC Units and FI
Units, it shall constitute a VC Resort to the extent of the VC Units and an FI
Resort to the extent of the FI Units.
"VC Units" means Units that are designated for use by owners of Vacation
Credits.
"Vacation Credits" means ownership interests in WorldMark that entitle the
owner to use VC Resorts.
"WorldMark" means WorldMark, The Club, a California not-for-profit mutual
benefit corporation.
"Yield" means for each respective Tranche Period relating to a Purchaser
Interest held by a Financial Institution, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital
of such Purchaser Interest for each day elapsed during such Tranche Period,
annualized on a 360 day basis.
All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 of the UCC in the State of
Illinois, and not specifically defined herein, are used herein as defined in
such Article 9.
Exh. I-31
EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
Bank One, NA (Main Office Chicago), as Agent for the Purchasers parties and
as Investor Agent for the Purchasers in its Group
Suite 0079, 1-21
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Asset Backed Finance
Fleet Securities, Inc.
as Investor Agent for the Purchasers in its Group
100 Federal Street
Boston, MA 02110
Attn: David Ruote
Re: Purchase Notice
Ladies and Gentlemen:
The undersigned refers to that certain Receivables Purchase Agreement,
dated as of September 28, 2001(the "Receivables Purchase Agreement," the terms
defined therein being used herein as therein defined), among (a) TW Holdings
III, Inc., a Delaware corporation ("RPA Seller"); (b) Trendwest Resorts, Inc.,
an Oregon corporation, as initial Servicer; (c) Wells Fargo Bank Minnesota,
National Association, as Custodian; (d) the Financial Institutions party
thereto; (e) Jupiter Securitization Corporation, a Delaware corporation and Blue
Keel Funding, LLC, a Delaware limited liability company, as Conduits; (f) Fleet
Securities, Inc., as an Investor Agent; (g) Bank One Trust Company, NA, as
Paying Agent and (h) Bank One, NA (Main Office Chicago) as Agent and as an
Investor Agent, and hereby gives you notice, irrevocably, pursuant to Section
1.2 of the Receivables Purchase Agreement, that the undersigned hereby requests
an Incremental Purchase under the Receivables Purchase Agreement, and in that
connection sets forth below the information relating to such Incremental
Purchase ("Proposed Purchase") as required by Section 1.2 of the Receivables
Purchase Agreement:
(i) The Business Day of the Proposed Purchase is [insert purchase date],
which date is at least two (2) Business Days after the date hereof.
(ii) (A) The requested Purchase Price in respect of the portion of the
Exh. II-1
Proposed Purchase by Jupiter or its related Financial Institutions is
$___________.
(B) The requested Purchase Price in respect of the portion of the Proposed
Purchase by Blue Keel or its related Financial Institution is $________.
(iii) (A) If a the Proposed Purchase to be funded by the Financial
Institutions in Jupiter's Group, the requested Discount Rate is __________ and
the requested Tranche Period is __________.
(B) If the Proposed Purchase is to be funded by the Financial Institutions
in Blue Keel's Group, the requested Discount Rate is ___________ and the
requested Tranche Period is _____________.
(iv) Attached hereto is each Schedule of Receivables for any Receivables
either being sold under the Sale Agreement on the date of such Incremental
Purchase or which were sold under the Sale Agreement since the date of the
preceding Incremental Purchase. Each such Schedule of Receivables includes the
applicable RSA Purchase Date.
(v) Payment of the Purchase Price should be made to the following account:
Bank of America, NA - Seattle, WA ABA No. 125000024 Account No: 68617018 Account
Name: Trendwest Resorts Concentration Account.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Purchase (before
and after giving effect to the Proposed Purchase):
(a) the representations and warranties of the undersigned set forth in
Section 5.1 of the Receivables Purchase Agreement are true and correct on and as
of the date of such Proposed Purchase as though made on and as of such date;
(b) the Facility Termination Date shall not have occurred, the aggregate
Capital of all Purchaser Interests shall not exceed the Purchase Limit and the
aggregate Purchaser Interests shall not exceed 100%; and
(c) no event has occurred and is continuing, or would result from such
Proposed Purchase, that will constitute an Amortization Event, Potential
Amortization Event or Excess Aged Receivables Event.
