EAGLE CREST, INC.,
as Originator
and
TW HOLDINGS, INC.,
as Buyer
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 1, 1997
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS................................................. 4
Section 1.1 Definitional Provisions.......................................................... 4
ARTICLE 2
CONVEYANCE OF RECEIVABLES.......................................... 5
Section 2.1 Conveyance of Receivables........................................................ 5
Section 2.2 Representations and Warranties as to the
Originator.................................................................................... 7
Section 2.3 Representations and Warranties as to the
Receivables; Repurchase upon Breach........................................................... 10
Section 2.4 Affirmative Covenants of the Originator.......................................... 11
Section 2.5 Negative Covenants of the Originator............................................. 13
ARTICLE 3
PAYMENT OF PURCHASE PRICE.......................................... 14
Section 3.1 Payment of Purchase Price........................................................ 14
ARTICLE 4
TERMINATION................................................. 15
Section 4.1 Termination...................................................................... 15
ARTICLE 5
MISCELLANEOUS PROVISIONS........................................... 15
Section 5.1 Amendment........................................................................ 15
Section 5.2 Protection of Right, Title and Interest to
Receivables................................................................................... 15
Section 5.3 Governing Law.................................................................... 16
Section 5.4 Notices.......................................................................... 16
Section 5.5 Severability of Provisions....................................................... 17
Section 5.6 Assignment....................................................................... 17
Section 5.7 Further Assurances............................................................... 17
Section 5.8 No Waiver: Cumulative Remedies................................................... 17
Section 5.9 Counterparts..................................................................... 17
Section 5.10 Third-Party Beneficiaries....................................................... 17
Section 5.11 Merger and Integration.......................................................... 18
Section 5.12 Headings........................................................................ 18
Section 5.13 Originator Indemnification...................................................... 18
Section 5.14 Assumption of the Obligations of the
Originator.................................................................................... 18
Section 5.15 Confirmation of the Obligations under
Prior Purchase Agreement...................................................................... 18
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RECEIVABLES PURCHASE AGREEMENT
SECOND AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as of
June 1, 1997, between EAGLE CREST, INC., an Oregon corporation, as seller
("Eagle Crest" or the "Originator"), and TW HOLDINGS, INC., a Nevada
corporation, as purchaser ("TW Holdings" or the "Buyer").
RECITALS
WHEREAS, the Buyer is in the business of purchasing from time to time,
among other things, certain right to use timeshare receivables (the "Right to
Use Receivables") originated by the Originator and by Trendwest Resorts, Inc.
("TRI") (Eagle Crest and TRI, together, are referred to herein as the
"Originators");
WHEREAS, the Buyer was formerly also in the business of purchasing from
time to time certain mortgage loan timeshare receivables (the "Mortgage Loan
Receivables" and, together with the Right to Use Receivables, the "Receivables")
from Eagle Crest Partners, Ltd., an Oregon limited partnership of which Eagle
Crest (under the name Eagle Crest G.P., Inc.) was the general partner, pursuant
to that certain Amended and Restated Receivables Purchase Agreement between
Buyer and Eagle Crest Partners, Ltd., dated as of June 1, 1994 (the "Prior
Purchase Agreement");
WHEREAS, pursuant to a receivables transfer agreement, dated as of
December 31, 1993, among TW Holdings, as seller, Seattle- First National Bank,
as purchaser, Seattle-First National Bank as agent, and Jeld-Wen, inc.
