EXECUTION COPY
SINKING FUND ACCOUNT AGREEMENT
This SINKING FUND ACCOUNT AGREEMENT, dated as of January 31, 2000
(as amended, modified and supplemented from time to time, the "Agreement") among
EFI FUNDING COMPANY, INC. (the "Borrower"), Resort Funding, Inc., DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG as agent (in such capacity, the "Agent") for the
Lender under and defined in the RLSA (as defined below) (the "Lender"; the Agent
and the Lender, and their respective successors and assigns, collectively, the
"Secured Parties") and Manufacturers and Traders Trust Company (the "Bank").
RECITALS
WHEREAS, the Borrower, Resort Funding, Inc., U.S. Bank Trust
National Association, Sage Systems, Inc., the Lender and the Agent are parties
to that certain Receivables Loan and Security Agreement of even date herewith
(as amended, modified or supplemented from time to time, the "RLSA") pursuant to
which the Lender shall from time to time, subject to the conditions set forth
therein, make loans to the Borrower secured by certain Pledged Receivables (as
defined therein) and related collateral (collectively, the "Pledged Assets");
and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the Lender's obligation to make such loans secured by the Pledged
Assets.
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the adequacy, receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
(a) Certain capitalized terms used throughout this Agreement are
defined above or in this Section 1.1. Unless otherwise defined herein,
capitalized terms shall have the meaning assigned to such terms in the RLSA.
(b) As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined).
"Additional Deposit" is defined in Section 2.1(d) hereof.
"Applicable Treasury Security" means, as of any date of
determination, the United States Treasury Security having a term which is
nearest to (but not shorter than) the Weighted Average Term as of such date.
"Asset Reports" means the most recent reports provided by the
Servicer to the Agent pursuant to Section 6.12 of the RLSA ; provided, however,
that if any information required to be provided by the Servicer pursuant to such
Section shall not be provided as required pursuant to such Section or if, in the
judgment of the Agent (after consultation with the Servicer), any such
information actually provided pursuant to such Section is inaccurate or
incomplete, then, at the option of the Agent, "Asset Reports" shall include any
other information that the Agent believes, in good faith, to be accurate.
"Calculated Cap Amortizing Balance" means, as of any Calculation
Date, the projected scheduled amortizing balance of the Pledged Consumer
Receivables as of such Calculation Date, determined by the Servicer (based upon
the Asset Reports) based upon the (i) Outstanding Principal Balance of such
Pledged Consumer Receivables as of such Calculation Date (and assuming an
outstanding term for such Pledged Consumer Receivables equal to their Weighted
Average Term as of such Calculation Date) and (ii) Weighted Average APR of such
Pledged Consumer Receivables as of the last day of the immediately-preceding
Remittance Period.
"Calculated Strike Price" means, as of any date of determination,
the rate per annum, as reasonably determined by the Agent (based on the Asset
Reports), which shall be equal to (A) the Weighted Average APR of the Pledged
Developer/Consumer Receivables as of the last day of the immediately-preceding
Remittance Period minus (B) the sum of (i) the Servicing Fee Rate or, if the
Backup Servicer shall have been appointed pursuant to Section 6.15 of the RSLA,
the Backup Servicing Fee Rate, (ii) the Custodian's Fee Rate for the
immediately- preceding Remittance Period, (iii) the Weighted Average Facility
Fee Rate as of the last day of the immediately-preceding Remittance Period and
(iv) 3.50% per annum.
"Calculated Swap Amortizing Balance" means, as of any Calculation
Date, the projected scheduled amortizing balance of the Pledged Consumer
Receivables as of such Calculation Date, determined by the Servicer (based upon
the Asset Reports) based upon the (i) Outstanding Principal Balance of such
Pledged Consumer Receivables as of such Calculation Date (and assuming an
outstanding term for such Pledged Consumer Receivables equal to their Weighted
Average Term as of such Calculation Date) and (ii) Weighted Average APR of such
Pledged Consumer Receivables as of the last day of the immediately-preceding
Remittance Period, adjusted for prepayments using an absolute prepayment speed
which, in the judgment of
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the Agent, is consistent with the speed with which the Pledged Consumer
Receivables have prepaid in the past.
"Calculation Date"means each Remittance Date and each Borrowing
Date.
"Cap Premium" means, as of any Calculation Date, the average of the
prices quoted by the Pricing Agents for the purchase of a Specified Rate Cap on
such Calculation Date.
"Cap Provider" means DG Bank or any other financial institution that
is in the business of selling interest rate caps, is acceptable to the Agent and
has, at the time such interest rate cap is purchased, a short-term debt rating
of at least "A-1" from S&P, "P-1" from Moody's and "F-1" from Fitch and a
long-term debt rating of at least "A" from S&P, "A2" from Moody's and "A" from
Fitch.
"Custodian's Fee Rate" means, with respect to any Remittance Period,
a rate per annum equal to (i) the product of (a) the Custodian's Fee for such
Remittance Period and (b) 12, divided by (ii) the daily average aggregate face
amount of outstanding commercial paper issued by the Lender to fund Loans under
the RLSA during such Remittance Period.