The undersigned hereby certifies that the following statements will be true
on the date
Exh. II-2
of the Proposed Purchase (after giving effect to the Proposed Purchase) (or
that, if such statements are not true, then the RPA Seller will not complete the
Proposed Purchase):
(i) all actions and conditions specified in Article XV of the Receivables
Purchase Agreement which are to be taken or satisfied on or prior to the date of
a Proposed Purchase shall have been fully performed or satisfied; and
(ii) the amount of funds in the Reserve Account shall equal at least the
Reserve Fund Required Amount.
Very truly yours,
TW HOLDINGS III, INC.
By:________________________________
Name:
Title:
Exh. II-3
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER
Place of Business:
TW Holdings III, Inc.
9805 Willows Road
Redmond, WA 98052
(425) 498-2544
(425) 498-3053 fax
Trendwest Resorts, Inc.
9805 Willows Road
Redmond, WA 98052
(425) 498-2500
(425) 498-3053 fax
Location of Records:
9805 Willows Road
Redmond, WA 98052
(425) 498-2500
(425) 498-3053 fax
Federal Employer Identification Number:
Trendwest Resorts Inc.: 93-1004403
TW Holdings III, Inc.: 91-2014178
Exh. III-1
EXHIBIT IV
FORM OF SELLER DIRECTION
TW Holdings, III, Inc.
RPA Seller Direction
Bank One, NA (Main Office Chicago),
as Agent
Asset Backed Finance
Suite 0079, 1-19
1 Bank One Plaza
Chicago, Illinois 60670-0019
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.10(c) of the Receivables Purchase
Agreement, dated as of September 28, 2001(the "Receivables Purchase Agreement,"
the terms defined therein being used herein as therein defined), among (a) TW
Holdings III, Inc., a Delaware corporation ("RPA Seller"); (b) Trendwest
Resorts, Inc., an Oregon corporation, as initial Servicer; (c) Wells Fargo Bank
Minnesota, National Association, as Custodian; (d) the Financial Institutions
party thereto; (e) Jupiter Securitization Corporation, a Delaware corporation
and Blue Keel Funding, LLC, a Delaware limited liability company, as Conduits;
(f) Fleet Securities, Inc., as an Investor Agent; (g) Bank One Trust Company,
NA, as Paying Agent and (h) Bank One, NA (Main Office Chicago) as Agent and as
an Investor Agent, you are hereby requested to release the Receivables listed on
Schedule A hereto in exchange for $_______. The undersigned hereby certifies
that (i) the amount set forth in the previous sentence equals the sum of the
Outstanding Balances of the Receivables listed in Schedule A plus all accrued
and unpaid interest thereon and (ii) in choosing the Receivables to be released,
the RPA Seller has not used a selection process that identified any of the
Receivables being released as any more desirable than the Receivables retained
by the Agent on behalf of the Purchasers.
IN WITNESS WHEREOF, the undersigned has executed this direction this ___
day of ______________, ___.
TW HOLDINGS III, INC.
By: __________________________
Name:
Title:
Exh. IV-1
SCHEDULE A TO SELLER DIRECTION
SCHEDULE OF RECEIVABLES
Exh. IV-2
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA (Main Office Chicago), as Agent
This Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement, dated as of September 28, 2001(the "Receivables
Purchase Agreement," the terms defined therein being used herein as therein
defined), among (a) TW Holdings III, Inc., a Delaware corporation ("RPA
Seller"); (b) Trendwest Resorts, Inc., an Oregon corporation, as initial
Servicer; (c) Wells Fargo Bank Minnesota, National Association, as Custodian;
(d) the Financial Institutions party thereto; (e) Jupiter Securitization
Corporation, a Delaware corporation and Blue Keel Funding, LLC, a Delaware
limited liability company, as Conduits; (f) Fleet Securities, Inc., as an
Investor Agent; (g) Bank One Trust Company, NA, as paying agent to the extent
described herein (the "Paying Agent") and (h) Bank One, NA (Main Office Chicago)
as agent for the Purchasers hereunder or any successor agent hereunder (together
with its successors and assigns hereunder, the "Agent"), as an Investor Agent
and as a Financial Institution, (the "Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of the RPA Seller.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the RPA Seller and its Subsidiaries during the accounting
period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes an
Amortization Event, Potential Amortization Event, Hedge Accumulation Event or
Excess Aged Receivables Event, as each such term is defined under the Agreement,
during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth in
paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and computations
evidencing the compliance with certain covenants of the Agreement, all of which
data and computations are true, complete and correct.