("JELD-WEN"), as master servicer, Seattle-First National Bank, as purchaser,
purchased Receivables from TW Holdings;
WHEREAS, the above-mentioned transfer agreement was amended and
restated to become the Amended and Restated Receivables Transfer Agreement,
dated as of June 1, 1994, among TW Holdings, as seller, the other purchasers
named therein, Seattle-First National Bank, as agent, and JELD-WEN, as master
servicer (as thereafter amended from time to time, the "Prior Receivables
Transfer Agreement");
WHEREAS, the Prior Receivables Transfer Agreement was amended and
restated to become the Second Amended and Restated Receivables Transfer
Agreement, dated as of June 1, 1997 (the "Transfer Agreement"), among TW
Holdings, as seller (the "Seller"), the purchasers named therein (the
"Purchasers"), Bank of America National Trust and Savings Association, doing
business as Seafirst Bank ("Seafirst"), as agent (in such capacity, the
"Agent"), and TRI, as master servicer (the "Master Servicer"),
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pursuant to which the Purchasers will purchase from time to time certain Right
Use Receivables from the Seller, which Right to Use Receivables the Seller shall
purchase from time to time from the Originators;
WHEREAS, in connection with the transaction contemplated by the
Transfer Agreement, Eagle Crest will sell, transfer and assign Right to Use
Receivables to the Buyer from time to time and the Buyer will, among other
things, grant a first perfected security interest in such Right to Use
Receivables to the Agent for the benefit of the Purchasers and Eagle Crest shall
cease to sell Mortgage Loan Receivables to Buyer; and
WHEREAS, Eagle Crest Partners, Ltd. has dissolved and Eagle Crest, Inc.
has acquired all of the assets and assumed all of the obligations of Eagle Crest
Partners, Ltd., and the parties desire to (i) substitute Eagle Crest, Inc. for
Eagle Crest Partners, Ltd., with respect to the obligations of Eagle Crest
Partners, Ltd., under the Prior Purchase Agreement; and (ii) amend, restate and
replace the Prior Purchase Agreement to provide for the sale of Right to Use
Receivables by Eagle Crest to TW Holdings and the cessation of the sale of
Mortgage Loan Receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree an follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitional Provisions.
(a) Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Transfer Agreement.
(b) The words "hereof," herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Section, subsection
and Schedule references contained in this Agreement are references to Sections,
subsections and Schedules in or to this Agreement unless otherwise specified;
with respect to all terms in this Agreement, the singular includes the plural
and the plural includes the singular; words importing gender include the other
gender; references to "writing" include printing, typing, lithography and other
means of reproducing words in visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this
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Agreement; references to Persons include their permitted successors and assigns;
and the term including" means including without limitation."
Section 1.2 Certain Other Definitional Provisions. Whenever used in
this Agreement, the following words and phrases shall have the following
meanings:
"Agreement" shall mean this Receivables Purchase Agreement and all
amendments hereof and supplements hereto.
"Buyer" means TW Holdings, Inc., in its capacity as purchaser of the
Right to Use Receivables under this Agreement, and any successor thereto.
"Eagle Crest" means Eagle Crest, Inc., an Oregon corporation and
successor by name change to Eagle Crest G.P., Inc., and any successors thereto.
"Schedule of Mortgage Loan Receivables" means the Schedule of Mortgage
Loan Receivables attached as Schedule B hereto and as an Exhibit to the Transfer
Agreement, as it may be amended from time to time.
"Schedule of Right to Use Receivables" means the Schedule of Right to
Use Receivables attached as Schedule A hereto and as an Exhibit to the Transfer
Agreement, as it may be amended from time to time.
"Transfer Agreement" means the Second Amended and Restated Receivables
Transfer Agreement dated as of June 1, 1997, among TW Holdings, Inc., the
purchasers named therein, as Purchasers, Bank of America National Trust and
Savings Association, doing business as Seafirst Bank, as Agent, and TRI as
Master Servicer.
"TRI" shall mean Trendwest Resorts, Inc., an Oregon corporation, and
any successors thereto.
ARTICLE 2
CONVEYANCE OF RECEIVABLES
Section 2.1 Conveyance of Receivables.