"Delivery Date" means the date upon which the initial Borrowing
under the RLSA shall occur.
"Deposit Date" means any Business Day upon which (i) Eurodollar
Rate, as of such Business Day, shall be greater than or equal to the Transaction
Rate, as of such Business Day, or (ii) the sum of (A) the effective yield of the
Applicable Treasury Security, as of such Business Day, and (B) the Swap Spread,
as of such Business Day, shall be greater than or equal to the difference
between (C) the Calculated Strike Price, as of such Business Day, and (D) 0.25%
per annum.
"Eurodollar Rate" means, with respect to any Business Day, the
interest rate per annum reported on such Business Day on Telerate Access Service
Page 3750 (British Bankers Association Settlement Rate) as the London Interbank
Offered Rate for United States dollar deposits having a term of thirty (30) days
and in a principal amount of $1,000,000 or more (or, if such page shall cease to
be publicly available or, if the information contained on such page, in the
Agent's sole judgment, shall cease to accurately reflect such London Interbank
Offered Rate, such rate as reported by any publicly available recognized source
of similar market data selected by the Agent that, in the Agent's reasonable
judgment, accurately reflects such London Interbank Offered Rate).
"Overall Hedge Position" means, as of any date of determination, the
hedge position determined by the Agent to provide the Lender with an amortizing
interest rate cap in respect of a floating rate of interest equal to the
Eurodollar Rate and having (i) a term equal to Weighted Average Term of the
Pledged Consumer Receivables as of such date of determination, (ii) a strike
price equal to the Calculated Strike Price, as of such date of determination,
and (iii) a
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varying notional balance equal to the Calculated Cap Amortizing Balance, as of
such date of determination.
"Pledged Consumer Receivables" means, as of any date of
determination, the Pledged Consumer Note Receivables and Pledged Purchased
Consumer Note Receivables as of such date (including any Consumer Note
Receivables and Purchased Consumer Note Receivables which are, or are intended,
to become Pledged Consumer Note Receivables and Pledged Purchased Consumer Note
Receivables, respectively, as of such date).
"Pledged Developer/Consumer Receivables" means, as of any date of
determination, the Pledged Developer Note Receivables and Pledged Purchased
Consumer Note Receivables as of such date (including any Developer Note
Receivables and Purchased Consumer Note Receivables which are, or are intended,
to become Pledged Developer Note Receivables and Pledged Purchased Consumer Note
Receivables, respectively, as of such date).
"Pricing Agents" means DG Bank, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and/or such other swap dealer or dealers which shall be
selected by the Agent to replace either or both of such Persons.
"Purchased Rate Caps" is defined in Section 2.3 hereof.
"Remittance Date" means the fifteenth day of each month or, if such
date is not a Business Day, the next succeeding Business Day; provided, however,
that the final Remittance Date shall occur on the Collection Date and the Agent
shall notify the Bank in writing at least two (2) Business Days prior to the
Collection Date.
"Reporting Date" is defined in Section 2.1(d) hereof.
"Required Sinking Fund Account Balance" means, as of any Calculation
Date, an amount equal to (a) 110% multiplied by (b) the Cap Premium for the
purchase of a Specified Rate Cap on such Calculation Date.
"Secured Obligations" is defined in Section 3.1 hereof.
"Servicer" means Resort Funding, Inc. Upon the replacement of Resort
Funding, Inc. with the Backup Servicer pursuant to Section 6.15 of the RLSA and
the Backup Servicer's assumption of all, or a portion, of the duties and
obligations of Resort Funding, Inc. hereunder, the Backup Servicer shall be the
Servicer in respect of that portion of such duties and obligations which shall
have been assumed by the Backup Servicer.
"Sinking Fund Account" is defined in Section 2.1(a) hereof.
"Sinking Fund Collateral" is defined in Section 3.2 hereof.
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"Specified Event" means any of the following:
(a) the Borrower or the Servicer shall fail to comply with Section
2.1(d) or any provision of Article III;
(b) any representation or warranty of the Borrower herein shall be
untrue in any material respect when made;
(c) the Borrower shall fail to comply with any of its obligations
hereunder;
(d) any Bankruptcy Event shall occur with respect to the Borrower or
the Servicer;
(e) the Sinking Fund Account or any funds therein become subject to
any writ, order, judgment, warrant of attachment, execution or similar
process or stay or similar legal restraint;
(f) the occurrence and continuation of any "Event of Default" under
and as defined in the RLSA; or
(g) if at any time (i) the Eurodollar Rate plus 0.25 exceeds (ii)
the Calculated Strike Price.
"Specified Rate Cap" means, with respect to any date for purchase
thereof, an interest rate cap agreement with a Cap Provider, the economic terms
of which, when taken together with any other interest rate cap agreements
purchased pursuant to Section 3.1, is determined by the Agent as providing the
Lender with the Overall Hedge Position on such date.