5. Exhibit I attached hereto is a copy of the most recent compliance
certificate delivered in connection with the Credit Agreement.
5. Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the RPA Seller has taken, is taking, or proposes to
take with respect to each such condition or event:
Exh. V-1
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this __ day of ____________, __ .
TRENDWEST RESORTS, INC.
By:__________________________________
Name:
Title:
Exh. V-2
SCHEDULE I TO COMPLIANCE REPORT
A. Schedule of Compliance as of __________, ____ with Section ___ of the
Agreement. Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings ascribed thereto in the Agreement.
This schedule relates to the month ended:______________
Exh. V-3
EXHIBIT VI
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT is entered into as of the ___ day of
____________, ____, by and between________________________________ ("RPA
Seller") and _____________________________________________ ("Purchaser").
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered in accordance
with Section 13(b) of that certain Amended and Restated Receivables Purchase
Agreement dated as of September 28, 2001(the "Receivables Purchase Agreement,"
the terms defined therein being used herein as therein defined), among (a) TW
Holdings III, Inc., a Delaware corporation ("RPA Seller"); (b) Trendwest
Resorts, Inc., an Oregon corporation, as initial Servicer; (c) Wells Fargo Bank
Minnesota, National Association, as Custodian; (d) the Financial Institutions
party thereto; (e) Jupiter Securitization Corporation, a Delaware corporation
and Blue Keel Funding, LLC, a Delaware limited liability company, as Conduits;
(f) Fleet Securities, Inc., as an Investor Agent; (g) Bank One Trust Company,
NA, as Paying Agent and (h) Bank One, NA (Main Office Chicago) as Agent and as
an Investor Agent, (as amended, modified or restated from time to time) the
"Purchase Agreement"). Capitalized terms used and not otherwise defined herein
are used with the meanings set forth or incorporated by reference in the
Purchase Agreement.
B. The RPA Seller is a Financial Institution party to the Purchase
Agreement, and the Purchaser wishes to become a Financial Institution
thereunder; and
C. The RPA Seller is selling and assigning to the Purchaser an undivided
____________% (the "Transferred Percentage") interest in all of the RPA Seller's
rights and obligations under the Purchase Agreement and the Transaction
Documents, including the RPA Seller's Commitment and (if applicable) the Capital
of the RPA Seller's Purchaser Interests as set forth herein;
The parties hereto hereby agree as follows:
1. This sale, transfer and assignment effected by this Assignment Agreement
shall become effective (the "Effective Date") two (2) Business Days (or such
other date selected by the Agent in its sole discretion) following the date on
which a notice substantially in the form of Schedule II to this Assignment
Agreement ("Effective Notice") is delivered by the Agent to Conduit, the RPA
Seller and the Purchaser. From and after the Effective Date, the Purchaser shall
be a Financial Institution party to the Purchase Agreement for all purposes
thereof as if the Purchaser were an original party thereto and the Purchaser
agrees to be bound by all of the terms and provisions contained therein.
Exh. VI-1
2. If the RPA Seller has no outstanding Capital under the Purchase
Agreement, on the Effective Date, the RPA Seller shall be deemed to have hereby
transferred and assigned to the Purchaser, without recourse, representation or
warranty (except as provided in paragraph 6 below), and the Purchaser shall be
deemed to have hereby irrevocably taken, received and assumed from the RPA
Seller, the Transferred Percentage of the RPA Seller's Commitment and all rights
and obligations associated therewith under the terms of the Purchase Agreement,
including the Transferred Percentage of the RPA Seller's future funding
obligations under Section 4.1 of the Purchase Agreement.
3. If the RPA Seller has any outstanding Capital under the Purchase
Agreement, at or before 12:00 noon, local time of the RPA Seller, on the
Effective Date the Purchaser shall pay to the RPA Seller, in immediately
available funds, an amount equal to the sum of (i) the Transferred Percentage of
the outstanding Capital of the RPA Seller's Purchaser Interests (such amount,
being hereinafter referred to as the "Purchaser's Capital"); (ii) all accrued
but unpaid (whether or not then due) Yield attributable to the Purchaser's
Capital; and (iii) accruing but unpaid fees and other costs and expenses payable
in respect of the Purchaser's Capital for the period commencing upon each date
such unpaid amounts commence accruing, to and including the Effective Date (the
"Purchaser's Acquisition Cost");
whereupon, the RPA Seller shall be deemed to have sold, transferred and assigned
to the Purchaser, without recourse, representation or warranty (except as
provided in paragraph 6 below), and the Purchaser shall be deemed to have hereby
irrevocably taken, received and assumed from the RPA Seller, the Transferred
Percentage of the RPA Seller's Commitment and the Capital of the RPA Seller's
Purchaser Interests (if applicable) and all related rights and obligations under
the Purchase Agreement and the Transaction Documents, including the Transferred
Percentage of the RPA Seller's future funding obligations under Section 4.1 of
the Purchase Agreement.
4. Concurrently with the execution and delivery hereof, the RPA Seller will
provide to the Purchaser copies of all documents requested by the Purchaser
which were delivered to such RPA Seller pursuant to the Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees that 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 Assignment Agreement.
6. By executing and delivering this Assignment Agreement, the RPA Seller
and the Purchaser confirm to and agree with each other, the Agent and the
Financial Institutions as follows: (a) other than the representation and
warranty that it has not created any Adverse Claim upon any interest being
transferred hereunder, the RPA Seller makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made by any other Person in or in connection with the Purchase
Agreement or the Transaction Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Purchaser,
Exh. VI-2
the Purchase Agreement or any other instrument or document furnished pursuant
thereto or the perfection, priority, condition, value or sufficiency of any
collateral; (b) the RPA Seller makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the RPA Seller, any
Obligor, or any RPA Seller Affiliate or the performance or observance by the RPA
Seller, any Obligor, or any RPA Seller Affiliate of any of their respective
obligations under the Transaction Documents or any other instrument or document
furnished pursuant thereto or in connection therewith; (c) the Purchaser
confirms that it has received a copy of the Transaction Documents, together with
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement; (d)
the Purchaser will, independently and without reliance upon the Agent, Conduit,
the RPA Seller or any other Financial Institution or 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 Purchase
Agreement and the Transaction Documents; (e) the Purchaser appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Transaction Documents as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
(f) the Purchaser appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Transaction Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (g) the Purchaser agrees that it will perform
in accordance with their terms all of the obligations which, by the terms of the
Purchase Agreement and the Transaction Documents, are required to be performed
by it as a Financial Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees with the Agent
that it is aware of and will comply with the provisions of the Purchase
Agreement, including Sections 4.1, 14.1 and 16.6 thereof.
8. Schedule I hereto sets forth the revised Commitment of the RPA Seller
and the Commitment of the Purchaser, as well as administrative information with
respect to the Purchaser.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. The Purchaser hereby covenants and agrees that, prior to the date which
is one year and one day after the payment in full of all senior Indebtedness for
borrowed money of Conduit, it will not institute against, or join any other
Person in instituting against, Conduit any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.
Exh. VI-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers of the
date hereof.
By: _______________________________
Title: ____________________________
By: ________________________________
Title: _____________________________
Exh. VI-4
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
Date: _______________, ____
Transferred Percentage: ________%
A-1 A-2 B-1 B-2
--- --- --- ---
Outstanding
Commitment Commitment Capital Ratable
RPA Seller [existing] [revised] (if any) Share
- ---------- ---------- --------- -------- -----
A-1 B-1 B-2
Outstanding
Commitment Capital Ratable
Purchaser [initial] (if any) Share
Address for Notices
Attention:
Phone:
Fax:
Exh. VI-5
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO
------------------------
------------------------
------------------------
TO:
------------------------
------------------------
------------------------
The undersigned, as Agent under the Receivables Purchase Agreement dated as
of September 28, 2001by and among (a) TW Holdings III, Inc., a Delaware
corporation ("RPA Seller"); (b) Trendwest Resorts, Inc., an Oregon corporation,
as initial Servicer; (c) Wells Fargo Bank Minnesota, National Association, as
Custodian; (d) the Financial Institutions party thereto; (e) Jupiter
Securitization Corporation, a Delaware corporation and Blue Keel Funding, LLC, a
Delaware limited liability company, as Conduits; (f) Fleet Securities, Inc., as
an Investor Agent; (g) Bank One Trust Company, NA, as Paying Agent and (h) Bank
One, NA (Main Office Chicago) as Agent and as an Investor Agent and as a
Financial Institution, hereby acknowledges receipt of executed counterparts of a
completed Assignment Agreement dated as of ____________, ____ between
__________________, as the RPA Seller, and __________________, as Purchaser.
Terms defined in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Effective Date will be ______________, ____.
2. Conduit hereby consents to the Assignment Agreement as required by
Section 12.1(b) of the Purchase Agreement.
3. Pursuant to such Assignment Agreement, the Purchaser is required to pay
$____________ to the RPA Seller at or before 12:00 noon (local time of the RPA
Seller) on the Effective Date in immediately available funds.
Very truly yours,
BANK ONE, NA, individually and as Agent
By: _____________________________
Title: _________________________
Exh. VI-6
JUPITER SECURITIZATION
CORPORATION
By: _____________________________
Authorized Signatory
Exh. VI-7
EXHIBIT VII
CREDIT AND COLLECTION POLICY
Exh. VII-1
EXHIBIT VIII
FORMS OF INSTALLMENT SALE CONTRACTS
Exh. VIII-1
EXHIBIT IX
FORM OF MONTHLY REPORT
Exh. IX-1
EXHIBIT X
FORM OF REQUEST FOR RELEASE
Wells Fargo Bank Minnesota,
National Association
MAC N 9311-161
Minneapolis, Minnesota 55479
Attn: Corporate Trust Services,
Asset Backed Administration
Re:Receivables Purchase Agreement dated as of September 28, 2001,
among (a) TW Holdings III, Inc., a Delaware corporation ("RPA
Seller"); (b) Trendwest Resorts, Inc., an Oregon corporation, as initial
Servicer; (c) Wells Fargo Bank Minnesota, National Association, as
Custodian; (d) the Financial Institutions party thereto; (e) Jupiter
Securitization Corporation, a Delaware corporation and Blue Keel
Funding, LLC, a Delaware limited liability company, as Conduits; (f)
Fleet Securities, Inc., as an Investor Agent; (g) Bank One Trust
Company, NA, as Paying Agent and (h) Bank One, NA (Main Office
Chicago) as Agent and as an Investor Agent and as a Financial
Institution, (the "RPA")
Pursuant to Sections 2.10 and 15.3(d) of the above-referenced RPA, in
connection with the Receivables indicated on Schedule A hereto, we request the
release of the related Receivable Documents [specify documents] for the reason
indicated below. Capitalized terms used but not defined herein shall have the
meanings given them in "Definitions" attached as Exhibit I to the RPA.
Purchase Number:
Reason for Requesting Release (check all that apply)
___ 1. Liquidation
___ 2. Breach of representation and warranty
___ 3. Missing Receivable Documents
___ 4. Failure to file financing statements
___ 5. Cease to be an Eligible Receivable
___ 6. Paid in Full
___ 7. Upgrade
BANK ONE, NA(Main Office Chicago),
By:___________________________
Name:
Title:
Release consented to:
[PURCHASERS]
By: __________________________
Name:
Title:
Exh. X-1
EXHIBIT XI
FORM OF RECEIPT
RECEIPT NO.[Date]
Re: Amended and Restated Receivables Purchase Agreement dated as of September
28, 2001, among (a) TW Holdings III, Inc., a Delaware corporation ("RPA
Seller"); (b) Trendwest Resorts, Inc., an Oregon corporation, as initial
Servicer; (c) Wells Fargo Bank Minnesota, National Association, as
Custodian; (d) the Financial Institutions party thereto; (e) Jupiter
Securitization Corporation, a Delaware corporation and Blue Keel Funding,
LLC, a Delaware limited liability company, as Conduits; (f) Fleet
Securities, Inc., as an Investor Agent; (g) Bank One Trust Company, NA, as
Paying Agent and (h) Bank One, NA (Main Office Chicago) as Agent and as an
Investor Agent and as a Financial Institution (the "RPA")
Ladies and Gentlemen:
In accordance with the provisions of Section 15.2 of the above-referenced
the RPA, the undersigned, as Custodian, hereby certifies that as to each
Receivable described in the Schedule of Receivables, a copy of which is attached
hereto, it has reviewed each Receivable Document and has determined that (i) all
documents required to be delivered to it pursuant to the RPA are in its
possession, and (ii) based on its examination of the foregoing documents, such
documents appear regular on their face and relate to the appropriate Receivable
and none of the Receivable Documents contains evidence of any claims, liens,
security interests or encumbrances (other than the lien of the Agent).
The Custodian hereby confirms that it is holding each such Receivable
Document as agent and bailee of the Agent, as agent for the Purchasers, pursuant
to the terms of the RPA. The Custodian hereby confirms it will act in accordance
with the standard of care standard provided in the RPA and under no
circumstances shall the Custodian (i) deliver possession of any Receivable
Document to the RPA Seller or any other Person, or (ii) take any directions with
respect to any Receivable Documents from the Borrower or any other Person,
without the express written consent of the Agent.
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Custodian
By: __________________________
Name:
Title:
Exh. XI-1
SCHEDULE A TO RECEIPT
SCHEDULE OF RECEIVABLES
Exh. XI-2
EXHIBIT XII
ACCOUNT NUMBERS
Account Bank Name and Address Account Number
Clearing Account Key Bank, National Association 479681015661
Mail Code WA31180512
P.O. Box 90027
Bellevue, Washington 98009-9027
Collection Account Bank One, NA (Main Office Chicago) 0400045000
1 Bank One Plaza
Chicago, Illinois 60670-0019
Reserve Account Bank One, NA (Main Office Chicago) 0400045001
1 Bank One Plaza
Chicago, Illinois 60670-0019
Hedge Account Bank One, NA (Main Office Chicago) 0400045002
1 Bank One Plaza
Chicago, Illinois 60670-0019
Concord Account _______________________ ___________
Exh. XII-1
EXHIBIT XIII
SCHEDULE OF CUSTODIAN FEES
The following fees are contained in the letter agreement dated December 15,
2000, by and among Wells Fargo Bank Minnesota, National Association, and the
Servicer, and are subject to the terms and conditions thereof.
I. Acceptance Fee Waived
Includes document review, account set-up and all
initial services; a one-time fee.
II. Deposit and Certification of Loan Files $1.65
Per file, includes inventory and review of documents
in file and reinstatements of released and rejected files.
III. Annual Safekeeping Fee $1.10
Per file; billed monthly.
IV. Final/Trailing Documents $0.50
Per occurrence; includes filing of documents in the file.
V. Release Requests/Rejected Release Requests $1.65
Per occurrence; 48 hour turnaround time,
excludes shipping.
VI. Inter-filing Fee Waived
Per file; assumed the receipt of loan files in loan
number order.
VII. Attorney's Fees At cost
Exh. XIII-1
EXHIBIT XIV
FORM(S) OF MORTGAGE NOTE(S)
Exh. XIV-1
EXHIBIT XV
FORM OF FI ASSIGNMENT DOCUMENT (FIRST STEP)
Exh. XV-1
EXHIBIT XVI
FORM OF FI ASSIGNMENT DOCUMENT (SECOND STEP)
This FI Assignment Agreement ("Second Step") (this "Assignment") is made
and executed as of _________, 2001 by TW Holdings III, Inc., a Delaware
corporation ("RPA Seller"), whose address is ________________________, in favor
of Bank One, NA (Main Office Chicago), as Agent pursuant to the Purchase
Agreement as hereinafter defined ("Purchaser"). Unless defined elsewhere herein,
capitalized terms in this Assignment shall have the meanings assigned to such
terms in the Agreement.
1. The RPA Seller and Purchaser and certain other parties entered into that
certain Amended and Restated Receivables Purchase Agreement, dated as of
September 28, 2001 (as the same may be amended, amended and restated, or
supplemental from time to time, being herein called the "Purchase
Agreement"), pursuant to which the RPA Seller has agreed to sell, on the
terms and conditions set forth in the Agreement, to Purchaser certain
Receivables (as defined and further described in the Purchase Agreement).