(a) In the case of the Initial Receivables conveyed by the
Originator, on the Closing Date the Originator does hereby sell, transfer and
assign to the Buyer, without recourse (subject to its obligations hereunder):
(i) all right, title and interest of the
Originator in and to the Initial Receivables, all Related
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Security with respect to such Receivables, all related Receivable Documents and
all collections due on or in respect of such Receivables and paid thereon or in
respect thereof (including proceeds of the repurchase of Initial Receivables by
the Originator pursuant to Section 2.3(b)) on or after the Initial Cutoff Date;
(ii) the interest of the Originator in the
security interests in and liens on such Receivables and any
accessions thereto granted by the Obligors pursuant to such
Receivable;
(iii) the interest of the Originator in any
proceeds of any insurance policies covering such Receivables (including but not
limited to any physical damage or title insurance relating to any Mortgage Loan
Receivables) and in any proceeds of any credit life or credit disability
insurance policies relating to such Receivables or the related Obligors; and
(iv) all proceeds of the foregoing.
(b) In the case of the Subsequent Receivables that are Right
to Use Receivables, on the related Transfer Dates occurring from time to time
prior to the Commitment Termination Date, the Originator will sell, transfer and
assign to the Buyer, without recourse (subject to its obligations hereunder):
(i) all right, title and interest of the
Originator in and to the related Subsequent Receivables that are Right to Use
Receivables, all Related Security with respect to such Right to Use Receivables,
all related Receivable Documents and all collections on or in respect of such
Right to Use Receivables and paid thereon or in respect thereof (including
proceeds of the repurchase of such Subsequent Receivables that are Right to Use
Receivables by the Originator pursuant to Section 2.3(b)) on or after the
related Subsequent Cutoff Date;
(ii) the interest of the Originator in the
security interests in and liens on such Right to Use Receivables and any
accessions thereto granted by the Obligors pursuant to such Right to Use
Receivables;
(iii) the interest of the Originator in any
proceeds of any physical damage and title insurance policies covering such Right
to Use Receivables and in any proceeds of any credit life or credit disability
insurance policies relating to such Right to Use Receivables or the related
Obligors; and
(iv) all proceeds of the foregoing.
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(c) In connection with each such conveyance, on or prior to
the related Transfer Date, the Originator agrees to record and file, at its own
expense, a financing statement with respect to the related Right to Use
Receivables meeting the requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect the sale and assignment of
such Right to Use Receivables to or upon the order of the Buyer, and the
proceeds thereof as may be perfected by filing a financing statement (and any
continuation statements as are required by applicable state law), and to deliver
a file-stamped copy of each such financing statement (or continuation statement)
or other evidence of such filings (which may, for purposes of this Section,
consist of telephone confirmation of such filing with the file stamped copy of
each such filing to be provided to the Buyer in due course), as soon as is
practicable after the Originator's receipt thereof.
In connection with each such conveyance, the Originator further agrees,
at its own expense, on or prior to the related Transfer Date, (i) to indicate in
its computer files that the related Right to Use Receivables have been
transferred to the Buyer pursuant to this Agreement, (ii) to deliver to the
Buyer a computer file or microfiche list containing a true and complete list of
all such Right to Use Receivables, and containing the information with respect
thereto required by the Schedule of Right to Use Receivables and (iii) to
deliver to the Buyer and the Agent a Schedule of Right to Use Receivables with
respect to such Right to Use Receivables, which shall be added to all Schedules
of Right to Use Receivables delivered to the Buyer and the Agent prior to such
Transfer Date and appears as Schedule A hereto.
(d) On each Transfer Date, the Originator shall deliver to or
upon the order of the Buyer, the documents relating to the related Right to Use
Receivables called for pursuant to Section 2.5 of the Transfer Agreement.
(e) From time to time, the Originator may, upon the terms and
conditions in Section 15.2 of the Transfer Agreement, substitute a new Right to
Use Receivable or Mortgage Loan Receivable that is an Eligible Receivable for a
Right to Use Receivable or Mortgage Loan Receivable, as the case may be, that is
either a Defaulted Receivable or is otherwise no longer an Eligible Receivable.
As to substituted Mortgage Loan Receivables, the Originator will be deemed to
have made the same representations and warranties that were made in connection
withi Mortgage Loan Receivables transferred under the Prior Purchase Agreement.