"Swap Counterparty" is defined in Section 3.2 hereof.
"Swap Documents" is defined in Section 3.2 hereof.
"Swap Obligations" is defined in Section 3.2 hereof.
"Swap Spread" means, in respect of any date of determination, the
annual rate of interest (expressed as a percentage) above and beyond the
effective yield on the Applicable Treasury Security, as of such date of
determination, which the fixed-rate payor would be required to pay under an
interest rate swap agreement to be entered into on such date of determination in
order to receive a floating rate of interest based upon the Eurodollar Rate
under such interest rate swap agreement, all as determined by the Agent under
terms selected by the Agent.
"Swap Transaction" is defined in Section 3.2 hereof.
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"Transaction Rate" means, as of any date of determination, the rate
per annum, as reasonably determined by the Agent (based on the Asset Reports),
which shall be equal to (A) the Weighted Average APR of the Pledged
Developer/Consumer Receivables as of the last day of the immediately-preceding
Remittance Period minus (B) the sum of (i) the Servicing Fee Rate, or, if the
Backup Servicer shall have been appointed pursuant to Section 6.15 of the RLSA,
the Backup Servicing Fee Rate, (ii) the Custodian's Fee Rate for the immediately
preceding Remittance Period, (iii) the Weighted Average Facility Fee Rate as of
the last day of the immediately-preceding Remittance Period and (iv) 4.75% per
annum.
"Weighted Average APR", as of any date of determination, (i) means,
in respect of the Pledged Consumer Receivables, the weighted average (weighted
solely based upon the Outstanding Principal Balances of the Pledged Consumer
Receivables as of such date) of the Coupon Rates set forth in the Contracts
related to such Pledged Consumer Receivables and (ii) means, in respect of the
Pledged Developer/Consumer Receivables, the weighted average (weighted solely
based upon the Outstanding Principal Balances of the Pledged Developer/Consumer
Receivables as of such date) of (a) the annual interest rates charged to the
Developers under the Pledged Developer Note Receivables, as set forth in the
related promissory notes and/or Hypothecation Loan Agreements, and (b) the
Coupon Rates set forth in the Contracts related to the Pledged Purchased
Consumer Note Receivables.
"Weighted Average Facility Fee" means, as of the last day of any
Remittance Period, the rate per annum most recently determined by the Agent
which shall be equal to a fraction (expressed as a percentage), the numerator of
which shall be equal to the sum of the Yield (but only such portion thereof
equal to the Applicable Margin) and the Fees accrued during such Remittance
Period and the denominator of which shall be equal to the average Facility
Amount during such Remittance Period (net of Yield and Fees).
"Weighted Average Term" means, as of any date of determination, the
weighted average (weighted solely based upon the Outstanding Principal Balances
of the Pledged Consumer Receivables as of such date) of the remaining terms of
the Pledged Consumer Receivables as of such date.
ARTICLE II
SINKING FUND ACCOUNT; PURCHASED RATE CAPS
Section 2.1 Establishment of Sinking Fund Account, Calculations,
Etc.
(a) On or prior to the Delivery Date, the Borrower shall establish
an account at the Bank designated "Sinking Fund Account - DG Bank, as Agent, for
the benefit of DG Bank and Autobahn Funding LLC, and their successors and
assigns, as their interests may appear" (the "Sinking Fund Account"). The Agent,
as agent and for the benefit of the Secured Parties, shall have sole dominion
and control of the Sinking Fund Account and all funds therein.
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(b) No withdrawals may be made of funds in the Sinking Fund Account
except as provided in Sections 2.1(e), 2.3, and 6.1 of this Agreement. Funds in
the Sinking Fund Account shall not be commingled with any other moneys. All
moneys deposited from time to time in the Sinking Fund Account and all
investments made with such moneys shall be made in the name of the Agent for the
benefit of the Secured Parties and held by the Agent for the benefit of the
Secured Parties in the Sinking Fund Account and applied as set forth herein.
(c) On the second Business Day prior to each Remittance Date and on
any Business Day at the request of the Agent, the Bank shall deliver to the
Agent a written notice regarding the balance of the Sinking Fund Account as of
such date.