This Assignment is being delivered pursuant to the Agreement.
2. For value received in accordance with the Purchase Agreement, the RPA
Seller hereby sells, conveys, assigns, transfers and sets over to
Purchaser, to the extent of the Purchaser Interests therein, all of the RPA
Seller's right, title and interest in and to (i) the Receivables owned by
the RPA Seller on the date hereof, (ii) the Related Security with respect
to such Receivables and (iii) all Collections with respect to, and other
proceeds of, such Receivables. Such Related Security includes each of the
mortgages and deeds of trust identified on Exhibit A attached to this
Assignment and incorporated into this Assignment by reference.
3. The execution and delivery of this Assignment shall not subject Purchaser
to, or transfer or pass to Purchaser, or in any way affect or modify, the
liability of the RPA Seller under all or part of such Receivables assigned
under this Assignment, it being understood and agreed that notwithstanding
this Assignment or any subsequent assignment, all of the obligations of the
RPA Seller to each and every other party under each and every item of the
Receivables shall be and remain enforceable by such other party, its
successors, and assigns, only against the RPA Seller and its successors and
assigns, and that Purchaser has not assumed any of the obligations or
duties of the RPA Seller under or with respect to any of the Receivables.
4. This Assignment is for conveyance, not for security.
5. This Assignment shall be binding on the RPA Seller and its successors and
assigns, and shall inure to the benefit of Purchaser and its successors and
assigns.
In witness whereof, the RPA Seller has executed this Assignment on the date
first written above.
Exh. XVI-1
TW Holdings III, Inc.
By:
-------------------------------------------------
Print Name:
-----------------------------------------
Title:
----------------------------------------------
STATE OF ___________________________________)
) ss
COUNTY OF __________________________________)
The foregoing instrument was acknowledged before me this ___ day of
_________, by ______________________ as _______________ of __________________,
a(n) ______________ corporation, on behalf of the corporation. _____ is
personally known to me or has produced ______________________ as identification.
-----------------------------------------
(Notary Signature)
(NOTARY SEAL)
-----------------------------------------
(Notary Name printed)
NOTARY PUBLIC
Commission No.______________
Exh. XVI-2
EXHIBIT A
Mortgages and Deeds of Trust
Exh. XVI-3
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
Financial Institution Commitment
- --------------------------------- ------------
Bank One, NA (Main Office Chicago) $102,000,000
Fleet National Bank $ 76,500,000
Sch. A-1
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
1. Copy of the Resolutions of the Board of Directors of each Trendwest Party
certified by its Secretary authorizing such Trendwest Party's execution,
delivery and performance of this Agreement and the other documents to be
delivered by it hereunder.
2. Articles or Certificate of Incorporation of each Trendwest Party certified
by the Secretary of State of its jurisdiction of incorporation on or within
thirty (30) days prior to the initial Purchase.
3. Good Standing Certificate for each Trendwest Party issued by the
Secretaries of State of California, Oregon and Washington.
4. A certificate of the Secretary of each Trendwest Party certifying (i) the
names and signatures of the officers authorized on its behalf to execute
this Agreement and any other documents to be delivered by it thereunder and
(ii) a copy of such Trendwest Party's By-Laws.
5. Time stamped receipt copies of proper financing statements, duly filed
under the UCC on or before the date of such initial Purchase in all
jurisdictions as may be necessary or, in the opinion of the Agent,
desirable, under the UCC of all appropriate jurisdictions or any comparable
law in order to perfect the ownership interests contemplated by this
Agreement.
6. Delivered simultaneous to the Initial Purchase, executed copies of proper
releases and UCC termination statements, ready for filing, if any,
necessary to release all security interests and other rights of any Person
in the Receivables, Contracts or Related Security previously granted by any
Originator.
7. A favorable opinion of legal counsel for the Trendwest Parties reasonably
acceptable to the Agent which addresses the following matters and such
other matters as the Agent may reasonably request:
-- Each Trendwest Party is a corporation duly incorporated, validly
existing, and in good standing under the laws of its state of
incorporation.
-- Each Trendwest Party has all requisite authority to conduct its
business in each jurisdiction where failure to be so qualified would
have a material adverse effect on such Trendwest Party's business.