Section 2.2 Representations and Warranties as to the
Originator. The Originator hereby represents and warrants as of
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the date and execution of this Agreement, the Closing Date and each Transfer
Date that:
(a) Organization and Good Standing. The Originator shall have
been duly organized under the laws of the State of Oregon and shall be validly
existing an a corporation whose status is active, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and had at all
relevant times, and shall now have, power, authority and legal right to acquire,
own, sell and service the Right to Use Receivables.
(b) Due Qualification. The Originator shall be duly qualified
to do business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall require such
qualifications, except where the failure to so qualify or to have obtained such
licenses and approvals would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Originator.
(c) Power and Authority. The Originator shall have the power
and authority to execute, deliver and perform its obligations under this
Agreement and each other Facility Document to which it is a party or by which it
is bound and to carry out their respective terms; the Originator shall have full
power and authority to sell and assign the Receivables to be sold and assigned
to and deposited with the Buyer and shall have duly authorized such sale and
assignment to the Buyer by all necessary corporate action; and the execution,
delivery and performance of this Agreement and each other Facility Document to
which it in a party or by which it is bound shall have been duly authorized by
the originator by all necessary corporate action.
(d) Valid Transfer and Assignment: Binding Obligations.
This Agreement shall evidence a valid transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from the
Originator; and shall constitute a legal, valid and binding obligation
of the originator enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors, rights in
general and by general principles of equity, regardless of whether such
enforceability shall be considered in a proceeding in equity or at law.
(e) No Violation. The consummation of the
transactions contemplated by this Agreement and the other
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Facility Documents to which the Originator in a party or by which it is bound
and the fulfillment of the terms of this Agreement shall not conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a default under, the articles of
incorporation or bylaws of the Originator, or conflict with or violate any of
the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to
which the Originator in a party or by which it shall be bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than the Lien
created by this Agreement, the Lien created by the Transfer Agreement and, with
respect to Right to Use Receivables, the Liens of WorldMark); nor violate any
law or, to the best of the Originator's knowledge, any order, rule or regulation
applicable to it of any court or of any federal or state governmental regulatory
body, administrative agency or other Governmental Authority having jurisdiction
over it or its properties; which breach, default, conflict, lien or violation
would have a material adverse effect on its condition, financial or otherwise,
or its earnings, business affairs or business prospects.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the best of the Originator's knowledge, threatened, before any
court, regulatory body, administrative agency or other Governmental Authority
having jurisdiction over it or its properties: (i) asserting the invalidity of
any other Facility Document to which it in a party or by which it in bound, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
any Facility Document to which it in a party or by which it in bound or (iii)
seeking any determination or ruling that might materially and adversely affect
the performance by the Originator of its obligations under, or the validity or
enforceability of any Facility Document to which it is a party or by which it is
bound.
(g) Government Approvals. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by the Originator of
any Facility Document to which it is a party by which it is bound with the
transactions contemplated thereby except such as have been obtained prior to the
date of this Agreement and are in full force and effect (copies of which have
been delivered to the Buyer and the Agent).
(h) Licenses. The Originator holds, and at all times
during the term of this Agreement will hold, all material
licenses, certificates, franchises and permits from all
9
Governmental Authorities necessary for the conduct of its business and has
received no notice of proceedings relating to the revocation of any such
license, certificate, franchise or permit, which singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would materially and
adversely affect its ability to perform its obligations under any Facility
Agreement to which it is a party or by which it is bound or any other documents
or transactions contemplated hereunder or thereunder or the validity or
enforceability of the Right to Use Receivables.
(i) Offices. The principal place of business and
chief executive office of Eagle Crest is located at the address
set forth in Section 5.4.
(j) Taxes. The Originator has filed all tax returns and
reports required of it, has paid all Taxes which are due and payable and has
provided adequate reserves for payment of any Tax whose payment is being
contested; all charges, accruals and reserves on its books in respect of Taxes
for all fiscal periods to date are accurate; and there are no material questions
or disputes between the Originator and any Governmental Authority with respect
to any Taxes.
(k) Compliance with Applicable Laws. The Originator
is in material compliance with the requirements of all applicable
laws, rules, and regulations and orders of all Governmental
Authorities.
(l) Ownership Interests. The Originator is a wholly-
owned subsidiary of JELD-WEN, inc.
The representations and warranties set forth in this Section shall
survive the transfer and assignment of the related Receivables to the Buyer on
the related Transfer Date and the transfer and assignment of such Receivables by
the Buyer to the Purchasers pursuant to the Transfer Agreement. Each of the
originator and the Buyer shall inform the other party promptly, in writing, upon
the discovery of any breach of the foregoing representations and warranties.
Section 2.3 Representations and Warranties as to the
Receivables; Repurchase upon Breach.
(a) In connection with each transfer of Right to Use
Receivables to the Buyer, as of the related Transfer Date, each such Right to
Use Receivable satisfies each of the representations and warranties set forth in
Section 7.2 of the Transfer Agreement. Additionally, each Mortgage Loan
Receivable satisfies each of the representations and warranties set forth in
Sections 7.2 and 7.3 of the Transfer Agreement.
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(b) The representations and warranties set forth in this
Section shall survive the transfer and assignment of the Receivables to the
Buyer and the transfer and assignment of such Receivables by the Buyer to the
Purchasers pursuant to the Transfer Agreement. Each of the Originator and the
Purchaser shall inform the other party promptly, in writing, upon the discovery
of any breach of the Originator's representations and warranties pursuant to
Section 2.3(a) which materially and adversely affects any Receivable. Unless the
breach shall have been cured in all material respects by the 60th day following
its discovery, the Originator will repurchase such Receivable by remitting an
amount equal to the related Purchase Amount to or upon the order of the Buyer.
Additionally, in the case of Mortgage Loan Receivables, if the Seller does not
deliver to the Agent within 90 days after the related Transfer Date either an
opinion of counsel pursuant to Section 2.5(a)(iv) of the Transfer Agreement or a
recorded Assignment of the related mortgage with evidence of recording thereon
to or upon the order of the Agent, the Seller shall repurchase the related
Mortgage Loan Receivable. The sole remedy of the Buyer with respect to a breach
of the foregoing representations and warranties which materially and adversely
affects any Receivable shall be to require the Originator to repurchase such
Receivable.
(c) Upon the payment by the Originator of the Purchase price
for any Receivable repurchased pursuant to this Section, the Buyer shall cause
such instruments as may be necessary to assign and transfer, without recourse or
warranty of any kind, such Receivable and the Related Security and Receivable
Documents to the Originator.
Section 2.4 Affirmative Covenants of the Originator. With respect to
Receivables purchased from the Originator, the Originator hereby covenants that
from the date hereof until the first day following the Commitment Termination
Date on which (i) the Outstanding Principal Balance of the Receivables purchased
from the Originator and comprising part of the Receivables Pool shall be reduced
to zero and (ii) all Obligations shall have been fully paid and performed, the
Originator shall do all of the following unless the Buyer or the Agent (acting
upon the direction of the Required Purchasers) shall otherwise consent in
writing:
(a) The Originator shall comply in all material respects with
all applicable laws, rules, regulations and orders, including but not limited to
all applicable laws, rules, regulations and orders with respect to the
Receivables and the Assigned Collateral relating thereto and will take all
actions necessary to ensure that all Taxes, pension obligations and other
governmental claims in respect of its operations, business and assets are
properly paid when due.
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(b) The Originator shall preserve and maintain its corporate
existence, rights, franchises and privileges in the State of Oregon, and qualify
and remain qualified in good standing as a foreign corporation in each State
where such qualification is necessary or advisable in view of its operations,
business and assets.