(d) Two Business Days prior to each Calculation Date (the "Reporting
Date"), the Servicer shall provide the Agent and Borrower with a written notice
which sets forth (i) the Outstanding Principal Balances of the Pledged Consumer
Receivables as of such Reporting Date, (ii) the Outstanding Principal Balances
of the expected Pledged Consumer Receivables as of the immediately-succeeding
Calculation Date, based upon any Notice of Borrowing which shall be delivered by
the Borrower or Servicer on such Reporting Date and (iii) the Weighted Average
APR of the Pledged Consumer Receivables as of the last day of the
immediately-preceding Remittance Period. On each Reporting Date which shall be a
Deposit Date, the Agent shall obtain from the Pricing Agents the quotations
which are required in order for the Agent to determine the Cap Premium for the
purchase of a Specified Rate Cap on the immediately- succeeding Calculation
Date, assuming the occurrence on such Calculation Date of the Borrowing
contemplated by any Notice of Borrowing which shall have been delivered on the
Reporting Date. The Agent shall calculate the Required Sinking Fund Account
Balance as of the immediately-succeeding Calculation Date based on the
information required to be delivered pursuant to this Section 2.1(d) (or if any
such information shall not be so delivered or shall, in the judgment of the
Agent (after consultation with the Servicer), be inaccurate then, at the option
of the Agent, based upon information that the Agent shall believe, in good
faith, to be accurate), and the Agent shall provide notice of such Required
Sinking Fund Account Balance to the Lender, Borrower and Servicer on or prior to
such Calculation Date. The Servicer shall set forth such Required Sinking Fund
Account Balance and the actual balance of the Sinking Fund Account in a written
report which shall be delivered to the Agent and Borrower on such Calculation
Date. If the balance of the Sinking Fund Account shall be less than the Required
Sinking Fund Account Balance as of such Calculation Date, the Agent shall give
the Servicer notice of the amount of such deficiency and the Servicer shall
transfer funds from the Collection Account pursuant to Section 2.05(c)(vi) and
Section 2.05(d) of the RLSA on such Calculation Date into the Sinking Fund
Account (each such transfer, an "Additional Deposit") such that immediately
after giving effect to such Additional Deposit, the balance of the Sinking Fund
Account shall be an amount equal to or in excess of the Required Sinking Fund
Account Balance as of such Calculation Date. The failure of the Servicer to make
an Additional Deposit pursuant to this Section 2.1(d) shall constitute a
Specified Event. Each Additional Deposit shall be made by no later than 12:00
noon, New York City time, on the applicable Calculation Date.
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(e) In the event that the Agent's most recent determination pursuant
to Section 2.1(d) indicates that the balance of the Sinking Fund Account shall
exceed the Required Sinking Fund Account Balance, the Borrower may request that
an amount not to exceed such excess be withdrawn from the Sinking Fund Account
and be released to the Borrower in accordance with Section 2.3. Such a request
shall be made in writing and delivered to the Bank and the Agent no later than
11:00 a.m., New York City time on the Business Day immediately preceding the
applicable Remittance Date. The Bank shall release to the Borrower from the
Sinking Fund Account the amount requested by the Borrower in accordance with
this Section 2.1(e) and Section 2.3, provided that the Bank shall have received
written confirmation from the Agent that such withdrawal has been approved by
the Agent, which approval shall not be unreasonably withheld by the Agent.
(f) Except as specifically provided herein, the Sinking Fund Account
shall be maintained by the Bank at all times separate and apart from any other
account of the Borrower or the Servicer. All income or loss on investments of
funds in the Sinking Fund Account shall be reported by the Borrower as taxable
income or loss of the Borrower. The Sinking Fund Account shall constitute
property of the Borrower subject to the security interest granted therein to the
Agent for the benefit of the Secured Parties.
Section 2.2 Investments.
(a) Funds which may at any time be held in the Sinking Fund Account
shall be invested and reinvested in Permitted Investments by the Bank, at the
written direction (which may include, subject to the provisions hereof, general
standing instructions) of the Borrower (except that if the Agent shall notify
the Bank in writing that a Specified Event shall have occurred and be
continuing, such funds shall be invested and reinvested solely at the written
direction of the Agent) or its designee received by the Bank by 1:00 p.m., New
York City time on the Business Day prior to the date on which such investment
shall be made. If no written direction with respect to all or any portion of the
funds in the Sinking Fund Account is received by the Bank, the Bank shall invest
such funds in such Permitted Investments as the Bank may select, provided that
the Bank shall not be liable for any loss or absence of income resulting from
such investments.
(b) Any investment of funds in the Sinking Fund Account shall be
made in Permitted Investments held by a financial institution with respect to
which (a) such institution has noted the Agent's security interest therein by
book entry or otherwise and (b) a confirmation of the Agent's interest has been
sent to the Agent by such institution. Notwithstanding the other provisions
hereof, the Agent shall have sole dominion and control over each such investment
and the income thereon for the benefit of the Lender, and any certificate or
other instrument evidencing any such investment shall be issued in the name of,
and delivered directly to, the Agent, for the benefit of the Lender, together
with each document of transfer, if any, necessary to transfer title to such
investment to the Agent, for the benefit of the Lender, in a manner which
complies with this subsection.
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(c) All moneys on deposit in the Sinking Fund Account, together with
any deposits or securities in which such moneys may be invested or reinvested,
and any gains from such investments, shall constitute Sinking Fund Collateral
hereunder subject to the security interest granted herein.
(d) The Bank shall not be liable by reason of any insufficiency in
any Sinking Fund Account resulting from any loss on any Permitted Investment
included therein.
Section 2.3 Withdrawals. Withdrawals from the Sinking Fund Account
shall be made only as set forth in Section 2.1(e), Section 6.1 and as set forth
below in this Section 2.3:
(a) Upon the written consent of the Agent received by the Bank at
least one Business Day prior to such withdrawal, the Bank shall withdraw the
amount specified by the Borrower pursuant to Section 2.1(e) and transfer it to
the Borrower at an account designated by the Borrower.
(b) From time to time, at the written direction of the Borrower
(with the written consent of the Agent) or the Agent at least one Business Day
prior to such withdrawal, the Bank shall withdraw the amount specified by the
Borrower (with the written consent of the Agent) or the Agent and transfer it to
the Cap Provider designated by the Borrower or the Agent to purchase a Specified
Rate Cap for the account of the Lender pursuant to Section 3.1.
(c) From time to time, at the written direction of the Agent
pursuant to Section 3.2, to satisfy the Borrower's Swap Obligations.
(d) At any time after the Collection Date and at the written
direction of the Borrower (with the written consent of the Agent) at least one
Business Day prior to such withdrawal, an amount equal to the balance of the
Sinking Fund Account may be transferred to the Borrower.
All Specified Rate Caps and interest rate caps purchased pursuant to Section
6.1, this Section 2.3 or Section 3.1 (collectively "Purchased Rate Caps") shall
be in form and substance satisfactory to the Agent in its reasonable discretion.
Section 2.4 Waiver of Set-Off. The Bank, by its execution of this
Agreement, hereby waives with respect to the Sinking Fund Account, in each case
to the extent permitted under applicable law, (i) any banker's or other
statutory or similar lien, and (ii) any right of setoff or other similar right
under applicable law and hereby agrees to notify the Borrower and the Agent of
any charge or claim against or with respect to the Sinking Fund Account.
Section 2.5 Reports by the Bank. On the second Business Day prior to
each Remittance Date and on any Business Day at the request of the Agent, the
Bank shall report to the Borrower, the Agent and the Servicer the amount then on
deposit in the Sinking Fund Account and the identity of the investments included
therein as of such applicable date, and shall
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provide to the Agent, Borrower and Servicer on such applicable date accountings
of deposits into and withdrawals from the Sinking Fund Account, and of the
investments made therein.
Section 2.6 Transfer of Purchased Rate Caps. After the Collection
Date and provided that the Borrower shall have fulfilled all of its obligations
under this Agreement, upon the request of the Borrower, the Lender shall assign
its rights to future accrued payments under the Purchased Rate Caps then in
effect, to the extent permitted thereunder, to the Borrower.
ARTICLE III
SECURED OBLIGATIONS
Section 3.1 Obligation to Purchase Specified Rate Caps. On the
Delivery Date and thereafter until the Collection Date shall have occurred, the
Borrower shall purchase, for the account of the Secured Parties, Specified Rate
Caps (such obligation to purchase, the "Secured Obligations") from time to time
upon the written request of the Agent; provided, however, that so long as no
Specified Event shall have occurred and be continuing, the Borrower shall not be
required to purchase Specified Rate Caps if, in the judgment of the Agent, the
Specified Rate Caps then in effect and the funds in the Sinking Fund Account (if
applied toward the purchase of one or more additional interest rate caps) would
be sufficient to establish a continual Overall Hedge Position; and further,
provided, that in the event that a Specified Event described in clause (a), (e),
(f) or (g) of the definition thereof shall occur and be continuing, such request
of the Agent shall not be required and the Borrower shall automatically be
obligated to immediately purchase a Specified Rate Cap. Each purchase of a
Specified Rate Cap under this Section 3.1 shall be effected by the Borrower no
later than 10:00 a.m., New York City time, on the Business Day immediately
following the date of such request or such Specified Event (as the case may be).
Section 3.2 Option to Enter Into Swap Transaction. Upon the
occurrence of any Specified Event, the Agent shall have the right, at its
option, to enter into with the Borrower, or cause one or more other Persons to
enter into with the Borrower, one or more interest rate swap transactions under
which the Borrower shall receive a floating rate of interest in exchange for the
payment by the Borrower of a fixed rate of interest (such one or more interest
rate swap transactions are herein referred to as the "Swap Transaction", and
such one or more Persons, including the Agent, which shall so enter into the
Swap Transaction with the Borrower are herein referred to as the "Swap
Counterparty"). The Swap Transaction shall have a varying notional balance equal
to the Calculated Swap Amortizing Balance as of the effective date of the Swap
Transaction and shall otherwise be on such terms and conditions which shall be
acceptable to the Agent. The Agent shall have the right to withdraw any and all
amounts on deposit in the Sinking Fund Account and/or Collection Account in
order to satisfy the Borrower's obligations under the Swap Transaction (the
"Swap Obligations"). The Borrower hereby grants the Agent an irrevocable
power-of-attorney to execute and deliver, on the Borrower's behalf, (i) all
documents and instruments which may be necessary or appropriate to effect the
Swap Transaction and grant
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the Swap Counterparty a perfected security interest in the Sinking Fund Account
and/or Collection Account and the proceeds thereof (such documents and
instruments are herein referred to as the "Swap Documents") and (ii) all
amendments and supplements to the Transaction Documents which shall be necessary
or appropriate to effect or reflect the transactions contemplated by the Swap
Documents.
