INDENTURE SUPPLEMENT
Exhibit 10.1
EXECUTION VERSION
This INDENTURE SUPPLEMENT, dated June 16, 2016 (this “Supplement”), by and among Marriott Vacations Worldwide Owner Trust 2011-1, as issuer (the “Issuer”), Marriott Ownership Resorts, Inc. (“MORI”), as servicer (the “Servicer”), Xxxxx Fargo Bank, National Association, as indenture trustee (the “Indenture Trustee”) and as back-up servicer (the “Back-Up Servicer”), Deutsche Bank AG, New York Branch, as administrative agent, and the Conduits, Alternate Purchasers, Funding Agents and Non-Conduit Committed Purchasers signatory hereto (collectively, the “Transaction Parties”).
RECITALS
WHEREAS, the Transaction Parties desire to amend the Third Amended and Restated Indenture and Servicing Agreement, dated as of September 1, 2014 (as amended, restated, modified and/or supplemented from time to time, the “Indenture”), by and among the Issuer, the Servicer, the Indenture, Trustee and the Back-Up Servicer, in the manner set forth herein.
WHEREAS, the Indenture may be amended by the parties thereto with the consent of the Majority Facility Investors;
WHEREAS, the undersigned Conduits, Alternate Purchasers, Funding Agents and Non-Conduit Committed Purchasers constitute 100% of the Conduits, Alternate Purchasers, Funding Agents and Non-Conduit Committed Purchasers; and
WHEREAS, terms used herein but not otherwise defined shall have the meanings set forth in the Third Amended and Restated Standard Definitions (as amended) attached as Annex A to the Indenture.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, and for other good and adequate consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1.01. Supplement to the Indenture
Section 12.01(e) of the Indenture shall be amended by deleting the same in its entirety and replacing it with:
“(e) No Proceedings. There is no pending or threatened action, suit or proceeding, nor any injunction, writ, restraining order or other order of any nature against or affecting the Issuer, its officers or directors, or the property of the Issuer, in any court or tribunal, or before any arbitrator of any kind or before or by any Governmental Authority (i) asserting the invalidity of this Indenture and Servicing Agreement or any of the other Facility Documents, (ii) seeking to prevent the sale and assignment of any Timeshare Loan or the consummation of any of the transactions contemplated thereby, (iii) seeking any determination or ruling that would, if decided adversely, materially and adversely affect (A) the performance by the Issuer of this Indenture and Servicing
Agreement or any of the other Facility Documents or the interests of the Noteholders, (B) the validity or enforceability of this Indenture and Servicing Agreement or any of the other Facility Documents, (C) any Timeshare Loan, or (D) the Intended Tax Characterization, or (iv) asserting a claim for payment of money adverse to the Issuer or the conduct of its business or which is inconsistent with the due consummation of the transactions contemplated by this Indenture and Servicing Agreement or any of the other Facility Documents.”
Section 2.01. Representations and Warranties
MORI and the Issuer hereby represent and warrant to each of the other Transaction Parties that, after giving effect to this Supplement: (a) the representations and warranties set forth in each of the Transaction Documents by each of MORI and the Issuer are true and correct in all material respects (except to the extent that any representation and warranty is qualified by materiality) on and as of the date hereof, with the same effect as though made on and as of such date (except to the extent that any representation and warranty expressly relates to an earlier date, then such earlier date), (b) on the date hereof, no Default, Servicer Event of Default, Event of Default or Amortization Event has occurred and is continuing, and (c) the execution, delivery and performance of this Supplement in accordance with its terms and the consummation of the transactions contemplated hereby by any of them do not and will not (i) require any consent or approval of any Person, except for consents and approvals that have already been obtained, (ii) violate any applicable law, or (iii) contravene, conflict with, result in a breach of, or constitute a default under their organization documents, as the same may have been amended or restated, or contravene, conflict with, result in a breach of or constitute a default under (with or without notice or lapse of time or both) any indenture, agreement or other instrument, to which such entity is a party or by which it or any of its properties or assets may be bound.
Section 2.02. References in all Transaction Documents.
To the extent any Transaction Document contains a provision that conflicts with the intent of this Supplement, the parties agree that the provisions herein shall govern.
Section 2.03. Counterparts.
This Supplement may be executed (by facsimile or otherwise) in any number of counterparts, each of which counterparts shall be deemed to be an original, and such counterparts shall constitute but one and the same instrument.
Section 2.04. Governing Law.
THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE TRANSACTION PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 2.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this Supplement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Supplement and shall in no way affect the validity or enforceability of the other provisions of this Supplement.
Section 2.06. Continuing Effect.
Except as expressly amended hereby, each Transaction Document shall continue in full force and effect in accordance with the provisions thereof and each Transaction Document is in all respects hereby ratified, confirmed and preserved.
Section 2.07. Successors and Assigns.
This Supplement shall be binding upon and inure to the benefit of the Transaction Parties and their respective successors and permitted assigns.
Section 2.08 No Bankruptcy Petition.
(a) Each party hereto hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Related Commercial Paper or other indebtedness of a Conduit, it will not institute against, or join any other Person in instituting against a Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States or any other jurisdiction with authority over such Conduit. The provisions of this Section 2.08(a) shall survive the termination of this Agreement.
(b) Each party hereto hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all Notes and Exchange Notes, it will not institute against, or join any other Person in instituting against the Issuer or the Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. The provisions of this Section 2.08(b) shall survive the termination of this Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties below have caused this Supplement to be duly executed by their respective duly authorized officers of the day and year first above written.
| MARRIOTT VACATIONS WORLDWIDE OWNER TRUST 2011-1, as Issuer | ||||
| By: | Wilmington Trust, National Association, not individually, but solely in its capacity as Owner Trustee | |||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| Address for notices: | ||||
| c/o Wilmington Trust, National Association | ||||
| 0000 Xxxxx Xxxxxx Xxxxxx | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxx | ||||
| Telephone Number: (000) 000-0000 | ||||
| Facsimile Number: (000) 000-0000 | ||||
| MARRIOTT OWNERSHIP RESORTS, INC., as Servicer | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| Address for notices: | ||||
| 0000 Xxxxxxxx Xxxxxxxxx | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Attention: General Counsel | ||||
| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee and Back-Up Servicer | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxxx | |
| Title: | Vice President | |
| Address for notices: | ||
| Xxxxx Fargo Bank, National Association | ||
| MAC X0000-000 | ||
| Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: Corporate Trust | ||
| Services/Asset-Backed Administration | ||
| Facsimile Number: (000) 000-0000 | ||
| Telephone Number: (000) 000-0000 | ||
| DEUTSCHE BANK AG, NEW YORK BRANCH, | ||
| as Administrative Agent | ||
| By: | /s/ Xxxxxx XxXxxxx | |
| Name: | Xxxxxx XxXxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Director | |
| Address for notices: | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxx Xxxxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| MOUNTCLIFF FUNDING LLC | ||
| as Conduit | ||
| By: | /s/ Xxxx Xxxx | |
| Name: | Xxxx Xxxx | |
| Title: | Authorized Signatory | |
| Address for notices: | ||
| 20 Gates Management LLC | ||
| 00 Xxxxxx Xxxxx, 0xx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Vidrik Xxxxxxxxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| E-mail: xxxxxxxxxx@00xxxxx.xxx; and xxxxxxxxxx.xxxxx@xx.xxx | ||
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
| as Alternate Purchaser | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Authorized Signatory | |
| By: | /s/ Xxxx XxXxxxxxxx | |
| Name: | Xxxx XxXxxxxxxx | |
| Title: | Authorized Signatory | |
| Address for notices: | ||
| Eleven Xxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Conduit Lending | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| Email: xxxx.xxxxxxxxxx@xxxxxx-xxxxxx.xxx | ||
| CREDIT SUISSE AG, NEW YORK BRANCH | ||
| as Funding Agent | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Vice President | |
| By: | /s/ Xxxx XxXxxxxxxx | |
| Name: | Xxxx XxXxxxxxxx | |
| Title: | Vice President | |
| Address for notices: | ||
| Eleven Xxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Conduit Lending | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| Email: xxxx.xxxxxxxxxx@xxxxxx-xxxxxx.xxx | ||
| SUNTRUST BANK | ||
| as Non-Conduit Committed Purchaser | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Vice President | |
| Address for notices: | ||
| 0000 Xxxxxxxxx Xxxxxx XX | ||
| 00xx Xxxxx Xxxx | ||
| Xxxxxxx, Xxxxxxx 00000 | ||
| Attention: Xxxxx Xxxxxxxx and Xxxxx Xxxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| Email: xxxx.xxx@xxxxxxxx.xxx | ||
| DEUTSCHE BANK AG, NEW YORK BRANCH | ||
| as Non-Conduit Committed Purchaser | ||
| By: | /s/ Xxxxxx XxXxxxx | |
| Name: | Xxxxxx XxXxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Director | |
| Address for notices: | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxx Xxxxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| BANK OF AMERICA, N.A. | ||
| as Non-Conduit Committed Purchaser | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxxxx X. Xxxxxx | |
| Title: | Vice President | |
| Address for notices: | ||
| Bank of America, National Association | ||
| 000 Xxxxx Xxxxx Xxxxxx, 15th Floor | ||
| NC1-027-15-01 | ||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 | ||
| Attention: Securitization Finance Group x/x Xxxxxx Xxxx / Xxxxxxxx Xxxxxx | ||
| Telephone: 000-000-0000 / 000-000-0000 | ||
| Email: xxxxxx.xxxx@xxxx.xxx xxxxxxxxx.x.xxxxxx@xxxx.xxx | ||
| XXXXX FARGO CAPITAL FINANCE, LLC | ||
| as Non-Conduit Committed Purchaser | ||
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | Vice President | |
| Address for notices: | ||
| 00000 Xxxxxx Xxxxxxx, Xxxxx 0000 | ||
| Xxxxxx, Xxxxx 00000 | ||
| Attention: Xxxx Xxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 | ||