(c) From time to time during regular business hours and upon
at least three days, prior written notice, the Originator shall permit the
Buyer, the Agent, any Purchaser and their respective agents and representatives
(i) to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in the
possession or under the control of the Originator and (ii) to visit the offices
and properties of the Originator for the purpose of examining such materials and
to discuss matters relating to the Receivables, the performance of the
Originator under any Facility Document to which it is a party or by which it is
bound and the affairs, finances and accounts of the Originator generally with
any of its officers, directors or employees.
(d) The Originator shall comply in all material respects with
the Credit and Collection Policy applicable to Right to Use Receivables and the
Credit and Collection Policy applicable to Mortgage Loan Receivables.
(e) Promptly after learning thereof, the Originator will
notify the Buyer and the Agent of (i) the details of any action, proceeding,
investigation or claim against or affecting it instituted before any court,
arbitrator or Governmental Authority or, to its knowledge threatened to be
instituted, which, if determined adversely would be likely to have a material
adverse effect on (A) the performance by it of any obligations under any
Facility Document to which it is a party or by which it is bound, (B) the
validity or enforceability of any Facility Document to which it in a party or by
which it in bound, (C) the validity or enforceability of any Receivable,
Mortgage Note or Mortgage, or (D) the first priority security interest of the
Agent an behalf of the Purchasers in the Assigned Collateral relating to the
Receivables; (ii) any material dispute between the Originator and any
Governmental Authority; (iii) any labor controversy which has resulted in or
threatens to result in a strike which would materially affect the business or
operations of the Originator; and (iv) the occurrence of any Termination Event
relating to the Originator.
(f) From time to time the Originator will (i) pay or reimburse
the Buyer, the Agent and each Purchaser for all Taxes imposed by virtue of the
transactions contemplated by this Agreement and for all expenses including legal
fees incurred in
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connection with the enforcement by judicial proceedings or otherwise of any of
the rights of the foregoing parties under this Agreement or under any other
Facility Document to which the Originator is a party or by which it is bound;
(ii) pay or reimburse the Agent for all expenses, including legal fees, incurred
by or on behalf of the Buyer in connection with the perfection of the Buyer's
interest in the Assigned Collateral relating to the Receivables; (iii) obtain
and promptly furnish to the Agent evidence of all such government approvals as
may be required to enable the Originator to comply with its obligations under
any Facility Document to which it in a party or by which it in bound; (iv)
execute and deliver all such instruments (including UCC continuation statements)
and perform all such other acts an may be necessary to maintain the Purchasers'
interest continuously perfected as a first priority security interest in the
Assigned Collateral relating to the Receivables; (v) execute and deliver all
such other instruments and perform all such other acts as the Buyer, the Agent
or any Purchaser may reasonably request to carry out the transactions
contemplated by this Agreement and the other Facility Documents to which it is a
party or by which it in bound; and (vi) comply in all material respect with the
obligations of the Originator under the Facility Documents.
(g) The Originator agrees to deliver in kind upon receipt to
the Master Servicer all Collections received by the Originator in respect of any
Receivable after the related Transfer Date as soon as practicable after receipt
thereof, but in any event no later than two Business Days following such
receipt.
(h) On the last Business Day of each month but in any event no
later than five days subsequent to the last Business Day of each month, the
Originator shall provide to the Buyer such information as is reasonably
necessary for the Buyer to determine the Consolidated Delinquency Date Amount,
the Consolidated Defaulted Receivable Amount and the Consolidated Monthly
Charge- off Date.
Section 2.5 Negative Covenants of the Originator. With respect to
Receivables purchased from the Originator, from the date hereof until the first
day following the Commitment Termination Date on which (i) the Outstanding
Principal Balance of the Receivables purchased from the Originator and
comprising part of the Receivables Pool shall be reduced to zero and (ii) all
Obligations shall have been fully paid and performed, the Originator shall
refrain from doing any of the following, unless the Buyer or the Agent (acting
upon the direction of the Required Purchasers) shall otherwise consent in
writing:
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(a) Except for the conveyances hereunder, the Originator will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Receivable or any Related
Security or Receivable Document, whether now existing or hereafter created, or
any interest therein; the Originator will immediately notify the Buyer and the
Agent of the existence of any Lien on any Receivable or any Related Security or
Receivable Document and such Receivable will be repurchased from the Buyer by
the Originator in the manner and with the effect specified in Section 2.3(b),
and the Originator shall defend the right, title and interest of the Buyer in,
to and under the Receivables, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Originator; provided,
however, that nothing in this subsection shall prevent or be deemed to prohibit
the Originator from suffering to exist upon any of the Receivables or any
Related Security or Receivable Document, Liens in favor of WorldMark with
respect to Right to Use Receivables, Liens for municipal or other local taxes if
such taxes shall not at the time be due and payable or if the Originator shall
currently be contesting the validity of such taxes in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
(b) After the Transfer Date relating to a Receivable, the
Originator shall take no action, nor omit to take any action, which would impair
the rights of the Buyer in such Receivable.
(c) The Originator shall not, during the term of this
Agreement, transfer to the Buyer Right to Use Receivables on forms substantially
different from the forms attached as Exhibits to the Transfer Agreement.
ARTICLE 3
PAYMENT OF PURCHASE PRICE
Section 3.1 Payment of Purchase Price. In consideration of the sale
from the Originator to the Buyer, as provided in Section 2.1, of (a) the Initial
Receivables that are Right to Use Receivables on the Closing Date, the Buyer
agrees to pay the Originator an amount equal to the Outstanding Principal
Balance of such Right to Use Receivables as of the Initial Cutoff Date, plus
accrued interest to the date of purchase and (b) the Subsequent Receivables that
are Right to Use Receivables, on the related Transfer Dates, the Buyer agrees to
pay the Originator an amount equal to the Outstanding Principal balance of such
Right to Use Receivables as of the related Subsequent Cutoff Date.
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ARTICLE 4
TERMINATION
Section 4.1 Termination. The respective obligations and
responsibilities of the Originator and the Buyer created hereby shall terminate,
except for indemnity obligations as provided herein, upon the termination of the
Transfer Agreement.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.1 Amendment.
(a) This Agreement may be amended from time to time in writing
by the Buyer and the Originator, with the consent of the Agent, which consent
shall not be unreasonably withheld, to cure any ambiguity, to correct or
supplement any provisions herein which ray be inconsistent with any other
provisions herein, or to add any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement or the Transfer Agreement; provided, however, that
such action shall not, as evidenced by an opinion of counsel delivered to the
Buyer and the Agent, adversely affect in any material respect the interests of
the Buyer or the Purchasers in any Receivables or Assigned Collateral related
thereto.
(b) This Agreement may also be amended from time to time in
writing by the Buyer and the Originator, with the consent of the Agent (acting
upon the direction of the Required Purchasers), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement.
Section 5.2 Protection of Right, Title and Interest to
Receivables.
(a) The Originator at its expense shall cause this Agreement,
all amendments hereto and/or all financing statements and continuation
statements and any other necessary documents covering the Buyer's right, title
and interest to the Receivables and other property conveyed by the Originator to
the Buyer hereunder to be promptly recorded, registered and filed, and to be at
all times kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Buyer hereunder to the Receivables and such other property.
The Originator shall deliver to the Buyer file-stamped copies of, or filing
receipts for, any document recorded, registered or filed
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as provided above, an soon as available following such recording, registration
or filing. The Buyer and the Agent shall cooperate fully with the Originator in
connection with the obligations set forth above and will execute any and all
documents reasonably required to fulfill the intent of this Section.
(b) Within 30 days after the Originator makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in the applicable state, it shall give the Buyer and the Agent notice of
any such change and shall execute and file such financing statements or
amendments as may be necessary to continue the perfection of the Buyer's
security interest in the Receivables and the Assigned Collateral relating
thereto.
(c) The Originator will give the Buyer and the Agent prompt
written notice of (i) any relocation of any office at which it keeps records
concerning the Receivables or of its principal executive office and (ii)
whether, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall execute and
file such financing statements or amendments as may be necessary to continue the
perfection of the interest of the Buyer in the Receivables and the Assigned
Collateral relating thereto.
Section 5.3 Governing Law. This Agreement and the other facility
documents shall be governed by and construed in accordance with the internal
laws of the State of Washington, except to the extent that the perfection (and
the effect of perfection or nonperfection) of the interests of the lenders in
the receivables, loan documents, related security, assigned collateral, facility
documents and collections is governed by the laws of a jurisdiction other than
the state of Washington.
Section 5.4 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to, (a) in
the case of the Buyer, TW HOLDINGS, INC., c/o Trendwest Resorts, Inc., 00000
X.X. 00xx Xxxxx, Xxxxxxxx XX 00000, Attention: Xxxxxxx X. Xxxxx and Xxxx X.
Xxxxxxxx; (b) in the case of the Originator, EAGLE CREST, INC., 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: _________________; or (c) as to either of
such Persons, at such other address as shall be designated by such Person in a
written notice to the other Person.
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Section 5.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be hold 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.
Section 5.6 Assignment. This Agreement may not be assigned by the Buyer
or the Originator except as contemplated by this Section or the Transfer
Agreement; provided, however, that simultaneously with the execution and
delivery of this Agreement, the Buyer shall assign all of its right, title and
interest therein to the Agent for the benefit of the Purchasers an provided in
the Transfer Agreement, to which the Originator hereby expressly consents.
Section 5.7 Further Assurances. The Originator and the Buyer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party hereto
more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements, amendments, continuation
statements or releases relating to the Receivables for filing under the
provisions of the UCC or other law of any applicable jurisdiction.
Section 5.8 No Waiver: Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Buyer or the Originator, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 5.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 5.10 Third-Party Beneficiaries. This Agreement will inure to
the benefit of and be binding upon the parties hereto, for the benefit of the
Agent and the Purchasers, which shall be considered to be a third-party
beneficiary hereof. Except as otherwise provided in this Agreement, no other
person will have any right or obligation hereunder.
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Section 5.11 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 5.12 Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 5.13 Originator Indemnification. The Originator shall indemnify
and hold harmless the Buyer from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts, emissions or
alleged acts or emissions arising out of activities of the Originator pursuant
to this Agreement or as a result of the transactions contemplated hereby,
including, but not limited to, any judgment, award, settlement, reasonable
attorneys' fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding or claim; provided,
however, that the Originator shall not indemnify the Buyer if such acts,
omissions or alleged acts or omissions constitute negligence or willful
misconduct by the Agent or any Purchaser.
Section 5.14 Assumption of the Obligations of the Originator. The
obligations of the Originator hereunder shall not be assignable nor shall any
Person succeed to the obligations of the Originator hereunder except in each
case in accordance with the provisions of Section 5.6.
Section 5.15 Confirmation of the Obligations under Prior Purchase
Agreement. The Originator hereby expressly assumes and agrees to perform all
covenants, warranties, indemnities and other obligations of Eagle Crest
Partners, Ltd., under the Prior Purchase Agreement with respect the Mortgage
Loan Receivables sold to Buyer by Eagle Crest Partners, Ltd., and confirms the
accuracy of the Schedule of Mortgage Loan Receivables set forth as Schedule B.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
EAGLE CREST, INC.,
as Originator
By:
Name:
Title:
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TW HOLDINGS, INC.,
as Buyer
By:
Xxxx X. Xxxxxxxx
Treasurer
ACCEPTED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, doing
business as Seafirst Bank, as
Agent
By: _________________________
Xxx Xxxx
Vice President
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SCHEDULE A
Schedule of Right to Use Receivables
(Omitted, originals on file with Buyer and Agent)
SCHEDULE B
Schedule of Mortgage Loan Receivables
(Omitted, originals on file at Buyer and Agent)
EXHIBIT A
Form of UCC-1
(omitted, originals on file at Buyer and Agent)