Section 3.3 Sinking Fund Collateral. As security for the
Obligations, Swap Obligations and Secured Obligations, the Borrower hereby
pledges, assigns and transfers to the Agent, for the benefit of the Secured
Parties, and hereby grants to the Agent, for the benefit of the Secured Parties,
a continuing first priority security interest in and lien on, all the Borrower's
right, title and interest in the following, whether now or hereafter existing:
(a) the Sinking Fund Account, (b) all funds therein, (c) all investments made
with the funds therein and all distributions thereon, and (d) all proceeds of
any of the foregoing (all of the foregoing in clauses (a)-(d), collectively, the
"Sinking Fund Collateral"). Such security interest and lien shall secure the
Obligations, Swap Obligations and Secured Obligations. The Borrower hereby
agrees that the Agent, for the benefit of the Secured Parties, has sole dominion
and control over the Sinking Fund Collateral.
Section 3.4 Priority. The Borrower continuously represents and
warrants to the Agent and the Secured Parties that the Agent, for the benefit of
the Secured Parties, has a first priority perfected security interest in the
Sinking Fund Collateral.
Section 3.5 Securities Account Agreement. The Bank shall execute and
deliver to the Agent a Securities Account Agreement in the form of Exhibit A
hereto on the date hereof.
ARTICLE IV
PROVISIONS CONCERNING SINKING FUND COLLATERAL
Section 4.1 Further Assurances. The Borrower agrees that at any time
and from time to time, at the expense of the Borrower, the Borrower will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or that the Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce its rights and
remedies hereunder with respect to any of the Sinking Fund Collateral.
Section 4.2 Payment of Taxes, Claims. The Borrower shall pay
promptly when due all taxes, assessments and governmental charges or levies
imposed upon, and all claims against, the Sinking Fund Collateral.
Section 4.3 Transfers and Other Liens, Additional Collateral. The
Borrower agrees that it will not (i) sell or otherwise dispose of, or grant any
option or warrant with respect
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to, any of the Sinking Fund Collateral without the prior written consent of the
Agent or (ii) create or permit to exist any lien upon or with respect to any of
the Sinking Fund Collateral (other than in favor of the Agent, for the benefit
of the Secured Parties).
ARTICLE V
THE AGENT, CALCULATION AGENT AND PRICING AGENT
Section 5.1 Indemnification. The Borrower shall indemnify and hold
the Agent, the Bank, each Pricing Agent, each Secured Party and their respective
directors, officers, employees and agents harmless against, any loss, liability
or expense (including the costs and expenses of defending against any claim of
liability) arising out of or in connection with this Agreement or any action or
inaction of any such Person hereunder, except such loss, liability or expense of
any such Person which shall result from its own gross negligence, bad faith or
willful misconduct. The obligation of the Borrower under this section shall
survive the termination of this Agreement.
Section 5.2 Compensation and Reimbursement. The Borrower agrees (a)
to pay to the Bank, from time to time, for all services rendered by such party
hereunder, such fees and expenses as are separately agreed to by the Borrower
and the Bank and (b) to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance
with any provision of, or carrying out its duties and obligations under, this
Agreement (including the reasonable compensation and fees and the expenses and
disbursements of its agents, independent certified public accountants and
independent counsel directly related to such duties and obligations) except any
expense, disbursement or advances as may be attributable to the gross
negligence, bad faith or willful misconduct of the Bank.
ARTICLE VI
REMEDIES UPON SPECIFIED EVENT
Section 6.1 Remedies upon a Specified Event. (a) If a Specified
Event has occurred and is continuing, the Agent and the Secured Parties shall
have all the rights and remedies provided for herein or otherwise available to
it, all rights and remedies of a secured party on default under the New York
Uniform Commercial Code (whether or not it applies to the Sinking Fund
Collateral), which rights and remedies shall be exercised, at the direction of
the Agent.
(b) If a Specified Event has occurred and is continuing, the Sinking
Fund Account and all cash proceeds thereof shall be applied in whole or in part
by the Bank, in the manner directed in writing by the Agent (in its sole
discretion): (i) against, or to fulfill, all or any part of the Obligations,
Swap Obligations and/or Secured Obligations and/or (ii) to purchase
12
Specified Rate Caps or to the extent the Sinking Fund is insufficient to
purchase Specified Rate Caps, to purchase such interest rate caps as are
acceptable to the Agent, under the circumstances, to hedge to the extent
possible the interest rate exposure of the Lender under the RLSA or to establish
a partial Overall Hedge Position.
Section 6.2 No Remedy Exclusive. No right or remedy herein conferred
upon or reserved to the Agent or any Secured Party is intended to be exclusive
of any other right or remedy, and every right or remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law, in equity or otherwise, and
each and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time and as often and in such
order as may be deemed expedient by the Agent or such Secured Party.
ARTICLE VII
CALCULATION AGENT; PRICING AGENT
Section 7.1 Determinations, Etc. By Agent. All determinations,
calculations and selections made by the Agent in good faith pursuant hereto
shall be binding on all parties hereto. Neither the Agent nor any of its
directors, officers or employees shall be liable for any action taken or
determination, calculation or selection made, by the Agent hereunder, except
that the Agent shall be responsible for its gross negligence, bad faith or
willful misconduct.
Section 7.2 Determinations, Etc. By Pricing Agent. All
determinations, calculations and selections made by any Pricing Agent in good
faith pursuant hereto shall be binding on all parties hereto. Neither any
Pricing Agent nor any of its directors, officers or employees shall be liable
for any action taken or determination, calculation or selection made, by such
Pricing Agent hereunder, except that such Pricing Agent shall be responsible for
its gross negligence, bad faith or willful misconduct.
ARTICLE VIII
THE BANK
Section 8.1 Rights, Duties, etc. The acceptance by the Bank of its
duties hereunder is subject to the following terms and conditions which the
parties to this Agreement hereby agree shall govern and control with respect to
the Bank's rights, duties, liabilities and immunities hereunder:
(i) The Bank shall be protected in acting or refraining from
acting upon any written notice, certificate, instruction, request or other paper
or document, as to the due
13
execution thereof and the validity and effectiveness of the provisions thereof
and as to the truth of any information therein contained, which the Bank in good
faith believes to be genuine;
(ii) The Bank may consult with and obtain advice from counsel
of its own choice in the event of any dispute or question as to the construction
of any provision hereof or otherwise in connection with its duties hereunder,
and any action taken or omitted by the Bank in reasonable reliance upon such
opinion shall be full justification and protection to it;
(iii) The Bank shall not be liable for any error of judgment
or for any act done or step taken or omitted, except in the case of its gross
negligence, willful misconduct or bad faith;
(iv) The Bank shall have no duties hereunder except those
which are expressly set forth herein and in any modification or amendment
hereof; provided, however, that no such modification or amendment hereof shall
affect its duties unless it shall have given its prior written consent thereto;
(v) The Bank may execute or perform any duties hereunder
(other than the holding of the Sinking Fund Account) either directly or through
agents or attorneys;
(vi) The Bank may engage or be interested in any financial or
other transactions with any party hereto and may act on, or as depositary,
trustee or agent for, any committee or body of holders of obligations of such
Persons as freely as if it were not Bank hereunder; and
(vii) The Bank shall not be obligated to take any action which
in its reasonable judgment would cause it to incur any expense or liability
hereunder unless it has been furnished with an indemnity from the Borrower with
respect thereto which is reasonably satisfactory to the Bank.
Section 8.2 No Implied Covenants. No implied covenants or
obligations on the part of the Bank shall be incorporated into this Agreement.
If in one or more instances the Bank takes any action or assumes any
responsibility not specifically delegated to it hereunder, neither the taking of
such action nor the assumption of such responsibility shall be deemed to be an
express or implied undertaking on the part of the Bank that it will take the
same or similar action or assume the same or similar responsibility in any other
instance.
Section 8.3 Investigation. The Bank shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to do so
by the Borrower, Servicer or Agent; provided, however, that if the payment
within a reasonable time to the Bank of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Bank, not reasonably assured to the Bank pursuant to the terms of
this Agreement, the Bank may require
14
reasonable indemnity from the Borrower against such expense or liability as a
condition to taking any such action. The reasonable expense of every such
examination shall be paid by the Borrower or, if paid by the Bank, shall be
repaid by the Borrower upon demand from the Borrower's own funds.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Waiver. Any waiver by the Agent of any provision of this
Agreement or any right, remedy or option hereunder shall only prevent and estop
the Agent from thereafter enforcing such provision, right, remedy or option if
such waiver is given in writing and only as to the specific instance and for the
specific purpose for which such waiver was given. The failure or refusal of the
Agent to insist in any one or more instances, or in a course of dealing, upon
the strict performance of any of the terms or provisions of this Agreement by
any party hereto or the martial exercise of any right, remedy or option
hereunder shall not be construed as a waiver or relinquishment of any such term
or provision, but the same shall continue in full force and effect.
Section 9.2 Amendments; Waivers. No amendment, modification, waiver
or supplement to this Agreement or any provision of this Agreement shall in any
event be effective unless the same shall have been made or consented to in
writing by each of the parties hereto.
Section 9.3 Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Agent or any Secured Party hereunder is
unavailable or unenforceable shall not affect in any way the ability of the
Agent or such Secured Party to pursue any other remedy available to it or them.
Section 9.4 Notices. Unless otherwise specified herein, all notices,
demands, certificates, requests and other communications hereunder shall be in
writing and shall be effective upon receipt, or in the case of delivery by
facsimile copy, when verbal communication of receipt is obtained, in all cases
addressed to the recipient as follows:
15
If to the Borrower: EFI Funding Company, Inc.
Two Clinton Square
Syracuse, NY 13202
Attention: Lisa Henson
Telecopier No.: 315-422-9477
If to the Servicer: Resort Funding, Inc.
Two Clinton Square
Syracuse, NY 13202
Attention: Thomas J. Hamel
Telecopier No.: 315-422-9477
If to the Agent: DG Bank Deutsche Genossenschaftsbank AG, New York Branch
609 Fifth Avenue
New York, New York 10017
Attention: Asset-Backed Finance Group
Telecopier No.: (212) 745-1651
If to the Bank: Manufacturers and Traders Trust Company
One M&T Plaza, 7th Floor
Buffalo, NY 14203
Attention: Nancy L. George
Telecopier No.: 716-842-4474
Section 9.5 Assignments. This Agreement shall be a continuing
obligation of the parties hereto and shall (i) be binding upon the parties and
their respective successors and permitted assigns, and (ii) inure to the benefit
of and be enforceable by each Secured Party and the Agent, and by their
respective successors, transferees and assigns. No party may assign this
Agreement, or delegate any of its duties hereunder, without the prior written
consent of the Agent; provided, however, that the Agent and each Secured Party
may assign its rights and obligations hereunder to any transferee (or its
designee), without the consent of any other party.
Section 9.6 Trial by Jury Waived. Each of the parties hereto waives,
to the fullest extent permitted by law, any right it may have to a trial by jury
in respect of any litigation arising directly or indirectly out of, under or in
connection with this Agreement or any of the transactions contemplated
hereunder. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it has been induced to enter into
this Agreement by, among other things, this waiver.
Section 9.7 GOVERNING LAW. THIS AGREEMENT SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW
16
YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD CALL
FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
Section 9.8 Consents to Jurisdiction. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Southern District of New York, any court in the State of New York located in
the City and County of New York, and any appellate court from any thereof, in
any action, suit or proceeding brought against it and related to or in
connection with this Agreement or the transactions contemplated hereunder or for
recognition or enforcement of any judgment and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
suit or action or proceeding may be heard or determined in such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action, suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. To the extent
permitted by applicable law, each of the parties hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such courts, that the suit, action or proceeding is brought in an inconvenient
forum, that the venue of the suit, action or proceeding is improper or that this
Agreement or the subject matter hereof may not be litigated in or by such
courts. The Borrower hereby irrevocably appoints and designates the New York
State Secretary of State, as its true and lawful attorney and daily authorized
agent for acceptance of service of legal process. The Borrower agrees that
service of such process upon such person shall constitute personal service of
such process upon it. Nothing contained in this Agreement shall limit or affect
the rights of any party hereto to serve process in any other manner permitted by
law or to start legal proceedings relating to this Agreement against the
Borrower or its property in the courts of any jurisdiction.
Section 9.9 Counterparts. This Agreement may be executed in two or
more counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.10Headings. The headings of sections and paragraphs
contained in this Agreement are provided for convenience only. They form no part
of this Agreement and shall not affect its construction or interpretation.
Section 9.11Termination. This Agreement may be terminated at any
time upon at least one Business Day's prior notice from the Agent to the other
parties hereto. On the date designated in such notice for such termination and
provided that Section 2.6 of this Agreement shall have been satisfied, this
Agreement shall terminate, provided, however, that the provisions of Section 5.1
and Section 5.2 shall be continuing and shall survive any termination of this
Agreement.
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as amended and restated, as of the date set forth on the first page hereof.
EFI FUNDING COMPANY, INC.,
as Borrower
By: /s/ Richard G. Breeden
---------------------------------
Name: Richard G. Breeden
Title: President
RESORT FUNDING, INC.,
as Servicer
By:
---------------------------------
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, as Agent
By:
---------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Bank
By:
---------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as amended and restated, as of the date set forth on the first page hereof.
EFI FUNDING COMPANY, INC.,
as Borrower
By: /s/ Richard G. Breeden
---------------------------------
Name:
Title:
RESORT FUNDING, INC.,
as Servicer
By: /s/ Thomas J. Hamel
---------------------------------
Name: Thomas J. Hamel
Title: President
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, as Agent
By:
---------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Bank
By:
---------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as amended and restated, as of the date set forth on the first page hereof.
EFI FUNDING COMPANY, INC.,
as Borrower
By:
---------------------------------
Name:
Title:
RESORT FUNDING, INC.,
as Servicer
By:
---------------------------------
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, as Agent
By: /s/ Michael Plunkett
---------------------------------
Name: Michael Plunkett
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Bank
By:
---------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
as amended and restated, as of the date set forth on the first page hereof.
EFI FUNDING COMPANY, INC.,
as Borrower
By:
---------------------------------
Name:
Title:
RESORT FUNDING, INC.,
as Servicer
By:
---------------------------------
Name:
Title:
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, as Agent
By:
---------------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY, as Bank
By: /s/ Nancy L. George
---------------------------------
Name: Nancy L. George
Title: Assistant Vice President
Exhibit A
Form of Securities Account Agreement
[See attached.]
A-1