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EXHIBIT 10.65
EXECUTION COPY
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MASTER LOAN PURCHASE AGREEMENT
Dated as of August 29, 2002
by and between
TRENDWEST RESORTS, INC.,
as Seller
and
SIERRA DEPOSIT COMPANY, LLC
as Purchaser
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TABLE OF CONTENTS
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PAGE
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Section 1. Definitions..................................................................................1
Section 2. Purchase and Sale of Loans..................................................................14
Section 3. Pool Purchase Price.........................................................................14
Section 4. Payment of Purchase Price...................................................................14
(a) Closing Dates...............................................................................14
(b) Manner of Payment of Additional Pool Purchase Price.........................................15
(c) Scheduled Payments Under Loans and Cut-Off Date.............................................15
Section 5. Conditions Precedent to Sale of Loans.......................................................15
Section 6. Representations and Warranties of the Seller................................................15
(a) General Representations and Warranties of the Seller........................................15
(b) Representations and Warranties Regarding the Loans..........................................19
(c) Representations and Warranties Regarding the Loan Files.....................................23
(d) Survival of Representations and Warranties..................................................24
(e) Indemnification of the Company..............................................................24
Section 7. Repurchases or Substitution of Loans for Breach of Representations and Warranties...........24
Section 8. Covenants of the Seller.....................................................................24
(a) Affirmative Covenants of the Seller.........................................................24
(b) Negative Covenants of the Seller............................................................28
Section 9. Representations and Warranties of the Company...............................................30
Section 10. Affirmative Covenants of the Company........................................................31
Section 10A Negative Covenant of the Company............................................................32
Section 11. Miscellaneous...............................................................................32
(a) Amendment...................................................................................32
(b) Assignment..................................................................................32
(c) Counterparts................................................................................32
(d) Termination.................................................................................32
(e) GOVERNING LAW...............................................................................32
(f) Notices.....................................................................................33
(g) Severability of Provisions..................................................................33
(h) Successors and Assigns......................................................................33
(i) Costs, Expenses and Taxes...................................................................33
(j) No Bankruptcy Petition......................................................................33
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SCHEDULES
Schedule 1 - Loan Schedule
Schedule 2 - Resorts
Schedule 3 - Environmental Issues
Schedule 4 - Lockbox Accounts
Schedule 5 - Litigation
EXHIBITS
Exhibit A Form of Custodial Agreement
Exhibit B Form of Assignment of Additional Loans
Exhibit C Credit Standards and Collection Policies of Trendwest Resorts, Inc.
Exhibit D Forms of Loans
Exhibit E Form of Lockbox Agreement
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MASTER LOAN PURCHASE AGREEMENT
THIS MASTER LOAN PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
August 29, 2002, is made by and between TRENDWEST RESORTS, INC., an Oregon
corporation, as seller (the "SELLER"), and SIERRA DEPOSIT COMPANY, LLC, a
Delaware limited liability company, as purchaser (hereinafter referred to as the
"PURCHASER" or the "COMPANY").
RECITALS
WHEREAS, Trendwest has originated certain Loans in connection with the sale
to Obligors of Timeshare Properties at various Resorts;
WHEREAS, each of the Seller and the Company wishes to enter into this
Agreement and the related Master Loan Purchase Agreement Supplement for each
Series of Notes (each, a "PA SUPPLEMENT") in order to, among other things,
effect the sale to the Company on the related Closing Date of Initial Loans and
related Transferred Assets that the Seller owns as of the close of business on
the related Cut-Off Date, and the sale to the Company of Additional Loans
(including Additional Upgrade Balances) and related Transferred Assets that the
Seller will own from time to time thereafter as of the close of business on the
related Addition Cut-Off Dates; and
WHEREAS, the Company intends to transfer and assign the Loans and related
Transferred Assets to the Issuer, which will then grant security interests in
the Loans and related Transferred Assets to Wachovia Bank, National Association,
as Collateral Agent on behalf of the Trustee and the holders of Notes issued
from time to time pursuant to a Master Indenture and Servicing Agreement of even
date herewith (the "INDENTURE AND SERVICING AGREEMENT"), together with any
Indenture Supplements thereto, each by and between Sierra Receivables Funding
Company, LLC as Issuer, FAC as Master Servicer, the Trustee and the Collateral
Agent.
NOW, THEREFORE, in consideration of the purchase price set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
Section 1. DEFINITIONS.
Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
"ADDITION CUT-OFF DATE" shall mean, for Additional Loans of any Series, the
date set forth in the related Assignment.
"ADDITION DATE" shall mean, with respect to any Series, the Addition Date
as defined in the related PA Supplement.
"ADDITIONAL LOAN" shall mean, with respect to any Series, each Installment
Contract or other contract for deed or contract or note secured by a mortgage,
deed of trust, vendor's lien or retention of title, in each case relating to the
sale of one or more Timeshare Properties or Green
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Timeshare Properties to an Obligor and each Additional Upgrade Balance, in each
case constituting one of the Loans of such Series purchased from the Seller on
an Addition Cut-Off Date and listed on Schedule 1 to the related Assignment.
"ADDITIONAL POOL PURCHASE PRICE" shall have the meaning set forth in
Section 3.
"ADDITIONAL UPGRADE BALANCE" shall mean, with respect to any Loan, any
future borrowing made by the related Obligor pursuant to a modification of the
Loan relating to a Timeshare Upgrade after the Cut-Off Date or the Addition
Cut-Off Date, as applicable, with respect to such Loan, together with all money
due or to become due in respect of such borrowing.
"AFFILIATE" of any Person shall mean any other Person controlling or
controlled by or under common control with such Person, and "control" shall mean
the power to direct the management and policies of such Person directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and "controlling" and "controlled" shall have meanings correlative to
the foregoing.
"AGREEMENT" shall mean this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"AMORTIZATION EVENT" shall mean, with respect to any Series, one or more of
the events constituting an Amortization Event as defined in the related
Indenture Supplement.
"ASSESSMENTS" shall mean any assessments made with respect to a Timeshare
Property, including but not limited to real estate taxes, recreation fees,
community club or property owners' association dues, water and sewer improvement
district assessments or other similar assessments, the nonpayment of which could
result in the imposition of a Lien or other encumbrance upon such Timeshare
Property.
"ASSIGNMENT" shall mean, with respect to any Series, an Assignment as
defined in the related PA Supplement.
"ASSIGNMENT OF MORTGAGE" shall mean any assignment (including any
collateral assignment) of any Mortgage.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code, Title 11 of
the United States Code, as amended.
"BENEFIT PLAN" shall mean any employee benefit plan as defined in
Section 3(3) of ERISA in respect of which the Company or any ERISA Affiliate of
the Company is, or at any time during the immediately preceding six years was,
an "employer" as defined in Section 3(5) of ERISA.
"BUSINESS DAY" shall mean any day other than (i) a Saturday or Sunday or
(ii) a day on which banking institutions in New York, New York, Las Vegas,
Nevada, or the city in which the Corporate Trust Office of the Trustee is
located, or any other city specified in the PA Supplement for a Series, are
authorized or obligated by law or executive order to be closed.
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"CENDANT" shall mean Cendant Corporation or any successor thereof.
"CLOSING DATE" shall mean, with respect to any Series, the Closing Date as
defined in the related PA Supplement.
"COLLATERAL" shall have the meaning set forth in the Indenture and
Servicing Agreement.
"COLLATERAL AGENCY AGREEMENT" shall mean the Collateral Agency Agreement
dated as of January 15, 1998 by and between Fleet National Bank as predecessor
Collateral Agent, Fleet Securities, Inc. as deal agent and the secured parties
named therein, as amended by the First Amendment to Collateral Agency Agreement
dated as of July 31, 1998, as further amended by the Second Amendment to
Collateral Agreement dated as of July 25, 2000, as further amended by the Third
Amendment to Collateral Agency Agreement dated as of July 1, 2001, and as
further amended by the Fourth Amendment to Collateral Agency Agreement dated as
of August 29, 2002 by and among the Collateral Agent, the Trustee and other
secured parties, as such Collateral Agency Agreement may be amended,
supplemented or otherwise modified from time to time in accordance therewith.
"COLLATERAL AGENT" shall mean Wachovia Bank, National Association, as
Collateral Agent, its successors and assigns and any entity which is substituted
as Collateral Agent under the terms of the Collateral Agency Agreement.
"COLLECTION ACCOUNT" shall mean the account or accounts established
pursuant to Section 7.1(a) of the Indenture and Servicing Agreement.
"COLLECTIONS" shall mean, with respect to any Loan, all funds, cash
collections and other cash proceeds of such Loan, including without limitation
(i) all Scheduled Payments or recoveries made in the form of money, checks and
like items to, or a wire transfer or an automated clearinghouse transfer
received in, any of the Lockbox Accounts or received by the Issuer or the Master
Servicer (or any Subservicer) in respect of such Loan, (ii) all amounts received
by the Issuer, the Master Servicer (or any Subservicer) or the Trustee in
respect of any Insurance Proceeds relating to such Loan or the related Timeshare
Property and (iii) all amounts received by the Issuer, the Master Servicer (or
any Subservicer) or the Trustee in respect of any proceeds in respect of a
condemnation of property in any Resort, which proceeds relate to such Loan or
the related Timeshare Property.
"COMPANY" shall have the meaning set forth in the preamble.
"CONTAMINANTS" shall have the meaning set forth in Section 6(b)(xii).
"CORPORATE TRUST OFFICE" shall have the meaning set forth in the Indenture
and Servicing Agreement.
"CREDIT CARD ACCOUNT" shall mean an arrangement whereby an Obligor makes
Scheduled Payments under a Loan via pre-authorized debit to a Major Credit Card.
"CREDIT STANDARDS AND COLLECTION POLICIES" shall mean the Credit Standards
and Collection Policies of Trendwest, a copy of which is attached to this
Agreement as Exhibit C, as
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the same may be amended from time to time in accordance with the provisions of
Section 8(b)(iii).
"CUSTODIAL AGREEMENT" shall mean the custodial agreement dated as of
August 29, 2002 by and between the Issuer, FAC, EFI, Trendwest, Wachovia Bank,
National Association as Custodian, the Trustee and the Collateral Agent, a copy
of which is attached to this Agreement as Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time thereafter in accordance
with the terms hereof.
"CUSTODIAN" shall mean, at any time, the custodian under the Custodial
Agreement at such time.
"CUSTOMARY PRACTICES" shall mean the Master Servicer's practices with
respect to the servicing and administration of Loans as in effect from time to
time, which practices shall be consistent with the practices employed by prudent
lending institutions that originate and service instruments similar to the Loans
or other timeshare loans in the jurisdictions in which the Resorts are located.
"CUT-OFF DATE" shall mean, with respect to any Series, the Cut-Off Date as
defined in the related PA Supplement.
"DE MINIMUS LEVELS" shall have the meaning set forth in Section 6(b)(xii).
"DEBTOR RELIEF LAWS" shall mean the Bankruptcy Code and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments or similar
debtor relief laws from time to time in effect affecting the rights of creditors
generally.
"DEFAULTED LOAN" shall mean any Loan (a) with any portion of a Scheduled
Payment delinquent more than 60 days, (b) with respect to which the Master
Servicer shall have determined in good faith that the Obligor will not resume
making Scheduled Payments, (c) for which the related Obligor has been the
subject of a proceeding under a Debtor Relief Law or (d) for which cancellation
or foreclosure actions have been commenced.
"DEFAULTED LOAN REPURCHASE CAP" shall mean, as of any date of
determination, an amount equal to the PRODUCT of (a) 16.0% MULTIPLIED BY (b) the
aggregate Loan principal balance of all Loans (calculated as of the Cut-Off Date
or related Addition Cut-Off Date, as applicable, for each Loan) sold by the
Seller to the Depositor pursuant to this Agreement on or prior to such date of
determination.
"DEFECTIVE LOAN" shall mean, with respect to any Series, any Loan with any
uncured material breach of a representation or warranty of the Seller set forth
in Section 6(b) hereof and in the related PA Supplement.
"DELINQUENT LOAN" shall mean, with respect to any Series, a Loan with any
portion of a Scheduled Payment delinquent more than 30 days, other than any Loan
that is a Defaulted Loan.
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"DEPOSITOR ADMINISTRATIVE SERVICES AGREEMENT" shall mean the administrative
services agreement dated as of August 29, 2002 by and between FAC, as
administrator, and the Company.
"DUE DATE" shall mean, with respect to any Loan, the date on which an
Obligor is required to make a Scheduled Payment thereon.
"DUE PERIOD" shall mean, with respect to any Payment Date, the immediately
preceding calendar month.
"EFI" shall mean EFI Development Funding, Inc., a Delaware corporation and
a wholly-owned indirect Subsidiary of Cendant.
"ELIGIBLE LOAN" shall mean, with respect to any Series, an Eligible Loan as
defined in the related PA Supplement.
"ENVIRONMENTAL LAWS" shall have the meaning set forth in Section 6(b)(xii).
"EQUITY PERCENTAGE" shall mean, with respect to a Loan, a fraction,
expressed as a percentage, the NUMERATOR of which is the EXCESS of (A) the
Timeshare Price of the related Timeshare Property relating to a Loan paid or to
be paid by an Obligor OVER (B) the outstanding principal balance of such Loan at
the time of sale of such Timeshare Property to such Obligor (less the amount of
any valid check presented by such Obligor at the time of such sale that has
cleared the payment system), and the DENOMINATOR of which is the Timeshare Price
of the related Timeshare Property, PROVIDED that any cash downpayments or
principal payments made on any initial Loan that have been fully prepaid as part
of a Timeshare Upgrade and financed downpayments under such initial Loan
financed over a period not exceeding six months from the date of origination of
such Loan that have actually been paid within such six-month period shall be
included for purposes of calculating the numerator of such fraction.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" shall mean, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Internal Revenue Code) as such
Person; (ii) a trade or business (whether or not incorporated) under common
control (within the meaning of Section 414(c) of the Internal Revenue Code) with
such Person; or (iii) a member of the same affiliated service group (within the
meaning of Section 414(m) of the Internal Revenue Code) as such Person, any
corporation described in clause (i) or any trade or business described in clause
(ii).
"ERISA LIABILITIES" shall have the meaning set forth in Section 8(b)(vi).
"EVENT OF DEFAULT" shall mean, with respect to any Series, one or more of
the events constituting an Event of Default under the related Indenture
Supplement.
"FAC" shall mean Fairfield Acceptance Corporation-Nevada, a Delaware
corporation domiciled in Nevada and a wholly-owned Subsidiary of FRI.
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"FACILITY DOCUMENTS" shall mean, collectively, this Agreement, each PA
Supplement, the Indenture and Servicing Agreement, each Indenture Supplement,
the Pool Purchase Agreement, each PPA Supplement, the Custodial Agreement, the
Lockbox Agreements, the Collateral Agency Agreement, the Loan Conveyance
Documents, the Depositor Administrative Services Agreement, the Issuer
Administrative Services Agreement, the Financing Statements and all other
agreements, documents and instruments delivered pursuant thereto or in
connection therewith.
"FRI" shall mean Fairfield Resorts, Inc., a Delaware corporation and the
parent corporation of FAC.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time in the United States.
"GRANT" shall have the meaning set forth in the Indenture and Servicing
Agreement.
"GREEN LOAN" shall mean a Loan the proceeds of which are used to finance
the purchase of a Green Timeshare Property.
"GREEN TIMESHARE PROPERTY" shall mean a Timeshare Property for which
construction on the related Resort has not yet begun or is subject to
completion.
"INDEMNIFIED AMOUNTS" shall have the meaning set forth in Section 6(e).
"INDENTURE AND SERVICING AGREEMENT" shall have the meaning set forth in the
recitals.
"INDENTURE SUPPLEMENT" shall mean, with respect to any Series, an indenture
supplement to the Indenture and Servicing Agreement, executed and delivered in
connection with the issuance of the Notes of such Series pursuant to
Section 2.10 of the Indenture and Servicing Agreement, and all amendments
thereof and supplements thereto.
"INDEPENDENT DIRECTOR" shall mean an individual who is an Independent
Director as defined in the Limited Liability Company Agreement of the Company as
in effect on the date of this Agreement.
"INITIAL CLOSING DATE" shall mean August 29, 2002.
"INITIAL LOAN" shall mean, with respect to any Series, each Loan listed on
the related Loan Schedule on the Closing Date for such Series.
"INSOLVENCY EVENT" shall mean, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Debtor Relief Law now or hereafter in
effect, or the filing of a petition against such Person in an involuntary case
under any applicable Debtor Relief Law now or hereafter in effect, which case
remains unstayed and undismissed within 30 days of such filing, or the
appointing of a receiver, conservator, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the ordering of the winding-up or
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liquidation of such Person's business; or (b) the commencement by such Person of
a voluntary case under any applicable Debtor Relief Law now or hereafter in
effect, or the consent by such Person to the entry of an order for relief in an
involuntary case under any such Debtor Relief Law, or the consent by such Person
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due or the admission by such Person of its
inability to pay its debts generally as they become due.
"INSOLVENCY PROCEEDING" shall mean any proceeding relating to an Insolvency
Event.
"INSTALLMENT CONTRACT" shall mean, with respect to any Series, an
installment sale contract for deed and retained title in a related Timeshare
Property by and between the Seller and an Obligor.
"INSURANCE PROCEEDS" shall mean proceeds of any insurance policy relating
to any Loan or the related Timeshare Property, including any refund of unearned
premium, but only to the extent such proceeds are not to be applied to the
restoration of any improvements on the related Timeshare Property or released to
the Obligor in accordance with Customary Practices.
"INTERCREDITOR AGREEMENT" shall mean the intercreditor and clearing account
agreement, dated as of January 3, 2001, among the Seller, LaSalle Bank National
Association, Wells Fargo Bank Minnesota, National Association, the Issuers named
therein, Bank One, NA, Jupiter Securitzation Corporation, TW Holdings III,
KeyBank National Association, and the other parties thereto by accession.
"INTERNAL REVENUE CODE" shall mean the United States Internal Revenue Code
of 1986, as amended from time to time.
"ISSUER" shall mean Sierra Receivables Funding Company, LLC, a Delaware
limited liability company.
"ISSUER ADMINISTRATIVE SERVICES AGREEMENT" shall mean the administrative
services agreement dated as of August 29, 2002 by and between FAC as
administrator and the Issuer.
"LIEN" shall mean any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including without limitation any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any jurisdiction to
evidence any of the foregoing.
"LOAN" shall mean, with respect to any Series, each Installment Contract or
other contract for deed or contract or note secured by a mortgage, deed of
trust, vendor's lien or retention of title, in each case relating to the sale of
one or more Timeshare Properties or Green Timeshare
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Properties to an Obligor, that is listed on the Loan Schedule for such Series on
the related Closing Date and any Additional Loans that are listed from time to
time on such Loan Schedule in accordance with the related PA Supplement.
"LOAN CONVEYANCE DOCUMENTS" shall mean, with respect to any Loan, (a) the
Assignment of Additional Loans in the form of Exhibit B, if applicable, and (b)
any such other releases, documents, instruments or agreements as may be required
by the Company, the Issuer or the Trustee in order to more fully effect the sale
(including any prior assignments) of such Loan and any related Transferred
Assets.
"LOAN DOCUMENTS" shall mean, with respect to any Loan, all papers and
documents related to such Loan, including the original of all applicable
promissory notes, stamped as required by the Custodial Agreement, the original
of any related recorded or (to the extent permitted under this Agreement)
unrecorded Mortgage (or a copy of such recorded Mortgage if the original of the
recorded Mortgage is not available, certified to be a true and complete copy of
the original) and a copy of any recorded or (to the extent permitted under this
Agreement) unrecorded warranty deed transferring legal title to the related
Timeshare Property to the Obligor; PROVIDED, HOWEVER, that the Loan Documents
may be provided in microfiche or other electronic form to the extent permitted
under the Custodial Agreement.
"LOAN FILE" shall mean, with respect to any Loan, the Loan Documents
pertaining to such Loan and any additional amendments, supplements, extensions,
modifications or waiver agreements required to be added to the Loan File
pursuant to this Agreement, the Credit Standards and Collection Policies and/or
Customary Practices.
"LOAN POOL" shall mean, with respect to any Series, all Loans identified in
the Loan Schedule for such Series.
"LOAN RATE" shall mean the annual rate at which interest accrues on any
Loan, as modified from time to time in accordance with the terms of any related
Credit Standards and Collection Policies.
"LOAN SCHEDULE" shall mean, with respect to any Series, the list of Loans
attached to the related PA Supplement as Schedule 1, as amended from time to
time on each Addition Date and Repurchase Date as provided in the related PA
Supplement, which list shall set forth the following information with respect to
each Loan therein as of the applicable date:
(a) the Loan number;
(b) the Obligor's name and the home address and telephone number for
such Obligor set forth in the Loan;
(c) the Resort in which the related Timeshare Property is located, if
applicable;
(d) as to Timeshare Properties other than UDIs, the number of Vacation
Credits related thereto for which occupancy rights in a Timeshare
Property may be redeemed and which are represented thereby;
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(e) the Loan Rate;
(f) whether the Obligor has elected a PAC with respect to the Loan;
(g) the original term of the Loan;
(h) the original Loan principal balance and outstanding Loan principal
balance as of the Cut-Off Date or related Addition Cut-Off Date, as
applicable;
(i) the date of execution of the Loan;
(j) the amount of the Scheduled Payment on the Loan;
(k) the original Timeshare Price and Equity Percentage; and
(l) with respect to UDI's whether the related Timeshare Property has
been deeded to the Obligor.
The Loan Schedule also shall set forth the aggregate amounts described
under clause (h) above for all outstanding Loans. The Loan Schedule may be in
the form of more than one list, collectively setting forth all of the
information required.
"LOCKBOX ACCOUNT" shall mean any of the accounts established pursuant to a
Lockbox Agreement.
"LOCKBOX AGREEMENT" shall mean any agreement substantially in the form of
Exhibit E by and between the Issuer, the Trustee, the Master Servicer and the
applicable Lockbox Bank, which agreement sets forth the rights of the Issuer,
the Trustee and the applicable Lockbox Bank with respect to the disposition and
application of the Collections deposited in the applicable Lockbox Account,
including without limitation the right of the Trustee to direct the Lockbox Bank
to remit all Collections directly to the Trustee.
"LOCKBOX BANK" shall mean any of the commercial banks holding one or more
Lockbox Accounts for the purpose of receiving Collections.
"LOT" shall mean a fully or partially developed parcel of real estate.
"MAJOR CREDIT CARD" shall mean a credit card issued by any Visa USA, Inc.,
MasterCard International Incorporated, American Express Company, Discover Bank
or Diners Club International Ltd. credit card entity.
"MASTER SERVICER" shall mean the master servicer under the Indenture and
Servicing Agreement.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any Person and any
event or circumstance, a material adverse effect on:
(a) the business, properties, operations or condition
(financial or otherwise) of any of such Person;
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(b) the ability of such Person to perform its respective
obligations under any Facility Documents to which it is a party;
(c) the validity or enforceability of, or collectibility of
amounts payable under, any Facility Documents to which it is a party;
(d) the status, existence, perfection or priority of any Lien
arising through or under such Person under any Facility Documents to which
it is a party; or
(e) the value, validity, enforceability or collectibility of
the Loans pledged as collateral for any Series of Notes or any of the other
Transferred Assets pledged as collateral for any Series of Notes.
"MORTGAGE" shall mean any mortgage, deed of trust, purchase money deed of
trust or deed to secure debt encumbering the related Timeshare Property, granted
by the related Obligor to the Seller to secure payments or other obligations
under a Loan.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section 3(37) of
ERISA.
"NOTE" shall mean any Loan-backed note issued, executed and authenticated
in accordance with the Indenture and Servicing Agreement and any related
Indenture Supplement.
"NOTEHOLDER" shall have the meaning set forth in the Indenture and
Servicing Agreement.
"OBLIGOR" shall mean, with respect to any Loan, the Person or Persons
obligated to make Scheduled Payments thereon.
"OPINION OF COUNSEL" shall mean a written opinion of counsel in form and
substance reasonably satisfactory to the recipient thereof.
"PAC" shall mean an arrangement whereby an Obligor makes Scheduled Payments
under a Loan via pre-authorized bank account debit.
"PA SUPPLEMENT" shall have the meaning set forth in the recitals.
"PAYMENT DATE" shall mean, with respect to any Series, the payment date set
forth in the related Indenture Supplement.
"PERMITTED ENCUMBRANCE" shall mean, with respect to a Loan, any of the
following Liens against the related Timeshare Property: (i) the interest therein
of the Obligor, (ii) the Lien of due and unpaid Assessments, (iii) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, such exceptions appearing of record being consistent with the
normal business practices of the Seller or specifically disclosed in the
applicable land sales registrations filed with the applicable regulatory
agencies and (iv) other matters to which properties of the same type as those
underlying such Loan are commonly subject that do not materially interfere with
the benefits of the security intended to be provided by such Timeshare Property.
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"PERSON" shall mean any person or entity, including any individual,
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental entity or
any other organization or entity, whether or not a legal entity.
"PLAN" shall mean an employee benefit plan or other retirement arrangement
subject to ERISA or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time.
"PLAN INSOLVENCY" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"POA" shall mean each property owners' association or similar timeshare
owner body for a Timeshare Property Regime or Resort or portion thereof, in each
case established pursuant to the declarations, articles or similar charter
documents applicable to each such Timeshare Property Regime, Resort or portion
thereof.
"POOL PURCHASE AGREEMENT" shall mean the master purchase agreement relating
to the Loans, dated the date hereof, by and between the Company and the Issuer,
and all amendments thereof and supplements thereto including, with respect to
any Series, the related PPA Supplement.
"POOL PURCHASE PRICE" shall mean, with respect to any Series, the Pool
Purchase Price as defined in the related PA Supplement.
"POST OFFICE BOX" shall mean each post office box to which Obligors are
directed to mail payments in respect of the Loans of any Series.
"PPA SUPPLEMENT" shall mean any supplement to the Pool Purchase Agreement
relating to a particular Series of Notes.
"PURCHASE" shall mean, with respect to any Series, a Purchase as defined in
the related PA Supplement.
"PURCHASER" shall have the meaning set forth in the preamble.
"QUALIFIED SUBSTITUTE LOAN" shall mean, with respect to any Series, a
substitute Loan that (i) is an Eligible Loan on the applicable date of
substitution for such substitute Loan, (ii) on such date of substitution has a
Loan Rate not less than the Loan Rate of the substituted Loan and (iii) is not
selected in a manner adverse to the Purchaser and its assignees.
"RECORDS" shall mean all copies of Loans (not including originals) and
other documents, books, records and other information (including without
limitation computer programs, tapes, discs, punch cards, data processing
software and related property and rights) maintained by the Seller or any of its
respective Affiliates (not including the Purchaser or the Issuer) with respect
to Loans, the related Transferred Assets and the related Obligors.
"REORGANIZATION" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of Section 4241
of ERISA.
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"REPORTABLE EVENT" shall mean any of the events described in Section 4043
of ERISA.
"REPURCHASE DATE" shall mean, with respect to any Series, the Repurchase
Date as defined in the related PA Supplement.
"REPURCHASE PRICE" shall mean, with respect to any Series, the Repurchase
Price as defined in the related PA Supplement.
"RESERVATION SYSTEM" shall mean the system with respect to Timeshare
Properties pursuant to which a reservation for a particular location, time,
length of stay and unit type is received, accepted, modified or canceled.
"RESERVE ACCOUNT" shall, with respect to any Series, mean any reserve
account established pursuant to the related Indenture Supplement.
"RESORT" shall mean each resort or development listed on Schedule 2 (as
such Schedule 2 may be amended from time to time with the consent of the Company
and the Seller in connection with proposed sales of Additional Loans relating to
resorts or developments with respect to which Loans have not previously been
sold under this Agreement).
"SCHEDULED PAYMENT" shall mean each scheduled monthly payment of principal
and interest on a Loan.
"SELLER" shall have the meaning set forth in the preamble.
"SERIES" shall mean any Series of Notes issued and established pursuant to
an Indenture Supplement.
"SERIES TERMINATION DATE" shall mean, with respect to any Series, the
Series Termination Date as defined in the related PA Supplement.
"STATE" shall mean any of the 50 United States or the District of Columbia.
"SUBSERVICER" shall have the meaning set forth in the Indenture and
Servicing Agreement.
"SUBSERVICING AGREEMENT" shall have the meaning set forth in the Indenture
and Servicing Agreement.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation or
other entity of which more than 50% of the outstanding capital stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors of such corporation (notwithstanding that at the time capital
stock of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency) or other persons performing
similar functions is at the time directly or indirectly owned by such Person.
"SUBSTITUTION ADJUSTMENT AMOUNT" shall, with respect to any Series, have
the meaning set forth in the related PA Supplement.
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"TIMESHARE PRICE" shall mean the original price of the Timeshare Property
paid by an Obligor, plus any accrued and unpaid interest and other amounts owed
by the Obligor.
"TIMESHARE PROPERTY" shall mean the underlying ownership interest that is
the subject of a Loan, which ownership interest may be either a UDI or Vacation
Credits.
"TIMESHARE PROPERTY REGIME" shall mean any of the various interval
ownership regimes located at a Resort, each of which is an arrangement
established under applicable state law whereby all or a designated portion of a
development is made subject to a declaration permitting the transfer of
Timeshare Properties therein, which Timeshare Properties shall, in the case of
UDIs, constitute real property under the applicable local law of each of the
jurisdictions in which such regime is located.
"TIMESHARE UPGRADE" shall mean the upgrade by an Obligor of the Obligor's
existing Timeshare Property to an upgraded Timeshare Property.
"TRANSFERRED ASSETS" shall mean, with respect to any Series, any and all
right, title and interest of the Seller in, to and under:
(a) the Loans from time to time, including without limitation
the Initial Loans as of the close of business on the Cut-Off Date and the
Additional Loans as of the close of business on the related Addition
Cut-Off Dates and all Scheduled Payments, other Collections and other funds
received in respect of such Initial Loans and Additional Loans on or after
the Cut-Off Date or Addition Cut-Off Date, as applicable, and any other
monies due or to become due on or after the Cut-Off Date or Addition
Cut-Off Date, as applicable, in respect of any such Loans, and any security
therefor;
(b) the Timeshare Properties relating to the Loans;
(c) any Mortgages relating to the Loans;
(d) any Insurance Policies relating to the Loans;
(e) the Loan Files and other Records relating to the Loans;
(f) the Loan Conveyance Documents relating to the Loans;
(g) all interest, dividends, cash, instruments, financial
assets and other investment property and other property from time to time
received, receivable or otherwise distributed in respect of, or in exchange
for, or on account of, the sale or other disposition of the Transferred
Assets, and including all payments under Insurance Policies (whether or not
any of the Seller, the Purchaser, the Master Servicer, the Issuer or the
Trustee is the loss payee thereof) or any indemnity, warranty or guaranty
payable by reason of loss or damage to or otherwise with respect to any
Transferred Assets, and any security granted or purported to be granted in
respect of any Transferred Assets; and
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(h) all proceeds of any of the foregoing property described in
clauses (a) through (g).
"TRENDWEST" shall mean Trendwest Resorts, Inc., a wholly-owned indirect
Subsidiary of Cendant.
"TRUSTEE" shall mean Wachovia Bank, National Association, as Trustee under
the Indenture and Servicing Agreement, and its successors and assigns.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
as in effect in any specified jurisdiction.
"UDI" shall mean an individual interest in fee simple (as tenants in common
with all other undivided interest owners) in a lodging unit or group of lodging
units at a Resort.
"VACATION CREDITS" shall mean ownership interests in WorldMark that entitle
the owner thereof to use Resorts.
"WORLDMARK" shall mean WorldMark, The Club, a California not-for-profit
mutual benefit corporation.
Section 2. PURCHASE AND SALE OF LOANS.
The Seller may from time to time sell and assign to the Company, and the
Company may from time to time Purchase from the Seller, all the Seller's right,
title and interest in, to and under the Loans listed on the Loan Schedule with
respect to the related PA Supplement. The principal terms of the Purchase and
sale of Loans for each Series shall be set forth in the related PA Supplement.
Section 3. POOL PURCHASE PRICE.
Provisions with respect to the Purchase and sale of the Loans for each
Series shall be set forth in the related PA Supplement.
The purchase price for any Additional Loans and other related Transferred
Assets (the "ADDITIONAL POOL PURCHASE PRICE") conveyed to the Company under this
Agreement and the related PA Supplement on each Addition Date shall be a dollar
amount equal to the aggregate outstanding principal balance of such Additional
Loans sold on such date, subject to adjustment to reflect such factors as the
Company and the Seller mutually agree will result in an Additional Pool Purchase
Price equal to the fair market value of such Additional Loans and other related
Transferred Assets.
Section 4. PAYMENT OF PURCHASE PRICE.
(a) CLOSING DATES. On the terms and subject to the conditions
of this Agreement and the related PA Supplement payment of the Pool Purchase
Price for each Series shall be made by the Company on the related Closing Date
in immediately available funds to the
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Seller to such accounts at such banks as the Seller shall designate to the
Company not less than one Business Day prior to the such Closing Date.
(b) MANNER OF PAYMENT OF ADDITIONAL POOL PURCHASE PRICE. On the
terms and subject to the conditions in this Agreement and the related PA
Supplement, the Company shall pay to the Seller, on each Business Day on which
any Additional Loans are purchased from the Seller by the Company pursuant to
Section 2 of the related PA Supplement, the Additional Pool Purchase Price for
such Additional Loans by paying such Additional Pool Purchase Price to the
Seller in cash.
(c) SCHEDULED PAYMENTS UNDER LOANS AND CUT-OFF DATE. The
Company shall be entitled to all Scheduled Payments, other Collections and all
other funds with respect to any Loan received on or after the related Cut-Off
Date or Addition Cut-Off Date, as applicable. The principal balance of each Loan
as of the related Cut-Off Date or Addition Cut-Off Date, as applicable, shall be
determined after deduction, in accordance with the terms of each such Loan, of
payments of principal received before such Cut-Off Date or Addition Cut-Off
Date.
Section 5. CONDITIONS PRECEDENT TO SALE OF LOANS.
No Purchase of Loans and related Transferred Assets shall be made
hereunder or under any PA Supplement on any date on which:
(a) the Company does not have sufficient funds available
to pay the related Pool Purchase Price or Additional Pool Purchase
Price in cash; or
(b) an Insolvency Event has occurred and is continuing
with respect to the Seller or the Company.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
(a) GENERAL REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
Seller represents and warrants as of each Closing Date and as of each Addition
Date, or as of such other date specified in such representation and warranty,
that:
(i) ORGANIZATION AND GOOD STANDING.
(A) The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
state of its organization and has full corporate power,
authority and legal right to own its properties and conduct
its business as such properties are presently owned and
such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement,
any related PA Supplement and each of the Facility
Documents to which it is a party. The Seller is organized
in the jurisdiction set forth in the preamble. The Seller
is duly qualified to do business and is in good standing as
a foreign corporation, and has obtained all necessary
licenses and approvals in each jurisdiction in which
failure to qualify or to obtain such licenses and approvals
would render any Loan unenforceable by the Seller.
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(B) The name of the Seller set forth in the preamble
of this Agreement is its correct legal name and such name
has not been changed in the past six years. The Seller does
not utilize any trade names, assumed names, fictitious
names or "doing business names."
(ii) DUE AUTHORIZATION AND NO CONFLICT. The execution, delivery
and performance by the Seller of each of the Facility Documents to which it
is a party, and the consummation by the Seller of the transactions
contemplated hereby and under each other Facility Document to which it is a
party, has been duly authorized by the Seller by all necessary corporate
action, does not contravene (i) the Seller's charter or by-laws, (ii) any
law, rule or regulation applicable to the Seller, (iii) any contractual
restriction contained in any material indenture, loan or credit agreement,
lease, mortgage, deed of trust, security agreement, bond, note, or other
material agreement or instrument binding on the Seller or (iv) any order,
writ, judgment, award, injunction or decree binding on or affecting the
Seller or its properties (except where such contravention would not have a
Material Adverse Effect with respect to the Seller or its properties), and
does not result in (except as provided in the Facility Documents) or
require the creation of any Lien upon or with respect to any of its
properties; and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law. Each of the Facility Documents to which
the Seller is a party have been duly executed and delivered on behalf of
the Seller. To the extent that this representation is being made with
respect to Title I of ERISA or Section 4975 of the Code, it is made subject
to the assumption that none of the assets being used to purchase the Loans
and Transferred Assets constitute assets of any Benefit Plan or Plan with
respect to which the Seller is a party in interest or disqualified person.
(iii) GOVERNMENTAL AND OTHER CONSENTS. All approvals,
authorizations, consents or orders of any court or governmental agency or
body required in connection with the execution and delivery by the Seller
of this Agreement, any related PA Supplement or any of the other Facility
Documents to which it is a party, the consummation by such party of the
transactions contemplated hereby or thereby, the performance by such party
of and the compliance by such party with the terms hereof or thereof, have
been obtained, except where the failure so to do would not have a Material
Adverse Effect with respect to such Party.
(iv) ENFORCEABILITY OF FACILITY DOCUMENTS. Each of the Facility
Documents to which the Seller is a party has been duly and validly executed
and delivered by the Seller and constitutes the legal, valid and binding
obligation of the Seller, enforceable against it in accordance with its
respective terms, except as enforceability may be subject to or limited by
Debtor Relief Laws or by general principles of equity (whether considered
in a suit at law or in equity).
(v) NO LITIGATION. Except as disclosed in Schedule 5 to this
Agreement or to any Assignment, there are no proceedings or investigations
pending, or to the knowledge of the Seller threatened, against the Seller
before any court, regulatory body, administrative agency, or other tribunal
or governmental instrumentality (A) asserting the invalidity of this
Agreement or any of the other Facility Documents, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement
or
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any of the other Facility Documents, (C) seeking any determination or
ruling that would adversely affect the performance by the Seller of its
obligations under this Agreement, any related PA Supplement or any of the
other Facility Documents to which it is a party, (D) seeking any
determination or ruling that would adversely affect the validity or
enforceability of this Agreement or any of the other Facility Documents or
(E) seeking any determination or ruling that would, if adversely
determined, be reasonably likely to have a Material Adverse Effect with
respect to such party.
(vi) GOVERNMENTAL REGULATIONS. The Seller is not (A) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, or (B) a "public utility
company" or a "holding company," a "subsidiary company" or an "affiliate"
of any public utility company within the meaning of Section 2(a)(5),
2(a)(7), 2(a)(8) or 2(a)(ii) of the Public Utility Holding Company Act of
1935, as amended.
(vii) MARGIN REGULATIONS. The Seller is not engaged, principally
or as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying any margin stock (as each such
term is defined or used in any of Regulations T, U or X of the Board of
Governors of the Federal Reserve System). No part of the proceeds of any of
the notes issued by the Issuer has been used by the Seller for so
purchasing or carrying margin stock or for any purpose that violates or
would be inconsistent with the provisions of any of Regulations T, U or X
of the Board of Governors of the Federal Reserve System.
(viii) LOCATION OF CHIEF EXECUTIVE OFFICE AND RECORDS. The
principal place of business and chief executive office of the Seller, and
the office where the Seller maintains all of its Records, is 9805 Willows
Road, Redmond, Washington 98052. The Seller has not changed its principal
place of business or chief executive office (or the office where such
entity maintains all of its Records) during the previous six years (except
that the Seller changed its principal place of business and chief executive
office from 12301 NE 10th Place, Bellevue, Washington 98005 on February 18,
1999). At any time after the Initial Closing Date, upon 30 days' prior
written notice to the Trustee as assignee of the Company and the Issuer,
the Seller may change its name or may change its type or its jurisdiction
of organization to another jurisdiction within the United States, but only
so long as all action necessary or reasonably requested by the Company to
amend the existing financing statements and to file additional financing
statements in all applicable jurisdictions to perfect the transfer of the
Loans and the related Transferred Assets is taken.
(ix) LOCKBOX ACCOUNTS. Except in the case of any Lockbox Account
pursuant to which only Collections in respect of Loans subject to a PAC or
Credit Card Account are deposited, the Seller has filed a standing delivery
order with the United States Postal Service authorizing each Lockbox Bank
to receive mail delivered to the related Post Office Box. The account
numbers of all Lockbox Accounts, together with the names, addresses, ABA
numbers and names of contact persons of all the Lockbox Banks maintaining
such Lockbox Accounts and the related Post Office Boxes, are set forth in
Schedule 4. Except as described in the Intercreditor Agreement, from and
after the Initial
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Closing Date, the Seller shall not have any right, title and/or interest in
or to any of the Lockbox Accounts or the Post Office Boxes and will
maintain no Lockbox accounts in its own name for the collection of payments
in respect of the Loans. The Seller has no lockbox or other accounts for
the collection of payments in respect of the Loans other than the Lockbox
Accounts.
(x) FACILITY DOCUMENTS. This Agreement and any PA Supplement
are the only agreements pursuant to which the Seller sells the Loans and
other related Transferred Assets to the Company. The Seller has furnished
to the Company true, correct and complete copies of each Facility Document
to which the Seller is a party, each of which is in full force and effect.
Neither the Seller nor any of its Affiliates (not including the Purchaser
or the Issuer) is in default thereunder in any material respect.
(xi) TAXES. The Seller has timely filed or caused to be filed
all federal, state and local tax returns required to be filed by it, and
has paid or caused to be paid all taxes shown to be due and payable on such
returns or on any assessments received by it, other than any taxes or
assessments the validity of which are being contested in good faith by
appropriate proceedings and with respect to which the Seller has set aside
adequate reserves on its books in accordance with GAAP, and which
proceedings have not given rise to any Lien.
(xii) ACCOUNTING TREATMENT. The Seller has accounted for the
transactions contemplated in the Facility Documents to which it is a party
in accordance with GAAP.
(xiii) ERISA. There has been no (A) occurrence or expected
occurrence of any Reportable Event with respect to any Benefit Plan subject
to Title IV of ERISA of the Seller or any ERISA Affiliate, or any
withdrawal from, or the termination, Reorganization or Plan Insolvency of
any Multiemployer Plan or (B) institution of proceedings or the taking of
any other action by Pension Benefit Guaranty Corporation or by the Seller
or any ERISA Affiliate or any such Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Plan Insolvency of,
any such Plan.
(xiv) NO ADVERSE SELECTION. No selection procedures materially
adverse to the Company, the Issuer, the Noteholders, the Trustee or the
Collateral Agent have been employed by the Seller in selecting the Loans
for inclusion in the Loan Pool on such Closing Date or Addition Date, as
applicable.
(xv) VACATION CREDIT PROGRAM. As of each Closing Date or any
Addition Date, as applicable, for each Timeshare Property Regime for which
the related Timeshare Properties are comprised primarily of Vacation
Credits, the RATIO of (1) the total number of Vacation Credits actually
allocated to such Timeshare Property Regime for the succeeding twelve-month
period TO (2) the total number of Vacation Credits allocable to available
space in such Timeshare Property Regime over such twelve-month period, does
not exceed 1.0 to 1.0.
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(xvi) SEPARATE IDENTITY. The Seller and its Affiliates have
observed the applicable legal requirements on their part for the
recognition of the Company as a legal entity separate and apart from the
Seller and any of its Affiliates (other than the Company) and have taken
all actions necessary on their part to be taken in order to ensure that the
facts and assumptions relating to the Company set forth in the opinion of
Orrick, Herrington & Sutcliffe LLP of even date herewith relating to
substantive consolidation matters with respect to the Seller and the
Company are true and correct; PROVIDED, HOWEVER, that the Seller makes no
representations or warranties in this Section 6(a)(xvi) with respect to the
Company or the Issuer.
(b) REPRESENTATIONS AND WARRANTIES REGARDING THE LOANS. The
Seller represents and warrants to the Company as of the applicable Cut-Off Date
and Addition Cut-Off Date as to each Loan conveyed on and as of each Closing
Date or the related Addition Date, as applicable (except as otherwise expressly
stated) as follows:
(i) ELIGIBILITY. Such Loan is an Eligible Loan.
(ii) NO WAIVERS. The terms of such Loan have not been waived,
altered, modified or extended in any respect other than (A) modifications
entered into in accordance with Customary Practices and Credit Standards
and Collections Policies that do not reduce the amount or extend the
maturity of required Scheduled Payments and (B) modifications in the
applicability of a PAC (which may result in a change in the related Loan
Rate).
(iii) BINDING OBLIGATION. Such Loan is the legal, valid and
binding obligation of the Obligor thereunder and is enforceable against the
Obligor in accordance with its terms, except as such enforceability may be
limited by Debtor Relief Laws or by general principles of equity (whether
considered in a suit at law or in equity).
(iv) NO DEFENSES. Such Loan is not subject to any statutory
right of rescission, setoff, counterclaim or defense, including without
limitation the defense of usury.
(v) LAWFUL ASSIGNMENT. Such Loan was not originated in, and is
not subject to the laws of, any jurisdiction the laws of which would make
the transfer of the Loan under this Agreement or any PA Supplement
unlawful.
(vi) COMPLIANCE WITH LAW. The Seller has complied with
requirements of all material federal, state and local laws (including
without limitation usury, truth in lending and equal credit opportunity
laws) applicable to such Loan in all material respects. The related
Timeshare Property Regime is in compliance with any and all applicable
zoning and building laws and regulations and any other laws and regulations
relating to the use and occupancy of such Timeshare Property Regime, except
where such noncompliance would not have a Material Adverse Effect with
respect to the Seller. The Seller has not received notice of any material
violation of any legal requirements applicable to such Timeshare Property
Regime, except where such violation would not have a Material Adverse
Effect with respect to the Seller. The Timeshare Property Regime related to
such Loan complies with all applicable state statutes, including without
limitation
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condominium statutes, timeshare statutes, HUD filings relating to
interstate land sales (if applicable) and the requirements of any
governmental authority or local authority having jurisdiction with respect
to such Timeshare Property Regime, and constitutes a valid and conforming
condominium and timeshare regime under the laws of the State in which the
related Resort is located, except where such noncompliance would not have a
Material Adverse Effect with respect to the Seller.
(vii) LOAN IN FORCE; NO SUBORDINATION. Such Loan is in full force
and effect and has not been subordinated, satisfied in whole or in part or
rescinded.
(viii) CAPACITY OF PARTIES. All parties to such Loan had legal
capacity to execute the Loan.
(ix) ORIGINAL LOANS. All original executed copies of such Loans
are in the custody of the Custodian, except to the extent otherwise
permitted pursuant to Section 6(b)(xiv).
(x) LOAN FORM/GOVERNING LAW. Such Loan was executed in
substantially the form of one of the forms of Loan in Exhibit D (as such
Exhibit D may be amended from time to time with the consent of the Seller
and the Company), except for changes required by applicable law and certain
other modifications that do not, individually or in the aggregate, affect
the enforceability or collectibility of such Loan. In addition, such Loan
was originated in and is governed by the laws of the State in which the
Loan was executed.
(xi) INTEREST IN REAL PROPERTY. Each Timeshare Property that is
a UDI constitutes a fee simple interest in real property and improvements
on the real property.
(xii) ENVIRONMENTAL COMPLIANCE. Each Timeshare Property Regime
related to a Loan is now, and at all times during the Seller's ownership
thereof (or the ownership of any Affiliate thereof other than the Company
and the Issuer), has been free of contamination from any substance,
material or waste identified as toxic or hazardous according to any
federal, state or local law, rule, regulation or order governing, imposing
standards of conduct with respect to, or regulating in any way the
discharge, generation, removal, transportation, storage or handling of
toxic or hazardous substances, materials or waste or air or water pollution
(hereinafter referred to as "ENVIRONMENTAL LAWS"), including without
limitation any PCB, radioactive substance, methane, asbestos, volatile
hydrocarbons, petroleum products or wastes, industrial solvents or any
other material or substance that now or hereafter may cause or constitute a
health, safety or other environmental hazard to any person or property (any
such substance together with any substance, material or waste identified as
toxic or hazardous under any Environmental Law now in effect or hereinafter
enacted shall be referred to herein as "CONTAMINANTS"), but excluding from
the foregoing any levels of Contaminants at or below which such
Environmental Laws do not apply ("DE MINIMUS LEVELS"). Neither the Seller
nor any Affiliate of the Seller (other than the Company and the Issuer) has
caused or suffered to occur any discharge, spill, uncontrolled loss or
seepage of any petroleum or chemical product or any Contaminant (except for
De Minimus Levels thereof) onto any property
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comprising or adjoining any Timeshare Property Regime, and neither the
Seller nor any Affiliate of the Seller (other than the Company and the
Issuer) nor any Obligor or occupant of all or part of any Timeshare
Property Regime is now or has been involved in operations at the related
Timeshare Property Regime that could lead to liability for the Seller, the
Company, any Affiliate of the Seller or any other owner of such Timeshare
Property Regime or the imposition of a Lien on such Timeshare Property
Regime under any Environmental Law. No practice, procedure or policy
employed by the Seller (or any Affiliate thereof other than the Company and
the Issuer) with respect to POAs for which the Seller acts as the manager
or, to the best knowledge of the Seller, by the manager of the POAs with
respect to POAs managed by parties unaffiliated with the Seller, violates
any Environmental Law that, if enforced, would reasonably be expected to
(A) have a Material Adverse Effect on such POA or the ability of such POA
to do business, (B) have a Material Adverse Effect on the financial
condition of the POA or (C) constitute grounds for the revocation of any
license, charter, permit or registration that is material to the conduct of
the business of the POA.
Except as set forth in Schedule 3, (1) all property owned, managed,
or controlled by the Seller or any Affiliate of the Seller (other than the
Company and the Issuer) and located within a Resort is now, and at all
times during the Seller's ownership, management or control thereof (or the
ownership, management or control of any Affiliate thereof (other than the
Company and the Issuer)) has been free of contamination from any
Contaminants, except for De Minimus Levels thereof, (2) neither the Seller
nor any Affiliate of the Seller (other than the Company and the Issuer) has
caused or suffered to occur any discharge, spill, uncontrolled loss or
seepage of any Contaminants onto any property comprising or adjoining any
of the Resorts, except for De Minimus Levels thereof, and (3) neither the
Seller nor any Affiliate of the Seller (other than the Company and the
Issuer) nor any Obligor or occupant of all or part of any of any Resort is
now or previously has been involved in operations at any Resort that could
lead to liability for the Seller, the Company, any Affiliate of the Seller
or any other owner of any Resort or the imposition of a Lien on such Resort
under any Environmental Law. None of the matters set forth in Schedule 3
will have a Material Adverse Effect with respect to the Company or its
assignees or the interests of the Company or its assignees in the Loans.