-- The execution and delivery by each Trendwest Party of this Agreement
and each other Transaction Document to which it is a party and its
performance
Sch. B-1
of its obligations thereunder have been duly authorized by all
necessary corporate action and proceedings on the part of such
Trendwest Party and will not:
(a) require any action by or in respect of, or filing with, any
governmental body, agency or official (other than the filing of
UCC financing statements);
(b) contravene, or constitute a default under, any provision of
applicable law or regulation or of its Articles of Incorporation
or Bylaws or of any agreement, judgment, injunction, order,
decree or other instrument binding upon such Trendwest Party; or
(c) result in the creation or imposition of any Adverse Claim on
assets of such Trendwest Party or any of its Subsidiaries (except
as contemplated by this Agreement).
-- This Agreement and each other Transaction Document to which such
Trendwest Party is a Party has been duly executed and delivered by
such Trendwest Party and constitutes the legal, valid, and binding
obligation of such Trendwest Party, enforceable in accordance with its
terms, except to the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and subject also to the availability of
equitable remedies if equitable remedies are sought.
-- The RPA Seller has a valid, perfected and first priority ownership
interest in each Receivable in existence as of the date of the
Agreement and, if a Purchase is made as of such date, the Agent for
the benefit of the Purchasers shall acquire a first perfected priority
ownership interest in each Receivable, the related Collections and the
Related Security.
-- To the best of the opinion giver's knowledge, there is no action, suit
or other proceeding against any Trendwest Party or any Affiliate of
any Trendwest Party, which would materially adversely affect the
business or financial condition of such Trendwest Party and its
Affiliates taken as a whole or which would materially adversely affect
the ability of the RPA Seller to perform its obligations under this
Agreement.
-- None of the Trendwest Parties is an "investment company" registered or
required to be registered under the Investment Company Act of 1940.
Sch. B-2
8. If requested by Conduit or the Agent, a favorable opinion of legal counsel
for each Financial Institution, reasonably acceptable to the Agent which
addresses the following matters:
-- This Agreement has been duly authorized by all necessary corporate
action of the Financial Institution.
-- This Agreement has been duly executed and delivered by the Financial
Institution and, assuming due authorization, execution and delivery by
each of the other parties thereto, constitutes a legal, valid and
binding obligation of the Financial Institution, enforceable against
the Financial Institution in accordance with its terms.
9. A Compliance Certificate.
10. The Fee Letters.
11. A form of Monthly Report.
12. Executed copies of (i) all consents from and authorizations by any Persons
and (ii) all waivers and amendments to existing credit facilities, that are
necessary in connection with this Agreement.
13. For each Purchaser that is not incorporated under the laws of the United
States of America, or a state thereof, two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Purchaser is entitled to receive payments under the
Agreement without deduction or withholding of any United States federal
income taxes.
14. An executed copy of the Receivables Sale Agreement, together with copies of
each of the documents delivered pursuant to Section 3.1 thereof.
15. State of Washington Public Offering Documents including (i) Declaration of
Vacation Owner Program for WorldMark certified by State of Washington
Department of Real Estate, (ii) statement compliance with registration
requirements of Oregon, Hawaii and California, and (iii) statement of clear
title to WorldMark properties.
16. Initial Purchase Notice.
17. Results of UCC searches conducted in the States of Washington, Oregon and
Delaware as of a date on or after September 28, 2001 against each Trendwest
Party or Originator as debtor showing no liens or financing statements
filed against any Trendwest Party or Originator which create security
interests in the Receivables that would rank prior to the security
interests granted under the Transaction Documents.
Sch. B-3
18. An FI Assignment Document shall have been delivered to the Custodian and
any other chattel paper and instruments (as such term is defined in the
UCC) representing or evidencing, any of the applicable Receivables being
purchased or contributed hereunder.
19. The Statement of Auditing Standards - 70 report with respect to Concord.
20. An executed copy of the Acquisition Agreement in form and substance
satisfactory to the Agent.
21. A certified copy of the Credit Agreement, as in effect in the Effective
Date, including all amendments thereof.
Sch. B-4
SCHEDULE C
EXISTING ENVIRONMENTAL CLAIMS
None
Sch. C-1