SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT, dated as of August 4, 2000 (the "Second
Amendment"), to the Receivables Loan and Security Agreement, dated as of January
31, 2000, among EFI Funding Company, Inc. (the "Borrower"), Resort Funding,
Inc., as Servicer (the "Servicer"), Autobahn Funding Company LLC, as Lender (the
"Lender"), DG Bank Deutsche Genossenschaftsbank AG, as agent (the "Agent"), U.S.
Bank Trust National Association and Sage Systems, Inc. (as the same has been and
may be further amended, supplemented, modified or restated in accordance with
its terms, the "RLSA"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed thereto in the RLSA.
WHEREAS, the parties hereto have agreed to amend the RLSA on the
terms and subject to the conditions here in set forth.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO THE RLSA
1.1 The RLSA is hereby amended by adding the following definitions
to Section 1.01 thereof (in their correct alphabetical order):
"Former Liberty Receivable " means an Eligible Purchased Consumer
Note Receivable or an Eligible Purchased Presale Consumer Note Receivable
which, immediately prior to its being Pledged hereunder, served as
collateral for loans advanced by Liberty Bank under a financing facility
provided by Liberty Bank to Peppertree Resort Villas, Inc. and Peppertree
Resorts Vacation Club, Inc.
"Former Liberty Receivable Advance Percentage" means, at any time,
the lesser of (i) 85% and (ii) a fraction, expressed as a percentage, the
numerator of which shall be equal to the aggregate outstanding principal
amount at such time of all Former Liberty Receivable Loans and the
denominator of which shall be equal to the Outstanding Principal Balance
of all Former Liberty Receivables that are Pledged hereunder at such time;
provided, that, at all times subsequent to the first date on which the
percentage calculated pursuant to clause (ii) above would be equal to or
less
than 80%, the Former Liberty Receivable Advance Percentage shall equal
80%.
"Former Liberty Receivable Loans" means Loans advanced on August 4,
2000 that are secured by Former Liberty Receivables that were Pledged by
the Borrower on such date.
1.2 The RLSA is hereby amended by deleting the definition of the
term "Net Eligible Receivables Balance" in Section 1.01 thereof in its entirety
and substituting therefor the following:
"Net Eligible Receivables Balance" means, at any time, (X) without
duplication, the sum of (a) (i) 80% of the Outstanding Principal Balance
of all Eligible Purchased Consumer Note Receivables and Eligible Purchased
Presale Consumer Note Receivables at such time other than those that
constitute Former Liberty Receivables plus (ii) the Former Liberty
Receivable Advance Percentage at such time multiplied by the Outstanding
Principal Balance of all Former Liberty Receivables, plus (b) the lesser
of (i) 80% of the Outstanding Principal Balance of all Eligible Pledged
Consumer Note Receivables securing Eligible Developer Note Receivables and
Eligible Pledged Presale Consumer Note Receivables securing Eligible
Developer Note Receivables at such time or (ii) the sum of (A) 90% of the
Outstanding Principal Balances of all Eligible Developer Note Receivables
(other than the Outstanding Principal Balances of Eligible Developer Note
Receivables which were related to Existing Advances under Existing
Developer Note Receivables) at such time plus (B) 100% of the Outstanding
Principal Balances of all Eligible Developer Note Receivables which were
related to Existing Advances under Existing Developer Note Receivables at
such time; provided, however, that any of the foregoing percentages shall
increase to the maximum such percentage (as determined by both Rating
Agencies) permitted in order for the financing facility contemplated
hereunder to receive the Minimum Shadow Rating minus (Y) the
Overconcentration Amount at such time.
1.3 The RLSA is hereby amended by deleting paragraph (cc) of the
definition of the term "Eligible Purchased Consumer Note Receivable" in Section
1.01 thereof in its entirety and substituting therefor the following:
(cc) Each such Pledged Purchased Consumer Note Receivable, as of
the Borrowing Date on which it was Pledged hereunder, (i) had a remaining
term of not more than 120 months, (ii) had not at any time during
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the past 90 days been more than 120 days past due and was not, at the time
of its Pledge hereunder, more than 30 days past due (or (A) 59 days past
due with respect to a Pledged Purchased Consumer Note Receivable (x) the
interest of the Borrower in which was Pledged hereunder on August 4, 2000
and (y) that, immediately prior to its being Pledged hereunder, served as
collateral for loans advanced by Liberty Bank under a financing facility
provided by Liberty Bank to Peppertree Resort Villas, Inc. and Peppertree
Resorts Vacation Club, Inc. or (B) 90 days past due with respect to a
Pledged Purchased Consumer Note Receivable (x) the interest of the
Borrower in which was Pledged on the initial Borrowing Date hereunder and
(y) that was being lent against under the Prior Loan Facility immediately
prior to the initial Borrowing hereunder) and (iii) had no material
provision thereof waived, amended, altered or modified in any respect
(including, without limitation, as a result of the application of the
Soldiers' and Sailors' Civil Relief Act of 1940, as amended) since its
origination.