Each Resort, and the present use thereof, does not violate any
Environmental Law in any manner that would materially adversely affect the
value or use of such Resort or the performance by the POAs of their
respective obligations under their applicable declarations, articles or
similar charter documents. There is no condition presently existing, and to
the best knowledge of the Seller no event has occurred or failed to occur
with respect to any Resort, relating to any Contaminants or compliance with
any Environmental Laws that would reasonably be expected to have a
Materially Adverse Effect with respect to such Resort, including in
connection with the present use of such Resort.
(xiii) TAX LIENS. All taxes applicable to such Loan and the
related Timeshare Property have been paid, except where the failure to pay
such tax would not have a Material Adverse Effect with respect to the
Seller or its assignees or the Purchaser or the collectibility or
enforceability of the Loan. There are no delinquent tax liens in respect of
the Timeshare Property underlying such Loan.
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(xiv) LOAN FILES. The related Loan File contains the following
Loan Documents (which may include microfiche or other electronic copies of
the Loan Documents to the extent provided in the Custodial Agreement):
(A) at least one original of each Loan (or, if the Loan
and promissory note are contained in separate documents, an
original of the promissory note); PROVIDED, HOWEVER, that the
original Loan may have been removed from the Loan File in
accordance with the Custodial Agreement for the performance of
collection services and other routine servicing requirements; and
(B) for Loans with respect to which the related Timeshare
Property has been deeded out to the related Obligor:
(1) a copy of the deed for such Timeshare Property; and
(2) the original recorded Mortgage (or a copy thereof, if
applicable, for Mortgages that have been submitted for recording as
set forth herein) and Assignments of Mortgages in favor of the
Collateral Agent (or a copy of such recorded Mortgage or Assignment
of Mortgage, as the case may be, certified to be a true and
complete copy thereof, if the original of the recorded Mortgage or
Assignment of Mortgage is lost or destroyed), PROVIDED that in the
case of any Loan with respect to which the related Mortgage and/or
deed has been removed from the Loan File for recording in the local
real property recording office, the original Mortgage shall not
have been at such real property recording office more than 180 days
from the date on which the related Timeshare Property is required
to be deeded to an Obligor.
(xv) LOCKBOX ACCOUNTS. As of the applicable Cut-Off Date, the
Obligor of such Loan either:
(A) shall have been instructed to remit Payments
thereunder to a Post Office Box for credit to a Lockbox Account or
directly to a Lockbox Account, in each case maintained at a Lockbox
Bank pursuant to the terms of a Lockbox Agreement; or
(B) has entered into a PAC or Credit Card Account pursuant
to which a deposit account of such Obligor is made subject to a
pre-authorized debit in respect of Payments as they become due and
payable, and the Seller has caused a Lockbox Bank to take all
necessary and appropriate action to ensure that each such
pre-authorized debit is credited directly to a Lockbox Account.
(xvi) OWNERSHIP INTEREST. As of the Closing Date or related
Addition Date, as applicable, the Seller has good and marketable title to
the Loan, free and clear of all Liens (other than Permitted Encumbrances).
(xvii) INTEREST IN LOAN. Such Loan constitutes either a "general
intangible," an "instrument," "chattel paper" or an "account" under the
Uniform Commercial Code of the States of Delaware, Oregon and New York.
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(xviii) RECORDATION OF ASSIGNMENTS. The collateral Assignment of
Mortgage to the Collateral Agent relating to the Mortgage with respect to
each Loan has been recorded or delivered for recordation simultaneously
with the related Mortgage to the proper office in the jurisdiction in which
the related Timeshare Property is located.
(xix) MATERIAL DISPUTES. To the actual knowledge of the Seller,
the Loan is not subject to any material dispute.
(xx) GOOD TITLE; NO LIENS. Upon the Purchase hereunder occurring
on such Closing Date or Addition Date, as applicable, the Company will be
the lawful owner of, and have good title to, each Loan and all of the other
related Transferred Assets that are the subject of such Purchase, free and
clear of any Liens (other than any Permitted Encumbrances on the related
Timeshare Properties). All Loans and related Transferred Assets are
purchased without recourse to the Seller except as described in this
Agreement and any PA Supplement. Such Purchase by the Company under this
Agreement and under any PA Supplement constitutes a valid and true sale and
transfer for consideration (and not merely the grant of a security interest
to secure a loan), enforceable against creditors of the Seller, and no Loan
or other related Transferred Assets that are the subject of such Purchase
will constitute property of the Seller after such Purchase.
(xxi) SOLVENCY. The Seller, both prior to and immediately after
giving effect to the Purchase of Loans hereunder and under any PA
Supplement occurring on such Closing Date or Addition Date, as applicable,
(A) is not insolvent (as such term is defined in Section 101(32)(A) of the
Bankruptcy Code), (B) is able to pay its debts as they become due and (C)
does not have unreasonably small capital for the business in which it is
engaged or for any business or transaction in which it is about to engage.
(xxii) POA RESERVES. The capital reserves and maintenance fee
levels of the POAs related to each Timeshare Property Regime underlying the
Loans Purchased on such Closing Date or Addition Date, as applicable, are
adequate in light of the operating requirements of such POAs.
(c) REPRESENTATIONS AND WARRANTIES REGARDING THE LOAN FILES.
The Seller represents and warrants to the Company as of each Closing Date and
related Addition Date as to each Loan and the related Loan File conveyed by it
hereunder on and as of such Closing Date or related Addition Date, as applicable
(except as otherwise expressly stated) as follows:
(i) POSSESSION. On or immediately prior to each Closing
Date or related Addition Date, as applicable, the Custodian will
have possession of each original Loan and the related Loan File and
will have acknowledged such receipt, and its undertaking to hold
such original Loan and the related Loan File for purposes of
perfection of the Collateral Agent's interest in such original Loan
and the related Loan File; PROVIDED, HOWEVER, that the fact that
any document not required to be in its respective Loan File
pursuant to Section 6(b)(xiv) of this Agreement is not in the
possession of the Custodian in its respective Loan File does not
constitute a breach of this representation.
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(ii) MARKING RECORDS. On or before each Closing Date or
Addition Date, as applicable, the Seller shall have caused the
portions of its computer files relating to the Loans sold on such
date to the Company to be clearly and unambiguously marked to
indicate that each such Loan has been conveyed on such date to the
Company.
(d) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. It is
understood and agreed that the representations and warranties contained in this
Section 6 shall remain operative and in full force and effect, shall survive the
transfer and conveyance of the Loans with respect to any Series by the Seller to
the Company under this Agreement and any PA Supplement, the conveyance of the
Loans by the Company to the Issuer pursuant to the Pool Purchase Agreement and
any PPA Supplement and the Grant of the Collateral by the Issuer to the
Collateral Agent and shall inure to the benefit of the Company, the Issuer, the
Trustee, the Collateral Agent and the Noteholders and their respective
designees, successors and assigns.
(e) INDEMNIFICATION OF THE COMPANY. The Seller shall indemnify,
defend and hold harmless the Company against any and all claims, losses and
liabilities, including reasonable attorneys' fees (the foregoing being
collectively referred to as "INDEMNIFIED AMOUNTS") that may at any time be
imposed on, incurred by or asserted against the Company as a result of a breach
by the Seller of any of its respective representations, warranties or covenants
hereunder. Except as otherwise provided in Section 11(i), the Seller shall pay
to the Company, on demand, any and all amounts necessary to indemnify the
Company for (i) any and all recording and filing fees in connection with the
transfer of the Loans from the Seller to the Company, and any and all
liabilities with respect to, or resulting from any delay in paying when due, any
taxes (including sales, excise or property taxes) payable in connection with the
transfer of the Loans from the Seller to the Company and (ii) costs, expenses
and reasonable counsel fees in defending against the same. The agreements in
this Section 6(e) shall survive the termination of this Agreement or any PA
Supplement and the payment of all amounts payable hereunder, under any PA
Supplement and under the Loans. For purposes of this Section 6(e), any reference
to the Company shall include any officer, director, employee or agent thereof,
or any successor or assignee thereof or of the Company.
Section 7. REPURCHASES OR SUBSTITUTION OF LOANS FOR BREACH OF REPRESENTATIONS
AND WARRANTIES.
Provisions with respect to the repurchase or substitution of Loans of any
Series for breach of representations and warranties under this Agreement and any
PA Supplement shall be set forth in the related PA Supplement.
Section 8. COVENANTS OF THE SELLER.
(a) AFFIRMATIVE COVENANTS OF THE SELLER. The Seller covenants
and agrees that it will, at any time prior to the Termination Date:
(i) COMPLIANCE WITH LAWS, ETC. Comply in all material respects
with all applicable laws, rules, regulations and orders with respect to it,
its business and properties, provisions of ERISA, the Internal Revenue Code
and all applicable regulations
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and interpretations thereunder, and all Loans and Facility Documents to
which it is a party.
(ii) PRESERVATION OF CORPORATE EXISTENCE. 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, and maintain all necessary licenses and
approvals in each jurisdiction in which it does business, except where the
failure to preserve and maintain such existence, rights, franchises,
privileges, qualifications, licenses and approvals would not have a
Material Adverse Effect with respect to it.
(iii) AUDITS. Upon at least two Business Days notice during
regular business hours, permit the Company and/or its agents,
representatives or assigns access:
(A) to the offices and properties of the Seller in order
to examine and make copies of and abstracts from all books,
correspondence and Records of the Seller as appropriate to verify
the Seller's compliance with this Agreement, any PA Supplement or
any other Facility Documents to which the Seller is a party and any
other agreement contemplated hereby or thereby, and the Company
and/or its agents, representatives and assigns may examine and
audit the same and make photocopies, computer tapes or other
computer replicas thereof, as appropriate, and the Seller will
provide to the Company and/or its agents, representatives and
assigns, at the expense of the Seller, such clerical and other
assistance as may be reasonably requested in connection therewith;
and
(B) to the officers or employees of the Seller designated
by the Seller in order to discuss matters relating to the Loans and
the performance of the Seller hereunder, under any PA Supplement or
any other Facility Documents to which the Seller is a party and any
other agreement contemplated hereby or thereby, and under the other
Facility Documents to which it is a party with the officers or
employees of the Seller having knowledge of such matters.
Each such audit shall be at the sole expense of the Seller. The
Company shall be entitled to conduct such audits as frequently as it deems
reasonable in the exercise of the Company's reasonable commercial judgment;
PROVIDED, HOWEVER, that such audits shall not be conducted more frequently
than annually unless an Event of Default or an Amortization Event shall
have occurred. The Company and its agents, representatives and assigns also
shall have the right to discuss the Seller's affairs with the officers,
employees and independent accountants of the Seller and to verify under
appropriate procedures the validity, amount, quality, quantity, value and
condition of, or any other matter relating to, the Loans and other related
Transferred Assets.
(iv) [Reserved.]
(v) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND LOANS. At
its expense, timely and fully perform and comply in all material respects
with the Credit Standards and Collection Policies and Customary Practices
with respect to the Loans and with all
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provisions, covenants and other promises required to be observed by the
Seller under the Loans.
(vi) [Reserved.]
(vii) OWNERSHIP INTEREST. Take such action with respect to each
Loan as is necessary to ensure that the Company maintains a first priority
ownership interest in such Loan and the other related Transferred Assets,
in each case free and clear of any Liens arising through or under the
Seller and, in the case of any Timeshare Properties, other than any
Permitted Encumbrance thereon, and respond to any inquiries with respect to
ownership of a Loan sold by it hereunder by stating that, from and after
the Initial Closing Date or related Addition Date, as applicable, it is no
longer the owner of such Loan and that ownership of such Loan has been
transferred to the Company.
(viii) INSTRUMENTS. Not remove any portion of the Loans or related
Transferred Assets with respect to any Series that consists of money or is
evidenced by an instrument, certificate or other writing from the
jurisdiction in which it was held under the related Custodial Agreement
unless the Company shall have first received an Opinion of Counsel to the
effect that the Company shall continue to have a first-priority perfected
ownership or security interest with respect to such property after giving
effect to such action or actions.
(ix) NO RELEASE. Not take any action, and use its best efforts
not to permit any action to be taken by others, that would release any
Person from such Person's covenants or obligations under any document,
instrument or agreement relating to the Loans or the other Transferred
Assets, or result in the hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such
document, instrument or agreement, except as expressly provided in this
Agreement or any PA Supplement or such other instrument or document.
(x) INSURANCE AND CONDEMNATION.
(A) The Seller shall do or cause to be done all things
that it may accomplish with a reasonable amount of cost or effort
to cause each of the POAs for each Resort, in each case (1) to
maintain one or more policies of "all-risk" property and general
liability insurance with financially sound and reputable insurers
providing coverage in scope and amount that (x) satisfy the
requirements of the declarations (or any similar charter document)
governing the POA for the maintenance of such insurance policies
and (y) are at least consistent with the scope and amount of such
insurance coverage obtained by prudent POAs and/or management of
other similar developments in the same jurisdiction and (2) to the
extent the Seller is the property manager of the Resort and
possesses the right to direct the application of insurance
proceeds, to use its best efforts to apply the proceeds of any such
insurance policies in the manner specified in the related
declarations (or any similar charter document) governing the POA
and/or any similar charter documents of such POA (which exercise of
best efforts shall include voting as a member of the POA or as a
proxy or attorney-in-fact for a
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member). For the avoidance of doubt, the parties acknowledge that
the ultimate discretion and control relating to the maintenance of
any such insurance policies is vested in the POA in accordance with
the respective declaration (or any similar charter document)
relating to each Timeshare Property Regime.
(B) The Seller shall remit to the Collection Account the
portion of any proceeds received pursuant to a condemnation of
property in any Resort relating to any Timeshare Property to the
extent the Obligors are required to make such remittance under the
terms of one or more Loans that have been sold to the Company
hereunder and under the related PA Supplement.
(xi) SEPARATE IDENTITY. Take such action as is necessary to
ensure compliance with Section 6(a)(xvi), including taking all actions
necessary on its part to be taken in order to ensure that the facts and
assumptions relating to the Company set forth in the opinion of Orrick,
Herrington & Sutcliffe LLP of even date herewith relating to substantive
consolidation matters with respect to the Seller and the Company are true
and correct.
(xii) COMPUTER FILES. Mark or cause to be marked each Loan in its
computer files as described in Section 6(c)(ii) and deliver to the Company,
the Issuer, the Trustee and the Collateral Agent a copy of the Loan
Schedule for each Series as amended from time to time.
(xiii) TAXES. File or cause to be filed, and cause each of its
Affiliates with whom it shares consolidated tax liability to file, all
federal, state and local tax returns that are required to be filed by it,
except where the failure to file such returns could not reasonably be
expected to have a Material Adverse Effect with respect to the Purchaser or
the Seller, or otherwise be reasonably expected to expose the Purchaser or
the Seller to material liability. The Seller will pay or cause to be paid
all taxes shown to be due and payable on such returns or on any assessments
received by it, other than any taxes or assessments the validity of which
are being contested in good faith by appropriate proceedings and with
respect to which the Seller or the applicable Affiliate has set aside
adequate reserves on its books in accordance with GAAP, and which
proceedings could not reasonably be expected to have a Material Adverse
Effect with respect to the Purchaser or the Seller or otherwise be
reasonably expected to expose the Purchaser or the Seller to material
liability.
(xiv) FACILITY DOCUMENTS. Comply in all material respects with
the terms of, and employ the procedures outlined under, this Agreement, any
PA Supplement and all other Facility Documents to which it is a party, and
take all such action as may be from time to time reasonably requested by
the Company to maintain this Agreement, any PA Supplement and all such
other Facility Documents in full force and effect.
(xv) LOAN SCHEDULE. With respect to any Series, promptly amend
the applicable Loan Schedule to reflect terms or discrepancies that become
known after each Closing Date or any Addition Date, and promptly notify the
Company, the Issuer, the Trustee and the Collateral Agent of any such
amendments.
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(xvi) SEGREGATION OF COLLECTIONS. Prevent, to the extent within
its control, the deposit into the Collection Account or any Reserve Account
of any funds other than Collections in respect of the Loans with respect to
any Series, and to the extent that, to its knowledge, any such funds are
nevertheless deposited into the Collection Account or any Reserve Account,
promptly identify any such funds to the Master Servicer for segregation and
remittance to the owner thereof.
(xvii) MANAGEMENT OF RESORTS. The Seller hereby covenants and
agrees (to the extent that the Seller is responsible for maintaining or
managing such Resort) to do or cause to be done all things that it may
accomplish with a reasonable amount of cost or effort in order to maintain
such Resort (including without limitation all grounds, waters and
improvements thereon and all other facilities related thereto) in at least
as good condition, repair and working order as would be customary for
prudent managers of similar timeshare properties.
(b) NEGATIVE COVENANTS OF THE SELLER. The Seller covenants and
agrees that it will not, at any time prior to the final Series Termination Date
without the prior written consent of the Company:
(i) SALES, LIENS, ETC. AGAINST LOANS AND TRANSFERRED ASSETS.
Except for the transfers hereunder, sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist, any Lien
arising through or under it (other than, in the case of any Timeshare
Properties, any Permitted Encumbrances thereon) upon or with respect to any
Loan or other Transferred Asset or any interest therein. The Seller shall
immediately notify the Company of the existence of any Lien arising through
or under it on any Loan or other Transferred Asset.
(ii) EXTENSION OR AMENDMENT OF LOAN TERMS. Extend, amend, waive
or otherwise modify the terms of any Loan (other than as a result of a
Timeshare Upgrade or in accordance with Customary Practices) or permit the
rescission or cancellation of any Loan, whether for any reason relating to
a negative change in the related Obligor's creditworthiness or inability to
make any payment under the Loan or otherwise.
(iii) CHANGE IN BUSINESS OR CREDIT STANDARDS OR COLLECTION
POLICIES. (A) Make any change in the character of its business or (B) make
any change in the Credit Standards and Collection Policies or (C) deviate
from the exercise of Customary Practices, which change or deviation would,
in any such case, materially impair the value or collectibility of any
Loan.
(iv) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Add or
terminate any bank as a bank holding any account for the collection of
payments in respect of the Loans from those listed in Exhibit E or make any
change in its instructions to Obligors regarding payments to be made to any
Lockbox Account at a Lockbox Bank, unless the Company and the Trustee shall
have received (A) 30 days' prior written notice of such addition,
termination or change, (B) written confirmation from the Seller that, after
the effectiveness of any such termination, there will be at least one
Lockbox in existence and (C) prior to the date of such addition,
termination or change, (1) executed copies of
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Lockbox Agreements executed by each new Lockbox Bank, the Seller, the
Company, the Master Servicer and the Trustee and (2) copies of all
agreements and documents signed by either the Company or the respective
Lockbox Bank with respect to any new Lockbox Account.
(v) CHANGE IN CORPORATE NAME, ETC. Make any change to its name
or its type or jurisdiction of organization that existed on the Initial
Closing Date without providing at least 30 days' prior written notice to
the Company and the Trustee and taking all action necessary or reasonably
requested by the Trustee to amend its existing financing statements and
file additional financing statements in all applicable jurisdictions as are
necessary to maintain the perfection of the security interest of the
Company.
(vi) ERISA MATTERS. (A) Engage or permit any ERISA Affiliate to
engage in any prohibited transaction for which an exemption is not
available or has not previously been obtained from the U.S. Department of
Labor; (B) permit to exist any accumulated funding deficiency (as defined
in Section 302(a) of ERISA and Section 412(a) of the Internal Revenue Code)
or funding deficiency with respect to any Benefit Plan other than a
Multiemployer Plan; (C) fail to make any payments to any Multiemployer Plan
that the Seller or any ERISA Affiliate may be required to make under the
agreement relating to such Multiemployer Plan or any law pertaining
thereto; (D) terminate any Benefit Plan so as to result in any liability;
(E) permit to exist any occurrence of any Reportable Event that represents
a material risk of a liability of the Seller or any ERISA Affiliate under
ERISA or the Internal Revenue Code; provided, however, that the ERISA
Affiliates of the Seller may take or allow such prohibited transactions,
accumulated funding deficiencies, payments, terminations and Reportable
Events described in clauses (A) through (E) above so long as such events
occurring within any fiscal year of the Seller, in the aggregate, involve a
payment of money by or an incurrence of liability of any such ERISA
Affiliate (collectively, "ERISA LIABILITIES") in an amount that does not
exceed $2,000,000 or otherwise result in liability that would result in
imposition of a lien.
(vii) TERMINATE OR REJECT LOANS. Without limiting the
requirements of Section 8(b)(ii), terminate or reject any Loan prior to the
end of the term of such Loan, whether such rejection or early termination
is made pursuant to an equitable cause, statute, regulation, judicial
proceeding or other applicable law unless, prior to such termination or
rejection, such Loan and any related Transferred Assets have been
repurchased by the Seller pursuant to Section 7 of the related PA
Supplement.
(viii) FACILITY DOCUMENTS. Except as otherwise permitted under
Section 8(b)(ii), terminate, amend or otherwise modify any Facility
Document to which it is a party or grant any waiver or consent thereunder.
(ix) INSOLVENCY PROCEEDINGS. Institute Insolvency Proceedings
with respect to WorldMark, the Company or the Issuer or consent to the
institution of Insolvency Proceedings against WorldMark, the Company or the
Issuer, or take any corporate action in furtherance of any such action.
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Section 9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants as of each Closing Date and Addition
Date, or as of such other date specified in such representation and warranty,
that:
(a) The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware
and has full limited liability company power, authority, and legal right to own
its properties and conduct its business as such properties are presently owned
and as such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement and any PA Supplement. The Company is duly
qualified to do business and is in good standing as a foreign entity, and has
obtained all necessary licenses and approvals in each jurisdiction necessary to
carry on its business as presently conducted and to perform its obligations
under this Agreement and any PA Supplement. One hundred percent (100%) of the
outstanding membership interests of the Company is directly owned (both
beneficially and of record) by FAC. Such membership interests are validly
issued, fully paid and nonassessable and there are no options, warrants or other
rights to acquire membership interests from the Company.
(b) The execution, delivery and performance of this Agreement
and any PA Supplement by the Company and the consummation by the Company of the
transactions provided for in this Agreement and any PA Supplement have been duly
approved by all necessary limited liability company action on the part of the
Company.
(c) This Agreement and any PA Supplement constitutes the legal,
valid and binding obligation of the Company, enforceable against it in
accordance with its terms, except as such enforceability may be subject to or
limited by Debtor Relief Laws and except as such enforceability may be limited
by general principles of equity.
(d) The execution and delivery by the Company of this Agreement
and any PA Supplement, the performance by the Company of the transactions
contemplated hereby and the fulfillment by the Company of the terms hereof
applicable to the Company will not conflict with, violate, result in any breach
of the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a material default under any provision of any existing
law or regulation or any order or decree of any court applicable to the Company
or its certificate of formation or limited liability company agreement or any
material indenture, contract, agreement, mortgage, deed of trust, or other
material instrument to which the Company is a party or by which it or its
properties is bound.
(e) There are no proceedings or investigations pending, or to
the knowledge of the Company threatened, against the Company before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (A) asserting the invalidity of this Agreement or any PA
Supplement, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any PA Supplement, (C) seeking any
determination or ruling that, in the reasonable judgment of the Company, would
adversely affect the performance by the Company of its obligations under this
Agreement or any PA Supplement or (D) seeking any determination or ruling that
would adversely affect the validity or enforceability of this Agreement or any
PA Supplement.
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(f) All approvals, authorizations, consents, orders or other
actions of any person or entity or any governmental body or official required in
connection with the execution and delivery of this Agreement and any PA
Supplement by the Company, the performance by it of the transactions
contemplated hereby and the fulfillment by it of the terms hereof, have been
obtained and are in full force and effect.
(g) The Company is solvent and will not become insolvent
immediately after giving effect to the transactions contemplated by this
Agreement and any PA Supplement, the Company has not incurred debts beyond its
ability to pay and, immediately after giving effect to the transactions
contemplated by this Agreement and any PA Supplement, the Company shall have an
adequate amount of capital to conduct its business in the foreseeable future.
Section 10. AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company hereby acknowledges that the parties to the Facility
Documents are entering into the transactions contemplated by the Facility
Documents in reliance upon the Company's identity as a legal entity separate
from the Seller and its Affiliates. From and after the date hereof until the
final Series Termination Date under any Indenture Supplement, the Company will
take such actions as shall be required in order that:
(a) The Company will conduct its business in office space
allocated to it and for which it pays an appropriate rent and overhead
allocation;
(b) The Company will maintain corporate records and books of
account separate from those of the Seller and its Affiliates and telephone
numbers and stationery that are separate and distinct from those of the Seller
and its Affiliates;
(c) The Company's assets will be maintained in a manner that
facilitates their identification and segregation from those of any of the Seller
and its Affiliates;
(d) The Company will observe corporate formalities in its
dealings with the public and with the Seller and its Affiliates and, except as
contemplated by the Facility Documents, funds or other assets of the Company
will not be commingled with those of any of the Seller and its Affiliates. The
Company will at all times, in its dealings with the public and with the Seller
and its Affiliates, hold itself out and conduct itself as a legal entity
separate and distinct from the Seller and its Affiliates. The Company will not
maintain joint bank accounts or other depository accounts to which the Seller
and its Affiliates (other than the Master Servicer) has independent access;
(e) The duly elected board of directors of the Company and duly
appointed officers of the Company will at all times have sole authority to
control decisions and actions with respect to the daily business affairs of the
Company;
(f) Not less than one member of the Company's board of
directors will be an Independent Director. The Company will observe those
provisions in its limited liability company agreement that provide that the
Company's board of directors will not approve, or take any other action to cause
the filing of, a voluntary bankruptcy petition with respect to the Company
unless the Independent Director and all other members of the Company's board of
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directors unanimously approve the taking of such action in writing prior to the
taking of such action;
(g) The Company will compensate each of its employees,
consultants and agents from the Company's own funds for services provided to
the Company; and
(h) Except as contemplated by the Facility Documents, the
Company will not hold itself out to be responsible for the debts of the Seller
and its Affiliates.
Section 10A NEGATIVE COVENANT OF THE COMPANY.
The Company covenants and agrees that it will not, at any time prior to the
final Series Termination Date institute Insolvency Proceedings with respect to
WorldMark or consent to the institution of Insolvency Proceedings against
WorldMark, or take any corporate action in furtherance of any such action.
Section 11. MISCELLANEOUS.
(a) AMENDMENT. This Agreement may be amended from time to time
or the provisions hereof may be waived or otherwise modified by the parties
hereto by written agreement signed by the parties hereto; provided, however,
that no such amendment, waiver or modification shall be effective without the
prior written consent of the Trustee.
(b) ASSIGNMENT. The Company has the right to assign its
interest under this Agreement and any PA Supplement as may be required to effect
the purposes of the Pool Purchase Agreement without the consent of the Seller,
and the assignee shall succeed to the rights hereunder of the Company. The
Seller agrees to perform its obligations hereunder for the benefit of the
Issuer, the Trustee, the Collateral Agent and the Noteholders agrees that such
parties are intended third party beneficiaries of this Agreement and agrees that
the Trustee or the Collateral Agent and (subject to the terms and conditions of
the Indenture and Servicing Agreement and any applicable Indenture Supplement)
the Noteholders may enforce the provisions of this Agreement and any PA
Supplement, exercise the rights of the Company and enforce the obligations of
the Seller hereunder without the consent of the Company.
(c) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument.
(d) TERMINATION. The obligations of the Seller under this
Agreement and any PA Supplement shall survive the sale of the Loans to the
Company and the Company's transfer of the Loans and other related Transferred
Assets to the Issuer.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PRINCIPLES.
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(f) NOTICES. All demands and notices hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by certified mail, postage prepaid and return receipt requested, or by
express delivery service, to (i) in the case of the Seller, Trendwest Resorts,
Inc., 9805 Willows Road, Redmond, Washington 98052, Attention: President, or
such other address as may hereafter be furnished to the Company in writing by
the Seller and (ii) in the case of the Company, Sierra Deposit Company, LLC,
10750 West Charleston Blvd., Suite 130, Mailstop 2067, Las Vegas, Nevada 89135,
Attention: President, or such other address as may hereafter be furnished to the
Seller in writing by the Company.
(g) SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon each of the Seller and the Company and their respective permitted
successors and assigns, and shall inure to the benefit of each of the Seller and
the Company and each of the Issuer, the Trustee and the Collateral Agent to the
extent explicitly contemplated hereby.
(i) COSTS, EXPENSES AND TAXES.
(a) The Seller agrees to pay on demand to the Company all
reasonable costs and expenses, if any, incurred or reimbursed (or
to be reimbursed) by the Company (including reasonable counsel fees
and expenses) in connection with the enforcement or preservation of
the rights and remedies under this Agreement and any PA Supplement.
(b) The Seller agrees to pay, indemnify and hold the
Company harmless from and against any and all stamp, sales, excise
and other taxes and fees payable or determined to be payable by or
reimbursed (or to be reimbursed) by the Company in connection with
the execution, delivery, filing and recording of this Agreement or
any PA Supplement, and against any liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes
and fees.
(j) NO BANKRUPTCY PETITION. The Seller covenants and agrees not
to institute against the Company or the Issuer, or join any other person in
instituting against the Company or the Issuer, any proceeding under any Debtor
Relief Law.
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IN WITNESS WHEREOF, the parties have caused their names to be signed hereto
by their respective officers thereunto duly authorized, all as of the day and
year first above written.
TRENDWEST RESORTS, INC.
By: /s/ Timothy P. O'Neil
----------------------------------
Name: Timothy P. O'Neil
Title: Chief Financial Officer
SIERRA DEPOSIT COMPANY, LLC
By: /s/ Ralph E. Turner
----------------------------------
Name: Ralph E. Turner
Title: President and Treasurer
[Signature page for Trendwest MLPA]