1.4 The RLSA is hereby amended by deleting subparagraph (xi) and
the last sentence of Section 2.05(c) thereof in their entirety and substituting
therefor the following:
(xi) until the first date on which the aggregate outstanding
principal amount of all Former Liberty Receivable Loans is not in excess
of an amount equal to 80% of the Outstanding Principal Balance of all
Former Liberty Receivables that are Pledged hereunder at such time, to
the Agent for the account of the Lender for the repayment of Former
Liberty Receivable Loans outstanding in an amount equal to the amount of
funds on deposit in the Collection Account (after giving effect to the
transfers from the Collection Account listed above) which are
attributable to Collections related to Former Liberty Receivables; and
(xii) to the Borrower, any remaining amounts.
All transfers from the Collection Account listed above shall be made
on a pro rata basis among funds on deposit in the Collection Account which
are attributable to Collections related to Former Liberty Receivables and
funds on deposit in the Collection Account which are not attributable to
Collections related to Former Liberty Receivables.
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Upon its receipt of funds pursuant to clauses (i), (iv), (v), (x)
and (xi), the Agent shall apply such funds as directed by the Lender or as
otherwise provided in this Agreement.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Second Amendment shall be effective upon the delivery to the
Agent of (i) counterparts hereof executed by each of the parties hereto, (ii)
evidence that all actions required pursuant to the terms of the Escrow
Agreement, dated July __, 2000, among Peppertree Resort Villas, Inc., Liberty
Bank, U.S. Bank Trust National Association and the Agent, have been taken in
accordance with such terms and (iii) evidence of the termination of the
financing facility provided by Liberty Bank to Peppertree Resort Villas, Inc.
SECTION 3. MISCELLANEOUS
(i) The Borrower and the Servicer each hereby certifies that the
representations and warranties set forth in Article IV of the RLSA (and any
other representations and warranties made by the Borrower or the Servicer in the
RLSA) are true and correct on the date hereof with the same force and effect as
if made on the date hereof, except to the extent that such representations and
warranties speak specifically to an earlier date in which case they shall have
been true and correct on such date. In addition, the Borrower and the Servicer
each represents and warrants (which representations and warranties shall survive
the execution and delivery hereof) that (a) no unwaived Early Amortization Event
or Event of Default (nor any event that but for notice or lapse of time or both
would constitute an unwaived Early Amortization Event or Event of Default) shall
have occurred and be continuing as of the date hereof nor shall any unwaived
Early Amortization Event or Event of Default (nor any event that but for notice
or lapse of time or both would constitute an unwaived Early Amortization Event
or Event of Default) occur due to this Second Amendment becoming effective, (b)
the Borrower and the Servicer each has the corporate power and authority to
execute and deliver this Second Amendment and has taken or caused to be taken
all necessary corporate actions to authorize the execution and delivery of this
Second Amendment and (c) no consent of any other person (including, without
limitation, shareholders or creditors of the Borrower or the Servicer), and no
action of, or filing with any governmental or public body or authority is
required to authorize, or is otherwise required in connection with the execution
and performance of this Second Amendment other than such that have been
obtained.
(ii) The RLSA, as amended hereby, is hereby ratified and confirmed
in all respects and remains in full force and effect in accordance with its
terms.
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(iii) All references in the RLSA to "this Agreement" and "herein"
and all references to the RLSA in the documents executed in connection with the
RLSA shall mean the RLSA as amended hereby and as it may in the future be
amended, restated, supplemented or modified from time to time.
(iv) This Second Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Second Amendment
by facsimile shall be effective as delivery of a manually executed counterpart
of this Second Amendment.
(v) The Borrower hereby agrees to pay all costs and expenses
incurred by the Lender and the Agent in connection with this Second Amendment
including, without limitation, the fees and expenses of Kaye, Scholer, Fierman,
Hays & Handler, LLP, counsel to the Lender and the Agent.
(vi) THIS SECOND AMENDMENT 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 YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES
THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
[Signature pages to follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first above written.
THE BORROWER: EFI FUNDING COMPANY, INC.
By:_________________________________
Title:
THE SERVICER: RESORT FUNDING, INC.
By:_________________________________
Title:
THE AGENT: DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG
By:_________________________________
Title:
By:_________________________________
Title:
THE LENDER: AUTOBAHN FUNDING COMPANY LLC
By: DG BANK Deutsche Genossenschaftsbank AG,
its attorney-in-fact
By:_________________________________
Title:
By:_________________________________
Title:
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THE CUSTODIAN: U.S. BANK TRUST NATIONAL ASSOCIATION
By:_________________________________
Title:
THE BACKUP SERVICER: SAGE SYSTEMS, INC.
By:_________________________________
Title: